Regulation, Litigation & Enforcement

While litigation is often considered a last resort for achieving regulatory objectives, its use can have significant impacts on the regulator and regulated entity, and a consequential impact on industry, government and the public.

Regulation, Litigation, Enforcement examines the procedural aspects of litigation in the regulatory context from the perspective of theory, policy and practice. It considers litigation issues common to all regulatory schemes, such as investigation and information gathering powers, and criminal law aspects of regulatory litigation. The different regulatory regimes are considered together so that they can be compared and contrasted.

Regulation, Litigation, Enforcement reviews the need for regulation, forms of regulation and techniques of regulation. Pre-litigation steps are covered; coercive investigatory powers examined; and the limitations imposed by privilege discussed.

Chapter coverage includes:

• Directors’ and Officers’ insurance in the regulatory litigation context;
• the law on whistle blowers and immunity;
• pleadings, including the specific issue of challenging Australian Competition and Consumer Commission pleadings in cartel cases;
• enforcement of the continuous disclosure regime under the Corporations Act 2001 (Cth) and the Australian Securities Exchange listing rules;
• the interaction between public and private enforcement, looking at how the Australian Securities and Investments Commission and shareholder class actions interact;
• tax litigation;
• settling civil penalty litigation brought by the Australian Competition and Consumer Commission;
• criminal proceedings; and
• the criminalisation of cartels.

Regulatory litigation has unique challenges because it usually involves the government as the plaintiff or prosecutor and the stakes are often high. Such complex subject-matter deserves analysis as an inter-related whole, which is the aim of this work.

Legal practitioners engaged in regulatory enforcement/litigation will find this work extremely useful. It will assist practitioners who are new to the area to understand the basics such as investigatory powers and pleadings, but it is also highly useful for experienced practitioners who have to address novel issues such as criminalisation and the rise of class actions. In-house lawyers, company secretaries and compliance professionals that have a regulatory interface, as well employees of regulators such as ASIC and ACCC, and students of litigation and/or regulation, will all benefit from this unique work.