July 2008

NEW ZEALAND – PARTICIPANT IN NEGOTIATIONS FOR AN ANTI-COUNTERFEITING TRADE AGREEMENT (“ACTA”)

New Zealand joins negotiations with representatives from Australia, Canada, the European Union, Japan, Korea, Mexico, Morocco, Singapore, Switzerland, United Arab Emirates and the United States on the proposed Anti-Counterfeiting Trade Agreement (ACTA). The aim is to establish new global standards for the enforcement of intellectual property rights (IPRs) and to more effectively combat the increasing prolific trade in counterfeit and pirated goods.

The agreement is focused on:

  1. increasing international cooperation between enforcement agencies and right holders;
  2. establishing best practices for enforcement; and
  3. providing a more effective legal framework to combat counterfeiting and piracy.

ACTA will build on and complement existing international legal frameworks, which exist for the protection and enforcement of intellectual IPRs. This would include the World Trade Organisation Agreement on Trade Related Aspects of Intellectual Property (TRIPS).

The negotiations will be ongoing with a focus on participants considering border enforcement, whilst also exploring other areas such as civil enforcement.

TRANS –TASMAN MUTUAL RECOGNITION OF SECURITIES OFFEREINGS SCHEME (“MRSO”)

The New Zealand and Australian Governments recently announced the commencement of a new trans-Tasman mutual recognition regime for securities offerings. The regime will have the effect of easing regulatory barriers to issuers in both countries and reducing administrative and compliance costs, and encouraging cross-border investment. It could have the spin off of increasing the range of investment alternatives offered in both countries.

The scheme allows an issuer to offer securities or interests in collective or managed investment schemes in Australia and New Zealand using one disclosure document prepared under the regulations of its home country. Previously, issuers had to comply with the relevant requirements of both jurisdictions.

The issuers who operate under this scheme will be able to comply with minimal entry and ongoing requirements agreed to between the two countries and prescribed in each country’s law.

The Australian Securities and Investments Commission (“ASIC”) and the New Zealand Companies Office (“NZCO”) have established processes for co-operation between the authorities to administer the MRSO.

Australian issuers wanting to offer securities to New Zealand investors must lodge a written notice to the NZCO advising of their intention to make an offer to New Zealand Investors.  In the disclosure document for investors a warning must be included that the offer is principally regulated in Australian law rather than New Zealand law. The Australian issuers must also highlight any other tax or currency differences to New Zealand Investors.

For further detail on the MRSO and how it will apply to Australian and New Zealand Issuers, ASIC and the New Zealand Securities Commission have released a Regulatory Guide (www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/rg190.pdf/$file/rg190.pdf)

MINORITY BUY-OUT RIGHTS BILL – AWAITING SECOND READING

The Companies (Minority Buy-out Rights) Amendment Bill was reported back by the Commerce Select Committee on 27 May 2008

The Bill will amend the minority buy-out provisions in the Companies Act 1993. The amendments will provide an exit regime for dissenting shareholders.  

The provisions will be triggered when a special resolution has been voted on by a company that fundamentally changes its structure. The dissenting shareholders are entitled to request their shares be purchased by the company at an appraised price.  The company can then decide to purchase the shares, find a third party to purchase the shares or revoke the special resolution.

A company, which decides to purchase the shares, must determine a ‘fair and reasonable’ price for the shares.  Presently, there is a lack of statutory guidance on what this might mean in practice.  The Bill aims to provide greater legal certainty on this.

UPDATE – ON FREE TRADE AGREEMENTS

The New Zealand Foreign Service Ministry is to receive substantial additional funding from the New Zealand Government over the next five years. The additional funding will amount to $NZD621 million. At present the Ministry’s present annual operating budget was around $NZD278 million.

The increased funding, which has been described by the Minister, the Rt. Hon. Winston Peters, as having a “seismic change” for the Foreign Service, will be used assist the Service in carrying out the government’s key foreign policy goals. The funding will be used to boost staff levels, which has the flow on effect of the enhanced ability of the Service to negotiate free trade agreements. Currently, New Zealand is in trade agreement negotiations with Malaysia, Asean and the Gulf Co-operation Council.  It is also holding discussions with Mexico, India and South Korea. There is also a focus on expanding and strengthening New Zealand’s presence in Asia and getting better access to Japan and the United States.

DISCLAIMER

This publication is necessarily brief and general in nature. You should seek further information before taking any action in relation to the matters dealt with in this publication. If you have any questions on the matters discussed in this update please contact the New Zealand Mackrell partner, Brian Joyce at Clendons North Shore by email brian.joyce@clendonsnorthshore.co.nz or phone 64 9 377 8419