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The Australian wine industry is attempting to transform its reputation as a producer of generic mass produced wine to a producer of premium regional wine. However, with no emphasis on wine typicality, Australia’s legal framework of wine geographical indications is not well placed to promote and protect Australia’s wine regions. In this article we explore the framework’s genesis as an indication of source rather than a true geographical indication framework that links wine characteristics with place. We analyse case law and subsequent legal reform designed to correlate Australian wine law with international developments, noting that the reform has occurred after almost all of Australia’s existing wine geographical names and their boundaries have been determined. We consider whether future geographical names and their boundaries should be determined on a different basis, compare different legal models that will facilitate the promotion of wine typicality and regionality, and suggest legislative changes that might implement a framework that better aligns the law with international consumer expectations for regional wine.

Common Fund Orders’ (CFOs) have had a significant effect on Australian third party-funded class actions by requiring all class members to make a contribution to the third-party litigation funder’s fee in the event of a successful outcome. This altered past practice whereby only class members who had contracted with the litigation funder would be liable for such a contribution. However in a 5:2 decision in BMW Australia Ltd v Brewster in 2019, the High Court cast some doubt on CFOs, determining that neither s 33ZF Federal Court of Australia Act 1976 (Cth) nor s 183 Civil Procedure Act 2005 (NSW) provided a legal basis for making CFOs at the outset of proceedings so as to secure litigation funding support. In late 2020, the Commonwealth Parliamentary Joint Committee (PJC) on Corporations and Financial Services recommended that legislation be enacted to ‘address uncertainty’ in Brewster in a manner that would enable CFOs to be made at settlement or judgment. The authors canvass normative arguments as to the merits of CFOs and compare the alternative practice of making Funding Equalisation Orders (FEOs). They also consider the related issue of courts setting overall funding commissions. Given the possibility of legislative intervention, they also review arguments as to the potential constitutional validity of CFOs, a matter that was raised, but received very limited treatment from the High Court in BMW.

Over the next decades, advances in technology and new business practices will challenge a traditionally conservative legal profession. With a focus on the Australian legal profession, this article explores the nature of the challenges and, in particular, considers whether the challenges pose a threat of disruptive innovation. The article aims to add to understanding of how Australian law firms are responding to the challenges by drawing on empirical data that examines the drivers and inhibitors of innovation in Australian law firms, the areas where Australian legal firms are innovating, and the outcomes of their innovation. The article concludes that there is limited evidence of incumbent displacement and that, gradually, the profession is rising to the challenges. Refereed/Peer-reviewed

Purpose Drawing on “Strategic Alliance” literature and qualitative research methods, the purpose of this study is to examine the initiation and operations phases of the relationship between Australian litigation funders and class law firms. The initiation phase examines factors such as complementarity between needs and assets compatibility between the funder and the class law firm goals of the alliance trust and alliance structure. The operations phase considers factors such as governance, communication and risk management and accountability. Because of its focus on the fairness of settlement, case law provides limited understanding of the drivers of the class law firm and funder relationship. An “inside look” of how the funder-law firm is initiated and made operational provides a more accurate picture and has important implications for the management of the ethical issues that arise during the course of that relationship. Design/methodology/approach This paper is a content analysis and contains qualitative interviews. Findings The strategic alliance between class law firms and litigation funders has evolved within an institutional climate that has acknowledged the benefits that the alliance can bring to the conduct of class actions. That same institutional environment has led to an alliance which is informal and transactionally oriented, where each of the parties maintains a demarcation in function. Although they share aspects of the strategic management of class actions, funders continue to be diligent monitors of class law firms, and class law firms continue to advance the legal rights of class members. Research limitations/implications It is observed that the size of the sample is small driven by a number of market participants. Practical implications The paper confirms that the litigation funder–law firm strategic alliance works well as a result of institutional constraints. Social implications Each of the alliance partners was keen to ensure that neither they nor their partner acted in a way which might attract judicial disapproval. Each also believed that they played a positive role in promoting class member interests, albeit that their primary motivation was to earn fees or a commission. The success of the alliance between class law firms and litigation funders has substantially improved access to justice in Australia for small claims holders. Originality/value The paper provides insight into a strategic alliance which is formed primarily for the benefit of third parties. This is one of the first papers to consider the litigation funder–law firm relationship through the lens of strategic alliance literature.

Refereed/Peer-reviewed

In an effort to ensure access to justice, Australian courts have fashioned a unique hybrid opt in-opt out process known as “closed classes.” The rationale that underlies closed classes is to prevent free-riding that may undercut the position of funders and class action law firms reliant upon entering into agreements with a critical mass of class members. However, multiple closed classes also pose problems for respondents seeking the comfort of finality. To secure settlement and thus ultimately benefit participating class members, Australian courts have formulated a procedure whereby the closed class is opened and nonparticipating class members are invited to either register their claims or opt out so that thereafter those who do not register and those who opt out are effectively precluded by res judicata from making further related claims. We argue that Australian courts’ support of closed classes, while driven by pragmatism, has produced unintended consequences. Many relate to the ethical dilemmas faced by class action law firms and litigation funders seeking to advance the interests of participating class members over and above those of nonparticipating class members. The Full Federal Court has recently approved an alternative common fund approach. However, questions remain as to whether Australian courts are appropriately equipped to measure and compare the alternative transaction costs associated with the current and proposed approach, and whether they are appropriately equipped to determine the commercial rectitude and fairness of litigation funding agreements.

By promoting greater alignment between law and capital, litigation financing has the potential to further escalate the substantial restructuring that is occurring throughout the legal profession. This article examines regulation of the relationship between litigation funders and lawyers in three common law jurisdictions: the United Kingdom; the United States; and Australia, against the backdrop of a sea change in the way in which legal services are being delivered. It argues that a broad prescriptive approach rather than proscriptive prohibitions are the best way to regulate the emerging relationship between law and capital. Refereed/Peer-reviewed

Our globally complex web of interlocking and overlapping laws and regulations and concomitant compliance costs have not been matched by a tsunami of demand for lawyers. Rather the demand for legal services has flattened.1 Combined with increasing global consolidation of law firms and the emergence of low cost, technologically driven legal start-ups, the spectre of disruptive innovation has been raised as a possible explanation (and threat).

In the UK, debate about the appropriate balance between publicly and privately driven forms of collective consumer redress has favoured a regulatory solution exemplified by the FSA's new rule-making powers mandating the establishment of consumer redress schemes. This article examines another solution—a co-regulatory scheme involving Australia's Financial Ombudsman Service (FOS). The article compares the costs and benefits of FOS intervention apropos systemic breach with other forms of collective consumer redress, including class actions and public regulator action. Refereed/Peer-reviewed

After a period of decline, judicial mediation has been recently revived in China. The revival has occurred as a result of a combination of political and juridical forces. China's courts have been struggling to meet demand for access to justice and the revival of judicial mediation is part of a broader policy to promote mediation as a mainstream dispute resolution mechanism. At the same time, the revival of judicial mediation also reflects the disaffection of China's political elite with an emphasis upon adversarial, western style legal process. China's establishment appears to be seeking a more responsive multi-door style of court system. This article traces recent developments in China which track the rise, fall and rise of judicial mediation.

This article examines Australia’s implementation of a national regulatory framework to support the development of robust and mature water markets. To date, competition in water markets and water trading have been inhibited by disparate State-based regulation as well as State-based limitations on trading outside of regions. State-based monopolisation of water infrastructure has also been a significant impediment. The transfer of sovereignty over water to the central Commonwealth government has enhanced the capacity of the regulatory framework to better contribute to building efficient water markets. Refereed/Peer-reviewed

This book analyses law and policy issues regarding the creation of markets for trading in legal claims. The author reviews the current positions in Australia, UK and US regarding claim alienability and provides a comparative analysis of the divergent paths that have developed in each, all of which portend towards claim commodification. The author also examines the regulatory options to ensure that claim holders in a legal claim market would be protected from exploitation and that the market operates fairly and efficiently. The book reviews costs and abuse of process issues that could arise and conflicts of interest that may exist between claimholders, lawyers and entrepreneurs. The author argues that legal claim markets are justified on both policy and efficiency grounds as a means of improving access to justice.