What are the benefits of enforceable undertakings? What is the criticism of enforceable undertakings?

Questions : 1. Discuss the following: (a) What are the benefits of enforceable undertakings?

(b) What is the criticism of enforceable undertakings?

(c) What are the recommendations for improvement of enforceable undertakings?

(d) Why might the recommended improvements to enforceable undertakings not be effective?

(e) Provide your opinion as to whether enforceable undertakings or litigation is/are more effective regulatory enforcement tools for deterrence and give reasons for your answer.

2. State the following in relation to the enforceable undertaking which you have selected from the ASIC website:

(a) Is the enforceable undertaking given by an individual, company or both individual and company?

(b) What are the alleged offences to which the enforceable undertaking relates?

(c) What type of undertaking/s have been given by the individual and/or company in the enforceable undertaking?

(d) To what extent would the enforcement of the enforceable undertaking be based on self- monitoring?

(e) How effective do you think the enforceable undertaking might be, provided that it was successfully implemented.

3. Case Study  Incorporation and Its Effects Janice was an art dealer and the owner of a painting by a famous contemporary artist. She agreed to sell the painting to an art collector, Tim.

Before the date on which payment and delivery of the painting were due, the famous artist died and all of his artworks drastically increased in value overnight, which meant that Janice had in fact agreed to sell the painting for millions of dollars less than its current value. Janice was devastated and came up with a strategy to avoid delivering the painting to Tim. Janice would establish a new company, ‘Artifice Pty Ltd’ (‘Artifice’), with her husband as the only director and shareholder. She would sell the painting to Artifice at a very reduced price.

When Tim tendered payment and demanded delivery of the painting, Janice would inform Tim that she was no longer the owner of the painting, that it was now the property of Artifice and that she therefore could not deliver the painting to Tim.

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