Dissertations / Theses on the topic 'Trade practices act'

The trade of shipping is necessarily international in nature. Courts and international bodies often express the need to ensure international consistency in matters of maritime law. However, it has been an extremely difficult goal to achieve. Many countries have refused to be party to international conventions that seek to ensure comity. Some have enacted laws that reflect part but not all of those conventions, or seek to improve the protection offered by the conventions. The domestic law of each country also adds its own flavour to shipping law as recognised and applied by the courts in that jurisdiction. In 1974 Australia enacted the Trade Practices Act 1974 (Cth) (TPA), heralding a new era in corporate and commercial law. However, its impact on maritime law on Australia has only been felt over the last 10 – 15 years. It is potentially relevant to many areas of maritime law, including carriage of goods by sea, cruise ships, and towage. This thesis explores the encroachment of the TPA on a number of different areas of shipping law, using the few case examples on offer and extrapolating the impact that the TPA may have. It also considers the extent to which the TPA is stymied by simple contractual agreements to litigate or arbitrate in a non Australian forum, despite the TPA’s status as a mandatory statute within Australia. Raised at various points in the thesis is the possibility of law reform, which is a complex compendium of issues overlaid with a moral dimension – does shipping, as an industry, deserve to be exempted from the operation of the Act which sets a high standard of corporate behaviour? If so, how could that reform be shaped? In the meantime, what steps can the shipping industry take to work within the legal framework of the TPA?

The trade of shipping is necessarily international in nature. Courts and international bodies often express the need to ensure international consistency in matters of maritime law. However, it has been an extremely difficult goal to achieve. Many countries have refused to be party to international conventions that seek to ensure comity. Some have enacted laws that reflect part but not all of those conventions, or seek to improve the protection offered by the conventions. The domestic law of each country also adds its own flavour to shipping law as recognised and applied by the courts in that jurisdiction. In 1974 Australia enacted the Trade Practices Act 1974 (Cth) (TPA), heralding a new era in corporate and commercial law. However, its impact on maritime law on Australia has only been felt over the last 10 - 15 years. It is potentially relevant to many areas of maritime law, including carriage of goods by sea, cruise ships, and towage. This thesis explores the encroachment of the TPA on a number of different areas of shipping law, using the few case examples on offer and extrapolating the impact that the TPA may have. It also considers the extent to which the TPA is stymied by simple contractual agreements to litigate or arbitrate in a non Australian forum, despite the TPA's status as a mandatory statute within Australia. Raised at various points in the thesis is the possibility of law reform, which is a complex compendium of issues overlaid with a moral dimension - does shipping, as an industry, deserve to be exempted from the operation of the Act which sets a high standard of corporate behaviour? If so, how could that reform be shaped? In the meantime, what steps can the shipping industry take to work within the legal framework of the TPA?

The trade of shipping is necessarily international in nature. Courts and international bodies often express the need to ensure international consistency in matters of maritime law. However, it has been an extremely difficult goal to achieve. Many countries have refused to be party to international conventions that seek to ensure comity. Some have enacted laws that reflect part but not all of those conventions, or seek to improve the protection offered by the conventions. The domestic law of each country also adds its own flavour to shipping law as recognised and applied by the courts in that jurisdiction. In 1974 Australia enacted the Trade Practices Act 1974 (Cth) (TPA), heralding a new era in corporate and commercial law. However, its impact on maritime law on Australia has only been felt over the last 10 - 15 years. It is potentially relevant to many areas of maritime law, including carriage of goods by sea, cruise ships, and towage. This thesis explores the encroachment of the TPA on a number of different areas of shipping law, using the few case examples on offer and extrapolating the impact that the TPA may have. It also considers the extent to which the TPA is stymied by simple contractual agreements to litigate or arbitrate in a non Australian forum, despite the TPA's status as a mandatory statute within Australia. Raised at various points in the thesis is the possibility of law reform, which is a complex compendium of issues overlaid with a moral dimension - does shipping, as an industry, deserve to be exempted from the operation of the Act which sets a high standard of corporate behaviour? If so, how could that reform be shaped? In the meantime, what steps can the shipping industry take to work within the legal framework of the TPA?

This dissertation critically evaluates the rationale for, and implementation of, the regulatory scheme governing third party access to essential infrastructure services (the 'national access regime') set out in Part IIIA of the Trade Practices Act 1974 (Cth). The analysis and synthesis of background reports, economic and legal theory, statutory provisions, existing case law, academic commentary and regulatory guidelines contained herein represents a useful and necessary contribution to this nascent area of Australian competition law. In particular, the comprehensive nature of the research has permitted informed assessment of the Productivity Commission's recent review of the national access regime and the Commonwealth Government's response to that inquiry. While the dissertation endorses both the Productivity Commission's finding that retention of the Part IIIA access regime is warranted and many of the (notably light-handed) recommendations advanced by the Commission to improve aspects of the regime's operation, it takes issue with the Commission's failure to propose a more substantial refashioning of the regime's architecture. Stepping into this breach, the dissertation specifies the systemic changes to Part IIIA that are imperative to enhancing the efficacy of the national access regime.

This dissertation critically evaluates the rationale for, and implementation of, the regulatory scheme governing third party access to essential infrastructure services (the 'national access regime') set out in Part IIIA of the Trade Practices Act 1974 (Cth). The analysis and synthesis of background reports, economic and legal theory, statutory provisions, existing case law, academic commentary and regulatory guidelines contained herein represents a useful and necessary contribution to this nascent area of Australian competition law. In particular, the comprehensive nature of the research has permitted informed assessment of the Productivity Commission's recent review of the national access regime and the Commonwealth Government's response to that inquiry. While the dissertation endorses both the Productivity Commission's finding that retention of the Part IIIA access regime is warranted and many of the (notably light-handed) recommendations advanced by the Commission to improve aspects of the regime's operation, it takes issue with the Commission's failure to propose a more substantial refashioning of the regime's architecture. Stepping into this breach, the dissertation specifies the systemic changes to Part IIIA that are imperative to enhancing the efficacy of the national access regime.

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There is now an apparent worldwide trend to fight corruption through the adoption of the new generation of anticorruption laws, that is, domestic laws with extraterritorial reach that provide for legal responsibility to corporations for corrupt practices. In 2013, Brazil joined this movement with the adoption of the Clean Company Act. The entry into force of this legislation provoked criticism and concern, especially with regard to the tension between the underlying interests of the measure and its impacts. Considering that the new generation of anti-corruption laws focuses on corporate conduct abroad, it is clear the ability to impact international trade activities. This thesis addresses the possible impacts of the Clean Company Act to Brazilian international trade from the point of view of growth or fall in imports and exports flows, as well as the formulation of public policies and changes in the behavior of the private sector. Because it is a fairly recent regulation and due to the lack of convictions due to the practice of corruption abroad, the verification of the aforementioned impacts was done based on the study of the United States’ experience with the Foreign Corrupt Practices Act (FCPA). In light of the results regarding the adoption of the law and the imposition of FCPA enforcement actions, this thesis discusses the possible impacts of the Clean Company Act to Brazilian international trade. In summary, the thesis presents considerations regarding the future of Brazilian import and export flows in view of the new generation of anti-corruption laws, the challenges and the alternatives for the Brazilian government to achieve the objectives pursued with the aforementioned legislation, as well as the changes that will be promoted in the private sector conducts due to the new culture of compliance in international trade
Observa-se na atualidade uma aparente tendência mundial de combate à corrupção por meio da adoção da nova geração de leis anticorrupção, isto é, leis domésticas com alcance extraterritorial que atribuem responsabilidade às pessoas jurídicas pela prática da corrupção. Em 2013, o Brasil aderiu a esse movimento com a implementação da Lei da Empresa Limpa. A entrada em vigor dessa normativa atraiu críticas e preocupações, sobretudo no que diz respeito à tensão entre os interesses subjacentes à medida e os seus impactos. Tendo em vista que a nova geração de leis anticorrupção tem como escopo a atuação corporativa no exterior, é evidente o seu poder de impactar as atividades de comércio internacional. A presente tese aborda os possíveis impactos da Lei da Empresa Limpa para o comércio internacional brasileiro, tanto do ponto de vista de crescimento ou queda nas importações e exportações, quanto de formulação de políticas públicas e mudanças no comportamento do setor privado. Por se tratar de uma normativa bastante recente e devido à inexistência de condenações pela prática da corrupção no exterior, a verificação dos mencionados impactos foi feita a partir do estudo da experiência dos Estados Unidos com o Foreign Corrupt Practices Act. Com base nos resultados obtidos acerca da implementação do marco jurídico e da aplicação de medidas corretivas fundamentadas na referida lei, esta tese discute os possíveis impactos da Lei da Empresa Limpa para o comércio internacional brasileiro. Em suma, a tese traz considerações acerca do futuro dos fluxos de importação e exportação brasileiros em vista da nova geração de leis anticorrupção, dos desafios e das alternativas para o governo brasileiro alcançar os objetivos almejados com a referida normativa, bem como das mudanças que serão promovidas na atuação do setor privado haja vista a nova cultura do compliance no comércio internacional

Franchisor failure is one of the most problematic areas of the franchise relationship. It impacts negatively on landlords and other suppliers, but the contracting parties that are currently without legal rights to respond when a franchisor fails, and thus without consumer protection, are its franchisees. In this thesis I explore the current contractual, regulatory and commercial environment that franchisees inhabit, within the context of franchisor failure. I conclude that ex ante there are opportunities to level the playing field through consumer protection legislation. I also conclude that the task is not one solely for the consumer protection legislation; the problem should also be addressed ex post through the Corporations Act.

Includes bibliographical references
The African Growth and Opportunity Act (AGOA) is a unilateral trade policy concession governing United States - Sub-Saharan Africa (SSA) trade and investment relations. AGOA provides United States market access for 40 SSA countries, including South Africa. This piece of legislation has the fundamental objective of facilitating the global integration of SSA countries into the world economy by extending preferential access to the United States market for exporters from eligible countries. Over the past decade, AGOA has emerged as a topical issue as scholars and policy makers sought to understand its impact on SSA, especially South Africa. This has been awarded more impetus given its pending expiration in 2015. This, naturally, raised questions about the performance of United States preference programs (such as AGOA) as part of a larger ongoing debate on the form that United States preference programs may take in the foreseeable future. With South Africa facing a serious opposition to inclusion in the next shape of AGOA given the number of trade agreements South Africa has signed with countries that are competitors to United States in certain product categories. This study will seek to highlight the importance of the AGOA dispensation to South Africa, and through that analysis make a case for the continued inclusion of South Africa in the future trade dispensations that may develop. This study focuses on two research objectives; firstly, the study seeks to assess the extent to which increased preferential access to the United States market has translated into a real and tangible increase in exports from South Africa to the United States. Secondly, the study seeks to identify the areas where South Africa and the United States have high trade potential, and help make a case for inclusion of these high potential trade products in the next iteration of the AGOA dispensation. In achieving the first research objective, the study carried out a detailed trade statistics analysis with the hope of gaining greater understanding of the extent to which AGOA has influenced trade patterns between the United States and South Africa. South Africa's trade figures show that the United States is an important trade partner. A key conclusion that can be drawn from the analysis is the observation that a fair amount of growth in South Africa's exports to the United States is fundamentally characterized by two key aspects namely; growth in specific commodities and an export base that is becoming gradually concentrated over time. This implies that trade between South Africa and the United States is shifting towards a new focus in line with AGOA incentives and by extension one may conclude that South African firms are utilizing the market opportunities and the networks that enable them to effectively exploit the United States market. In fulfilling the second research objective, the detailed trade potential analysis that is propped up by a robust analysis of trade trends was carried out. The trade potential analysis identified thirteen commodity groups as having high potential for further exports into the United States market, and Pearls, precious stones and metals were identified as having the highest indicative trade potential, although the picture changes as the data is further disaggregated. This suggests that there is enormous potential and a great scope for export of pearls, precious stones and metals to the United States.

University of Technology, Sydney. Faculty of Law.
AIM AND FIELD OF RESEARCH Debtors and guarantors of loans by finance providers often endeavour to escape liability by relying on disentitling conduct on the part of their finance provider. Over the last twenty-six years, a body of jurisprudence has developed around s 52 of the Trade Practices Act 1974 (Cth). This has enabled debtors and guarantors of loans by finance providers to escape liability where there has been misleading or deceptive conduct by the finance provider. Recently the Australian Consumer Law has been enacted. Over time it is anticipated that debtors and guarantors of loans by finance providers will be able to escape liability by reason of conduct which contravenes this legislation. This thesis examines the circumstances in which guarantors and debtors are able to escape liability by relying on unconscionability under the general law, unconscionability under the Trade Practices Act 1974 (Cth) or by relying on the special equity considered in Garcia v National Australia Bank Limited (Garcia). The special equity in Garcia is sufficiently closely related to the doctrine of unconscionability to warrant its examination in this thesis. In addition to examining the circumstances under which guarantors and debtors are able to escape liability by relying on unconscionability under the general law and/or unconscionability under the Trade Practices Act 1974 (Cth) and/or by relying on the special equity considered in Garcia, this thesis also examines the future direction of this area of the law, together with its likely future impact on the provision of finance in Australia. The first area examined by this thesis is unconscionability claims in equity. The second area examined by this thesis is the special equity, which was identified by Dixon J in Yerkey v Jones, and reaffirmed and extended by the High Court of Australia in Garcia. The special equity in Garcia is seen to be a special extension to the doctrine of unconscionability. The third area examined by this thesis is unconscionability under Part IVA of the Trade Practices Act 1974 (Cth). Here it is recognised that Part IVA unconscionability allows courts to consider both the existing ‘unwritten law’ of what is unconscionability, as well as statutory unconscionability under ss 51AB and 51AC of the Trade Practices Act 1974 (Cth). This thesis spans the period up until 28 May 2010. The following questions are asked: 1. What is unconscionability under the general law? 2. Having regard to the High Court’s decision in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (Berbatis), what legislative changes are needed in ss 51AB and 51AC in Part IVA of the Trade Practices Act 1974 (Cth) in order to extend the statutory definition of unconscionable conduct? 3. If there were changes made to ss 51AB and 51AC so as to extend the liability of parties who engage in unconscionable conduct, what would be the likely impact on financiers? 4. Post Garcia, has there been a willingness by courts to extend the types of relationships that will attract the special equitable relief in Garcia, beyond the confines of the wife-and-husband marital relationship?

碩士
國立臺北科技大學
智慧財產權研究所
107
New products nowadays hit the market rapidly, and how to attract consumer’s eyes and evoke their purchase willingness are subjects that cannot be ignored. The appearance and packaging of a product with novelty or fashion trends shall be the most effective way to attract consumers. This thesis focused on regulations and differences of trade dress between Trademark Act and Fair Trade Act, and as well as how the trade dress be protected and registered as a trademark. Through the collection of domestic and international judicial cases, legal issues of trade dress were organized and discussed. Finally it also analyzed strategy and practical disputes of the well-known coffee industry – 85 degrees C and Starbucks concerning of trade dress. Hope this study will appeal more attention on trade dress issue and also be a valuable reference for trademark owners.

Emerging markets such as India have witnessed waves of domestic and cross-border mergers and acquisitions. This historical analysis, which consists of two parts, tests central tenets of resource dependence theory. The first part entails an analysis of the transition in public policy governing corporations between 1991 and 2005. The second part tests hypotheses derived from resource dependence theory relating to a firm’s decision to acquire. The analysis explores the factors that explain why firms engage in mergers and acquisitions by examining three specific policy periods (i.e., 1991-1996, 1997-2001 and 2002-2005). The findings from the historical analysis suggest that firms did not merely react to the conditions (i.e., constraints on capital) in their environment by undertaking merger and acquisition activity, but attempted to alter them as resource dependence theory suggests. Findings from the event history logit model also support resource dependence theory. Overall, the study shows that merger and acquisition activity increased during a period of intense deregulation (i.e., 1991-2005) brought about by the adoption of neo-liberal reforms, change to the multilayer subsidiary form, deregulation of the banking and financial sectors’ and reforms in foreign direct investment and equity markets. During this period of uncertainty, firms controlling more resources in terms of earnings, efficiency and number of subsidiaries were more likely to undertake acquisition activity as they have leverage in organization-environment relationships. The effect of number of subsidiaries on acquisition activity was the most consistent across policy periods’. This dissertation is organized in the following manner: Following the introductory chapter, Chapter II is a historical examination of the three policy periods and includes an analysis of the effect of the political-legal environment on mergers and acquisitions between 1991 and 2005. Chapter III reviews the propositions of resource dependence theory that pertain to organizational change and presents research hypotheses related to mergers and acquisitions. Chapter IV describes the data, measurement and methodology employed in the quantitative analysis. Chapter V presents the findings from the quantitative analysis and discusses the results. The concluding chapter (Chapter VI) includes a presentation of the theoretical findings and discussion of the limitations and scope of the study.