Australia: Insolvency Implications of ASIC Cross-Guarantee Class Orders

Last Updated: 23 January 2013
Article by Philip Stern

What Is It?

By s.292(1) Corporations Act 2001 all public companies and large proprietary companies are to prepare a financial report and directors' report for each financial year. The ASIC, by s.341, can grant an exemption order. By s.341(1) ASIC may make an order in writing in respect of a specified class of companies, registered schemes or disclosing entities, relieving any or all of the following from all requirements of Parts 2M.2 (solvency resolution), 2M.3 (financial records) and 2M4 (other than Division 4 (auditor appointment save for deliberate disqualification)), being:

  • directors;
  • the company's registered schemes or disclosing entities;
  • auditors.

These orders may be subject to conditions and be indefinite or limited to a specified period. They need to be published in the Gazette.

ASIC Class Order 98/1418 provides relief to companies from the requirements of lodging financial reports, directors' reports and auditors' reports. The company obtains relief under:

  1. s.292(1)(b) and (c) (directors' report and financial report):
  2. Section 301(1) (financial report to be audited);
  3. Sections 314(1), 315(1), 315(4) and 316 (regarding distribution of the financial report, directors' report, auditors' report and any concise financial report);
  4. Section 317 (company is to report before annual general meeting);
  5. Section 319(1) (requirement to lodge reports with ASIC; and
  6. Sections 327A, 327B and 327C (public company to appoint an auditor).

ASIC had required when lodging the application for the cross-guarantee class order, lodgement also of an ASIC Form 390, which required a resolution from directors that in their opinion there were reasonable grounds to believe that the members of the corporate group could meet their obligations or liabilities the subject of the deed of cross-guarantee; and certification from a lawyer that the relevant deed wording was in accordance with the ASIC pro forma, that the audited reports of each company for the last three years were unqualified and were lodged with ASIC on time. That Form has now been retired although ASIC still requires the information (ASIC Information Memoranda dated 1 December 2004 and 22 June 2005).


The purpose of the class order was summarised in Westmex Operations Pty Ltd (In Liq.) v. Westmex Limited (In Liq.) (1992) 8 ACSR 146 at p.151 by McLelland J with respect to a predecessor to the present deed of cross-guarantee as follows:

"Each deed was, as its recitals confirm, executed to fulfil a condition of an order having statutory effect, for the purpose of obtaining relief from compliance with statutory requirements for the preparation and lodgement with the Commission of individual audited financial statements of each of the subsidiaries, where there was a requirement to prepare and lodge audited financial statements for the Group as a whole. It is reasonable to infer that the primary purpose of the imposition of a condition of that client was to give the creditors of an (insolvent) subsidiary indirect access to the assets of the holding company, thus diminishing the significance of the unavailability of audited financial statements of individual subsidiaries to persons contemplating investment in, or the extension of credit to, such individual subsidiaries. Reciprocally the creditors of the holding company were to be given (indirect) access to the assets of each subsidiary, over and above the benefit deriving from ownership (direct or indirect) of the shares and subsidiaries" (p.152).

This statement of purpose was not disagreed with on appeal (BC9300034, 11 June 1993). McLelland J construed the debts and claims as "denoting only debts and claims external to the deed itself and anterior to the obligations arising under it" (at p.153).

What Does the Deed Say?

There is a preliminary requirement to have a trustee, which is to be explicitly named.

By clause 3.1, each Group Entity (which must be listed in Part 1 of the Schedule and any entity executing an Assumption Deed) covenants with the Trustee for the benefit of each Creditor that the Group Entity guarantees to each Creditor payment in full of any debt in accordance with the deed of cross-guarantee.

"Creditor" means a person (whether now ascertained or ascertainable or not) who is not a Group Entity and to whom now or at any time in the future any Debt (whether now or existing or not) is or may at any future time be or become payable.

"Debt" means any debt or claim which is now or at any future time admissible to proof in the winding up of a Group Entity and no other claim (clause 1.1 – definition).

By clause 3.2, each Group Entity agrees with the Trustee that the deed of cross-guarantee becomes enforceable in respect of a Debt of a Group Entity upon winding up of a Group Entity under s.459A or ss.461(1)(a), (h) or (j) or as a creditors' voluntary winding up under Part 5.5 Division 3; or, if six months after a resolution or order for the winding up of the Group Entity any Debt of a Creditor of the Group Entity has not paid in full. (Presumably this applies to a winding up arising under Part 5.3A, being through a voluntary administration).

By clause 3.4, the Trustee and each Group Entity acknowledges that the Trustee holds the benefit of the covenants of each Group Entity made pursuant to the Deed upon trust for each Creditor. That also applies if an alternative Trustee is appointed. This arises in the event of a Group Entity being a Trustee and then being replaced (clause 3.4).

By clause 4, the deed of cross-guarantee and its trusts must not be revoked or released unless:


  1. A liquidator [or other insolvency practitioner] is appointed to or for the property of the Group Entity or each Group Entity owning shares in a Group Entity, and that Group Entity sells its shares and lodges notice of that at ASIC; or
  2. an (independent) mortgagee of shares owned by a Group Entity disposes of all issued Shares in the Group Entity sold; or
  3. a Group Entity disposes by a bona fide sale and the directors lodge certificates at ASIC provided the sale is not to an Associate;
  4. whereby the Group Entity is released;

The release applies to any Group Entities sold including liabilities accrued prior to the disposal or arising from it and the deed of cross-guarantee becoming enforceable prior to the disposal;

Each Group Entity is released from liability from that entity's debt. The Trustee can be required to execute a release of the Group Entities sold (clause 4.4).

By clause 4.5 the Group Entities can execute a Revocation Deed, provided the holding entity lodges an original at ASIC and each Group Entity gives notice to its Creditors by public advertisement within one month after lodgement at ASIC and there is no winding up of any Group Entity within 6 months of the original being lodged at ASIC. Upon satisfaction of those conditions the Group Entity is released. By clause 4.6 a Revocation Deed may be executed even if the Deed of Cross-guarantee is enforceable in respect of a Group Entity and the winding up of a Group Entity has commenced.

By clause 5.1 the holding entity may execute an Assumption Deed in which the Trustee joins a further Group Entity to the deed. That Group Entity assumes liability under the Deed of Cross-guarantee.

Importantly, there is a separate covenant by deed poll whereby each entity agrees with each Creditor that the Group Entity will guarantee to each Creditor payment of any debt due from the Creditor from any other Group Entity in accordance with the Deed of Cross-guarantee (clause 6).

The obligations of the Trustee are set out in clause 7:

  • to act as bare trustee for the benefit of each Creditor of the covenants in the Deed of Cross-guarantee;
  • by request to assign to the Creditor the benefit of the Deed of Cross-guarantee as it benefits the Creditor;
  • to permit its name to be used on any demand or notice made or legal proceedings brought by any Creditor seeking to enforce the benefit of the Deed of Cross-guarantee, but the Creditor must fully indemnify the Trustee;
  • upon request lodge in its name on behalf of any Creditors a proof of debt in the winding of a Group Entity;
  • execute a release when required to do so.

The Trustee is entitled to a full indemnity from any Creditor for anything done by the Trustee at the request of the Creditor (clause 7.4).

Execution of the Deed of Cross-guarantee does not bar any person disposing of shares in a Group Entity nor from executing a Revocation Deed at any time (clause 8).

By clause 9.1 each Group Entity agrees with the Trustee that it is not entitled to the benefit of securities acquired by the Creditor from a Group Entity, dividends received by any Creditor from any Group Entity under such security or prove for or claim to receive those dividends. If any security given for payment made to a Creditor by a Group Entity is avoided by laws relating to liquidation, the Creditor shall be entitled to recover the value of each amount from each Group Entity despite any prior settlement, discharge or release.

By clause 9.2 each Group Entity agrees with the Trustee for the benefit of each Creditor that no Creditor is obliged to give notice to any Group Entity of any amendment of an agreement giving rise to a debt or any breach of that agreement, or enforce the guarantee against all Group Entities it may in its absolute discretion at any time proceed against any of them. By clause 9.2 each Group Entity agrees with the Trustee for the benefit of each Creditor that the liability of each Creditor shall not be affected by:

  • any collateral rights or obligations which may exist between them;
  • any variations of those rights;
  • any other person becoming a guarantor of a Group Entity's obligations;
  • any other person intended to be bound as a surety in respect of a Group Entity's obligations, not being or becoming so bound;
  • any other Group Entity being released from the Deed of Cross-guarantee;
  • the giving of any release or waiver by any Creditor to any Group Entity;
  • the making of any arrangement or compromise by any Creditor with any Group Entity;
  • delay or failure by any Creditor to enforce the Deed of Cross-guarantee;
  • liquidation of any Group Entity or any surety of a Group Entity;
  • the giving of any security by any Group Entity;
  • where a Group Entity is member of any partnership, any change of membership.
  • By clause 9.4 each Group Entity agrees with the Trustee for the benefit of each Creditor that without the consent of any Group Entity each Creditor may at any time without affecting the liability of any Group Entity:
  • grant to the Group Entity any indulgence or consideration;
  • compound or release a Group Entity which is the principal debtor;
  • assign to trustees, for the benefit of Creditors any scheme of arrangement of which the Group Entity is the principal debtor;
  • consent to the appointment of a receiver, administrator or controller of the Group Entity which is the principal debtor;
  • release or otherwise deal with any property comprised in any security from the Group Entity which is the principal debtor.

By clause 9.5 each Group Entity agrees with the Trustee for the benefit of each Creditor that no failure or delay to exercise its rights by a Creditor constitute a waiver or variation or prejudice of a Creditor's rights.
By clause 9.6 any dividend paid will not be treated as a payment in gross by the Creditor nor any dividend received by the Creditor affects its rights to the full extent of the Deed of Cross-guarantee to recover the debt from each Group Entity.

ASIC has listed a number of criteria required by it to procure the benefit of a cross-guarantee. They include:

  • that the deed has been correctly executed;
  • that an alternative trustee has been appointed if a group entity is appointed as the trustee;
  • that the entity seeking relief substantially complied with financial reporting and audit requirements for at least three years, including by lodgement on time;
  • that there is a diagram showing a group structure. In that regard, an entity within a "closed group" (i.e. a group of companies in which shares are owned by other companies in the group) must all be included. However a stand-alone subsidiary need not be;
  • every entity has a solvency statement executed by at least two directors, which can be in one statement. The solvency statement must identify the relevant deed of cross-guarantee by reference to the parties and date of execution;
  • all entities the subject of the order need to be listed. (See ASIC Information Sheet, 1 December 2004)

The deed must exactly duplicate the ASIC pro forma. If there is non-compliance, the wholly owned subsidiary must comply with all normal financial reporting requirements (see ASIC Information Sheet dated 22 June 2005).


Consequences of Non-Lodgement

In Aquila Resources Ltd v. Spark [2003] FCA 394, significant creditors (claiming $153,000,000 for misleading conduct) of the Savage Group of Companies sought an interim injunction restraining a proposed DOCA. The circumstances were that the directors of the Savage group of companies thought those companies were bound by a Deed of Cross-guarantee which had been executed by them, but not lodged at ASIC. They then proceeded on the basis of an erroneous understanding that the contingent liabilities of those companies had been assumed pursuant to the Deed of Cross-guarantee with other Pasminco companies, and placed the companies into voluntary administration when they may have been solvent. At the various creditors' meetings voting rights were given to each creditor of the companies, including the Savage companies. It was proposed that a Revocation Deed be executed and that all of the companies enter into a new Deed of Cross-guarantee, including the Savage companies. This would mean contractual liabilities existed to third parties where otherwise none existed, thereby diluting the applicants' rights of recourse. The applicants sought an interim injunction. The administrators argued that if the resolutions went forward there was still remedies under s.445B or s.445D (power to vary or cancel a DOCA). However Nicholson J held the balance of convenience was in favour of the applicants (par. 23). Whilst there were serious questions to be tried, the resolutions would create hardship to the applicants because it would bring into existence new rights where rights did not exist at the moment, or arguably so (par. 22).

Creditors' Meetings

In J Aron Corporation & The Goldman Sachs Group Inc v. Newmont Yandal Operations Pty Ltd (2006) 57 ACSR 149, [2006] NSWCA 46 the Court of Appeal considered whether a corporate group which had a deed of cross-guarantee could allow for external creditors to vote for their obligations owing under the deed of cross-guarantee for each guarantor entity. This was the dominating reality of the administration, as it did not matter which was the principal debtor in relation to any particular creditor (par. 11).

It was argued that external creditors should not be treated as creditors of each company in the group because there were no debts to which the Deed of Cross-guarantee applied to at any relevant time. That was because by clause 3.2, it was only upon an insolvency, that the deed of cross-guarantee became enforceable. By clause 6.1 as a separate covenant, each group company guaranteed with each Creditor that it guaranteed to each Creditor payment of any debt due from any other group company in accordance with the deed of cross-guarantee.

Bryson JA at par. 31, said that clauses 3 and 6 created entirely separate obligations. In the case of clause 3 that was by way of a covenant with the trustee for the benefit of each creditor, and in the case of clause 6, by a covenant by deed poll with each creditor. The mechanisms in clause 3 relating to the covenant with the trustee, including the agreement with the trustee in clause 3.2, have no part in the operation of clause 6.1. The two clauses are also different in their operation, in that clause 3 is a present covenant, whilst clause 6 is a covenant to take effect in the future, presumably when a creditor demands a guarantee. Clause 6 is contingent in its own way in that it is a promise about future action enforceability which is deferred until there is a requirement for action, but clause 3.2 plays no part in its operation. The contingency in clause 6.1 is not remote or distant.

Obligations under the deed of cross-guarantee fall within the extensions to present or future and to certain or contingent debts or claims, and in view of the size of the outstanding claims against group companies, ... the contingency of winding up group companies was not remote or distant ... it was appropriate for the administrators to treat all creditors of each ... group company as creditors of each other ... group company, having regard to the deed of cross-guarantee (par. 32).

It was argued that each company required a separate proof of debt and proxy form and just estimate of value. However nothing indicated that more than one proof of debt form is required, or that the creditor will have or may be limited to voting only in respect of the company whose name is inserted as the relevant company name. ... The requirement for lodgement of a proof of debt was not only a requirement that one proof of debt be lodged, but also an indication that one proof of debt would be treated as sufficient (par. 39).

The circular in the creditors report did not indicate there was any need to complete more than one form or to complete fourteen of them. ... It would be a bizarre departure to suppose that the appointment of proxy form had a meaning only to authorisation to vote with respect to one of those companies when the accompanying documents are not so limited (par. 41).

Overshadowing all other considerations is the web of liabilities under the deed of cross-guarantee, which for all purposes relevant to the meeting placed all creditors in the same relationship of creditor and debtor with all companies and the conditionality of the proposed ... deed of company arrangement on the adoption of all of them. These considerations meant that separate treatment of business relating to each company could serve only formal purposes (par. 46). ... It is simply the true position that, if the contingencies to which clause 6.1 were subject were fulfilled, each guarantee company would be liable to each external creditor for the whole amount (par. 63). The administrator accepted the value of the claims at their full amounts. No error was shown to the decision with respect to that just estimate. The decision to admit votes through group companies in respect of their indemnity entitlements against other group companies only for the nominal amount of $1.00 bears no anomaly about this (par. 59).

At first instance Austin J [2005] NSWSC 238 had found that whilst no formal proof of debt had been required other than from the principal debtor, an entitlement to vote could be found by the lodgement of the particulars of debt, as the administrators were well aware of the provisions of the deed of cross-guarantee. That constituted supply of particulars of the debts for the group companies other than the principal debtor company (par. 95). In this special context the creditors became entitled to vote with respect to the debts owed to them by all of the group companies by virtue of the deed of cross-guarantee (par. 96).

There is an important difference between the claims of external creditors and indemnity claims of group companies. Even if strictly the external creditors claims under the deed of cross-guarantee are contingent, the contingency is relatively proximate, namely the winding up of the principal entity or the other similar matters in clause 3.2. In contrast, the contingencies underlying the inter-company indemnity claims are more remote namely the failure of the principal debtor to meet the claim made by the external creditor and recovery by the external creditor from another group company under the deed of cross-guarantee. "In my opinion it is not implausible that Mr Korda may have reached the conclusion that the correct just estimate in the latter case is $1.00, while in the former case the correct just estimate is the full amount of the external debt" (par. 105).

In circumstances where the financial welfare of each group company was interdependent with the financial welfare of every other group company by virtue of the indemnity arising by the guarantee of external debts, the making of a winding up order or creditors resolution for winding up might reasonably be regarded as a likely event should the principal debtor fail to pay, with the result that estimation of the value of the external creditors' claims at the full value of their debts would seem to be justifiable and reasonable (par. 106).
The plaintiff submitted that the proposition that each external creditor was entitled to vote at all 14 meetings by virtue of the deed of cross-guarantee infringed the rule against double proofs. They argued that the cross-guarantee, by clauses 3.1, 3.3 and 7.1(d) made them liable to the trustee (NYOL) rather than the creditors directly for the debts and the trustee retained the right of first action in respect of the debts. That was consistent with lodging a proof of debt based on the indemnity which it said was done in its capacity as trustee on behalf of all external creditors. It was then argued no external creditor could be admitted for voting purposes without infringing the rule against double proofs (par. 137). This argument failed on two grounds. It disregarded the effect of clause 6.1 which operated as a deed poll by each group company for the benefit of creditors without the interposition of any trustee. Secondly, the proofs of debt for $1 lodged in the administration by NYOL were based on an asserted indemnity right rather than the terms of the deed of cross-guarantee which did not itself, give a group company that has paid a creditor any right of recoupment from the principal debtor company. The deed of cross-guarantee operates as between the group companies and external creditors under the general law of rights of indemnity and contribution arising out of any performance of guarantee obligations in favour of those creditors (pars. 138, 139).

In Re Ansett Australia Ltd (2006) 56 ACSR 718, [2006] FCA 277 the administrators sought a pooling order for various companies within the Ansett Group, inter alia, because the operation of deeds of cross-guarantee may affect the various companies in the group in a manner that would create substantial uncertainty as to their potential liability. The resolution of this would involve the use of substantial resources and the expenditure of large sums of money (par. 26). The cross-guarantees were significant because the value of the combined net realisations of assets held in the class companies was approximately $512,000,000.00 out of total net realisations of $590,000,000.00 across the Ansett Group. According to the administrators, the claims of creditors under the cross-guarantees are likely to be admissible for voting and all other purposes in the administration of all class companies (par. 42). Ultimately the application for a pooling order was rejected.

Pooling Order – Existing Property

In the Matter of Kirby Street (Holding) Pty Ltd [2011] NSWSC 1536 Barrett J considered whether to make a pooling order for a corporate group under s.579E. A relevant factor was that 40 companies in the group had entered into a deed of cross-guarantee. In order to make a pooling order the Court had to consider whether various conditions under s.579E(1) were met. That included whether one or more companies in the group owned particular property that is or was used, by all or any of the companies, in connection with the "scheme" carried on jointly by the companies in the group (s.579E(b)(iv)). He found the companies did operate a scheme because they pursued objectives to benefit one particular company. However he found that that property referred to needed to be owned at the time of the application (par. 44). Barrett J held that there was relevant property still owned, being the product of the deed of cross-guarantee. The guarantee is a thing in action. The class order guarantee carried with it the ordinary incidence of a guarantee, including the right to call on it, and if called upon, the right of indemnity and the right of contribution from co-guarantors. It was used to assist in the publication of consolidated accounts of the group (par. 48). The guarantee is held for the benefit of each creditor (par. 53). Each other Group Entity as a guarantor could, at the time the guarantee became enforceable under clause 3.2 require the Trustee to institute debt recovery proceedings against the Group Entity liable to pay, and after satisfying the guarantee, claim by subrogation the Trustee's rights against the defaulting Group Entity. The rights to require the Trustee to act in those ways arose immediately upon the deed being executed but, until the debt of a Group Entity became due and payable, the right, although existing, was not exercisable (par. 55). A person who owns property may "use" that property simply by holding it, where the mere holding can be regarded as the source of some advantage. In the present case the entities entered into the deed in favour of the Trustee to reduce the workload and administrative burdens to which they would have been subjected had each individual company not had the benefit of the relief from ASIC's s.341 order and therefore remained obliged to produce their own financial statements and directors reports (par. 62). Each party to the deed of cross-guarantee today has "property" in the form of the chose in action. That property was used by the company in which it was vested to maintain in existence the economies and advantages that came from the ASIC order which became available only because of the execution and continuing existence of the deed that is the source of the order (par. 63). The use of the relevant choses in action was at least ancillary or incidental to the scheme so that the use was in connection with the scheme. The scheme was to generate and apply revenues from retail trading so that the full financial benefit for those revenues came to be enjoyed by one of the companies in the group. A necessary component of the profit making objective was such financial efficiencies as could be achieved. The deed of cross-guarantee and ASIC relief that had assisted in producing were aspects of those efficiencies (par. 66, 67).

Unexplored Issues

  1. Generally, a guarantee may not be enforceable if it is given without any benefit to the guarantor. Where the requisite "corporate benefit" is absent, the guarantee may be challenged by shareholders, or possibly by some creditors of the guarantor company (for example, a direct creditor may seek to challenge the corporate benefit if it is sought to be enforced by a trustee, or another guarantor creditor under the deed poll in clause 6.1). A guarantee is not necessarily for the benefit of the guarantor merely because it is for the benefit of another member of the group of companies of which it is a member. Generally it is my view that the administrative efficiencies referred to in Kirby, give rise to adequate corporate benefit for the issuance of the guarantee. However, this could be debated because of the unlimited liability of the cross-guarantee, where the only real benefit to the subsidiary is the savings on account preparation.
  2. There may be significant issues in a creditor succeeding in having a group member who is the trustee, bring an action against other group companies. This could give rise to an application under the Trustee Act to change the trustee, a claim in equitable compensation against the trustee, or the appointment of a Court appointed receiver to the trustee to enforce the right.
  3. Is there an obligation for a deed poll in clause 6.1 to be "delivered"? In my view there is effectively a deemed delivery by its registration at ASIC, for the benefit of creditors generally. This however could be debated.
  4. There could also be an argument as to whether the covenant in clause 6.1 is enforceable by creditors who are non-existent or unascertainable at the time when the covenant was given. Obviously that is not the case with a covenant inter partes, as each party executes the deed. In my view, the deed is intended to cover future creditors.
  5. Any creditors who rely on the deed of cross-guarantee rather than taking a properly drafted guarantee from relevant companies runs a number of risks, not limited to the credit risk taken on the group as a whole. This includes the release and revocation provisions, including that, whilst advertised, a creditor may not be aware of the release. There is also no separate indemnity which is important if any debt is partly or wholly unenforceable for any reason. There is no provision for interest. There are no provisions for suspending the guarantor's rights, for example to reduce its liability by a defence or set-off. There is no power of attorney in favour of the trustee or creditors enabling the attorney to do things in the name of the guarantor to insist on enforcement. There is no provision expressly for recoupment of costs, charges and expenses of the creditor enforcing the cross-guarantee.
  6. The trustee's obligations to sue in the name of the creditor or to assign the creditor the benefit of the cross-guarantee, is only upon a full indemnity of the trustee which can also require security for costs. This cuts back some of the benefits, and could be expensive. Generally the trustee has no duty to monitor any group company or to pursue any Debt except upon request as set out above.

In short, the cross-guarantee should not be relied upon by creditors as a substitute for a properly drafted collateralised guarantee or individual guarantees.

There is a significant incentive for creditors to seek to have at least one group company wound up. Whilst under clause 3.2(a) creditors' voluntary windings up are limited to Part 5.5 Division 3, if the company is wound up under Part 5.3A (voluntary administration) and there is no payment in full of the creditor within six months, the terms of the deed of cross-guarantee apply. In other words, a creditor who otherwise did not have a corporate guarantee, and proceeds to liquidation against a member of a large corporate group, can obtain compensation against other companies within the group, upon the liquidation of its debtor. That is a very powerful weapon, and a disincentive to vote for a deed of company arrangement.1

In summary, insolvency practitioners, and creditors generally, do not appear to have considered on a regular basis the potential effects of cross-guarantee class orders, possibly because most corporate groups publish their accounts. That is however not necessarily the case. Insolvency practitioners should ensure that they carefully peruse ASIC searches, obtain copies of any class order deeds of cross-guarantee and adequately advise creditors of their rights relating to them. Creditors also should be aware that if they have a debtor entity which is in liquidation, they can take full advantage of the terms of the ASIC cross-guarantee.


1Another incentive to vote for liquidation rather than a compromise, is the present GEERS scheme which only applies on a liquidation to benefit employees for unpaid entitlements, other than superannuation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.