23 October 2009

Public and private enforcement of disclosure breaches in Australia

In an article published this week in the Journal of Corporate Law Studies, (2009) 9 JCLS 409, I discuss the remedies that are available for continuous disclosure breaches and for false or misleading disclosure. The article examines the enforcement options available to ASIC, ASX, individual litigants and classes. It also looks at the interaction between public and private enforcement. The abstract of the article is as follows:

The law relating to disclosure breaches in Australia has developed incrementally, with the result that there is a range of potentially overlapping remedies, and the Australian Securities and Investments Commission, which is the primary regulator in this context, will often have to bring more than one type of action in order to achieve a desired regulatory outcome. Actions for compensation by investors have received a fillip from reforms to facilitate class actions. However, uncertainty remains as to the extent to which investors are required to establish reliance. Recent growth in enforcement of disclosure breaches has highlighted the need to rationalise the available remedies and, in that process, to consider the desirable balance between compensatory and deterrent remedies, entity and individual liability, and public and private enforcement.

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