Master of Banking and Finance Law

Australia has a detailed and comprehensive consumer protection regime dealing with the supply of goods and services, including financial products, to consumers. Primary legislation is the Australian Consumer Law (ACL), found in Schedule 2 of the Competition and Consumer Act 2010 (Cth); equivalent provisions in the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) applying to financial services and products; and, for consumer credit, the National Consumer Credit Protection Act 2009 (NCCP Act). This subject provides students with a detailed knowledge of key features of the Australian Consumer Law and of the common law principles and policy imperatives that underpin it. The lecturers include one of the Law School’s private lawyers with specialist expertise in consumer law, and a leading practitioner in this field of law.

Principal topics include:

• Purposes of consumer protection law
• The regulatory toolkit
• Common law doctrines underlying the legislative regime
• Enforcement and remedial strategies.
• Key consumer protection regimes under the ACL, ASIC Act and NCCP Act:
  • Misleading or deceptive conduct
  • Unconscionable conduct
  • Interest rate caps and responsible lending
  • Consumer guarantees and implied terms
  • Unfair contract terms.

This subject examines the fundamental principles under Australian law relating to the provision of credit by financiers to businesses and consumers. The subject has as its focus the legal design of key financing transactions and the chief means by which financiers manage the risk of a borrower’s default or insolvency. The topics covered range from 'vanilla' unsecured loans to loans supported by security interests and more complex title-based transactions. The subject also discusses recent Australian reforms in the field of banking and finance law, including the Personal Property Securities Act.

This subject is a preparatory subject for the more specialised subjects in the Banking and Finance Law program.

Principal topics include:

• The financier–borrower relationship and key governance issues in banking and finance transactions
• Building blocks of banking and finance transactions
• Law relating to guarantees and security interests
• Legal design of more complex banking and finance transactions
• Recent legal reforms.

Equitable doctrines and remedies lie at the heart of commercial conduct, transactions and private law litigation. They provide unique standards of conduct that restrict and guide commercial dealings and a raft of powerful personal and proprietary remedies that dictate defendant liability when transactions fail. Over recent years their influence has been seen not only in important judicial decisions affecting commercial dealings, but in the raft of legislation that now builds on those equitable foundations. This subject considers some of the more pressing points of convergence between equitable doctrine and commercial practice, and examines their ongoing relationship with key statutory counterparts. In doing so, the subject is tightly structured to ensure that students are exposed to cutting-edge legal theory concerning court-led equitable developments and to the ramifications of those developments at the coal-face of commercial practice and dealings.

This subject will be relevant to transaction lawyers involved in planning, initiating and drafting contracts, for corporate lawyers and regulators involved in consumer and banking law and for commercial litigators. The lecturers are internationally recognised experts in the commercial applications of equitable doctrines and remedies. They are also exceptional teachers, evidenced by the consistently outstanding results in the student experience surveys for this subject.

Principal topics include:

• The role of equity in commercial transactions
• The nature of the fiduciary obligations, including the avoidance and ‘management’ of fiduciary conflicts
• Undue influence, mistakes and the enforcement of domestic guarantees in banking contexts
• Quistclose trusts
• The role of estoppel in commercial transactions
• Equitable remedies for breach of obligation, with special reference to gain-based awards and constructive and resulting trusts.

Corporate bankruptcy and corporate rescue pose fundamental questions for the insolvency regime. This subject examines some of the central rules, policies and principles of corporate bankruptcy and insolvency law, as well as the economic and social objectives attributed to the bankruptcy and insolvency system. The subject will be taught from a comparative perspective, drawing upon the laws of Australia, New Zealand, Canada, the United States and the United Kingdom. A comparative perspective will enable students to examine and critically evaluate the varied legal solutions to common insolvency law issues. This approach will allow students to acquire advanced and specialised knowledge in recent developments in insolvency law. The lecturer is a Professor of Law at Western University in Canada and he has taught subjects in insolvency and commercial law at universities in Canada, the United States, New Zealand and Australia.

Principal topics include:

• Historical overview (a discussion of the origins of insolvency law to place current developments in context)
• Modern insolvency law objectives and theory (students will consider competing theories of modern insolvency objectives, contrasting broader distributional and public interest theories with a pro-creditor approach)
• Initiating bankruptcy proceedings against a corporation (students will assess how various jurisdictions enable creditors to initiate an involuntary corporate bankruptcy)
• Voidable preferences (students will evaluate various statutory models that have emerged to cope with the problem of debtor corporations making preferential payments to favoured creditors prior to bankruptcy)
• Director liability and the insolvent corporation (an assessment of the risk of personal liability of directors in the context of corporate insolvency)
• Equitable subordination (an emerging issue in Canada, and long established in the United States, is whether a court has jurisdiction to equitably subordinate the claim of a creditor in a corporate bankruptcy)
• Corporate rescue or liquidation? (an evaluation of the trend from traditional corporate rescue law (where the company is rescued in some form) to the more recent development of corporate liquidations being carried out under a corporate reorganisation statute)

Following the global financial crisis (GFC) and the sovereign debt crisis, the debt capital markets have seen major changes. A lack of trust and disclosure led to a surge in bondholder litigation, along with ongoing enforcement action from supervisors and regulators. Investors continue to explore all available avenues to recoup losses. More recently, structured products have made a comeback as investors hunt for yield or, alternatively, seek sustainable investments in the bond markets. The focus of this subject is distinctly practical. Real-life examples from international practice will be analysed and discussed. The lecturer draws on his international experience and brings in guest lecturers from top tier law firms and financial institutions, as well as other disciplines, contributing to a highly interactive, challenging, flexible and overall rewarding subject.

This subject covers the law and practice of the international debt capital markets. It discusses the mechanics of the capital markets generally, explaining how these differ from the loan and derivatives markets. It covers the relevant actors and the (highly dynamic) legal and regulatory framework. There is emphasis in class on the legal and structuring aspects of actual capital market transactions, such as covered bonds, securitisations, (structured) bonds and hybrid transactions.

Restructuring of bond transactions (as evident in the recent sovereign debt crises) is a prominent feature. Consideration of financial markets litigation (involving investment banks, hedge funds, ratings agencies, derivative dealers and regulators) is another important aspect of the subject. Green and inclusive finance (through green bonds, some project bonds and microfinance securitisation) also features. Actual transactions, their structure, term sheet and documentation, are discussed in class, in order to provide students with a skillset that is applicable in legal practice and thus further enhance their legal prospects and careers.

This subject is concerned with the regulation of financial intermediaries, including financial product issuers, broker/dealers, fund managers, custodians, financial planners and investment advisers. Orthodox approaches to the regulation of financial intermediaries have been under significant challenge since the Global Financial Crisis, with more to come. The subject combines a thorough technical grounding in the current law governing the provision of financial services to retail and wholesale clients in Australia with broader perspective on likely future directions in financial services regulation. The lecturer is a former Australian Securities and Investments Commission (ASIC) Regional Commissioner and one of Australia’s leading experts in the areas of funds management law and financial services regulation

This subject examines the regulation of financial services providers and the legal dimensions of their relationship with their clients. In particular, it deals directly with relevant parts of Chapter 7 of the Corporations Act 2001 (Cth) and the general law relating to brokers, dealers and financial advisers. It also covers the related topic of financial product disclosure.

Principal topics include:

• Policy underpinning Chapter 7 of the Corporations Act 2001 (Cth)
• Theoretical and comparative approaches to regulating financial intermediaries
• The Australian Financial Services (AFS) licensing regime
• Financial services disclosure
• Statutory and general law duties of financial services providers
• Financial product disclosure
• Roles and powers of the Australian Securities and Investments Commission (ASIC) and the Australian Prudential Regulation Authority (APRA)
• The impact of new technologies in financial services: regulating for disruption.

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Fundamentals of the Common Law is a foundational subject in the Melbourne Law Masters (MLM), which is compulsory for graduates in disciplines other than law and for law graduates from countries with a non-common law system. It provides students with an opportunity to acquire the foundational legal skills necessary for studying and working in a common law system, such as that in Australia.

The common law forms one of the two principal systems of Western law that, through colonisation, have spread throughout the world. Common law systems have a distinctive approach to understanding the sources of law, the role of law-making institutions, and processes for resolving disputes. These characteristics of the common law system have had a profound effect on the development not only of the societies in the countries in which it applied, but also on international law and practice.

The aim of this subject is to acquire basic foundational legal skills that will assist you with other subjects in the MLM program. The subject teaches students how to read, use and interpret reported cases and legislation. The subject explains the sources of law, what influences them, and how they influence the development of the common law. These aims are given in context of some contemporary debates on common law reasoning by assessing the role of the High Court of Australia. The subject focuses on developing skills in analysis and legal writing, the tools of the common lawyer

Principal topics include:

• How to read and analyse a case
• The concept and use of precedent
• Evolution of a common law principle
• Common law issues: judicial activism, separation of powers
• The role of the High Court and an overview of the Constitution
• The relationship between the Constitution, case law and statute law
• Influences of other sources of law on the common law
• How to read and analyse statutes
• Approaches to statutory interpretation
• Legal writing skills and expectations in the MLM program.

The International Monetary Fund (IMF) and the World Bank are arguably the two least understood and most controversial international organisations. Both are key components of the international financial system and significant players in the worldwide response to the Global Financial Crisis. They also play a vital role in national economies (as seen for example in the IMF’s involvement in the Euro-zone rescue and its analytical work on the historic rise in sovereign debt). This subject will focus on the IMF and World Bank while also providing students with a sophisticated understanding of the broader international financial system and its problems. 

It is taught by Katharine Christopherson, Assistant General Counsel in the IMF Legal Department, and Danielle Malek Roosa, Senior Counsel at the World Bank. The subject provides a valuable insider’s perspective on the ‘Bretton Woods‘ institutions.

This subject examines the global financial order, with a strong focus on the international monetary system and the IMF.

Principal topics include:

• Key institutions of the global financial order, namely the IMF and the World Bank, including their history, powers, policies, practices and political and economic rationale
• The role of these institutions within the globalisation debate
• The linkages between these institutions and other institutions, including the World Trade Organization (WTO)
• The IMF, including its Articles of Agreement, IMF surveillance and conditionality
• The role of the IMF in the prevention and resolution of financial crises
• The institutions of the World Bank Group, their Articles of Agreement and their respective roles in promoting development
• The role of human rights and other ‘political issues’ in the work of the World Bank
• Current challenges to the IMF and the World Bank, and proposals for their reform.

Newspaper headlines frequently concern global economic issues, from trade disputes between countries and investment claims by foreign investors against sovereign states, to countries facing balance-of-payments crises and seeking assistance from the International Monetary Fund (IMF). This subject examines the law governing global economic issues. It is designed both as a comprehensive introduction in its own right to this important field, as well as a foundation for further exploration through specialist subjects in the curriculum. It begins with a historical and theoretical background to the field before turning to focus on international trade law, particularly the rules and dispute settlement procedures of the World Trade Organization (WTO). It then discusses contemporary developments in international trade law and policy, including the negotiations for regional or bilateral preferential trade agreements. The subject then considers international investment law, examining key substantive obligations relating to investor protection and investor-state dispute settlement mechanisms (particularly through the International Centre for Settlement of Investment Disputes (ICSID)). Finally, the subject provides an introduction to the lending policies and practices of international financial institutions, particularly the IMF and the World Bank.

Principal topics include:

• Nature, evolution and context of international economic law
• The law of the WTO
• Dispute settlement in the WTO
• International investment law
• Investor-state arbitration under the International Centre for Settlement of Investment Disputes (ICSID) Convention
• International financial institutions (particularly the IMF and the World Bank).

In the wake of the Global Financial Crisis (GFC) of 2008, the visibility of finance and financial regulation has increased dramatically. This subject will provide an overview of the global financial system and international efforts to build structures to support its proper functioning. Taking an integrative approach, the subject will look at the evolution of the global financial system, its structure and regulation. In doing so, it will analyse financial crises, especially the GFC, and responses to it, the Basel Committee on Banking Supervision (BCBS), the Financial Stability Board (FSB) and the International Monetary Fund (IMF).

Principal topics include:

• The historical evolution of the international financial markets from Bretton Woods to the present
• Costs and benefits of internationalisation and globalisation of finance
• International debt and derivatives markets
• International prudential regulation and capital adequacy
• The rise of emerging markets and their integration into the global financial system
• Major international financial crises, their causes and implications
• Regulatory responses to financial crises and mechanisms for crisis resolution
• The international financial architecture and its evolution
• The impact of technology on global finance and its regulation: FinTech and RegTech.

The purpose of this subject is to give students an advanced and integrated understanding of the legal issues that arise in international financial transactions. This is achieved by looking at the principal transactions, analysing the ways in which they are structured and implemented, and identifying relevant legal issues. This subject provides students with an insight into cross-border transactions and the role of international finance lawyers. It is therefore of particular interest to lawyers practising or seeking to practise law in this area and also to lawyers and bankers in commercial and investment banks.

Principal topics include:

• The regulation of international finance
• Financing options: bank financing versus capital markets financing
• Debt capital markets
• Syndicated lending
• Techniques of loan sales: novation, assignment and participation
• Legal issues, including insolvency, security, the use of trusts, contractual rights and governing law
• Islamic finance
• Transactions: derivatives, asset securitisation and project finance.

International Legal Internship allows students to gain credit for undertaking advanced legal research and analysis on an approved international internship of at least eight weeks of full-time work in an approved international institution or organisation. This subject is focused on providing students with an opportunity to engage with legal and policy issues in contemporary society through work experience and further develop oral and written communication skills. Students are required to secure and fund their internships personally.

Students are encouraged to discuss their internship proposals with the subject coordinators. Students who successfully enrol in International Legal Internship must arrange a meeting with at least one of the subject coordinators both prior to their internship and upon completion, to develop a better understanding of research and the role of international institutions in international law and relations.

In this subject, students will act as lawyers advising an international investor in a hypothetical investment project in a developing Asian jurisdiction (based on real life experience of the subject coordinator). Students must identify the legal risks and potential disputes in this developing environment and advise ways to mitigate such risks and avoid or resolve disputes. Students will study relevant laws, draft contractual documents, analyse legal issues, give advice, negotiate with the local government, project finance lenders and other parties and bring the deal to closure.  Students are also involved in a dispute scenario arising out of the transaction.  After the subject, students are expected to have an overview of the key risks and potential disputes in investment deals in developing Asian systems and ways to mitigate such risks through negotiation and documentation. Students can also research more deeply into particular legal issues such as expropriation, change in law, currency conversion or performance by state-owned companies and dispute resolution. Throughout the subject, students will study different areas of law such as investment, administrative, conflict of laws and international dispute resolution.

Principal topics include:

• General overview of risks and potential disputes for investors
• Risks of expropriation
• Risks of illegality
• Performance by state-owned enterprises
• Currency conversion
• Permits and regulatory approvals
• Choice of law, dispute resolution and the arbitration process
• Negotiating with local counterparties and international project finance lenders
• Resolving disputes and closing the deal.

Insurance is a cornerstone of effective risk transfer. It is often critical to the viability of commercial enterprises and transactions. However, insurance contracts and arrangements have become increasingly complex, and specialised knowledge is required to understand their operation and limitations. This subject will provide an in-depth understanding of liability insurance, which indemnifies insureds against liability to third parties, and comprises a large part of the insurance market. It will examine the roles and obligations of participants in the insurance industry, different types of liability insurance, key principles of the common law regarding insurance, and legislative intervention, especially the Insurance Contracts Act 1984 (Cth), including recent amendments to the Act. The lecturers are barristers specialising in insurance law, who for many years have represented and advised both Australian and overseas insurers.

Principal topics include:

• The structure and operation of contracts of liability insurance, and the main forms of liability insurance, including professional indemnity insurance public and products liability insurance, and directors’ and officers’ insurance
• The operation of the insurance industry and the roles of various insurance industry participants, such as underwriters (including Lloyd's syndicates), excess insurers, co-insurers, reinsurers, captives, underwriting agents, claims officers, lawyers, insurance brokers and loss adjusters
• An overview of the legislative and regulatory framework for the Australian insurance industry
• The construction of insuring clauses and extensions
• The construction of exclusion clauses and conditions, including cross-liability, severability and non-imputation clauses
• The operation and effect of the Insurance Contracts Act 1984 (Cth) and its interplay with the laws of contract, equity and tort, and with the Australian Consumer Law,on matters including:
  • The duty of utmost good faith
  • Misrepresentation and non-disclosure
  • Notification of claims and circumstances
  • Section 54 of the Insurance Contracts Act 1984 (Cth) and remedies for breach of insurance contracts
  • Cancellation of insurance contracts
  • Rights of third party beneficiaries
  • Subrogation
• Double insurance
• An analysis of issues requiring further legislative reform.

Project finance is the financing of major projects. It often takes the form of a financing arrangement under which the monies raised for a project are repaid primarily from the project’s cash flow, with the project’s assets held as collateral. It enables the sponsor of a project to arrange financing with no recourse, or limited recourse, to the sponsor’s balance sheet. Project finance is complex in view of the number of parties involved, the security that is taken over the project’s cash flow and assets, the nature of the rights that are exercised by the lenders in respect of the project generally and the cross-border character of stakeholders. Project finance lawyers need to have an in-depth understanding of both the legal issues that arise as well as the commercial and operational aspects of the project.

The lecturers are leading practitioners in this area and they introduce students to the key legal, contractual and structural issues concerning major projects and project finance, and analyse these issues in the context of a number of case studies in the mineral, energy and infrastructure sectors.

Principal topics include:

• Characteristics of suitable projects
• Characteristics of project financing in Australia
• Project financing techniques
• Identification of risk and techniques for allocation of risk
• Structuring financing requirements for a project
• Contractual arrangements
• Project financing default and remedies
• Case studies of project financing in mineral, energy and infrastructure sectors.

In recent decades, the rate of technological innovation in financial services has accelerated, posing new challenges for regulators and regulated financial services firms around the world. This course will provide a brief introduction to the existing technologies and business models used by established financial services firms and the regulatory framework that applies to them, before examining how new technologies and new business models are transforming financial services around the world. Different law reform strategies adopted by regulators in different countries will be assessed, as will business strategies of regulated firms to accelerate their rate of innovation. As national regulators confront the challenge of protecting local consumers in global markets, they may respond by collaborating with other national regulators, with extraterritorial enforcement of their laws, collaboration with private regulators, or ceding the terrain to private regulators. Although cryptocurrencies, blockchain and distributed ledger technologies may receive the most media coverage, many other case studies of disruptive 'FinTech' innovation and its regulation in both advanced and emerging economies will be examined.

Principal topics include:

• Commercial banks and bank regulators
• Global harmonization of bank regulation
• Payment systems and payment law
• Legacy technologies and internal controls
• Economics of networks and platforms
• Economic drivers of innovation
• Better regulation and new governance
• The rise of smart machines
• Evidence-based problem solving
• 'RegTech' is the new FinTech
• Faster payments/immediate payments
• Bitcoin, blockchain, distributed ledger
• FinTech regulation in the United States; United Kingdom and European Union; China; and India.

Few areas of law offer the variety and dynamic reform agenda that is encountered with superannuation law. Superannuation law draws together traditional corporate, equitable and trust principles with modern legislative initiatives to achieve Australia‘s retirement incomes objectives. The superannuation industry is heavily influenced by public policy, is governed by multiple regulators and a variety of legislation. The industry is characterised by an array of different stakeholders, ranging from peak industry bodies to the Commonwealth Government. A practice in superannuation law therefore requires a truly holistic approach and a willingness to tackle relevant aspects of other laws, including employment law, family law, contracts, insurance and financial services laws generally. This subject examines the development of superannuation in Australia, the interaction between statutory and general law principles, the role played by various entities in the industry, the licensing, conduct and disclosure obligations and recent reforms, such as those proposed by the Financial System Inquiry.

Principal topics include:

• Development and history of superannuation in Australia
• Characteristics of the superannuation industry (eg the types of funds that exist)
• The regulatory environment for superannuation and the role of key regulators: the Australian Securities and Investments Commission (ASIC), Australian Prudential Regulation Authority (APRA) and the Australian Taxation Office (ATO)
• Interaction of general law and statute in relation to trustee duties, rights and powers
• The trust instrument and key service provider contracts (eg investment management, group insurance, administration and custody agreements)
• Trustee decisions, complaints handling and the role of the Superannuation Complaints Tribunal (SCT)
• Self-managed superannuation funds and their regulation
• Taxation of superannuation
• Licensing, conduct and disclosure obligations in the superannuation industry
• The superannuation guarantee and other employer obligations
• Recent reforms and reform proposals.

Payment systems around the globe have gone through tremendous changes and developments in the last decade. The technological and multimedia developments, recent financial crises, commercial changes and financial markets globalisation have all led to the emergence of new advanced payment devices coupled with a rapid rise in non-cash payment transactions. Fintech companies have been quick to follow this trend while striving to enhance digital payments. As payment transactions are a key component in any modern financial system, policy makers, courts and legal practitioners are now facing more challenges than ever before.

The subject deals with the law and practice of payment devices, focusing on the most recent changes and advanced innovations in the payment market. It is designed to provide students with unique knowledge of one of the building blocks of commercial and financial markets from a comparative and global perspective. In the course of studies we will analyse the main payment devices and innovative Fintech payments that are being used these days in Australia and other jurisdictions, while focusing on policy considerations, current legal frameworks, scholarly theories and business practices.

Principal topics include:

• Policy considerations in designing a payment system
• Characteristics of the Australian payment system
• Modern payment devices and their legal framework
  • The cheque as the paradigm payment device
  • Payment cards: credit cards, debit cards, stored-value cards and e-money
  • Electronic banking
  • Advanced payment networks (PayPal, Bpay, POLi, P2P networks)
  • Emerging trends - Mobile payments, digital currency (Bitcoin), contactless payments.
  • International payments.
• Consumers protection, in payment markets (unauthorised use of a payment device, stop payment order, error correction, distant payments, issuer insolvency, unused funds)
• Clearing and settlement (including real-time networks)
• The banking system and its effect on the payment market regulation
• Recent crises and the emergence of new payment systems
• The future of payments - an outline of the cashless society.

Australia has a detailed and comprehensive consumer protection regime dealing with the supply of goods and services, including financial products, to consumers. Primary legislation is the Australian Consumer Law (ACL), found in Schedule 2 of the Competition and Consumer Act 2010 (Cth); equivalent provisions in the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) applying to financial services and products; and, for consumer credit, the National Consumer Credit Protection Act 2009 (NCCP Act). This subject provides students with a detailed knowledge of key features of the Australian Consumer Law and of the common law principles and policy imperatives that underpin it. The lecturers include one of the Law School’s private lawyers with specialist expertise in consumer law, and a leading practitioner in this field of law.

Principal topics include:

• Purposes of consumer protection law
• The regulatory toolkit
• Common law doctrines underlying the legislative regime
• Enforcement and remedial strategies.
• Key consumer protection regimes under the ACL, ASIC Act and NCCP Act:
  • Misleading or deceptive conduct
  • Unconscionable conduct
  • Interest rate caps and responsible lending
  • Consumer guarantees and implied terms
  • Unfair contract terms.

This subject focuses on skills and strategies that are key to negotiating, swaying and influencing counterparties in business negotiations and deal-making. In this subject, skills will be developed by constantly improving as business negotiators by asking the right questions, framing issues, gaining lessons learned, defining success metrics and negotiating with others with different skill-sets, perceptions and backgrounds. The subject will have a particular focus on negotiations in cross-border settings. The teacher is a leading expert in negotiation training, having taught and researched at prestigious institutions such as Berkeley, Stanford and Harvard, and trained executives at some of the world’s largest companies. He will draw on both real-world transactional and academic experience in leading the subject.

Principal topics and skills include the following:

• Understand why conflict arises between people and business organisations, within both a domestic and international context
• Assess and apply various strategic frameworks in diverse settings (business-to-business, private-public sector, etc)
• Define specific success metrics within diverse teams and groups before, during and after business negotiations and deal-making settings
• Apply and leverage the main conceptual frameworks related to transaction planning and conflict resolution within diverse environments - including distributive, integrative, and mixed motive negotiation styles (among others)
• Analyse and synthesise business negotiation theories, skill-sets and studies as current or future business negotiation professionals
• Recognise implicit and explicit biases and nudges that may hinder or help business negotiations, while developing strategies on how to bridge and create value from such gaps
• Develop, and learn how to continually develop, a value-added business negotiation toolbox and confidence as business negotiators and deal-makers
• Understand key contractual terms that may pivot business negotiators and negotiations
• Enhance effective communication skill-sets, both verbal and nonverbal, and develop an empathetic understanding of how and why counterparties may see things differently from you and your business unit
• Possess an overall understanding of the nature of disputes and conflict resolution, including ethical, cultural, economic, psychological and emotional factors.

Equitable doctrines and remedies lie at the heart of commercial conduct, transactions and private law litigation. They provide unique standards of conduct that restrict and guide commercial dealings and a raft of powerful personal and proprietary remedies that dictate defendant liability when transactions fail. Over recent years their influence has been seen not only in important judicial decisions affecting commercial dealings, but in the raft of legislation that now builds on those equitable foundations. This subject considers some of the more pressing points of convergence between equitable doctrine and commercial practice, and examines their ongoing relationship with key statutory counterparts. In doing so, the subject is tightly structured to ensure that students are exposed to cutting-edge legal theory concerning court-led equitable developments and to the ramifications of those developments at the coal-face of commercial practice and dealings.

This subject will be relevant to transaction lawyers involved in planning, initiating and drafting contracts, for corporate lawyers and regulators involved in consumer and banking law and for commercial litigators. The lecturers are internationally recognised experts in the commercial applications of equitable doctrines and remedies. They are also exceptional teachers, evidenced by the consistently outstanding results in the student experience surveys for this subject.

Principal topics include:

• The role of equity in commercial transactions
• The nature of the fiduciary obligations, including the avoidance and ‘management’ of fiduciary conflicts
• Undue influence, mistakes and the enforcement of domestic guarantees in banking contexts
• Quistclose trusts
• The role of estoppel in commercial transactions
• Equitable remedies for breach of obligation, with special reference to gain-based awards and constructive and resulting trusts.

This subject is concerned with the regulation of financial intermediaries, including financial product issuers, broker/dealers, fund managers, custodians, financial planners and investment advisers. Orthodox approaches to the regulation of financial intermediaries have been under significant challenge since the Global Financial Crisis, with more to come. The subject combines a thorough technical grounding in the current law governing the provision of financial services to retail and wholesale clients in Australia with broader perspective on likely future directions in financial services regulation. The lecturer is a former Australian Securities and Investments Commission (ASIC) Regional Commissioner and one of Australia’s leading experts in the areas of funds management law and financial services regulation

This subject examines the regulation of financial services providers and the legal dimensions of their relationship with their clients. In particular, it deals directly with relevant parts of Chapter 7 of the Corporations Act 2001 (Cth) and the general law relating to brokers, dealers and financial advisers. It also covers the related topic of financial product disclosure.

Principal topics include:

• Policy underpinning Chapter 7 of the Corporations Act 2001 (Cth)
• Theoretical and comparative approaches to regulating financial intermediaries
• The Australian Financial Services (AFS) licensing regime
• Financial services disclosure
• Statutory and general law duties of financial services providers
• Financial product disclosure
• Roles and powers of the Australian Securities and Investments Commission (ASIC) and the Australian Prudential Regulation Authority (APRA)
• The impact of new technologies in financial services: regulating for disruption.

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Fundamentals of the Common Law is a foundational subject in the Melbourne Law Masters (MLM), which is compulsory for graduates in disciplines other than law and for law graduates from countries with a non-common law system. It provides students with an opportunity to acquire the foundational legal skills necessary for studying and working in a common law system, such as that in Australia.

The common law forms one of the two principal systems of Western law that, through colonisation, have spread throughout the world. Common law systems have a distinctive approach to understanding the sources of law, the role of law-making institutions, and processes for resolving disputes. These characteristics of the common law system have had a profound effect on the development not only of the societies in the countries in which it applied, but also on international law and practice.

The aim of this subject is to acquire basic foundational legal skills that will assist you with other subjects in the MLM program. The subject teaches students how to read, use and interpret reported cases and legislation. The subject explains the sources of law, what influences them, and how they influence the development of the common law. These aims are given in context of some contemporary debates on common law reasoning by assessing the role of the High Court of Australia. The subject focuses on developing skills in analysis and legal writing, the tools of the common lawyer

Principal topics include:

• How to read and analyse a case
• The concept and use of precedent
• Evolution of a common law principle
• Common law issues: judicial activism, separation of powers
• The role of the High Court and an overview of the Constitution
• The relationship between the Constitution, case law and statute law
• Influences of other sources of law on the common law
• How to read and analyse statutes
• Approaches to statutory interpretation
• Legal writing skills and expectations in the MLM program.

Hedge funds and private equity funds involve the allocation and investment of trillions of dollars, ultimately in a wide range of financial instruments and numerous operating companies across a variety of industry sectors. In recent years, managers of these ‘alternative investment funds’ have become subject to heightened scrutiny from regulators and the media. This subject provides an opportunity to learn in detail about the structuring and operation of hedge funds and private equity funds, providing students with an advanced and specialised knowledge in the relevant areas of law, and will examine recent developments in these areas.

Principal topics include:

• Introduction to hedge funds and private equity funds
• Dramatis personae
• Overview of regulatory issues relating to structuring
• Overview of regulatory issues relating to marketing
• Investors and due diligence issues
• Investment objectives and restrictions
• Legal documentation for a hedge fund
• Current issues related to hedge fund managers and investors
• Legal documentation for a private equity fund
• Current issues related to private equity fund managers and investors.

Newspaper headlines frequently concern global economic issues, from trade disputes between countries and investment claims by foreign investors against sovereign states, to countries facing balance-of-payments crises and seeking assistance from the International Monetary Fund (IMF). This subject examines the law governing global economic issues. It is designed both as a comprehensive introduction in its own right to this important field, as well as a foundation for further exploration through specialist subjects in the curriculum. It begins with a historical and theoretical background to the field before turning to focus on international trade law, particularly the rules and dispute settlement procedures of the World Trade Organization (WTO). It then discusses contemporary developments in international trade law and policy, including the negotiations for regional or bilateral preferential trade agreements. The subject then considers international investment law, examining key substantive obligations relating to investor protection and investor-state dispute settlement mechanisms (particularly through the International Centre for Settlement of Investment Disputes (ICSID)). Finally, the subject provides an introduction to the lending policies and practices of international financial institutions, particularly the IMF and the World Bank.

Principal topics include:

• Nature, evolution and context of international economic law
• The law of the WTO
• Dispute settlement in the WTO
• International investment law
• Investor-state arbitration under the International Centre for Settlement of Investment Disputes (ICSID) Convention
• International financial institutions (particularly the IMF and the World Bank).

In the wake of the Global Financial Crisis (GFC) of 2008, the visibility of finance and financial regulation has increased dramatically. This subject will provide an overview of the global financial system and international efforts to build structures to support its proper functioning. Taking an integrative approach, the subject will look at the evolution of the global financial system, its structure and regulation. In doing so, it will analyse financial crises, especially the GFC, and responses to it, the Basel Committee on Banking Supervision (BCBS), the Financial Stability Board (FSB) and the International Monetary Fund (IMF).

Principal topics include:

• The historical evolution of the international financial markets from Bretton Woods to the present
• Costs and benefits of internationalisation and globalisation of finance
• International debt and derivatives markets
• International prudential regulation and capital adequacy
• The rise of emerging markets and their integration into the global financial system
• Major international financial crises, their causes and implications
• Regulatory responses to financial crises and mechanisms for crisis resolution
• The international financial architecture and its evolution
• The impact of technology on global finance and its regulation: FinTech and RegTech.

The purpose of this subject is to give students an advanced and integrated understanding of the legal issues that arise in international financial transactions. This is achieved by looking at the principal transactions, analysing the ways in which they are structured and implemented, and identifying relevant legal issues. This subject provides students with an insight into cross-border transactions and the role of international finance lawyers. It is therefore of particular interest to lawyers practising or seeking to practise law in this area and also to lawyers and bankers in commercial and investment banks.

Principal topics include:

• The regulation of international finance
• Financing options: bank financing versus capital markets financing
• Debt capital markets
• Syndicated lending
• Techniques of loan sales: novation, assignment and participation
• Legal issues, including insolvency, security, the use of trusts, contractual rights and governing law
• Islamic finance
• Transactions: derivatives, asset securitisation and project finance.

International Legal Internship allows students to gain credit for undertaking advanced legal research and analysis on an approved international internship of at least eight weeks of full-time work in an approved international institution or organisation. This subject is focused on providing students with an opportunity to engage with legal and policy issues in contemporary society through work experience and further develop oral and written communication skills. Students are required to secure and fund their internships personally.

Students are encouraged to discuss their internship proposals with the subject coordinators. Students who successfully enrol in International Legal Internship must arrange a meeting with at least one of the subject coordinators both prior to their internship and upon completion, to develop a better understanding of research and the role of international institutions in international law and relations.

This subject involves the study and analysis of the structure, purpose and key provisions of cross border lending documentation, including large market standard syndicated credit agreements (governed by New York or English law). Students will focus on anticipating potential concerns and tensions in the negotiation process and will have the chance to review and study all the agreements and documents such as the credit agreement, other ancillary documents, schedules and deliveries that they will encounter in practice. Students will also study the structure and standard documents used in the cross-border repo market, one of the most important international capital markets.

Christian Johnson is the Dean and Professor of Law at Widener Commonwealth Law School in the United States. Dean Johnson has worked for large international law firms in New York and Chicago. In addition to teaching previously at Melbourne, he has taught lending and finance documentation to lawyers and bankers in Europe, the Middle East, Asia and Latin America. Professor Johnson has his JD from Columbia Law School and is a CPA.

Principal topics include:

• Study of the key interbank credit markets
• Analysis of the various structures and purposes of different cross-border lending transactions
• Discuss the key differences between New York and English law in lending transactions
• Review of the key provisions and clauses found in cross-border lending documentation
• Study of the key clauses found in New York/English guarantees
• Analysis of the key legal, credit and business issues in repo transactions.

Is sustainable finance the answer to climate change, poverty and inequality?  The purpose of this subject is to immerse students in sustainable finance in international practice, from micro-finance to green bonds, renewable energy and refugee financing. Across these markets, key legal concepts, structural features and documentation are covered in detail.  By engaging in-depth, through term sheet negotiations, the students jointly develop the skills to assess, prioritise, challenge and negotiate these transactions.

The subject coordinator draws on his own experience in global sustainable finance, and invites experts from international law firms and consultant, to help you become ‘more than a lawyer’.

This innovative subject will combine classroom teaching with online learning.  Students will be expected to attend four days in class and participate in online learning prior to the subject being taught.

Principal topics include:

• The Sustainable Development Goals, their evolving regulatory framework, their implementation by banks, funds and corporates in international practice
• Development Finance, the actors and the law, covering such diverse issues as sanctions law, immunities and aspects of state aid, as well as environmental and social law in financial transactions
• Understanding the structural features of international financial transactions with a focus on sustainability
• Inclusive finance, through microfinance, gender finance and small and medium enterprise (SME) lending, and relevant regulation
• Green bonds, SDGs bonds and social impact bonds, furthering sustainability the capital markets
• Local currency financing as a means for derivatives to provide sustainable development
• Legal aspects of renewable energy project finance
• Impact investing (private equity and funds)
• Examples of structured sustainable finance, for instance through refugee finance, vaccine bonds, drought risk transfer and microfinance securitisation 
• Examples of litigation in sustainable finance, for instance the risk of mis-selling ‘green’ products, and legal means to address this risk in documentation as well as through strategic means.

In this subject, students will act as lawyers advising an international investor in a hypothetical investment project in a developing Asian jurisdiction (based on real life experience of the subject coordinator). Students must identify the legal risks and potential disputes in this developing environment and advise ways to mitigate such risks and avoid or resolve disputes. Students will study relevant laws, draft contractual documents, analyse legal issues, give advice, negotiate with the local government, project finance lenders and other parties and bring the deal to closure.  Students are also involved in a dispute scenario arising out of the transaction.  After the subject, students are expected to have an overview of the key risks and potential disputes in investment deals in developing Asian systems and ways to mitigate such risks through negotiation and documentation. Students can also research more deeply into particular legal issues such as expropriation, change in law, currency conversion or performance by state-owned companies and dispute resolution. Throughout the subject, students will study different areas of law such as investment, administrative, conflict of laws and international dispute resolution.

Principal topics include:

• General overview of risks and potential disputes for investors
• Risks of expropriation
• Risks of illegality
• Performance by state-owned enterprises
• Currency conversion
• Permits and regulatory approvals
• Choice of law, dispute resolution and the arbitration process
• Negotiating with local counterparties and international project finance lenders
• Resolving disputes and closing the deal.

Insurance is a cornerstone of effective risk transfer. It is often critical to the viability of commercial enterprises and transactions. However, insurance contracts and arrangements have become increasingly complex, and specialised knowledge is required to understand their operation and limitations. This subject will provide an in-depth understanding of liability insurance, which indemnifies insureds against liability to third parties, and comprises a large part of the insurance market. It will examine the roles and obligations of participants in the insurance industry, different types of liability insurance, key principles of the common law regarding insurance, and legislative intervention, especially the Insurance Contracts Act 1984 (Cth), including recent amendments to the Act. The lecturers are barristers specialising in insurance law, who for many years have represented and advised both Australian and overseas insurers.

Principal topics include:

• The structure and operation of contracts of liability insurance, and the main forms of liability insurance, including professional indemnity insurance public and products liability insurance, and directors’ and officers’ insurance
• The operation of the insurance industry and the roles of various insurance industry participants, such as underwriters (including Lloyd's syndicates), excess insurers, co-insurers, reinsurers, captives, underwriting agents, claims officers, lawyers, insurance brokers and loss adjusters
• An overview of the legislative and regulatory framework for the Australian insurance industry
• The construction of insuring clauses and extensions
• The construction of exclusion clauses and conditions, including cross-liability, severability and non-imputation clauses
• The operation and effect of the Insurance Contracts Act 1984 (Cth) and its interplay with the laws of contract, equity and tort, and with the Australian Consumer Law,on matters including:
  • The duty of utmost good faith
  • Misrepresentation and non-disclosure
  • Notification of claims and circumstances
  • Section 54 of the Insurance Contracts Act 1984 (Cth) and remedies for breach of insurance contracts
  • Cancellation of insurance contracts
  • Rights of third party beneficiaries
  • Subrogation
• Double insurance
• An analysis of issues requiring further legislative reform.

Project finance is the financing of major projects. It often takes the form of a financing arrangement under which the monies raised for a project are repaid primarily from the project’s cash flow, with the project’s assets held as collateral. It enables the sponsor of a project to arrange financing with no recourse, or limited recourse, to the sponsor’s balance sheet. Project finance is complex in view of the number of parties involved, the security that is taken over the project’s cash flow and assets, the nature of the rights that are exercised by the lenders in respect of the project generally and the cross-border character of stakeholders. Project finance lawyers need to have an in-depth understanding of both the legal issues that arise as well as the commercial and operational aspects of the project.

The lecturers are leading practitioners in this area and they introduce students to the key legal, contractual and structural issues concerning major projects and project finance, and analyse these issues in the context of a number of case studies in the mineral, energy and infrastructure sectors.

Principal topics include:

• Characteristics of suitable projects
• Characteristics of project financing in Australia
• Project financing techniques
• Identification of risk and techniques for allocation of risk
• Structuring financing requirements for a project
• Contractual arrangements
• Project financing default and remedies
• Case studies of project financing in mineral, energy and infrastructure sectors.