Acumen September 2016

acumen: noun – quickness of perception; keen insight.

A range of legal issues from September 2016 relevant to corporate counsel and senior executives, written by our senior practitioners.

Competition

• Australia’s first criminal cartel case – what’s the difference?
  On 18 July 2016, Nippon Yusen Kabushiki Kaisha (NYK), a Japanese global shipping giant, pleaded guilty to criminal cartel conduct charges laid against it by the Commonwealth Director of Public Prosecutions (CDPP), on a reference by the Australian Competition and Consumer Commissions (ACCC),in the Federal Court of Australia.
• New draft competition laws released – what you need to know
  Last week, the Government released (for public comment) proposed draft legislation relating to the most significant amendments to Australian competition law in the last 20 years. At the same time, the ACCC released draft guidelines as to how it would interpret two of the most important proposed amendments – the “effects” test under the misuse of market power prohibition and the new “concerted practices” prohibition.
• ACCC updates Guidelines on investigative powers to reduce the burden of compliance in the digital age
  On 7 September 2016, the Australian Competition and Consumer Commission (ACCC) issued updated guidelines relating to its use of investigative powers under section 155 of the Competition and Consumer Act 2010 (Cth) (CCA): ACCC Guidelines – Use of section 155 powers (New Guidelines).

Energy & Resources

• Victorian Government moratorium on on-shore gas extraction and exploration
  On 30 August 2016, the Victorian Government announced a permanent ban on all unconventional on-shore gas development (which includes hydraulic fracturing (fracking) and coal-seam gas extraction) and a moratorium on any other on-shore gas operations until 30 June 2020.

IP & IT

• The minefield for protecting your IP rights
  The recent decision of CQMS Pty Ltd v Bradken Resources Pty Ltd is a timely reminder of the dangers and risks in asserting your intellectual property rights to potential infringers and the marketplace too strongly or prematurely.
• Use of a trade mark without a product to sell
  In the recent decision of Dick Smith Investments Pty Ltd v Ramsey, the Court was called on to determine a dispute between the owners of two homophonic product names “OzEmite” and “AussieMite” and their respective trade mark registrations for those words in relation to yeast spread products.
• Packing it all in – protecting your trade mark post-Scandinavian Tobacco The Full Court of the Federal Court of Australia has recently confirmed that under Australian law a parallel importer may import, repackage (via processes unknown), market and sell products in the importer’s new packaging bearing a registered trade mark applied without the consent of the trade mark holder and this will not infringe the registered trade mark. 

Projects & Construction

• Jurisdictional Error in Security of Payment Determinations
  In its recent decision Laing O’Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130, the Court of Appeal of Western Australia has sought to clarify the circumstances in which an adjudicator’s determination will be quashed for jurisdictional error and has set out the correct approach for reviewing a determination made under the Construction Contracts Act 2004 (WA) (Act).

Tax

• Getting to the hub of it: draft tax guidelines on marketing, procurement and other hubs
  The Australian Taxation Office (ATO) recently released draft practical compliance guidelines (Guidelines) in relation to centralised procurement, marketing, sales and distribution functions, colloquially known as “hubs”. The purpose of these guidelines is for taxpayers to understand (and self-assess) the transfer pricing risk associated with offshore hubs and how that risk assessment will drive the ATO’s compliance approach.