Australia: Corporate Law News

Last Updated: 26 February 2008
Article by Leigh Brown



Basel II Reporting Requirements Unveiled

On 6 February 2008, APRA released its reporting requirements for authorised deposit-taking institutions (ADIs) under the Basel II Framework (Framework).

The Framework addresses reporting requirements for ADIs in relation to the calculation of the minimum regulatory capital for credit risk, market risk and operational risk. For APRA-approved ADIs adopting Basel II advanced approaches, the framework also deals with the calculation of the minimum regulatory capital interest rate risk.

Many of the Framework's requirements replicate previous regime requirements for capital reporting but there are some new additions. The most substantive changes apply to APRA-approved ADIs adopting Basel II advanced approaches.

APRA has released a response paper to submissions received in relation to its draft proposal in the latter months of last year.

The Framework is scheduled to take full effect from 1 April 2008.

A copy of APRA's recent response paper and other Basel II documents can be accessed via the following link:


ACCC Releases Revised Draft Merger Guidelines

The ACCC has released its revised draft merger guidelines which outline the principles applied by the ACCC in reviewing mergers under section 50 of the Trade Practices Act 1974 (Cth).

The previous merger guidelines were published in 1999. The ACCC says that the 2008 draft guidelines do not set out a different approach to the analysis of mergers, but do update the previous guidelines to reflect current ACCC practice. In particular, the new draft guidelines contain additional guidance regarding the role of undertakings in the merger process and the role of theories of competitive harm.

Interested parties may make submissions on the draft guidelines by 28 March 2008.

A copy of the draft merger guidelines can be accessed via the following link:

A Minter Ellison News Alert providing further details and analysis of the draft guidelines can be accessed via the following link:

ACCC Publishes Green Marketing Guidelines

The ACCC has issued a document entitled Green Marketing and the Trade Practices Act, which is intended to provide guidance to businesses making environmental representations in marketing.

The ACCC has paid attention to 'green' marketing claims by companies recently and has taken action against alleged misleading advertising in the energy industry.

A copy of Green Marketing and the Trade Practices Act can be accessed via the following link: 20Practices%20Act.pdf


New Discussion Paper Released On External Administration

On 7 February 2008, CAMAC released a discussion paper on external administration. The discussion paper was issued following public consultation concerning amendments to the insolvency provisions of the Corporations Act 2001 (Cth) passed by the previous federal government during 2007. The amendments were deemed to require further review by the former federal government.

CAMAC's discussion paper includes a number of proposals that seek to facilitate further improvements to the law in the area of insolvency. The discussion paper places a particular emphasis upon improving consultation amongst creditors, and between external administrators and creditors. It also puts forward proposals to allow liquidators to conduct postal votes on some matters, and require deed administrators to inform creditors of some breaches of the deed of company arrangement.

The discussion paper is extensive, and also contains a number of other proposals.

Submissions in response to CAMAC's discussion paper are due by 16 May 2008.

CAMAC's discussion paper can be accessed via the following link:$file/External_administration_DP_Feb08.pdf


Gold West Resources Limited 04 – Unacceptable circumstances not found

On 20 February 2008, the Takeovers Panel (Panel) declined to make a declaration of unacceptable circumstances in relation to an application by Falak Holding LLC (Falak).

The previous edition of Corporate Law News reported that Falak had made an application to the Panel after discovering that its agent, ANZ Nominees Ltd (ANZ) had mistakenly accepted a takeover offer for Falak's shares in Gold West Resources Limited (GWR).

It appears that the mistake was the result of actions taken by a third party, Fortis Banque Luxembourg SA (Fortis), which held a pledge over Falak's shareholding in GWR and conducted all communication with ANZ on Falak's behalf. Fortis instructed ANZ to accept the takeover offer without first obtaining instructions from Falak.

The Panel took the view that there was insufficient evidence before it to make a declaration of unacceptable circumstances and undo what is, in the opinion of the Panel, a binding contract.

The Panel is yet to publish the reasons for its decisions.

A copy of the Panel's media release can be accessed via the following link:


New Bill For The Financial Sector

On 13 February 2008, the Financial Sector Legislation Amendment (Review of Prudential Decisions) Bill 2008 (Cth) (Bill) was introduced into the Senate. The Bill is designed to amend the process of disqualifying people from operating financial sector entities, which is currently undertaken primarily by APRA.

A copy of the Bill can be accessed via the following link:

New Bill On Cross-Border Insolvency

The Cross-Border Insolvency Bill 2008 (Cth) was also introduced into the Senate on 13 February 2008. The Bill's purpose is to ratify the Model Law on Cross-Border Insolvency adopted by the United Nations Commission on International Trade Law in 1997. A copy of the Bill can be accessed via the following link:

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.

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