Study of the use of enforceable undertaking by Australian Securities and Investments Commission

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Enforceable undertaking is one of the many sanctions that are available to the Australian Securities and Investments Commission (ASIC). It is a promise enforceable in court. The alleged offender, known as the promisor, promises the regulator to do or not to do certain actions. As a consequence, the result achieved in the enforceable undertaking reflects the compromise that is agreed upon by the parties involved. This penalty is widely used in the regulatory community for it allows the regulators to reach plausible solutions to alleged offences without spending the resources of their agencies or the resources of the courts. This thesis looks at the way ASIC uses enforceable undertakings through a study of all the undertakings that were given by the corporate regulator between 1998 and 2004. It points out the goals behind the use of enforceable undertakings and checks if those goals are in conformity with the recommendations of the Australian Law Reform Commission. It also notes if there is fairness, stability and consistency in the treatment of the alleged offenders in the undertakings. Furthermore, it observes the method by which ASIC monitors the undertakings. Finally, it considers whether the courts encourage ASIC to enter into enforceable undertakings.
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