ASIC has updated its regulatory guidance to provide greater clarity around the operation of enforceable undertakings (EUs).
The new version of Regulatory Guide 100: Enforceable Undertakings (RG 100), released yesterday, includes more comprehensive public reporting obligations for ASIC and a new criteria for independent experts.
A comparison between the new guidance and the February 2012 'superseded' version of RG 100 reveals ASIC will now provide reports on whether a company has complied with its obligations for all EUs entered into after 9 March 2015.
“This may include interim reporting about compliance as well as reporting on final outcomes under an enforceable undertaking,” the regulations state.
By contrast, the current Enforceable Undertakings Register lists only the date and terms of EUs entered into.
In addition, ASIC has introduced new guidelines for independent experts appointed to review and report on EUs.
“We will assess the competence of the expert, the independence of the expert and the expert’s arrangements to manage conflicts of interest arising during the engagement,” the regulations state.
“Assessment of these factors will assist to ensure the expert is capable of exercising objective and impartial judgement during an engagement.”
ASIC will assess the expert’s competence on the basis of their resources, qualifications and technical expertise, experience and capacity to meet time frames, according to the regulations.
Meanwhile, their ‘independence’ will be assessed against a 12-point criteria set out in the legislation.
ASIC has also clarified when an independent expert will be appointed to oversee an EU, including in complex cases, cases where previous remediation efforts fell short, and cases where the company in question has a history of compliance issues.
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