Trade law Part 22

 

Rethinking unconscionable conduct under the Trade Practices Act
Peter Strickland
Australian Business Law Review
Volume 37, Number 1, February 2009 p.19

The courts have so far given the word “unconscionable”in s 51AC of the Trade Practices Act its ordinary dictionary meaning. There are, however, some tensions within that meaning as to what constitutes unconscionable conduct within s 51AC. Those tensions, combined with the standard, rather than rule, proscribed by the ordinary meaning create a degree of uncertainty in law and contract compared to the position under the general law. This paper identifies the prevailing judicial views on s 51AC and seeks to ascertain the true meaning of unconscionable conduct under s 51AC in accordance with modern statutory interpretation principles. The paper then explores the impact of this interpretation in two areas: cases where clear unfairness and opportunism have been found; and the case of small to medium-size business transacting with large business.

Misrepresentations as to future matters – current issues in interpretation
Peter Gillies
Trade Practices Law Journal
Volume 17, Number 1, March 2009 p.25

Section 51A of the Trade Practices Act 1974 (Cth), dealing with misrepresentations as to future matters, presents problems of interpretation. However, recent case law has clarified aspects of the application of the provision. It is submitted that s 51A imposes an evidential burden merely upon the representor, and not a burden of proof; and that s 51A does create a substantive defence available in all situations where a misleading representation as to a future matter is alleged.

CROSS BORDER COURT COMMUNICATIONS
Chief Justice Donald I Brenner
Australian Law Journal
Volume 83, Number 2, February 2009 p.90

Commercial enterprises now commonly trade acrosss international borders. When such enterprises collapse, considerable forensic problems can occur. In this short article, the Chief Justice of British Columbia discusses the cross border guidelines adopted by the American Law Institute and then gives practical examples of how that sort of scheme works in practice between Canadian and US courts. He concludes with his comments as to the utility of this sort of scheme.

DROIT DU COMMERCE INTERNATIONAL ET DE LA CONCURRENCE/INTERNATIONAL TRADE AND COMPETITION LAW
International Business Law Journal
Number 4, 2008

Pruning the Evergreen Tree: Section 3(d) of the Indian Patents Act 1970
ADARSH RAMANUJAN AND RAJARSHI SEN
European Intellectual Property Review
Volume 31, Issue 3, 2009 p.135

This article critically examines the controversial s.3(d) of the Patents Act 1970 in light of the decision of the Madras High Court in a recent Writ Petition, filed by Novartis India Ltd, the Indian subsidiary of a Switzerland-based pharmaceutical company challenging the constitutional validity of this provision. This is the first time any provision of the Act has ever been challenged as unconstitutional. This decision is important from a patent law perspective, since it discusses the scope, ambit and purpose of s.3(d), the parameters to be applied by the Patent Controller in applying the provision, and, finally, the issue of India’s compliance with the Agreement On Trade-Related Aspects of Intellectual Property Rights (TRIPs).

Select Articles on International Economic & Trade law , Arbitration and Law of the Sea
Meenakshi Bhan
Indian Journal of International Law
Volume 48, Number 2, April-June 2008 p.314

Trade Mark Law
International Review of Intellectual Property and Competition Law
Volume 39, Number 8, 2008

Trade Mark and Unfair Competition Law
International Review of Intellectual Property and Competition Law
Volume 39, Number 8, 2008

An Analysis and Synthesis of the Decisional Law Applying Article XX(g) of the General Agreement on Tariffs and Trade
Jasper L. Ozbirn
Pacific McGeorge Global Business & Development Law Journal
Volume 21, Number 2, 2008 p.371

What Exactly Does a Registered Trade Mark Protect? A Fresh Look at the “Use as a Trade Mark”Defence
Paul Sumpter
New Zealand Business Law Quarterly
Volume 14, Number 4, December 2008 p.255

The New Zealand Trade Marks Act 2002 represented a significant change in the law. There were a number of new provisions and a plainer drafting style. It was hoped, no doubt, that the law would not only be modernised but made more intelligible. The exclusivity rights given to a trade mark owner through registration serve to safeguard the public from any misrepresentation about trade origin and protect the owner’s investment in the mark. But a tension can arise between these rationales, most prominently revealed in defining the extent of the exclusive right. A long-standing defence is that a person does not infringe a registered mark if they do not use a sign “as a trade mark”. What does this mean? As a result of the changes in the new legislation the issue is remarkably opaque. Its obscurity symbolises the conflicting justifications for trade mark protection. It is also evidence that the Act is not, after all, a new paradigm in legislative clarity.

Zeller: CISG and the Unification of International trade law
Lloyd’s Maritime and Commercial law Quarterly
Volume 2008, Part 4, November 2008 p.578

Trade Mark Law
International Review of Intellectual Property and Competition Law
Volume 39, Number 7, 2008

 

Author: international

Mentioned in these Entries

Commercial law, General Agreement on Tariffs and Trade, International trade law Part 22, International trade law, Patents, Trade law.