Enforceable Undertaking and its Impact on Private Lawsuit

Enforceable undertakings, negotiated between the regulators and alleged offenders, are becoming more commonly used by the ACCC and ASIC as regulatory tools under their respective legislation. They are now creating tensions with substantive and procedural law in other fields as third parties seek both to contest them or, more commonly, rely on them. This article consider how enforceable undertakings affect the rights of third parties, whether victims of any breaches or the public can contest enforceable undertaking or seek a judicial review of the actions which led to them, whether victims of any breaches can use the enforceable undertaking as evidence in other civil proceedings, the limitations on victims of breaches in seeking to enforce the enforceable undertaking, and, whether information acquired by the regulator in investigating offences and negotiating the enforceable undertaking is available to any victims of alleged breaches in other civil proceedings