Projects

CY Tsang and Gerry Nagtzaam

31/03/25 - 30/12/25

CY Tsang

Lisa Di Marco, Senior Lecturer, Monash University; Dr May Fong Cheong, Associate Professor, UNSW; Dr Zuhairah Ariff Abd Ghadas, Professor and Deputy Vice-Chancellor (Academic & International) at University Sultan Zainal Abidin, Malaysia

This project will produce a co-authored article for submission to the Asian Journal of Law and Society special issue on Malaysian contract law reform.

The article builds on the team’s direct involvement in the Malaysian Contract Law Reform Project. Drawing on this reform experience, the article will examine the limits of the traditional consent-based model of contract law in the context of modern standard form contracting and evaluates how common law jurisdictions have responded through legislative, regulatory, and doctrinal mechanisms. Whilst regulation of substantively unfair terms is well established in most jurisdictions for consumer contracts, there is significant divergence in approaches in the business-to-business context.  Malaysia currently lacks a general mechanism to regulate substantively unfair terms in standard form business-to-business contracts. Neither the Contracts Act 1950 nor any other legislative regime provides meaningful control of unfair terms, creating a significant “fairness gap” when compared with developments in the UK, Australia, Canada, and the United States.

The article will: analyse the inadequacy of consent as a justificatory model in modern contracting; compare UK, Australian, Canadian, and US approaches to regulating unfair terms; explain the divergence between these models; and develop principled options for Malaysian reform within a codified statutory framework.  The project advances a broader thesis: contract law is shifting from enforcing agreement (based on consent) to regulating market behaviour.

Duncan Wallace, Lecturer, Monash University; Tamara Wilkinson, Lecturer, Monash University; Michael Duffy, Associate Professor, Monash University

Co-operatives and mutuals are business enterprises controlled democratically by a stakeholder group, like suppliers, customers or workers. Often, co-operatives and mutuals are a response to market failure, stepping in to provide services to stakeholders when other market actors do not perceive it to be financially worthwhile. Co-operatives are capable, over generations, of amassing large total assets. CBH Group, for example, which services Western Australian grain growers, has over $4 billion in gross assets. Large, accumulated assets can make it tempting for the current generation of members of co-operatives and mutuals to ‘cash-in’ the co-operative or mutual’s assets. By ‘demutualising’, current members can take the gains built up by past generations for themselves. This project examines whether Australia should introduce protections against demutualisation, as has been done in several other jurisdictions.

Reiko Okazaki, Lecturer, Monash University; Alicia Wright, Senior Lecturer, Monash University

This project focuses on issues for non-legal users utilising AI tools when contracting.

A contract reflects the intention of the parties, predominantly evidenced through representations and conduct. Historically, various intermediaries have intervened in supplying a precise form of words to contractual parties, including internet search engines, templates, lawyers, and translators. Is AI any different?

On the one hand, there are certainly opportunities to increase efficiency and address unmet legal needs for consumers. Moreover, the imbalance of bargaining power between users and those deploying or developing the technology is not unique to AI and is precisely what consumer protection law is designed to address. The Australian government’s Voluntary AI Safety Standard (Guidance for AI Adoption) applies horizontally to the existing liability regime, including contract law.

AI, however, presents additional issues regarding accuracy, privacy, bias, and access to justice. A particular concern is the boundary between summarising or explaining general principles, which an AI model is permitted to do, and the application of the law to a specific set of facts, which can only be provided by a legal practitioner. This line is a fine one, and it remains to be seen whether AI systems are prepared to recognise and respect the limits of their own authority, and whether lay users are able to learn this distinction.

Whilst a general AI Act may be forthcoming, the authors argue that such instances raise particular governance issues for regulators including the Legal Services Board and ACCC. Moreover, public education on media literacy will be necessary, both built into the user interface itself and also on an ongoing basis through consumer advertisements and the school curriculum.

Dr Mel Marquis (Primary Chief Investigator) and Dr Sven Gallasch (Deakin University)

The research culminated in a 61,000-word report that investigated the laws and policies of six ASEAN Member States in relation to the competition law treatment of vertical agreements such as distribution, supply and franchising agreements. Recommendations were made with a view to achieving better outcomes at the national level, and achieving greater consistency from Member State to Member State. Further recommendations were proposed in order to establish shared principles at the ASEAN level to help the organisation develop a superior approach for the application of competition law to vertical agreements within the context of the ASEAN Economic Community.

15/03/24 - 30/06/24

7/11/23 → 30/06/25

1/11/23 - 15/09/24

29/09/23 - 29/11/23

The project is led by Chief Investigators Professor Marilyn Pittard, Professor Adriana Topo and Dr Davide Tardivo.

New frontiers of workers' vulnerabilities and the need for innovative protective techniques: a comparative perspective aims to analyse how labour laws in Italy, the EU and Australia are adapting to protect these new vulnerable workers. It will compare regulatory frameworks and examine innovative protective measures employed by both public and private entities in different countries, in order to disseminate widely the best solutions and good practices.

For more details, see: New frontiers of workers' vulnerabilities and the need for innovative protective techniques

Dr Mel Marquis (assisted in Thailand by Dr Peerapat Chokesuwattanaskul)

The research focussed on the application of competition law to distribution agreements in Thailand, taking account of Thai law and Thai business practices, and also considered how competition law should be applied to distribution agreements across the ASEAN region. The work also examined how ASEAN
Member States might advance their official objective of moving toward greater harmonisation of competition laws in the context of the ASEAN Economic Community.

International Law and the Challenge of Populism explores the way we think about the relationship between international law and contemporary forms of populism. This project is particularly interested in examining how contemporary rise of populism may be understood as an effect of international law, and of the practices of institutionalized global ordering over at least the last 70 years.

For more details, see: International Law and the Challenge of Populism (populismandinternationallaw.org)