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MinterEllison’s International Trade group provides support across the full range of issues relating to the regulation of imports, exports and foreign investment together with advice on international issues relating to sanctions, anti-bribery and corruption. Our experience ranges from customs issues and anti-dumping through to support with matters arising under the rules of the World Trade Organization (WTO) and Free Trade Agreements (FTAs). This highly-regarded team has been ranked by leading international legal directory Chambers Global as an Australian market leader and described as 'the foremost in the region for advice on international issues and trade policy'.
Our extensive expertise in international trade law includes advising government and private sector clients on a wide range of trade-related legal and policy issues and acting as legal counsel/adviser to governments (and affected industries) in WTO dispute settlement actions. Our specialist lawyers also have considerable experience providing advice in relation to foreign investment in Australia and in New Zealand. We have a strong track record in dealing with the Foreign Investment Review Board and the Overseas Investment Commission and offer practical advice to improve the success of investment applications.
In this edition of Trade Law Focus, we look at "Navigating a minefield - Australia's defence export controls and sanctions regimes on products"
China's State Administration of Foreign Exchange has announced reforms to its foreign exchange administration in order to make it easier for Chinese individuals and companies to invest abroad.
After launching the Shanghai Pilot Free Trade Zone nine months ago, the Shanghai government has released the Special Administrative Measures on Foreign Investment Access to the China (Shanghai) Pilot Free Trade Zone (Negative List) (the 2014 Revision). The list seeks to reinforce the requirements set out in 2013 and to further relax controls on foreign investments into China.
The People's Bank of China has released the Administrative Measures for the Foreign Exchange Purchase and Sale Business Provided by Banks which will come into force on 1 August 2014. The Measures will clarify the definition of Business and adjust the supervision and management model to provide banks with greater autonomy and a simplified process to market entry and exit.
Last month the Chinese Ministry of Commerce published the Notice of Improvements on Foreign Investment Examination Management, introducing the capital subscription system into the registration of foreign invested enterprises. The Notice is specifically targeted at eliminating the statutory registered capital requirements previously imposed on FIEs.
On 17 May 2014, the National Development and Reform Commission (NDRC) of China issued the Administrative Measures for the Verification and Approval and Filing of Foreign Investment Projects, which will become effective from 17 June 2014.
On 12 May 2014, the State Administration of Foreign Exchange (SAFE) issued the Rules on the Foreign Exchange Administration for Cross-border Guarantee (Hui Fa  No. 29) (the Rules), which will become effective as of 1 June 2014.
The Ministry of Commerce issued the Guideline on Overseas Intellectual Property Rights for Enterprises for trial implementation on 8 February 2014. The Guideline aims to encourage Chinese enterprises to proactively protect their rights by providing greater protection for Intellectual Property Rights for overseas investments, and through mechanisms designed to promptly resolve IP disputes.
On 28 December 2013, the Standing Committee of the National People's Congress announced the fourth set of amendments to the PRC Company Law, which will take effect on 1 March 2014. The amendments are intended to encourage investment and relax the requirements necessary to establish a company in China.
The first court decision applying the cartel provisions of the Competition and Consumer Act 2010 has set the bar for establishing per se liability worryingly low. Significantly for M&A practitioners, the case calls into question the traditional risk assessment of 'back to back' or 'partial follow on' transactions from a bid-rigging perspective, including those that occur offshore. With an appeal by Bradken lodged in April, it seems 'at least possible' the Federal Court will revisit the low bar applied to satisfaction of the competition condition in this case - and the outcome will be one to watch.
On 20 June 2013, the Ministry of Human Resources and Social Security issued Implementing Measures for Administrative License for Labour Dispatch to standardise and formalise the labour dispatch licensing regime in China. The measures came into effect on 1 July 2013 following a discussion draft issued on 19 May 2013.
Comprehensive legislative changes to enhance and expand Hong Kong's unfair business practices and consumer protection framework, passed in 2012, will come into effect on 19 July 2013. We provide an overview of these major changes and explain how the new expanded consumer protection regime will operate in Hong Kong.
On 28 April 2013, the State Administration of Foreign Exchange in China together with its local counterparts, issued the Measures for Administration of Foreign Debt and the Operating Guidelines for Administration of Foreign Debt Registration. The Measures and Guidelines are designed to simplify approval processes for and strengthen monitoring of foreign debts in China.
The Singapore International Arbitration Centre (SIAC) has announced a new governance structure and a revised edition of the SIAC Rules of Arbitration, effective from 1 April 2013. Clients should not underestimate the significance of these changes.
On 13 March 2013, the High Court of Australia unanimously dismissed an application by TCL Air Conditioner (Zhongshan) Co Ltd restraining the judges of the Federal Court from enforcing an arbitral award.
On 28 December 2012, the PRC National People’s Congress passed Amendments to the PRC Labour Contract Law (the Amendments) in relation to the labour dispatch arrangement. The Amendments will come into force on 1 July 2013.
On 31 December 2012, the China International Economic and Trade Arbitration Commission (CIETAC), a foreign-related arbitration commission set up by the China Council for the Promotion of International Trade (also known as the China Chamber of International Commerce) (CCPIT), released its Announcement on Issues Concerning CIETAC Shanghai Sub-Commission and CIETAC South China Sub-Commission" (the Latest Announcement). This is the latest development in a dispute, which has been on foot since April 2012, between CIETAC, the Shanghai Sub-Commission of CIETAC (CIETAC Shanghai), and the Shenzhen Court of International Arbitration (SCIA) (the CIETAC Dispute). SCIA was known as the South China Sub-Commission of CIETAC before 22 October 2012.
In this edition of Trade Law Focus, we look at:
The Defence Trade Controls Act received Royal Assent on 13 November 2012. Although no date has been proclaimed for the commencement of the operative provisions, many of them cannot commence until the Defence Trade Cooperation Treaty between Australia and the United States comes into force, and the key offence provisions will not commence until two years after the Treaty enters into force.
Proposed legislation amending Australia's anti-dumping and countervailing laws has now passed both houses of Parliament and is expected to come into effect within the next few weeks. The amendments implement a number of proposed reforms announced by the Federal Government in June 2011
We explore how international trade law compliance should be a pivotal component of any M&A due diligence process with an international component, which often includes an Australian entity acquiring another local business.
On 14 November 2012, the United States Department of Justice (DOJ), together with the Securities and Exchange Commission (SEC), issued a guidance note on the interpretation and enforcement of the US Foreign Corrupt Practices Act (FCPA). The guidance note will be particularly interesting for Australian businesses with an international presence or operations, given the potentially vast extra-territorial reach of the FCPA over non-US companies.
The Senate Committee on Foreign Affairs, Defence and Trade Legislation has tabled a preliminary report on the Defence Trade Controls Bill 2011 (Bill). The report recommended that the Senate delay consideration of the Bill until later in the year, with the Committee's final report anticipated on 31 October 2012.
Australia's latest autonomous sanctions against Iran and Syria are now in effect, as of 21 August 2012. The measures make engagement with certain sectors in Iran and Syria illegal and ban the trading of a certain goods and services with these countries. The sanctions also require any persons, organisations or businesses with contractual obligations to engage in any of the listed prohibited transactions with Iran or Syria to apply to the Department of Foreign Affairs and Trade for an authorisation to fulfil that obligation by 20 September 2012. Fulfilling those obligations is prohibited without first receiving authorisation from DFAT.
Welcome to the August edition of Trade Law Focus. In this edition we examine the Joint Standing Committee on Treaties (JSCOT)'s shelving of the Anti-Counterfeiting Trade Agreement. We also discuss the proposed National Food Plan, the Brumby Anti-Dumping Review, the potential introduction of a National Integrity Commission, and the impact of international trade regulations on M&A due diligence
The Government has recently issued a Green Paper which discusses a number of options and potential policies it may adopt in the development of a National Food Plan. In this alert, we outline the objectives of the National Food Plan and discuss the Green Paper's position on foreign investment in the agriculture sector. We also explain Australia's foreign investment rules for investments in agribusinesses and rural land.
With a view to improve the protection of workers' rights and interests and better regulate the labour dispatch regime, on 6 July 2012, the Standing Committee of the National People's Congress of China released the Draft Amendments to PRC Labour Contract Law. This Alert outlines the five primary modifications to the labour dispatch regime contained in the draft amendments.
The PRC's Interpretation of the Supreme People's Court on Application of Laws in the Trial of Cases Involving Sale and Purchase Contracts will take effect from 1 July 2012. Widely regarded as a judicial milestone the promulgation of the Interpretation is expected to contribute to the development of jurisprudence and commerce in China.
Welcome to the May edition of Trade Law Focus. In this edition we give an update on developments in the Australian Government's negotiations in the Trans-Pacific Partnership Agreement, especially in health and intellectual property, and comment on submissions received on the Defence Trade Controls Bill. We also highlight a recent announcement to ease sanctions against Burma, signalling a major shift in foreign policy toward that country and examine the FIRB report on the 'national interest test' in the Foreign Acquisitions and Takeovers Act.
On Wednesday March 7, the Department of Foreign Affairs and Trade (DFAT) released its lists of Designated and Declared Persons and Designated Entities under the Autonomous Sanctions Regulations 2011. Importantly, this means the new Australian sanctions regime is now in place with immediate effect. In this Alert we consider the new sanctions regime, the Designated and Declared Persons and Designated Entities list and further restrictions on financial transactions with Iran.
Welcome to the December edition of Trade Law Focus. In this edition we update on developments with the Australian Government's overhaul of its trade laws, notably in the areas of strategic export controls, sanctions multilateral and autonomous sanctions, and the anti-dumping and countervailing duty system. We also provide our regular summary of recent developments in trade law in Australia and New Zealand.
The Australian Government is undertaking significant reforms of Australia's existing anti-dumping and countervailing regime. These reforms take into account the Productivity Commission's recent report into the area, the views of state and territory governments, the reports of the Senate Economics Legislation Committee, and submissions made by stakeholders.
Following the enactment of the Autonomous Sanctions Act earlier this year, the Government has released the Autonomous Sanctions Regulations for public comment. In this alert we explain how the new regulations differ from the existing autonomous sanctions regime, the most critical of which is the harmonisation of the scope of measures under Australia’s autonomous sanctions regime and those imposed under UN-based measures
Welcome to the September edition of Trade Law Focus. Much has been happening in the trade space over the past few months, including law reform legislation or proposals on Australia's strategic export controls, sanctions as well as its anti-dumping and countervailing duty system.
This edition of Trade Law Focus begins with overview of the recent exposure draft to the Defence Trade Controls Bill, followed by our regular update on developments in the Australian and New Zealand trade law environments.
In a high profile dispute over access to Chinese natural resources, a WTO panel on Tuesday 5 July found that China violated international trade rules by restricting the exportation of nine raw materials, refuting Beijing’s claim that these restrictions were based on environmental grounds.