Negotiated Enforcement: Regulatory Power and Corporate Misconduct in the Financial Sector Project

Overview

Enforcement outcomes are often the result of negotiations between regulators and alleged wrongdoers. These negotiations may, for example, result in the regulator not pursuing litigation against the alleged wrongdoer and, in return for acknowledging past misconduct and some form of promise in relation to future conduct, the alleged wrongdoer receives a reduced sanction. Regulators rely on negotiations with alleged wrongdoers to respond to misconduct, impose sanctions and promote responsible behaviour. However, there is concern about the increasing preference of regulators to use negotiated enforcement rather than litigation to counter serious misconduct in the financial sector. An over reliance on negotiated enforcement raises concern where these practices: lack transparency; are inefficient; fail to deter misbehaviour; and operate to subvert individual justice. This project evaluates these issues by examining enforcement strategies by the Australian Securities and Investments Commission (ASIC) that involve negotiations with alleged wrongdoers and the factors that are relevant to ASIC when it pursues negotiations.

Publications

Journal articles

• Ian Ramsay and Miranda Webster, “The rise and fall, and possible rise again, of the use of infringement notices by the Australian Securities and Investments Commission” forthcoming in (2023) 51 Australian Business Law Review
• George Gilligan and Ian Ramsay, “The Australian Securities and Investments Commission’s use of enforceable undertakings and negotiated enforcement” (2023) 34 International Company and Commercial Law Review 43-67
• Lloyd Freeburn and Ian Ramsay, “An analysis of publicity orders under the Australian Securities and Investments Commission Act 2001” (2022) 30 Australian Journal of Competition and Consumer Law 287-308
• Ian Ramsay and Miranda Webster, “Enforcement action by the Australian Securities and Investments Commission in relation to financial adviser misconduct” (2022) 39 Company and Securities Law Journal 225-251
• Lloyd Freeburn and Ian Ramsay, “Accountability of the Australian Securities and Investments Commission and the establishment of the Financial Regulator Assessment Authority – An evaluation” (2022) 50 Australian Business Law Review 6-33
• Ian Ramsay and Mihika Upadhyaya, “Compliance programs introduced by companies in response to Australian Securities and Investments Commission enforcement” (2021) 32 Journal of Banking and Finance Law and Practice 194-209
• Ian Ramsay and Mihika Upadhyaya, “The Australian Securities and Investments Commission’s new immunity policy:  An evaluation” (2021) 37 Australian Journal of Corporate Law 1-28
• Lloyd Freeburn and Ian Ramsay, “The recent Australian debate about individual liability for the criminal misconduct of corporations” (2021) 42 Business Law Review 214-220
• George Gilligan and Ian Ramsay, “Is there underenforcement of corporate criminal law? An analysis of prosecutions under the ASIC Act and Corporations Act 2009-2018” (2021) 38 Company and Securities Law Journal 435-458
• Ian Ramsay and Miranda Webster, “An analysis of ASIC enforcement against auditors and liquidators” (2021) 38 Company and Securities Law Journal 112-137

Other publications

• Lloyd Freeburn and Ian Ramsay, “Accountability of the Australian Securities and Investments Commission and the Establishment of the Financial Regulator Assessment Authority – An Evaluation”, The FinReg Blog, 7 July 2022
• Ian Ramsay and Mihika Upadhyaya, “Compliance programs introduced in response to enforcement by the Australian Securities and Investments Commission”, The Compliance and Enforcement Blog, 22 April 2022
• Ian Ramsay and Mihika Upadhyaya, “The Australian Securities and Investments Commission’s new immunity policy: An evaluation”, The FinReg Blog, 19 April 2022
• George Gilligan and Ian Ramsay, “Is there underenforcement of corporate criminal law in Australia?”, The FinReg Blog, 9 November 2021