Commercial Law in Focus: Navigating New Rules, Risks and Remedies – 5 program recorded webinar series

Program 1:  Crafting Ironclad Restraints: Navigating the Pitfalls of Restraint of Trade Clauses

Restraints of trade clauses are crucial in protecting business interests, yet they pose significant drafting challenges. With the Australian Bureau of Statistics reporting that nearly 47% of businesses include these clauses in employment contracts, the importance of precise and effective drafting cannot be overstated. This session will delve into the critical aspects and potential pitfalls of drafting restraints of trade clauses, including:

• Understanding the three main types of restraint of trade clauses (non-compete, non-solicitation and non-disclosure).
• Rebutting the presumption of unenforceability – in which jurisdictions does this apply?
• Considerations of reasonableness when drafting restraint of trade clauses generally
• Specific considerations when drafting restraints of trade in an employment law context
• Drafting effective cascading restraint of trade clauses
• One size doesn’t necessarily fit all: the importance of tailoring restraints of trade for particular facts and circumstances
• Lessons from recent decisions

Program 2:  The National Franchising Law is Changing: Are You Ready?

In April 2025, sweeping amendments to the Franchising Code of Conduct will introduce new obligations, stricter rules around restraint of trade, and strengthened protections for franchisees. This session provides a comprehensive overview of the changes, equipping franchisors and franchisees with the knowledge to align their agreements with the new requirements and anticipate potential impacts on their rights and responsibilities. Key topics include:

• New obligation on franchisors to provide the franchisee with a “reasonable opportunity to make a return on investment”
• Changes to termination rights, including compensation to the franchisee for early termination
• New franchisee rights to compensation for non-renewal
• New franchisee rights to opt out of cooling off and disclosures in some circumstances
• Consolidation of pre-contract and annual disclosures
• Prohibition on franchisor execution of the franchise agreement before lapse of 14 day pre-contract disclosure requirement
• Increased penalties and regulatory investigation powers
• Impact on existing agreements – analysis of how these amendments will affect current franchise agreements and any transitional measures

Program 3:  The Use of Generative AI In Drafting Commercial Agreements: Time Saver or Litigation Maker?

Artificial intelligence is here to stay and is increasingly being touted as an important tool for a lawyer’s toolbox. But its use doesn’t come without risk. In this session, we will examine the pros and cons of using generative AI in drafting commercial agreements, including:

• A brief introduction to AI, large language models and their adoption by lawyers
• How AI can be used by lawyers when drafting commercial agreements
• One size doesn’t always fit all: the importance of vetting information generated by AI
• The importance of tailoring agreements generated by AI to suit the specific needs of clients
• Boilerplate clauses, governing law and localizing agreements generated using AI
• Reviewing business documents generated by clients using AI

Program 4:  The New Unfair Contract Term Regime in Practice: Learning from the Mistakes of Others

In late 2023, the new laws governing unfair contract terms (UCTs) came into effect. At the time, the profession held many concerns arising from the significantly increased penalties and expanded scope of the regime. But, what has the experience of the changes been in practice? This session explores the practical issues that have arisen since implementation and the key lessons they pose for practitioners, including:

• How UCT cases have been dealt with by the regulators and courts, including the High Court case of Karpik v Carnival
• Developments arising from recent ASIC actions and ACCC announcements
• How the experience of the new UCT regime has been in practice? What issues which have arisen in practice since its commencement and how are these being addressed?

Program 5:  Minority Shareholder Oppression Claims in the Wake of Slea v Connective Services

Following protracted legal proceedings and what the court described as a decade-long campaign to eliminate a minority shareholder, the court handed down the latest decision in Slea Pty Ltd v Conenctive Services Pty Ltd.  The decision, which has been described as epic in terms of its scale and its findings, is set to significantly impact how minority shareholder oppression claims are dealt with by courts across Australia. To help breakdown this decision and other important decisions of late, this session explores:

• The Slea decision and the key takeaways for practitioners
• How minority shareholder oppression claims should be run in light of recent decisions and the scope of relief the court can order under s233
• When, and under what principles, the oppressed party can buy out the shares of the majority
• What lies ahead in the world of shareholder oppression claims and cases to look out for in the near future