دانلود کتاب Governance and conduct obligations in financial services

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Full Title
Copyright
Foreword
Preface
Table of Cases
Table of Statutes
Table of Contents
Part A Outline
Chapter 1 Introduction
Overview
Interpreting and applying values-based laws
Structure of this book
Conclusion
Part B Duties Based on the Status of the Financial Services Participant
Chapter 2 Fiduciary and Equitable Duties at General Law
Introduction
Fiduciary and other equitable duties
Peculiarly fiduciary duties
The content of the duty
Conflict rule
No profit rule
Informed consent
Non-fiduciary obligation imposed by equity
Duty to act in best interests
Duty of care and skill
Duty to act in good faith
Duty to act for a proper purpose
Remedies
Conclusion
Chapter 3 Duties of Directors and Officers
Introduction
Duty to act with care and diligence
The duty at general law
Standard of care
The duty under s 180
Courts’ reluctance to review business judgments
Statutory business judgment rule
Duty to act in good faith
Duty to not improperly use position
Duty to not improperly use information
Reliance on others and non-delegable duties
Disclosures by whistleblowers
Liability and remedies
Ratification
Duty to act with care and diligence: s 180
Duty to act in good faith: s 181
Duty to not improperly use position: s 182
Duty to not improperly use information: s 183
Relief under s 1317S and s 1318 of the Corporations Act
Conclusion
Chapter 4 Duties of a Responsible Entity
Introduction
Duty to act honestly
Duty of care and diligence
Best interests duty
Best interests duty
Priority rule
Treat members equally and fairly
Duty to not use information to gain improper advantage
Duties of officers of a responsible entity
Reporting of breaches
Liability and remedies
Conclusion
Chapter 5 Duties of Registrable Superannuation Entities
Introduction
Duty to act honestly
Duty to exercise care, skill and diligence
Duty to act in the best interests of beneficiaries
Duty to give priority where there is a conflict
Duty to act fairly in dealings between and within classes of beneficiaries
Directors’ duties
Liability and remedies
Prudential standards
Liability and remedies
Duties concerning whistleblowers
The whistleblower regime under the SIS Act
No civil or criminal liability
No victimisation
Compensation
Confidentiality obligations
Conclusion
Chapter 6 Duties of Trustees of Self-managed Superannuation Funds
Introduction
Duty to act honestly
Duty to exercise care, skill and diligence
Duty to act in the best interests of beneficiaries
Covenant imposed on directors
Liability and remedies
Conclusion
Chapter 7 Duties of Insurance Entities
Introduction
Duty of utmost good faith
Statutory form of the duty of utmost good faith
The content of the duty of utmost good faith
Liability and remedies
Duty of priority
Priority over whom?
The meaning of ‘give priority’
Identifying the interests of policy owners
Interests of policy owners as a whole
APRA guidelines
Directors’ duty of priority
Defences, liability and remedies
Duties of directors of life company concerning risk management
The content of the duty
Liability and remedies
Duties concerning whistleblowers
The whistleblower regime under the Life Insurance Act
No civil or criminal liability
No victimisation
Compensation
Confidentiality obligations
Conclusion
Chapter 8 Duties of Authorised Deposit-taking Institutions
Introduction
Responsible lending duties
Disclosure obligations
Evaluating whether a credit contract is unsuitable
Preliminary assessments of unsuitability
Inquiries and verification under s 117
Preliminary assessment under s 116(1)
Final assessments of unsuitability
Substantial hardship
ASIC guidance re assessing substantial hardship
Remedies
Case law regarding responsible lending obligations
Implied duties under the ASIC Act
Duties under prudential standards
Content of the duty
Liability and remedies
Duties in respect to whistleblowers
The whistleblower regime under the Banking Act
Conclusion
Chapter 9 Duties of Entities that Provide Advice
Introduction
Financial product advice
Case law
Regulatory guidance
Financial products
Who provides financial product advice?
Exemptions
Duties concerning the giving of general advice
General advice obligations
Duties concerning the giving of personal advice
Duty to act in the best interests of a client
Duty to provide the client with appropriate advice
Duty to warn the client if the advice is based on incomplete or inaccurate information
Duty of priority
Liability and remedies
Case analysis
Fiduciary duties of advisers
Other duties of advice providers
Conclusion
Chapter 10 Duties of Australian Financial Services Licensees
Introduction
Duty to act provided efficiently, honestly and fairly
Compendious duty
Do all things necessary to ensure
Objective test
Assess conduct by reference to business as a whole
Morally wrong or unethical conduct
Morally wrong business practices
One size fits all advice
Failure to have a reasonable basis for advice
Failure to act diligently and efficiently
Management of conflicts of interest
Chinese walls
Liability and remedies
Conclusion
Part C General Conduct Obligations Imposed on Any Entity that Provides Financial Services
Chapter 11 Obligation of Good Faith
Introduction
The obligation of good faith
The emergence of good faith
Implied term v implied duty
Inconsistency with the contract
The content of the good faith duty
Remedies for breach of the duty of good faith
Conclusion
Chapter 12 Misleading or Deceptive Conduct
Introduction
Misleading or deceptive conduct
The statutory provisions
Peculiar elements regarding the scope of s 1041H — the meaning of ‘in relation to’
Peculiar elements regarding the scope of s 12DA
The ‘trade and commerce’ limit on the scope of s 12DA, ASIC Act and s 18, ACL
Misleading or deceptive conduct — interpretation and application
Meaning of ‘deceptive’ conduct
Meaning of ‘likely to’
Objective test for assessing misleading or deceptive conduct
Statements that are literally true
State of mind
Transitory effect and disclaimers
Careless conduct
Class of persons to whom conduct is directed
Failure to disclose
Opinions
Statements about future matters
Advertising
Social/digital media cases
Financial services cases
Contravention
Conclusion
Chapter 13 Unconscionable Conduct
Introduction
Unconscionable conduct
Equity and unconscionable conduct or dealing
First principles
Defences
Remedies
The statutory provisions prohibiting unconscionable conduct
Prohibition under ASIC Act s 12CA
Prohibition under ASIC Act s 12CB
Remedies for breach of ASIC Act s 12CB
Prohibition in Corporations Act s 991A
Remedies for breach of Corporations Act s 991A
Contracts Review Act 1980 (NSW)
Remedies
Conclusion
Chapter 14 Unfair Contract Terms
Introduction
Unfair contract terms
Unfair contract terms in consumer and small business contracts
Determining whether a contract term is unfair
The Bank Fees case
Other cases dealing with unfair terms under cognate legislation
Determining whether a contract term is transparent
Conclusion
Chapter 15 Anti-Competitive Conduct
Introduction
Anti-competitive conduct
Price fixing and other cartel conduct
Making or giving effect to a contract, arrangement or understanding
Purpose/effect condition
Purpose condition
By parties which are, or would otherwise be, in competition with each other
Exceptions
Penalties
Price signalling laws
Private disclosure prohibition
General prohibition
Penalties
Anti-competitive contracts, arrangements and understandings
Contract, arrangement and understanding
Exclusionary provisions
Purpose, or has or is likely to have the effect, of substantially lessening competition
Severance
Exception
Penalties
Misuse of market power
Substantial degree of power
Market
Taking advantage of market power
Legal rights
Exclusive dealing conduct
Exceptions
Penalties
Exclusive dealing conduct
Supply or acquisition subject to a condition
Substantially lessening competition
Per se breaches
Overlap with s 47
Exceptions
Penalties
Resale price maintenance
Specified price
Exceptions
Penalties
Conclusion
Part D Obligations Relating to the Use and Protection of Customer Information
Chapter 16 Collection, Use and Disclosure of Personal Information
Introduction
Collection, use and disclosure of personal information
Who does the Privacy Act apply to?
Australian Privacy Principles — APPs
What is ‘personal information’?
Information governance
Collection of personal information
Use and disclosure of personal information
Direct marketing
Cross-border disclosure
Government identifiers
Quality and security of personal information
Access to and correction of personal information
Midata initiative (UK)
Privacy and credit information — the obligations of credit providers
Who is a credit provider?
Additional obligations
Information governance
Dealing with credit information
Dealing with credit eligibility information
Integrity of credit eligibility information
Use or disclosure of false or misleading information
Quality and security of information
Access to and correction of information
Credit Reporting Code
Enforcement
Civil penalties
Complaints and investigations
Other powers of the Commissioner
Conclusion
Chapter 17 Cyber Security Obligations
Introduction
The threat environment within which organisations operate
Cyber security and the law
Privacy law
Security provisions
The ‘reasonable steps’ test
Consequence of a breach
Directors’ duties
Consequence of a breach
Data breach notification laws
The evolution of data breach laws
Australian developments
Other laws requiring notification of data breaches
Contract law
Expressing the obligations
Cloud agreements
Law of negligence
Consumer protection laws
Class actions
Damages under Privacy Act
Damages under other laws arising out of a data breach
Copyright and cyber security
Active defence
ePayments Code
Insurance
Evidence
Conclusion
Part E Contemporary Developments in Managing Conduct Risk and Remediation
Chapter 18 The Role of Behavioural Insights and Statistics in a Regulatory Context
Introduction
Behavioural economics
The approach in the United Kingdom
The approach in Australia
Potential issues with behavioural economics
Use of statistics in a regulatory context
Expert evidence
Common law test for admitting expert evidence
Statutory test
Case law
Conclusion
Chapter 19 ASIC Guidance Relating to Remediation Programs
Introduction
Requirements of RG 256
Initiation of review and remediation program
Systemic issues
Factors to consider when initiating, designing and implementing review and remediation programs
Operating efficiently, honestly and fairly
Adequate resources
Determining scope of review
The length of a review period for a program
Testing the scope
Revising the scope
Inviting clients to participate
Design and implementation of the program
Review of advice
Compensation
Communicating with clients
Governance
Record keeping
Public reporting
Conclusion
Chapter 20 Recommendations of Financial System Inquiry
Introduction
Proposed targeted and principles-based product design and distribution obligation
Content of the proposed obligation
Product design
Product distribution process
After sales of a product
Scalability
Penalty
Exceptions
Product markets and behavioural biases
Proposed product intervention power
Content of the proposed power
Engagement and consultation
Duration
Pricing
Behavioural biases
Review
Conclusion
Bibliography
Index