Footnote:
In: International Company and Commercial Law Review, Vol. 34, No. 2, 2023, 43-67
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments October 25, 2022 erstellt
Description:
Negotiation is one of the key strategies that regulators in Australia and other jurisdictions adopt as they apply their available resources to meet their regulatory responsibilities and enforce the laws for which they are responsible. However, the extent, prominence and intensity that regulators may accord to negotiated enforcement not only varies between different regulators, which is to be expected, but also may vary for the same regulator over time, as it reacts to a range of influences. This article explores the use of negotiated enforcement by Australia’s primary corporate regulator, the Australian Securities and Investments Commission (ASIC). The article discusses how negotiation has been an integral element of ASIC’s regulatory approach, by using as a lens, ASIC’s application of a high-profile mode of negotiated enforcement, enforceable undertakings, which have been available to ASIC since July 1998. An enforceable undertaking is an administrative remedy that contains one or more undertakings provided by a corporation or individual where ASIC believes there has been a contravention of the law for which ASIC is responsible. The types of undertakings that may be given include correcting misleading disclosure, introducing or improving compliance systems, improving a corporation's corporate governance, compensating consumers for loss, and refraining from managing specified corporations for a period of time. The authors review all enforceable undertakings accepted by ASIC between July 1998 and December 2021, they discuss reasons why the use of enforceable undertakings has varied over time, and identify limitations in the use of enforceable undertakings, including the difficulty of assessing the effectiveness of enforceable undertakings