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Annual Report 2000
CONTACT DETAILS Ms Ann Graham Centre for Corporate Law and Securities Regulation Telephone: +61 3 8344 5281 Professor Ian Ramsay Centre for Corporate Law and Securities Regulation Telephone: +61 3 8344 5332 Centre website: http://cclsr.law.unimelb.edu.au Professor Ian Ramsay 2000 was the fifth year of operation of the Centre for Corporate Law and Securities Regulation. The year saw many achievements including an active research program conducted by members of the Centre, the hosting of major conferences and seminars, the strengthening of links with peak organisations both in Australia and internationally, the development of the Corporate Law Electronic Bulletin, and the launch of a new website. Research In 2000 the 16 academics and research fellows who were members of the Centre were responsible for the publication of 5 books, 36 book chapters and journal articles, and 3 research reports. They also presented 15 conference papers. The 5 books were:
An important aspect of the Centre’s research program is its research report series in corporate law and securities regulation. 2000 saw the publication of 3 further reports. These were:
These research reports received extensive press coverage which is noted below under the heading “Media Coverage of Centre Activities”. The research report titled Proxy Voting in Australia’s Largest Companies was featured as the cover story in the July 2000 issue of Company Director – the journal of the Australian Institute of Company Directors. The publications of the Centre continue to receive positive reviews. For example, the book titled Company Directors’ Liability for Insolvent Trading (2000) was reviewed in Ethos, the journal of the Law Society of the Australian Capital Territory, where the reviewer stated that “The University of Melbourne has provided us with a work of intellectual rigour…The 8 essays form a multi-faceted prism of scholarship and substance”. Members of the Centre continue to place a high priority on obtaining competitive research grants. In 2000 members of the Centre obtained several major grants. One was an Australian Research Council Strategic Partnerships With Industry Grant titled “Accountability and Corporate Governance in Non-Profit Companies”. The research team for this project is Professor Ian Ramsay, Ms Sue Woodward and Mrs Sally Sievers. The Industry Partner is Philanthropy Australia Inc. The second grant obtained in 2000 was an Australian Research Council Large Grant for a project titled “Directorship in Entrepreneurial Firms and the Role of Public and Private Capital Markets”. The research team for this project is Associate Professor Michael Whincop of Griffith University Law School, Professor Ian Ramsay and Dr Geof Stapledon of The University of Melbourne Law School and Professor Ronald Gilson of Stanford Law School and Columbia Law School. A third grant obtained in 2000 was a University of Melbourne Faculty of Economics and Commerce Research Grant for a project titled “An Analysis of Factors Influencing the Share Buy-back Decision”. The research team for this project is Dr Asjeet Lamba of The University of Melbourne Centre of Financial Studies and Professor Ian Ramsay. A number of major research grants obtained prior to 2000 continued to provide funding for projects in 2000. A full list of competitive research grants obtained by members of the Centre is included in this Annual Report. Seminars In 2000 the Centre hosted or was involved in the organisation of 8 seminars and conferences. The seminars dealt with topics including “Directors’ Duties: Recent Developments and their Implications for Directors and Advisers”, “The Future of Corporate Regulation: Hughes and Wakim and the Referral of Powers”, “E-Commerce and Financial Services”, “Economic Law Reform in Developing Countries”, “Insider Trading: Recent Developments and Practical Issues for Market Participants”, “Hughes and Wakim: The Challenges for Corporate Regulation”, “The Corporate Law Economic Reform Program and Fundraising” and “The Corporate Law Economic Reform Program and Takeovers”. Links with peak organisations 2000 saw the further development of links with peak organisations both in Australia and overseas. Members of the Centre play an active role with organisations such as the Law Council of Australia and the Australian Institute of Company Directors. This includes writing submissions regarding law reform proposals on behalf of several of these peak organisations. In October 2000 Professor Ian Ramsay and Dr Geof Stapledon were commissioned by the Australian Institute of Superannuation Trustees to prepare a report on corporate governance for superannuation trustees. Corporate Law Electronic Bulletin 2000 saw the continued development of the Corporate Law Electronic Bulletin. The monthly electronic Bulletin is published with the support of the Australian Securities and Investments Commission, the Australian Stock Exchange and leading national law firms. There are now approximately 2,000 subscribers to the Bulletin with a much wider readership as the Bulletin is distributed widely within companies, regulators, law firms and government departments. The Bulletin has been supported and promoted by organisations such as the Corporate Lawyers Association, the Commercial Law Association, the Law Council of Australia, the Australian Institute of Company Directors, and the Institute of Company Secretaries. We continue to receive very positive feedback on the Bulletin. A particularly pleasing feature is the increasing number of international subscribers to the Bulletin. International developments In March 2000 the Centre for Corporate Law was invited to participate in the Australian Securities and Investments Commission’s corporate governance training course for staff of Asian securities commissions, stock exchanges, government departments and professional associations. Other organisations invited to participate by ASIC included the Commonwealth Treasury, the Australian Stock Exchange, the Securities Institute of Australia, the Investment and Financial Services Association, the Australian Institute of Company Directors, and the Institute of Chartered Accountants. Financial support for the course was provided by ASIC and also the Australian Agency for International Development. Professor Ian Ramsay and Dr Geof Stapledon participated in the course and presented a paper titled “Corporate Governance: An Overview of the Key Issues and Debates”. In February 2000 Dr Geof Stapledon was an invited participant at the World Bank/Asian Development Bank Planning Meeting on Corporate Governance. The meeting was held in Manila and drew together 45 participants from twelve countries. The focus of the meeting was on corporate governance reform options for East Asia. In October 2000 Ms Pamela Hanrahan was an invited participant at the OECD Workshop on Governance in Collective Investment Schemes held in Paris. Contributions to law reform Members of the Centre for Corporate Law make contributions to law reform in two ways. First by drafting submissions on matters dealing with corporate law reform either in a personal capacity or on behalf of organisations such as the Institute of Company Directors and the Law Council of Australia. Secondly, research reports of the Centre for Corporate Law are relied upon by law reform bodies. The research report titled “Corporate Groups in Australia” was referred to in the May 2000 report of the Companies and Securities Advisory Committee (CASAC) titled “Corporate Groups”. The opening chapter of the CASAC report referred to the Centre for Corporate Law’s study of the group structures in Australia’s largest 500 listed companies. In June 2000 CASAC published its report titled “Shareholder Participation in the Modern Listed Public Company”. A number of the recommendations contained in this report deal with proxy voting. This section of the report, particularly the recommendation dealing with disclosure of proxy information, made extensive reference to the Centre for Corporate Law research report titled “Proxy Voting in Australia’s Largest Companies”. In 2000, Professor Ian Ramsay was a consultant to the Victorian Government on corporate law reform and was also appointed as a member of the Australian Law Reform Commission’s Advisory Committee for its project on civil and administrative penalties. Editorial positions Members of the Centre continued in 2000 to occupy editorial positions with major corporate law publications including the Company and Securities Law Journal, the Company, Financial and Insolvency Law Review and the International and Comparative Corporate Law Journal. New website In 2000 the Centre launched a new website. The website contains detailed information about the activities of the Centre (including its teaching and research programs) as well as an archive of all previous issues of the Corporate Law Electronic Bulletin and the Corporate Law Judgments website. It also includes a detailed list of other sites of interest including links to approximately 60 securities commissions and 110 stock exchanges. There is a comprehensive list of links to specialist corporate governance sites. A new part of the website is titled “Asian-Pacific Corporate Law and Securities Regulation Sites”. This contains detailed links to corporate law sites in many countries in the Asian-Pacific region including links to legislation and judgments. Website of corporate law judgments As a result of the decision of the High Court in Re Wakim (which has had the effect of excluding the Federal Court from hearing most corporate law matters it has previously heard) the judges of the State Supreme Courts selected the Centre for Corporate Law to host a website of corporate law judgments. The address is: “http://cclsr.law.unimelb.edu.au/judgments/”. This is a particularly important initiative as the website has proved to be an essential tool for corporate law research and information. There are now approximately 600 judgments on the website. Supervision of graduate students’ research Members of the Centre for Corporate Law supervised in 2000 a large number of theses being undertaken by graduate students. Of the theses, 16 were PhD theses, 5 were SJD theses, and 9 Master of Laws theses. Staff developments Lesley Hitchens joined The University of Melbourne Faculty of Law and the Centre for Corporate Law and Securities Regulation in 2000. Lesley has taught at the University of Leicester and the University of Warwick, and has also practised with the firms Herbert Smith in London and Allen Allen & Hemsley in Sydney. Her research interests include corporate law, banking law and broadcasting regulation. Jurgen Kurtz also joined the Faculty of Law and the Centre for Corporate Law and Securities Regulation last year on a full-time basis. He previously taught in the Faculty of Law on a part-time basis. Jurgen is also a consultant to Mallesons Stephen Jaques. His research interests include corporate law, international trade and the regulation of electronic commerce. In 2000 Professor Ian Ramsay was appointed by the Federal Government to be a member of the Corporations and Securities Panel (better known as the Takeovers Panel). The Panel is the primary forum for resolving disputes about takeovers. The President of the Panel is Simon McKeon of Macquarie Bank and other members include Elizabeth Alexander, Partner, PricewaterhouseCoopers; Peter Cameron, Partner, Allen Allen & Hemsley, Meredith Hellicar, Chief Executive Officer, Corrs Chambers Westgarth; and Michael Tilley, Director, Merrill Lynch International. In 2000, Professor Ian Ramsay was elected President of the Corporate Law Teachers Association. Belinda Fehlberg and Geof Stapledon were promoted to Associate Professor and Reader, effective 1 January 2001. Media coverage of Centre activities The research activities of Centre members received significant coverage in the media. The 3 research reports published in 2000 were the subject of approximately 20 newspaper articles. In addition, during the year, members of the Centre gave approximately 30 media interviews. Visitors to the Centre Visitors to the Centre in 2000 included Cally Jordan of the World Bank, Professor Doug Branson of the University of Pittsburgh, Professor John Farrar of Bond University, Associate Professor Paul Latimer of Monash University and Ann Wardrop of La Trobe University. Consultancies and pro bono work Members of the Centre are active in providing their expertise to those outside of The University of Melbourne, both in relation to pro bono matters and also significant corporate transactions. In 2000 Sue Woodward continued her work as a Director of the Schizophrenia Australia Foundation and provided advice to the Foundation on corporate law matters. Professor Ian Ramsay provided pro bono advice to several community organisations. Members of the Centre have also provided their expertise in relation to significant corporate transactions including company restructurings, takeovers, schemes of arrangement and capital raising transactions. Acknowledgments Many people deserve thanks for their contribution to the work of the Centre during 2000. They include the members of the Australian Advisory Board and, in particular, the Chair of the Australian Advisory Board, the Hon Mr Justice Hayne. Members of the International Advisory Board of the Centre have also provided valuable advice in relation to international developments and have been active in assisting the work of the Centre. Particular thanks are due to Ann Graham, the Administrator of the Centre, who has played a key role in many of the Centre’s achievements during 2000. The Dean of the Faculty of Law at The University of Melbourne, Professor Michael Crommelin, has been a strong supporter of the initiatives undertaken by the Centre.
PURPOSES AND OBJECTIVES OF THE CENTRE The objectives of the Centre and its members are to:
The Centre has an International Advisory Board comprised of leading Judges and corporate law academics. The members of the International Advisory Board are:
The Centre has an Australian Advisory Board chaired by the Honourable Mr Justice Hayne and comprising leading members of the Australian legal and business communities. The members of the Australian Advisory Board are:
ACADEMIC MEMBERS OF THE CENTRE The following academics were members of the Centre in 2000: Ms Helen Bird Helen Bird is a graduate in Law (Hons) and Commerce from the University of Queensland. After graduation, she completed her articles of clerkship and worked as a solicitor in the corporate, property and commercial litigation departments of Freehills. She joined The University of Melbourne in 1994 and teaches Contract Law, Corporate Law and Principles of Business Law. Her research interests are corporate governance, corporate regulation and enforcement, and legal theory. She is the co-author (with Susan Woodward) of Corporations Law Workbook (LBC Information Services, 4th ed, 1999) which is accompanied by a Teachers’ Manual. Helen was on leave in 2000. Ms Hellen Blue Hellen Blue is a graduate in Law and Arts from the University of Western Australia. After graduation, she taught Business Law in Western Australia. She joined The University of Melbourne in 1998. She teaches Corporations Law in the Commerce Faculty. Hellen organises the seminar and conference program of the Centre for Corporate Law and Securities Regulation. Dr Belinda Fehlberg Belinda Fehlberg graduated from The University of Melbourne in 1991 (BA, LLB (Hons)). She completed her articles of clerkship at Arthur Robinson & Hedderwicks in the area of commercial litigation and then practised in the corporate law area. In 1992, she began her DPhil studies at the Centre for Socio-Legal Studies, University of Oxford. She was awarded her DPhil in 1995. Her DPhil thesis comprised a socio-legal, empirically-based study of spouses and partners who provide third party loan security for the business borrowings of their other spouse or partner. A revised version of the thesis was published in 1997 by Oxford University Press. In 1993 Belinda was appointed as a half-time Lecturer in the Faculty of Law, University of Warwick, where she taught Commercial Law and Company Law. At the end of 1994, Belinda took up an appointment as a lecturer in the Law School, The University of Melbourne and was promoted to senior lecturer in 1997. She currently teaches Corporations Law and Family Law. Her publications are mainly in the area of her thesis research, but she has a general interest in the areas of corporations law and family law, and especially in issues where these two areas overlap. Ms Pamela Hanrahan Pamela Hanrahan joined the academic staff of The University of Melbourne as a Senior Lecturer in February 1997, having previously practised corporate law and securities law as a Senior Associate with Arthur Robinsons & Hedderwicks in Melbourne. She holds Honours degrees in Arts and Law from The University of Melbourne and a Master of Laws from Case Western Reserve University, Ohio USA, and is currently completing an SJD at The University of Melbourne. She teaches Corporations Law at the undergraduate level in both the Law and Commerce faculties, and Regulation of Managed Investments as part of the Law School’s graduate program. Her research interests include the law of managed funds, corporate and securities law and derivatives regulation. Pamela is Special Counsel with Arthur Robinson & Hedderwicks. Ms Lesley Hitchens Lesley Hitchens holds Bachelor degrees in Arts from Macquarie University and Laws from the University of New South Wales. She also holds a Masters degree in Law from the University of London. After graduation, Lesley worked for seven years in practice, first with Allen Allen & Hemsley, Sydney, and then with Herbert Smith in London. In 1989 she took up an academic position at the University of Leicester, moving to the University of Warwick in 1996. She joined The University of Melbourne in July 2000. Lesley's academic interests include corporations law and banking law, although her main research activity is broadcasting regulation. She has recently published with Professor Eric Barendt, University College London, a cases and materials book on media law. Before leaving the UK she was part of a European team involved in a government-funded project to advise on the drafting of a new media ownership and control law for Russia. Lesley teaches Corporations Law and Electronic Communications. Mr Jurgen Kurtz Jurgen Kurtz graduated in Law (Hons) and Arts from The University of Melbourne in 1993. He completed his articles of clerkship at Mallesons Stephen Jaques in 1994 and practised in corporate law until 1999. He was appointed a consultant in corporate law to Mallesons in 2000. He teaches Corporations Law at the undergraduate level in both the Law and Commerce Faculties. Jurgen is currently completing his LLM by research thesis at The University of Melbourne. His main research interest is in international efforts to liberalise domestic investment laws and the impact of those efforts on the regulation of transnational corporations. Associate Professor Timothy Lindsey Tim Lindsey is a graduate of The University of Melbourne Law School and has a doctorate in Indonesian Studies. He teaches Insolvency Law and also Indonesian Law, Malaysian Law and Islamic and Traditional Customary Law. Particular subjects he teaches include Commercial Law in Asia, Resources Law and Policy in Indonesia and International Marketing and Franchising in Asia. He researches and teaches in Indonesian. His books include Indonesia: Law and Society, and How Companies Work. Tim is a member of the Board of the Department of Foreign Affairs and Trade’s Australia-Indonesia Institute. Professor Ian Ramsay Ian Ramsay is the Harold Ford Professor of Commercial Law in the Law School at The University of Melbourne where he is Director of the Centre for Corporate Law and Securities Regulation. He has practised law with the firms Sullivan & Cromwell in New York and Mallesons Stephen Jaques in Sydney. Other positions Ian has held include:
Ian has published extensively on corporate law issues both internationally and in Australia. His books include Ford's Principles of Corporations Law (co-author, 9th edition, 1999); Commercial Applications of Company Law (co-author, 2000); Company Directors’ Liability for Insolvent Trading (editor, 2000); Securities Regulation in Australia and New Zealand (co-editor, 1998); The Corporate Law Economic Reform Program Act Explained (co-author 2000); The New Corporations Law (co-author, 1998); Corporate Governance and the Duties of Company Directors (editor, 1997); and Education and the Law (co-author, 1996). Mrs Sally Sievers Sally Sievers (BA, LLB (Melb); LLM (Monash) was previously a Senior Lecturer at the Faculty of Law at Monash University. Her main research interests are corporations law, especially directors' duties and non-profit associations. She is the author of Associations and Clubs Law in Australia and New Zealand (2d ed, 1996). She teaches Corporations Law in the LLB Program. Sally is also a Barrister and Solicitor of the Supreme Court of Victoria and a member of the Corporations Law Committee of the Law Council of Australia. Professor Malcolm Smith Professor Smith joined The University of Melbourne Faculty of Law from the University of British Columbia, Canada, where he was Founding Director of the Japanese Legal Studies Program. He is a graduate of The University of Melbourne Law School and Harvard Law School, and specialises in Japanese Law. He holds the Foundation Chair in Asian Law at The University of Melbourne. He researches and teaches in Japanese and has particular research interests in Japanese corporate, banking and finance law. Professor Smith is a member of the board of the Australia-Japan Foundation, the Executive Board of the Australian Centre for International Commercial Arbitration, the International Trade Law and Business Committee of the Law Council of Australia, the International Legal Services Advisory Council and the Australian International Legal Exchange Committee established by the Commonwealth Attorney-General. Mr Greg Reinhardt Greg Reinhardt joined the Faculty of Law in 1991 from the law firm Minter Ellison where he was a partner. His research and teaching interests include the Law of Insolvency, Civil Procedure and Insurance Law. Greg is Editor of the Insurance Law Bulletin. In 1997 Greg was appointed Executive Director of the Australian Institute of Judicial Administration which is affiliated with the Faculty of Law at The University of Melbourne. Dr Geof Stapledon Dr Geof Stapledon obtained undergraduate degrees in Economics and Law from the University of Adelaide before practising as a commercial solicitor with Finlaysons in Adelaide. He then spent three years at the University of Oxford, conducting doctoral research into the role of institutional investors in corporate governance in the UK and Australia. This research led to the publication in mid-1996 of Geof's book Institutional Shareholders and Corporate Governance (Oxford University Press). Geof joined the Faculty of Law at The University of Melbourne in 1995. Geof has a number of journal publications in the area of institutional investors and corporate governance, together with articles in the areas of directors' duties, shareholders' remedies, and auditors' liabilities. He is the Editor of the leading journal specialising in Australasian corporate and securities law: the Company and Securities Law Journal. Geof spent 1997 on secondment with the law firm Minter Ellison in Sydney, advising on the demutualisation of the AMP Society. He is a Principal in the corporate governance advisory firm, Institutional Analysis. Ms Susan Woodward Susan Woodward is a graduate of The University of Melbourne (LLB (Hons)) and is a Barrister and Solicitor of the Supreme Court of Victoria. Prior to joining The University of Melbourne, Susan practised in commercial law both in Australia and London. She also worked as in-house legal counsel for the Australian Industry Development Corporation. At The University of Melbourne, Susan has taught Corporations Law in the law and commerce faculties for several years. Susan has co-authored Corporations Law Workbook (LBC Information Services, 4th ed, 1999) which is accompanied by a Teachers' Manual. Susan was on leave during 2000 but will return in 2001 to pursue her research interest in non-profit companies. Honorary Research Fellow Dr George Gilligan Dr George Gilligan is a criminologist who holds a PhD from the University of Cambridge and Masters degrees from both the University of Cambridge and La Trobe University. He has taught at the universities of Cambridge, Exeter, La Trobe, Melbourne and Middlesex. His research interests focus on the regulation of financial markets, white collar crime and organised crime, and he has published extensively in these areas. His projects for the Centre for Corporate Law include an examination of civil penalties by the Australian Securities and Investments Commission. George is currently Logan Research Fellow in the Department of Business Law and Taxation at Monash University. Research Associates Mr David Noakes, Solicitor, Allen Allen & Hemsley Mr Joel Vernon, Associate to the Honourable Justice Mandie, Supreme Court of Victoria Return to Top A number of highly successful conferences and seminars were organised by the Centre during 2000. A list of previous seminars and conferences is contained in Appendix A. Directors’ Duties: Recent Developments and their Implications for Directors and Advisers (8 November 2000)
The Future of Corporate Regulation: Hughes and Wakim and the Referral of Powers (3 November 2000)
E-Commerce and Financial Services (16 October 2000)
Economic Law Reform in Developing Countries: The Case of Indonesian Company Law (11 August 2000)
Insider Trading: Recent Developments and Practical Issues for Market Participants (4 July 2000)
Hughes and Wakim: The Challenges for Corporate Regulation (22 June 2000)
The Corporate Law Economic Reform Program and Fundraising (30 March 2000)
The Corporate Law Economic Reform Program and Takeovers (9 March 2000)
The Centre has developed links with peak organisations with an interest in corporate and securities law. During 2000 academic members of the Centre were also members of:
Academic staff members have also been Course Directors for the Corporate Secretaries Course administered by the Institute of Corporate Secretaries. During 2000 academic members of the Centre occupied editorial positions with a number of corporate law and other publications:
Other editorial work undertaken during 2000 included:
BOOKS Austin, R P, Ford, H A J and Ramsay I, An Introduction to the CLERP Act 1999, Butterworths, Sydney (2000) Baxt, R, Ramsay, I, Renard, I, Simkiss, R and Webster, J, The Corporate Law Economic Reform Program Explained, CCH Australia, Sydney (2000) Hanrahan, P, Ramsay I and Stapledon G, Commercial Applications of Company Law, CCH Australia, Sydney (2000) Lindsey T, Indonesia: Bankruptcy, Law Reform and the Commercial Court, Desert Pea Press, Sydney (2000) Ramsay, I (editor), Company Directors' Liability for Insolvent Trading, CCH Australia and Centre for Corporate Law and Securities Regulation, Melbourne (2000) Research Reports Stapledon, G, Easterbrook, S, Bennett, P and Ramsay, I, Proxy Voting in Australia’s Largest Companies, Centre for Corporate Law and Securities Regulation, Melbourne (2000) Lamba, A and Ramsay, I, Share Buy-backs: An Empirical Investigation, Centre for Corporate Law and Securities Regulation (2000) Ramsay, I, Stapledon, G and Vernon, J, Political Donations By Australian Companies, Centre for Corporate Law and Securities Regulation (2000) Chapters in Books Lindsey, T, ‘Black Letter, Black Market and Bad Faith: Corruption and the Failure of Law Reform’ in Manning, C and Van Diermen, P (eds), Indonesia in Transition: Social Aspects of Reform and Crisis, Institute of Southeast Asian Studies, Singapore (2000) Lindsey, T and Taylor, V, ‘Rethinking Indonesian Insolvency Reform: Contexts and Frameworks’ in Lindsey, T (ed), Indonesia: Bankruptcy, Law Reform and the Commercial Court, Desert Pea Press, Sydney (2000)Noakes, D B, ‘The Recovery of Employee Entitlements in Insolvency’ in Ramsay, I (ed), Company Directors' Liability for Insolvent Trading, CCH Australia and Centre for Corporate Law and Securities Regulation, Melbourne (2000) Ramsay, I, ‘An Overview of the Insolvent Trading Debate’ in Ramsay I (ed), Company Directors' Liability for Insolvent Trading, CCH Australia and Centre for Corporate Law and Securities Regulation, Melbourne (2000) Stapledon, G P, ‘Institutional Investors: What Are Their Responsibilities as Shareholders?’ in Parkinson, J, Gamble, A and Kelly, G (eds), The Political Economy of the Company, Hart Publishing, Oxford (2000) Journal Articles Fehlberg, B, ‘Family Futures: Issues in Research and Policy (2000) 56 Family Matters 4-9 Fehlberg, B and Kelly, F, ‘Jurisdictional Overlaps Between the Family Division of the Children's Court of Victoria and the Family Court of Australia’ (2000) 14 Australian Journal of Family Law 211-233Fehlberg, B and Smyth, B, ‘Pre-Nuptial Agreements for Australia: Why Not?’ (2000) 14 Australian Journal of Family Law 1-22 Fehlberg, B, ‘Family Futures: Issues in Research and Policy’ (2000) 56 Family Matters 4-9 Gilligan, G, ‘Social and Political Influences in the Reform of Banking Regulation’ (2000) 1 Financial Crime Review 57-63 Gilligan, G, ‘Regulating Companies in an Era of Late Modernity’ (2000) 21 The Company Lawyer 145-150 Gilligan, G, ‘Regulating Against White Collar Crime in the Financial Services Sector’ (2000) 8 Journal of Financial Crime 7-11 Gilligan, G and Latimer, P, ‘False Trading and Market Manipulation Provisions of Australian Corporations Law and its Future Directions’ (2000) 1 Financial Crime Review 29-38 Gilligan, G, ‘The Potential of Socio-Legal Approaches in the Development of Company Law’ (2000) 21 The Company Lawyer 127-128 Hitchens, L, ‘Directorships – How Many is Too Many?’ (2000) 4 Company, Financial and Insolvency Law Review 359-369 Noakes, D B, ‘Recovering Employee Entitlements and Uncommercial Transactions in Insolvency’ (2000) 1 Insolvency Law Bulletin 20-22 Noakes, D B, ‘Reform to the Law of Corporate Groups in Australia to Protect Employees’ (2000) 34 University of British Columbia Law Review 9-61 Noakes, D B, ‘The Enforceability of Romalpa Clauses Against Liquidators and Administrators’ (2000) 8 Insolvency Law Journal 112-115 Noakes, D B, ‘Pooling the Assets and Liabilities of Insolvent Companies’ (2000) 8 Insolvency Law Journal 179-182 Ramsay, I, Lange, H and Woo, L, ‘Corporate Governance and Anti-Takeover Devices: Evidence from Australia’ (2000) 8 Corporate Governance: An International Review 227-243 Ramsay, I, Fong, K and Stapledon, G P, ‘Corporate Governance: The Perspective of Australian Institutional Shareholders’ (2000) 18 Company and Securities Law Journal 110-142 Ramsay, I, ‘Challenges to Australia's Federal Corporate Law’ (2000) 3 Journal of the Securities Institute of Australia 26-29 Ramsay, I, ‘The Hughes Case and Corporate Law’ (2000) 70 CPA Australia 66-67 Ramsay, I, ‘High Court Confirms Directors Owe No Duty to Creditors’ (2000) 52 Journal of Chartered Secretaries 523-524 Ramsay, I, ‘The Unravelling of Australia's Federal Corporate Law’ (2000) 31 Corporate Law Electronic Bulletin Reinhardt, G, ‘The Changing Face of Adversarial Justice’ (2000) 12 Legal Date 1-4 Sievers, A S, ‘Incorporation of Non-Profit Associations: The Way Ahead?’ (2000) 18 Company and Securities Law Journal 311-325 Smith, M, ‘Asia Through Australian Eyes’ (2000) 28 Asia Business Law Review 46-52 Smith, M, ‘Building an Asian Law Collection’ (2000) 28 International Journal of Legal Information 362-372 Stapledon, G P and Bates, J J, ‘Unpacking the 'Interest-Holders' in a Share: Reducing the Costs of Voting’ (2000) 4 Company, Financial and Insolvency Law Review 293-329 Stapledon, G P, ‘Voting Levels Remain Low in Australia’ (2000) 2000 Governance 6-7 Stapledon, G P and Ali, P U, ‘Extracting Value from Executive Share Options’ (2000) (October ) Company Director 16-19 Stapledon, G P and Bates, J J, ‘Making Voting Easier’ (2000) Governance 14-15 Stapledon, G P and Ali, P U, ‘Virtual Flotations, Tracking Shares and Corporate Governance’ (2000) 18 Company and Securities Law Journal 429-433 Stapledon, G P and Ali, P U, ‘Having Your Options and Eating Them Too: Fences, Zero-Cost Collars and Executive Share Options’ (2000) 18 Company and Securities Law Journal 277-282 Stapledon, G P and Bates, J J, ‘Reconceptualising the Nature of Modern Shareholding (and Making Voting Easier)’ (2000) 18 Company and Securities Law Journal 155-159 CASE NOTES Reinhardt, G, ‘Casenote - Commercial Union v Beard’ (2000) 15 Australian Insurance Law Bulletin 22-24 Reinhardt, G, ‘Casenote - Hollis v Vabu Pty Ltd (Trading as Crisis Couriers)’ (2000) 15 Australian Insurance Law Bulletin 24-25 Reinhardt, G, ‘Casenote - Buller Ski Lifts Pty Ltd v Mt Buller Alpine Resort Management Board’ (2000) 15 Australian Insurance Law Bulletin 59-60 Reinhardt, G, ‘House of Lords Redefines Practitioner Immunity’ (2000) 15 Australian Insurance Law Bulletin 61-64 Reinhardt, G, ‘Funding of Litigation by Insurers’ (2000) 15 Australian Insurance Law Bulletin 73-75, 84 Reinhardt, G, ‘Lister v Romford Ice and Cold Storage Lives On’ (2000) 15 Australian Insurance Law Bulletin 79-80, 84 Reinhardt, G, ‘Casenote - Roberts v Cashman’ (2000) 15 Australian Insurance Law Bulletin 88-90 Reinhardt, G, ‘Casenote - Mercantile Mutual Insurance (Australia) Pty Ltd v Selikas’ (2000) 15 Australian Insurance Law Bulletin 95-96
CONFERENCE PAPERS Gilligan, G, ‘The Global Financial Markets of Today and Tomorrow’. Paper presented at the 18th International Symposium on Economic Crime, Cambridge, 10-17 September 2000
Hanrahan, P, ‘CLERP 6 and Superannuation’. Paper presented to the Superannuation Lawyers’ Association, Melbourne, April 2000 Lindsey, T, ‘Abdurrahman Wahid, Law Reform and Corruption: The Enemy Within’. Paper presented at Rethinking Indonesia Conference by Monash University, The University of Melbourne, La Trobe University, Deakin University & Swinburne University, 4-5 March 2000 Lindsey, T, ‘Assessing Anti-Corruption Initiatives in Indonesia’. Paper presented at Rethinking the Good Governance Paradigm: Corruption and Social Engineering in Indonesia and Vietnam international workshop by Australian Centre for International Business/ Asian Law Centre, The University of Melbourne, October 2000 Lindsey, T, ‘From Soepomo to Prabowo: Rethinking the State? The Failure of Legal Responses to Violence in Indonesia’. Paper presented at Conference of Asian Studies Association of Australia, The University of Melbourne, 3-5 July 2000 Lindsey, T, ‘Indonesia Update’. Paper presented at Moving Minds by Asia Education Foundation, Melbourne, September 2000 Lindsey, T, ‘Legal Infrastructure Reform in East Asia’. Paper presented at Legal Infrastructure Reform in East Asia conference by APEC, Jakarta, July 2000(official AusAID submission, delivered by the Director, Indonesia, of AusAID, Mr Robert McKinnon) Lindsey, T, ‘The Necessity of Corruption’. Paper presented at seminar series by Centre for Asia Pacific Initiatives, University of Victoria, British Columbia, September 2000 Lindsey, T, ‘Privatising the Criminal State: Law Premanisme and the New Indonesia’. Paper presented at Indonesia Update, Australian National University, October 2000 Ramsay, I, ‘Corporate Governance and Voting by Institutional Investors’. Paper presented at the Australian Institute of Superannuation Trustees Corporate Governance Conference, Melbourne, 14 November 2000 Ramsay, I and Stapledon, G, ‘Corporate Governance: An Overview of the Key Issues and Debates’. Paper presented at the Australian Securities and Investments Commission Corporate Governance Program, Sydney, 20 March 2000 Ramsay, I, ‘The Financial Services Reform Bill: An Overview’. Paper presented at the Risky Business – Insurance and Financial Services Industry Conference, Sydney, 8 March 2000 Reinhardt, G, ‘Section 54 of the Insurance Contracts Act - The High Court Appeal in FAI General Insurance Company Ltd v Australian Hospital Care Pty Ltd’. Paper presented at the Insurance Law Intensive, Gold Coast, October 2000 Smith, M, ‘Dispute Resolution in Cross-Cultural Environments’. Paper presented at The 3rd Symposium on Current Issues in Intellectual Property Law, Trade and Dispute Resolution, Bangkok, Thailand, 30 November 2000 MONOGRAPH SERIES IN CORPORATE LAW AND SECURITIES REGULATION During 2000 the Centre published 1 monograph and 3 research reports as part of its series in corporate law and securities regulation. These were: Ian Ramsay (editor), Company Directors' Liability for Insolvent Trading (2000) (jointly published with CCH Australia) Company directors in many countries are under a duty to prevent their companies trading if they are insolvent. If the duty is breached, the director may be personally liable for the debts incurred by the company while it is insolvent. This duty is one of the most important and controversial of the duties imposed upon company directors. This book is a detailed analysis of the duty imposed upon company directors to prevent insolvent trading. The law in a number of countries is examined. The chapters in the book are:
Geof Stapledon, Sandy Easterbrook, Pru Bennett and Ian Ramsay, Proxy Voting in Australia’s Largest Companies (2000) This Research Report, published jointly with Corporate Governance International Pty Limited, contains the results of a study of proxy voting at a sample of major listed Australian companies during 1999. The study is extremely topical and has received extensive media coverage. The Minister for Financial Services, Joe Hockey, has recently expressed strong interest in corporate governance and the role of institutional shareholders, stating that "funds managers and trustees have a responsibility in particular to make boards accountable for the decisions they make on behalf of shareholders". When institutional shareholders do vote, they typically do so by way of appointment of proxies. This study examined lodgment of proxy instructions for annual general meetings of large Australian listed companies as a means of determining the extent to which institutional investors vote. The Report: presents and analyses voting figures on the election and re-election of directors – including total figures and also a breakdown of votes for, against, abstaining and discretionary;
Asjeet Lamba and Ian Ramsay, Share Buy-backs: An Empirical Investigation (2000) This Research Report examines the effects of the changing legal regulation of share buy-backs in Australia from 1989-1998. Prior to 1989 Australian companies were prohibited from repurchasing their shares, and until 1995 they were heavily regulated with few companies repurchasing their shares. In December 1995 the legal regulation of share buy-backs was simplified making it considerably easier for companies to repurchase their shares. The changing Australian regulation of share buy-backs provides a unique opportunity to test the effects of legal regulation on companies' financing decisions. In particular, the Report examines whether the highly regulated environment for share buy-backs that existed during 1989-95 meant that companies were unable to undertake buy-backs for the purpose of information signalling (ie, companies signalling to the market that their shares are undervalued). In the less regulated environment, which has existed since 1995, the Report examines whether companies have been able to undertake buy-backs for the purpose of information signalling. The results indicate that the stringent regulation of share buy-backs during 1989-95 made them less effective as a credible signalling mechanism. Further, the Report finds that the market generally reacts the most positively to on-market buy-backs, while the reaction to other types of share buy-backs is positive but not statistically significant. Finally, the Report finds the abnormal returns earned by resource sector companies announcing share buy-backs are generally higher than the abnormal returns earned by share buy-backs announced by companies in the industrial and financial services sectors. Ian Ramsay, Geof Stapledon and Joel Vernon, Political Donations By Australian Companies (2000) Corporate political donations are of interest for several reasons including:
This Report presents the results of a study of corporate political donations. The data was derived from the annual returns of the major political parties lodged with the Australian Electoral Commission for 1995/96, 1996/97 and 1997/98. The Report presents and analyses information regarding:
In addition, the Report outlines the legal regulation of corporate political donations and summarises international developments in this area. Previous monographs and research reports of the Centre include:
REVIEWS OF CENTRE FOR CORPORATE LAW MONOGRAPHS Monographs published by the Centre for Corporate Law and Securities Regulation have received positive reviews. Some extracts from these reviews are noted below. “The University of Melbourne has provided us with a work of intellectual rigour…These eight essays (including the Editor’s own), form a multi-faceted prism of scholarship and substance. An ASIC lawyer, a New Zealand barrister, a Sydney solicitor, Oxford don, Australian professors and a Colorado professor are a laser of learned minds shining on section 588G of the Corporations Law. The section needs this treatment to enlighten vital corporate cross-roads.”
“A first-class review of the issues arising from deregulation of services with monopoly elements and provides a good fusion of the theory and its practical applications.”
“This book is essentially about how the economics of utilities affect asset valuation and in turn pricing. It’s about how technology determines the structure of an industry and how that structure determines the regulatory methods and process…The issues presented in this publication are topical, with deregulation either in the process of being implemented or well underway in most States…The book is recommended especially for those in Government, in any of the utilities and accountants who serve them.”
“This book will no doubt become a contemporary textbook in the study of corporate governance.”
“This book…includes interesting and thought-provoking material on issues which have been topical in the United Kingdom following the Law Commission’s Consultative Paper on Company Directors: Regulating Conflicts of Interest and Formulating a Statement of Duties (1998) and other recent developments…The collection assembled by Professor Ian Ramsay is recommended reading for anyone who is interested in exploring these issues or in corporate governance more generally.”
“This book provides timely perspectives on the various issues surrounding the role of directors and of corporate law in enhancing corporate governance practices…It provides a useful snapshot of the current thinking regarding director liability, regulatory costs and different policy approaches. More importantly, it provides an impressive introduction for newcomers to this area of the law, whilst also prompting a re-evaluation by those familiar with the many policy skirmishes occurring within the confines of the corporate governance debate.”
“This authoritative work discusses the duties of directors in Australia from a legal perspective. In his introduction the editor recognises that there are many definitions of corporate governance and explores why corporate governance has become an issue. In an original insight he also demonstrates the breadth of corporate governance far more fully than most authorities, by identifying the various mechanisms that play a role in corporate governance - viz directors’ legal duties, the structure of the board, auditors, institutional investors, the threat of takeover, disclosure of corporate information, the capital markets, the labour market for managers and executive remuneration, directors’ shareholdings, ownership concentration, corporate financial policy, shareholder voting and litigation, and intervention by regulators.”
“If you have always sought clarification as to just what constitute corporate governance and succinct enlightenment as to the law defining directors’ duties, then Corporate Governance and the Duties of Company Directors is the book for you…Thoughtful consideration has been extended to the issue of corporate governance…while the substantive law pertaining to directors’ duties is admirably presented.”
“Pamela Hanrahan’s book represents a substantial analysis of the Managed Investments Act 1998. It is a good introduction to the area for lawyers and practitioners in the area and has the benefit of containing additional materials for the more experienced practitioner…The book provides a good overview of the area, and a sound evaluation of relevant provisions under the law. Legal requirements relating to these schemes, the scope of relevant laws and the responsibilities of administrators and regulatory bodies have been thoroughly considered.”
“This book by Pamela Hanrahan of Melbourne University explains the application of the new legislation and provides insight into its operation, providing case authority and background material…The book is well written and researched. It describes the legislation and processes concerning managed investments well, but is not limited to this. The various anomalies and potential problems which the legislation may cause are identified and analysed. The views of the author on many of the well hidden problems and applications of the Managed Investments Act are of great assistance…This book will provide a useful basis upon which any lawyer may proceed to explore the intricacies of managed investments legislation.”
“This monograph provides commentary on the key legislation provisions and ASIC policy statements applicable to managed investment schemes…As an account and commentary on a particular area of financial regulation, the monograph is an invaluable resource for both legal practitioners and funds management professionals. Hanrahan’s background knowledge and experience in the area is drawn upon to provide a useful account of the law as it currently stands. The timeliness of the work must also be praised, being published only four months after the enactment of the legislation.”
“This is a useful book for both professionals and academics involved in the corporate and finance sectors. The number of recent cases in which the issue of authority has arisen in recent years…make this book a beneficial addition to the legal library.”
“This monograph is a valuable addition to the existing body of knowledge on this topic and I strongly recommend it to practitioners, teachers and students. It is clearly and precisely written and provides an excellent coverage of this difficult and extremely important topic.”
“[This book] is on a topical subject of interest to all who work in the corporate environment…It provides practical points for company officers, particularly those involved in lending”
“This book deserves to be read by all academics and practitioners with an interest in corporate law and shareholders’ rights…It is a fascinating collection of papers by nine leading authorities evaluating the most significant practical and theoretical implications of the decision of the High Court in Gambotto v WCP Ltd.”
The Faculty of Law at The University of Melbourne has a very strong graduate program in corporate law and securities regulation. The 19 subjects offered are:
A list of all the Faculty of Law’s graduate subjects offered in 2000 is contained in Appendix B. At the undergraduate level, the following subjects are offered:
In addition, the Faculty is responsible for teaching the subject Corporate Law in the Faculty of Economics and Commerce. A feature of the graduate program in corporate law is the use of international corporate lawyers. These have included Professor Roberta Karmel who is a former Commissioner of the United States Securities and Exchange Commission; Professor Deborah DeMott of Duke University School of Law; Professor Douglas Branson of the University of Pittsburgh School of Law; Professor Dale Oesterle of the University of Colorado Law School; and Ms Cally Jordan of the World Bank. * indicates taught in 2000 CORPORATE LAW ELECTRONIC BULLETIN In 1997 the Centre for Corporate Law and Securities Regulation commenced publishing the Corporate Law Electronic Bulletin. It has been established with the support of the Australian Securities and Investments Commission, the Australian Stock Exchange and leading national law firms. The monthly Bulletin includes the following:
There are approximately 2,000 subscribers to the Bulletin with readership estimated at well in excess of this number as the Bulletin is distributed widely within law firms, companies, regulators and government departments. Readers of this Annual Report who are interested in seeing previous issues of the monthly Bulletin can access them through the archive site on the Internet, the address of which is: http://cclsr.law.unimelb.edu.au/bulletins Readers who wish to subscribe to the free Bulletin can do so by contacting the Centre Administrator at “cclsr@law.unimelb.edu.au”. COMPETITIVE RESEARCH GRANTS OBTAINED This section identifies the competitive research grants obtained by members of the Centre in 2000. A list of competitive research grants obtained in 1996-1999 is contained in Appendix C.
SUPERVISION OF GRADUATE STUDENTS’ RESEARCH This section identifies the supervision of graduate students undertaken by members of the Centre in 2000. PhD
SJD
Master of Laws
THE CENTRE AS A PUBLIC RESOURCE The Centre makes its knowledge and expertise available as a public resource in a number of ways including providing interviews and information to the media, responding to requests for information, and writing submissions on matters of law reform. Submissions During 2000 members of the Centre were responsible for drafting a number of submissions relating to corporate law reform either in a personal capacity or on behalf of organisations such as the Australian Institute of Company Directors. For example, Sally Sievers made a detailed submission to the Victorian Department of Justice on proposed amendments to the Associations Incorporation Act. Requests for information During 2000 members of the Centre provided information on Australian corporate law to a number of overseas academics, securities commissions and law reform commissions. Media During the course of the year members of the Centre gave a number of interviews to newspaper journalists and radio journalists. Some of the newspaper articles published in 2000 which reported on the research of the Centre included: (i) Media coverage of Centre Research Reports Political Donations by Australian Companies
Proxy Voting in Australia’s Largest Companies
Share Buy-backs: An Empirical Study
(ii) Media commentary on other research by Centre members Research study on corporate governance guidelines by Professor Ian Ramsay and Dr Geof Stapledon
Research study on US Securities and Exchange Commission Regulation FD by Jeffrey Lawrence
(iii) Centre members’ comments in the media on current issues Float fees
Insider trading
High Court decisions in Hughes and Wakim and the proposed referral of powers
Insolvent trading and the ASIC case against Water Wheel directors
Corporate crime
Government report recommending incentives for employee share plans
Idoport Pty Ltd v National Australia Bank - the $50.6 billion damages claim
Morale in law firms
Analysts briefings - legal issues
Centre for Corporate Law seminar on the High Court decisions in Hughes and Wakim - comments of two speakers - Chief Justice Michael Black and Professor Robert Baxt
ASIC discussion paper on online investment advice
Takeovers Panel
Protection of employee entitlements
Yannon case
Corporate governance
SEMINARS HELD IN 1995-1999 Corporate Law Economic Reform Program Paper 6 and Securities
Lawyers' Professional Negligence: Recent Developments
Directors' and Officers' Liability Insurance: Practical and Legal Issues
Share Capital Changes: Practical Implications
The Business Judgment Rule: Key Issues for Company Directors and Officers and Their Advisers
1999 Australian Securities and Investments Commission Summer School
Interpreting Ministerial Directions to Statutory Corporations: Can Responsible Government Determine Corporate Governance?
Long-Term Contracts and Competition Laws
A United States Perspective on the Business Judgment Rule
1998 Australian Securities Commission Summer School
The Regulation of Managed Investments: Current Issues and Perspectives
Developments in Closely Held Firms in the United States
The Corporate Law Economic Reform Program
Do Independent Directors Matter?
Contemporary Developments in Corporate Insolvency Law (A Centenary Celebration of Salomon v Salomon & Co Ltd)
Directors' and Officers' Remuneration: Current Australian and United States Issues
Commercial Fiduciary Duties
Electronic Commerce: Regulating in a World of Technological Change
Corporate Law Teachers National Conference
The Courts and Corporate Law
Corporate Strategies in the Single European Market
Derivatives Regulation in the United States: Problems and Issues
Deregulation of Public Utilities
The CRA-RTZ Merger
Recent Developments in Legal Professional Privilege and the Privilege Against Self-Incrimination
Corporate Governance: An International Perspective
Shareholders' Remedies: Australian and United States Developments
Daniels v AWA Limited
Recent US Developments in Directors' Duty of Care in Corporate Transactions
Gambotto v WCP Limited
Corporate Groups: A United States Perspective on Current Legal Issues and Policies
The NRMA Case
Recent Developments in Closely Held Firms in the United States: Limited Liability Companies and Limited Liability Partnerships
2000 FACULTY OF LAW GRADUATE SUBJECTS Advanced Restrictive Trade Practices Advanced Trade Secrets Alternative Commercial Dispute Resolution in Asia Australian Income Tax System Australian International Tax Australian Tax Treaties Broadcasting and Telecommunications Law Broadcasting and Telecommunications Regulation: A Comparative Analysis Commercial Applications of Equity Commercial Law in Asia Company Takeovers Comparative Companies Law in the Asia-Pacific Region Comparative Income Tax Competition Law and Intellectual Property Construction Claims Construction Contracts Copyright Law Corporate Governance and the Duties of Directors Corporate Taxation Designs Law and Practice Dispute Avoidance, Management and Resolution in the Construction Industry Environmental Law: Current Energy and Resources Issues Film and Television Law: Production, Financing and Distribution Goods and Services Tax Insurance Intermediaries Insurance Litigation Intellectual Property in the Digital Age International Economic Organisations International Franchising, Distribution and Licensing International Issues in Intellectual Property International Sale of Goods International Trade Finance and Bank Obligations International Trade Law Legal Aspects of Finance in Asia Licensing Law and Technology Transfer Marine Insurance Native Title Law and Resources Development Patents and Trade Secrets Petroleum Law Professional Indemnity Insurance Professional Practice in the Construction Industry Project Finance Regulatory Environment for Corporations Resources Joint Ventures and Transactions Resources Projects in Indonesia: Legal and Regulatory Issues Securities for Corporate Lending Shareholders’ Remedies Sport Commerce and the Law Sports Marketing Law Taxation of Business and Investment Income Taxation of Flow-Through Vehicles Taxation of Superannuation Trade Mark Practice Trade Marks and Unfair Competition Transfer Pricing in International Taxation COMPETITIVE RESEARCH GRANTS OBTAINED IN 1996-1999 The Governance of Managed Investment Schemes
Use and Operation of the Enforcement Regime Attracted by Contraventions of Directors' Duties in the Australian Corporations Law
Southeast Asian Laws in Transition: 1945-1995
Reducing the Cost of Capital Raising: An Empirical Analysis of ASIC Modifications of the Fundraising Provisions of the Corporations Law
The Costs of Corporate Litigation
Electronic Prospectuses: Devising an Appropriate Regulatory Regime
Corporate Disclosure: An Analysis of the Role of Prospectuses in Capital Raising in Australia and New Zealand
The Impact of Institutional Investors on Capital Markets and Corporate Performance
Directors' Misconduct Decriminalised: Are the "Civil" Sanctions in the Corporations Law Effective?
Using Electronic Commerce to Authorise Electronic Transactions: Changes Required to the Legal and Regulatory Framework
The Role of Institutional Investors in Corporate Governance and the Influence of Corporate Law on this Role
The Use and Operation of Management Banning Orders as Enforcement Tools Under the Corporations Law
Compulsory Acquisition of Minority Shareholdings
The Legal Implications of the Relative Performance of Publicly Listed Australian Companies With and Without a Controlling Shareholder
Analysis of Victorian Legal Signature and Writing Requirements for Compatibility With the Proposed Electronic Commerce Framework Act
Remedies for Directors' Improper Use of Position
Women and Commerce
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