*Please note that the links to the content in this Part will direct you to Westlaw AU.<\/p>\n
To purchase an article, please email: LTA.Service@thomsonreuters.com<\/a> or contact us on 1300 304 195 (Australian customers) or +61 2 8587 7980 (international customers) during business hours (Mon-Fri, 8am-6pm AST).<\/p>\n The latest issue of the\u00c2\u00a0Journal of Banking and Finance Law and Practice<\/em> (Volume 32 Part 3) contains the following material:<\/p>\n Directing the Sinking Ship \u00e2\u20ac\u201c Where to From Here?<\/strong><\/em><\/a> \u00e2\u20ac\u201c William Porter\u00c2\u00a0 <\/em><\/p>\n In New Zealand the provisions relating to \u00e2\u20ac\u0153reckless trading\u00e2\u20ac\u009d have long-been subject to criticism. In 2021 the Court of Appeal in Yan v Mainzeal Property and Construction Ltd\u00c2\u00a0<\/em>called for the law to be reviewed to ensure it provides a \u00e2\u20ac\u0153coherent and practically workable regime\u00e2\u20ac\u009d for the protection of creditors of insolvent or near-insolvent companies. This article discusses the controversy surrounding ss 135, 136 and 301 of the Companies Act 1993 <\/em>(NZ). It then suggests a series of amendments in response to the Court of Appeal\u00e2\u20ac\u2122s call for change. The article was the winning paper in the Banking and Financial Services Law Association\u00e2\u20ac\u2122s 2021 Research Essay Prize.<\/p>\n Click here to access article on New Westlaw<\/a><\/p>\n The Power to Alter Corporate Rescue in Australia<\/strong><\/em><\/a> \u00e2\u20ac\u201c Paulina Fishman\u00c2\u00a0 <\/em><\/p>\n Two statutory regimes which may be used to achieve corporate rescue in Australia are contained in Pts 5.3A and 5.3B of the Corporations Act 2001 <\/em>(Cth), respectively. The former regime confers a broad power on the court to \u00e2\u20ac\u0153make such order as it thinks appropriate about how this Part is to operate in relation to a particular company\u00e2\u20ac\u009d. The relevant provision is s 447A. A replica of this provision appears, with some modifications, as s 458A in the new Pt 5.3B. This article examines s 447A\u00e2\u20ac\u2122s limitations, defines its proper role, and critically analyses three types of orders. That critical analysis supports the article\u00e2\u20ac\u2122s overall contention that s 447A is being construed too broadly by the courts. The\u00c2\u00a0article aims to assist with the future interpretation and application of s 447A, as well as s\u00c2\u00a0458A, and thereby make a useful contribution to the operation of formal corporate rescue\u00c2\u00a0mechanisms in Australia.<\/p>\n Click here to access article on New Westlaw<\/a><\/p>\n An Identity Crisis? \u00e2\u20ac\u201c The Changing Classification of Circulating and Non-circulating\u00c2\u00a0Security Interests<\/strong><\/em><\/a> \u00e2\u20ac\u201c Louise England<\/p>\n The Personal Property Securities Act 2009 <\/em>(Cth) introduced the concept of a \u00e2\u20ac\u0153circulating\u00c2\u00a0security interest\u00e2\u20ac\u009d, which was intended to replace the \u00e2\u20ac\u0153floating charge\u00e2\u20ac\u009d with respect to nearly all relevant property types. This article traces the pre-reform \u00e2\u20ac\u0153floating charge\u00e2\u20ac\u009d, and\u00c2\u00a0how it was largely replaced by the \u00e2\u20ac\u0153circulating security interest\u00e2\u20ac\u009d. It examines the legislative\u00c2\u00a0framework for determining when a circulating security interest arises and the relevant\u00c2\u00a0time for its classification. The article considers the steps that can be taken to convert a\u00c2\u00a0circulating security interest into a non-circulating security interest, particularly prior to the appointment of an external administrator, and the impact of such a conversion on priority\u00c2\u00a0creditors and the priority payment regimes set out in ss 433 and 561 of the Corporations\u00c2\u00a0Act 2001 <\/em>(Cth). The article concludes with an analysis of the potential areas for reform in\u00c2\u00a0Australia, which would aim to simplify the application of the circulating security interest\u00c2\u00a0concept and to better align the circulating security interest with the intentions of Parliament\u00c2\u00a0to promote commercial consistency and flexibility.<\/p>\n Click here to access article on New Westlaw<\/a><\/p>\n Operation Innovation or Operational Risk? An Analysis of the Financial Regulation of Fintech<\/strong><\/em><\/a> \u00e2\u20ac\u201c Riley Scott<\/p>\n The development of fintech capabilities has fundamentally altered the relationships within the financial system, and in doing so has created different categories of systemic risk. This\u00c2\u00a0article considers whether the prevailing financial regulatory regime sufficiently addresses the nature of fintech and the systemic risks it presents. The analysis focuses on operational risk, and argues that fintech\u00e2\u20ac\u2122s nuances and modular, decentralised structure requires a conceptually different approach to regulation. As such, the article proposes a high-level\u00c2\u00a0approach to government intervention.<\/p>\n Click here to access article on New Westlaw<\/a><\/p>\n Compliance Programs Introduced in Response to Enforcement by the Australian Securities and Investments Commission<\/strong><\/em><\/a> \u00e2\u20ac\u201c Ian Ramsay and Mihika Upadhyaya<\/p>\n This article reports the results of a study of compliance programs introduced or amended in response to enforcement by the Australian Securities and Investments Commission\u00c2\u00a0<\/em>(ASIC), whether required by court order or as part of an enforceable undertaking (EU). Most of the compliance programs involved companies in the financial services industry. The article identifies the benefits and challenges associated with effectively designing\u00c2\u00a0and implementing a compliance program as well as the previous research on compliance programs in Australia. It then examines compliance programs introduced by court order as well as compliance programs introduced or amended as part of an EU for the\u00c2\u00a0five-year period 2016 to 2020. An issue of concern is that reports published by ASIC on compliance with EUs contain very little substantive detail on the implementation or revision of compliance programs required by EUs, making it difficult to assess why a compliance program was or was not deemed adequate to comply with the EU. This limited\u00c2\u00a0transparency has implications for accountability, deterrence and public confidence.<\/p>\n Click here to access article on New Westlaw<\/a><\/p>\n For the PDF\u00c2\u00a0version of the table of contents, click here: Westlaw AU\u00c2\u00a0\u00e2\u20ac\u201c JBFLP Vol 32 No 3 Contents<\/a> or here: New Westlaw Australia\u00c2\u00a0\u00e2\u20ac\u201c JBFLP Vol 32 No 3 Contents<\/a>.<\/p>\n Click here to access this Part on Westlaw AU<\/a><\/p>\n Click here to access this Part on New Westlaw AU<\/a><\/p>\nArticles<\/h3>\n