لایب سان

Author(s): Juliette Overland

Series: The Law of Financial Crime

Publisher: Routledge, Year: 2019

ISBN: 1138299022,9781138299023

Acknowledgements xi Abbreviations xii 1 Corporate liability for insider trading: an introduction 1 Background to the prohibition of insider trading 2 The rationale for the prohibition of insider trading 6 2 The regulation of insider trading 13 The key features of Australian insider trading laws 13 The possession of information 16 The nature of information 16 The nature of possession 20 Information which is not generally available 24 Readily observable information 25 Publishable information 26 Deductions, conclusions and inferences 28 Material information 28 Knowledge that information is inside information 34 Trading, procuring and tipping in relevant financial products 37 Contentious aspects of insider trading 38 3 The application of insider trading laws to corporations 39 A corporation as a ‘person’ caught by the prohibition of insider trading 39 International comparisons 41 The history and theory of the application of Australian insider trading laws to corporations 44 Why corporations should be liable for insider trading 51 Contents viii Contents 4 Corporate criminal and civil liability 55 Models of corporate criminal liability 55 Vicarious liability 57 Direct liability 58 Aggregation doctrine 64 Organisational fault 66 Statutory principles of corporate criminal liability 66 Civil liability for insider trading 69 A model of corporate liability for insider trading in Australia 71 5 Attributing the elements of insider trading to corporations 73 The relevant elements of insider trading 73 Attributing the possession element to corporations 75 Statutory mechanisms 82 General law agency rules 90 Identification doctrine 91 Collective knowledge 93 Relationship with continuous disclosure obligations 94 Different mechanisms for determining when a corporation possesses information 95 Attributing the knowledge element to corporations 99 Statutory mechanisms 100 General law principles 103 Identification doctrine 104 Agency principles 105 Different mechanisms for establishing the knowledge of corporations 105 Demonstrating that a corporation ‘ought reasonably’ to have certain knowledge 107 International comparisons 108 Attributing the trading element to corporations 110 Statutory mechanisms 111 Identification doctrine 115 Different mechanisms for establishing the conduct of corporations 116 Preliminary conclusions and recommended reforms 117 6 The Chinese Wall defence to insider trading 119 The nature of the Chinese Wall defence 120 The origins of Chinese Walls 122 Contents ix The necessity for Chinese Walls 125 Requirements for reliance on the Chinese Wall defence 126 The person deciding to trade in relevant financial products did not possess inside information 126 A sufficient Chinese Wall was in place 130 Cases concerning Chinese Walls and insider trading 131 Market rules and accepted industry practices 133 Cases concerning Chinese Walls in other contexts 136 The inside information was not communicated and no advice was given 139 International comparisons 140 Preliminary conclusions and recommended reforms 146 7 Insider trading and business obligations 148 Continuous disclosure regime 148 Securities trading policies 151 Insider trading notifications 152 Notification of directors’ securities trading 153 Directors’ duties and conflicts of interest 154 Concluding comments on business obligations 155 8 Corporate liability for insider trading: reform proposals 156 Flaws in the current regime 157 Proposed new provisions 161 Nature of the proposed reforms 164 Exclusion of the general law 164 Continued exclusion of the Criminal Code 165 Exclusion of section 769B of the Corporations Act 166 No requirement for nexus with role or position for information or knowledge 166 Attribution is possible for all officers, employees and agents of a corporation 167 Conduct must occur within the scope of authority or with authorisation of a person with authority, on behalf of corporation 167 Link between the possession of information, knowledge and conduct 168 Direct model of corporate liability for insider trading 168 Redrafting of the Chinese Wall defence 169 Amendments concerning section 1043M of the Corporations Act 169 x Contents 9 Conclusions 171 Appendix 173 Bibliography 175 Index 187

برای ارسال نظر لطفا وارد شوید یا ثبت نام کنید