Crisis Management in Business Law: Handling Termination, Good Faith, and ADR in Your Transactions

Thursday, 7 March 2024
Chair

François FF Salama, Barrister,13th Floor St James Hall

Stay, Just a Little Bit Longer: Was That a Termination?

 

  • Some commercial agreements are for either a fixed period or have termination for convenience clauses.  What if the agreement is silent in this respect, one party wishes to terminate but the other wishes it to endure?
  • Can a clause be implied that the party seeking to walk away can terminate on reasonable notice (a “TORN” term)?
  • What if the other party has invested substantial capital in the venture?
  • Examine the varying scenarios that can arise in practice, starting with the seminal NSW case from the 1980’s, then fast forwarding to recent judgments in the UK and Australia

Presented by Sydney Jacobs, Barrister, Thirteen Wentworth Selborne Chambers

Certainty and Procedural Consequences of Agreeing to ADR Before Arbitration

 

  • Australian courts increasingly find agreements to negotiate in good faith or mediate disputes to be sufficiently certain
  • But if there also agreement to arbitrate, can a party start litigation over whether such pre-arbitration steps are completed, or must that question go to the arbitrator?
  • If the arbitrator decides it as part of the award, can that be challenged due to lack of jurisdiction, or not as this question goes to admissibility and merits?

Presented by Luke Nottage, Special Counsel, Williams Trade Law; Professor, Sydney Law School

Description

Attend and earn 2 CPD hours in Substantive Law
This program is applicable to practitioners from all States & Territories

* This interactive online recording includes questions and quizzes requiring critical thinking about the topics, so you have no annual limits to the number of points/hours you can claim with this format of learning. Please verify with your CPD rules

Misrepresentation and Good Faith: Mediating Contract Disputes

 

  • The obligation of good faith: What it means?
  • Consequences of bad behaviour
  • What you can (and cannot) say in a mediation

Presented by Campbell Bridge SC, 7 Wentworth Selborne Chambers; Best Lawyers 2019, 2020, 2021, 2022, 2023 and 2024, Alternative Dispute Resolution; Leading Mediators, Doyle’s Guide 2018, 2019, 2020, 2021

Presenters


Mr. Luke Nottage, Special Counsel, Williams Trade Law
Dr Luke Nottage is Professor of Comparative and Transnational Business Law at Sydney Law School, specialising in arbitration, contract law, consumer product safety law and corporate governance, with a particular interest in Japan and the Asia-Pacific. He is founding Co-Director of the Australian Network for Japanese Law (ANJeL) and Associate Director of the Centre for Asian and Pacific Law at the University of Sydney. He is also Managing Director of Japanese Law Links Pty Ltd and Special Counsel at Williams Trade Law. Luke has or had executive roles in the Australia-Japan Society (NSW), the Law Council of Australia, the Australian Centre for International Commercial Arbitration (ACICA), and the Asia-Pacific Forum for International Arbitration. He has contributed to several looseleaf commentaries and made numerous media appearances and public Submissions to the Australian government especially regarding arbitration and consumer law reform. Luke was admitted as a barrister and solicitor in New Zealand in 1994 and in NSW in 2001. He has consulted for law firms world-wide as well as ASEAN, the European Commission, OECD, UNCTAD, UNDP and the Japanese Government. Luke is also a Rules committee member of ACICA; on the Panel of Arbitrators for the AIAC (KLRCA), BIAC, CAAI, JCAA, KCAB, NZIAC, SCIA and TAI. Luke was invited to become a Fellow of the Australian Academy of Law, was elected in 2019 as a titular (full) member of the International Academy of Comparative Law, and is a member of the Heterodox Academy. He supervises postgraduate students mostly in international investment law and/or arbitration, and was awarded SUPRA Supervisor of the Year in 2019 Luke studied at Kyoto University (LLM, LLD) and Victoria University of Wellington (BCA, LLB, PhD), and first taught at the latter and then Kyushu University Law Faculty, before arriving at the University of Sydney in 2001. He has held fellowships at other leading institutions in Japan and Australia as well as Germany, Italy, Canada and Thailand. Luke’s publications include Product Safety and Liability Law in Japan (Routledge, 2004), Corporate Governance in the 21st Century: Japan’s Gradual Transformation (eds, Elgar 2008),International Arbitration in Australia (eds, Federation Press 2010), Foreign Investment and Dispute Resolution Law and Practice in Asia (eds, Routledge 2011), Consumer Law and Policy in Australia and New Zealand (eds, Federation Press 2013), Asia-Pacific Disaster Management (eds, Springer 2014), Who Rules Japan? Popular Participation in the Japanese Legal Process (eds, Elgar 2015), ASEAN Product Liablity and Consumer Product Safety Law (eds, Winyuchon 2016; in English and Thai); Independent Directors in Asia (eds, Cambridge UP 2017), International Investment Treaties and Arbitration Across Asia (eds, Brill 2018), Contract Law in Japan (Kluwer 2019, with Hiroo Sono et al) and ASEAN Consumer Law Harmonisation and Cooperation (Cambridge UP, 2019, with Justin Malbon et al). Luke’s publications include 20 books and over three hundred chapters and refereed or other academic articles, mainly in English and Japanese.


François FF Salama, Barrister, 13th Floor St James Hall
François F.F. Salama was called to the NSW Bar in 2006. He has a diverse commercial law practice but is known for his work across the three main specialised areas within the Equity Division of the Supreme Court of NSW. François regularly appears in superior courts at first instance and on appeal across all Australian jurisdictions. François has attained a Bachelor of Laws (UTS), Bachelor of Science in Computing Science (Information Technology) (UTS), Diploma in IT Professional Practice (UTS), Graduate Diploma in Legal Practice (UTS), a Master of Laws, is a Registered Trust & Estate Practitioner (TEP) and Nationally Accredited NMAS Mediator (Med). François is currently serving his second term on the NSW Bar Succession and Protective Law Committee and was most recently appointed a Board Member for the NSW Chapter of the Society of Trust and Estate Practitioners. Francois has been consistently recognised by his peers as a 'leading lawyer' in the Doyles Guide (2019-2023) and was also a Finalist for the 2023 Australian Law Awards "Barrister of the Year".


Sydney Jacobs, Barrister, 13 Wentworth Chambers
Sydney Jacobs is a barrister at 13 Wentworth Chambers. He read for his LL.M at Cambridge and has a commercial equity practice encompassing property, partnership, corporate law and building & construction disputes. Sydney has gained expertise in easements involving both Torrens and Old System land, leasing matters, contracts for the sale of land including off-the-plan, notices to perform and to complete, rescission/ termination /specific performance /relief against forfeiture/ claiming the return of deposits, options/rights of first refusal, and strata disputes. A list of his many cases and publications is to be found on his 13 Wentworth Chambers website. Underscoring a life dedicated to the law (when he is not snowboarding), Sydney is the sole author of two major loose-leaf services, namely: Commercial Damages and Injunctions: Law and Practice, and part authors the leading loose-leaf service Commercial & International Arbitration (all published by Thomson Reuters). He has been, for many years, a popular presenter of CPD seminars.


Campbell Bridge SC, Barrister, 7 Wentworth Selborne Chambers
Campbell Bridge SC was admitted to the NSW Bar in July 1977 and appointed Senior Counsel in 1998. His practice has predominately involved complex commercial, product liability, public liability and professional indemnity cases both as a mediator and counsel. He has acted in major inquests and as Counsel Assisting in a Royal Commission. Campbell has acted as a mediator in several hundred major mediations in both Australia and Asia. He has spoken at numerous international conferences in Singapore, Malaysia, Indonesia and Australia on negotiation, culture and mediation of commercial and professional liability disputes in Australia and Asia. He has also taught on aspects of mediation, negotiation, culture and professional negligence disputes at the Dispute Resolution in Asia LLM course at Sydney University, the Indonesian Mediation Centre, and the Melbourne Law Masters Program. He is on the panel of Arbitrators of BANI (Indonesia National Board of Arbitration). He is an Accredited Mediator under the National Mediator Accreditation System (NMAS) of Australia and is as a Mediator and Arbitrator by the Supreme Court of New South Wales. He is a guest international mediator of the Pusat Mediasi Nasional (Indonesian Mediation Centre).

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Crisis Management in Business Law: Handling Termination, Good Faith, and ADR in Your Transactions

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