Relevant bibliographies by topics / Enforceable undertakings

Academic literature on the topic 'Enforceable undertakings'

Author: Grafiati
Published: 10 December 2022
Last updated: 20 February 2023

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Journal articles on the topic "Enforceable undertakings"

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Hardy, Tess, and John Howe. "Too Soft Or Too Severe? Enforceable Undertakings and the Regulatory Dilemma Facing the Fair Work Ombudsman." Federal Law Review 41, no. 1 (March 2013): 1–33. http://dx.doi.org/10.22145/flr.41.1.1.

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This article reports on the use of enforceable undertakings by the Australian employment standards enforcement agency, the Office of the Fair Work Ombudsman (FWO), and its predecessor, the Workplace Ombudsman. Enforceable undertakings are used by the FWO as an alternative enforcement tool to court litigation in relation to breaches of the Fair Work Act 2009 (Cth), which regulates wages, working hours and other minimum employment conditions. Proponents of enforceable undertakings argue that they deliver value to regulatory agencies as a responsive alternative to traditional, punitive enforcement action. On the other hand, critics have raised concerns about the accountability and effectiveness of this enforcement tool. The authors provide a critical analysis of the FWO's use of enforceable undertakings, including consideration of the decision-making process, content, monitoring and enforcement of undertakings. The analysis is based on a review of all enforceable undertakings concluded in the period from 1 July 2008 to 30 June 2012, as well as qualitative interviews with approximately 60 inspectors, managers and lawyers of the FWO, and a number of specialist workplace relations lawyers. The article reveals that the FWO has made limited but promising use of enforceable undertakings in the review period. Through deployment of enforceable undertakings, the FWO has demonstrated that it has a mix of regulatory approaches available to it that are consistent with the key principles of responsive regulation. The number of enforceable undertakings accepted by the FWO, however, remains fairly limited. We set out a number of ways in which the regulator may maximise the utilisation of enforceable undertakings, and more fully realise the regulatory benefits of this particular compliance tool.
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Jess, Gabrielle, and Robin Price. "Fairness in enforceable undertakings: Comparing stakeholder voices." Safety Science 94 (April 2017): 1–9. http://dx.doi.org/10.1016/j.ssci.2016.12.024.

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Parker, Christine. "Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission's Use of Enforceable Undertakings." Modern Law Review 67, no. 2 (March 2004): 209–46. http://dx.doi.org/10.1111/j.1468-2230.2004.00484.x.

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Hardy, Tess, and John Howe. "Too Soft Or Too Severe? Enforceable Undertakings and the Regulatory Dilemma Facing the Fair Work Ombudsman." Federal Law Review 41, no. 1 (March 2013): 1–33. http://dx.doi.org/10.1177/0067205x1304100101.

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Rossi-Maccanico, Pierpaolo. "EU Review of Direct Tax Measures: Interplay between Fundamental Freedoms and State Aid Control." EC Tax Review 22, Issue 1 (February 1, 2013): 19–28. http://dx.doi.org/10.54648/ecta2013003.

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The State aid review of business tax measures under Article 108 TFEU (Treaty on the Functioning of the European Union) essentially concerns tax advantages which favour certain undertakings or productions, without there being a justification from the nature or scheme of the system. The presence of unjustified discriminations caused by national tax measures affecting the functioning of the Internal Market is also the condition for the Commission to promote infringement procedures, pursuant to Article 258 TFEU. The case law relating to the joined review of national tax measures both under the application of State aid and the elimination of discriminations contrary to other Treaty rules is scarce but significant. Typically, the review of State aids and discriminatory tax measures is disjoined because the incompatibility of the latter measures, unlike State aids, is directly enforceable by national courts. Moreover, not all forms of discriminatory taxation are also State aid and the Commission has exclusive competence to review the compatibility of State aids, including fiscal aids. However, the State aid review can sometimes lead to contextually determine, besides the selective nature of a tax advantage in favour of certain undertakings, the presence of additional market effects of a discriminatory tax system measure, without prejudice however to the separate examination of its justification for overriding reasons of public interest which can only take place in the framework of the more protective procedure pursuant to Article 258 TFEU. The assessment of the selective nature of a tax measure under State aid rules remains, however, separate from the one to ascertain possible tax restrictions or discriminations. A Joint review provides for a complex framework by which when an aid measure is also discriminatory in a sense prohibited by other Treaty rules, the existence of a link between the discrimination and aid under review obliges the Commission to take into account the ulterior effects of the measure in assessing its compatibility with the Internal Market.
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Schulte-Braucks, Reinhard, and Steven Ongena. "The Late Payment Directive – a step towards an emerging European Private Law?" European Review of Private Law 11, Issue 4 (August 1, 2003): 519–44. http://dx.doi.org/10.54648/erpl2003033.

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Abstract: The Directive on combating late payment in commercial transactions – Directive 2000/35/EC – had to be transposed into national law by August 2002. It is designed to reinforce the position of the creditor in cases of late payment. It defines cases where interest and/or compensation are due and fixes the level of interest at 7 percentage points above the interest rate of the European Central Bank. An unfairness clause prevents powerful undertakings from setting contractual payment terms that undermine the rules of the Directive. It thus limits party autonomy and tries to protect small and medium-sized enterprises against grossly unfair contract terms. The Directive also introduces a few basic principles on retention of title with the aim of enabling the creditor to exercise his rights throughout the Community. A careful examination of these provisions leads to the conclusion that the lex rei sitae should no longer be applied to movable goods. Instead, the lex contractus or, failing this, the law of the seller’s home country should determine the fate of the seller’s goods. In order to make the provisions of the Directive effective, it contains rules on speedy recovery procedures. Thus, Member States are obliged to ensure that their rules on civil procedure permit a creditor to obtain an enforceable title within 90 calendar days of lodging an action. The Directive is placed in the context of an emerging European private law. In particular, it will be part of the Commission’s efforts to create a European contract law.
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Boscheck, Ralf. "Patent Trolls: In Search of Efficient Regulatory Standards." World Competition 39, Issue 1 (March 1, 2016): 67–84. http://dx.doi.org/10.54648/woco2016005.

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Current concerns about the growth of patent assertion entities (PAEs) are typically related to their presumed anti-competitive behaviour and negative impact on innovation in product and technology markets. Regulators, required to balance the legitimate interests of patent holders and licensees, call for evidentiary standards to efficiently appraise, and for the purpose of policy formulation, prejudge the reasonableness and welfare consequences of these undertakings. And yet, recent economic analyses still seem far from offering operational criteria that could translate into enforceable, let alone efficient, regulatory norms. And so, case analysis, particularly in the US context, turns into an ordeal trying to tweak the facts of these fairly new business models to suit time-honoured legal principles. Plainly, PAE efforts in general do not seem to be easily caught by US competition rules that assign antitrust liability based on harm to competition and the competitive process. This is not to suggest that they are pro-competitive per se but, rather, that any attack on them may give rise to ‘administratively hopeless, but generally exculpating, rule of reason defence’. It may be for that reason that US judicial, federal and state reforms – for better or for worse – have begun to target some of the leverage points and key drivers of the PAE business model.The welfare consequences of reduced IP enforcement will still need to be established. The EU Commission expects PAEs to be less active in Europe because of the loser pays principle in European courts, the smaller damage awards offered in successful cases, and because of the higher degree of predictability of outcomes in European specialist patent courts. Yet, similar to the US context, EU regulators are faced with the dilemma of devising standards that fit a variety of circumstances and yet can be easily applied. In both cases, regulatory delegation avoids the pitfalls of ordering complexities centrally. But it requires a set of simple meta-rules to guide lower-level decisions, adjust principles to circumstance and keep matters predictable. Delegation in the area of competition policy is limited by the adequacy of the economic reference that it employs. At this stage, in dealing with outsourced patent assertion and related licensing conditions, economic theory offers a wide yet insufficient menu of advice. The article has four parts: Section 1 discusses patent trends, actors, rights and obligations, and the nature of current regulatory concerns. Section 2 reviews the scant empirical analyses and model work on patent trolls. Section 3 examines regulatory concerns in view of US antitrust standards and lists alternative remedies. Section 4 concludes and offers some considerations related to the European context.
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Nehme, Marina. "Enforceable undertakings’ practices across Australian regulators: lessons learned." Journal of Corporate Law Studies, July 27, 2020, 1–37. http://dx.doi.org/10.1080/14735970.2020.1789820.

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Johnstone, Richard, and Christine Parker. "Enforceable Undertakings in Action: Report of a Roundtable Discussion with Australian Regulators." SSRN Electronic Journal, 2010. http://dx.doi.org/10.2139/ssrn.1551627.

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Gilligan, George, and Ian Ramsay. "The Australian Securities and Investments Commission’s Use of Enforceable Undertakings and Negotiated Enforcement." SSRN Electronic Journal, 2023. http://dx.doi.org/10.2139/ssrn.4356299.

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Dissertations / Theses on the topic "Enforceable undertakings"

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Jess, Gabrielle M. "Enforceable undertakings: Perceptions of organisational justice." Thesis, Queensland University of Technology, 2015. https://eprints.qut.edu.au/90857/4/Gabrielle_Jess_Thesis.pdf.

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In this thesis the use of enforceable undertakings is examined as a sanction for a breach in work, health and safety legislation through the lens of organisational justice. A framework of justice types - distributive, procedural and interactional - is developed and the perceptions of the three parties to the process - the regulator, the business entity and the worker as the affected third party - are explored. It is argued that the three parties perceive the sanction to be distributively unfair, but procedurally and interactionally just.
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Nehme, Marina. "Enforceable undertakings : an improved form of settlement." Thesis, 2010. http://handle.uws.edu.au:8081/1959.7/496120.

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An enforceable undertaking is an administrative sanction available to a number of Australian regulators at both the Federal and State level. It is a promise enforceable in court. In an enforceable undertaking, the alleged offender, known as the promisor, promises the regulator (for the purpose of this thesis, the Australian Securities and Investments Commission (‘ASIC’)) to do or not to do certain actions. Such a sanction is the result of an agreement between the alleged offender and the regulatory agency. An enforceable undertaking is thus a form of settlement. By analysing the 286 enforceable undertakings accepted by ASIC over the last decade (1998-2008), this thesis considers whether an enforceable undertaking is an improved form of settlement and identifies the strengths and weaknesses of this sanction. For the purpose of comparison, the manner in which enforceable undertakings are used by other regulators such as the Australian Competition and Consumer Commission is also considered. Some of the criticisms levelled at settlements, such as issues relating to transparency and accountability, are referred to and an assessment is made as to whether such criticisms apply to enforceable undertakings. The study finds that an enforceable undertaking is a flexible sanction that provides the regulator with a creative way to deal directly with certain alleged contraventions of the law. Further, an enforceable undertaking may be deemed to be moderately restorative in nature. Accordingly, this sanction may provide, in certain instances, a better outcome than other remedies that are at the regulator’s disposal. Such a remedy has its own place in the Braithwaite’s enforcement pyramid. An enforceable undertaking is, in addition, more transparent than a settlement. Its terms are unlikely to be perceived as unreasonable either by the promisor or the victims of the alleged offender. Further, while the use of settlements raises issues of accountability, the fact that an enforceable undertaking is subject to judicial review and is enforceable in court provides a certain protection to the promisor. Ultimately, if the terms of an undertaking are unreasonable, it is unlikely for the courts to give such promises any legal effect. Lastly, to ensure compliance of the promisor with the terms of the undertaking, an effective monitoring system has to be in place. However, since ASIC is more reactive than proactive in relation to the monitoring of undertakings, such a monitoring system relies heavily on self-regulation by the promisors. The thesis concludes that the current system of monitoring enforceable undertakings has a number of flaws that should be taken into account by the regulator. In summary, an enforceable undertaking is an enhanced form of settlement, the use of which by regulators should continue and generally replace the use of other forms of settlements.
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Book chapters on the topic "Enforceable undertakings"

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Ulrich von, Koppenfels, and Christ Flavien. "Part III Outcomes of an Investigation, 8 Commitments." In EU Antitrust Procedure. Oxford University Press, 2020. http://dx.doi.org/10.1093/law-ocl/9780198839866.003.0008.

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This chapter addresses the procedure for adopting commitment decisions and discusses the legal effects of such decisions. Article 9 of Regulation 1/2003 empowers the European Commission to conclude antitrust cases by means of a decision rendering binding commitments offered by the undertakings concerned to remove the Commission’s competition concerns. Similar to a prohibition decision adopted pursuant to Article 7 of Regulation 1/2003, a commitment decision is an enforcement tool intended to ensure that the competition rules laid down in the TFEU are applied effectively. The key feature of Article 9 is that commitments proposed by the undertakings concerned are made binding on them through a directly enforceable Commission decision. In case of a breach of commitments, Article 9(2) provides that the Commission may reopen the proceedings with a view to adopting a decision under Article 7 of Regulation 1/2003.
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Ralf, Sauer, and Kellerbauer Manuel. "Part I Antitrust Rules (Articles 101 and 102 TFEU), 11 Infringement Decisions and Penalties." In EU Competition Procedure. Oxford University Press, 2022. http://dx.doi.org/10.1093/law-ocl/9780198799412.003.0011.

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This chapter discusses infringement decisions and penalties. There is no specific requirement for the European Commission as to the way in which it structures competition decisions, but they must meet the requirements contained in Article 296 of the Treaty on the Functioning of the European Union (TFEU). The basic layout of decisions applying Articles 101 and 102 TFEU consists of (i) a title; (ii) a preamble referencing the legal basis; (iii) recitals that contain a summary of the various procedural steps, an account of the facts, a legal assessment of those facts, as well as, where applicable, an explanation of the level of any sanctions (fines, penalty payments); and (iv) the Articles of the decision, known as the operative part or simply the ‘decision’. The operative part sets out the finding of an infringement and its duration for specific addressees (legal entities), the remedies required by the Commission, the amounts of any sanctions with arrangements for their payment, and an indication that the decision shall be enforceable pursuant to Article 299 TFEU. The chapter then focuses on infringement decisions, with particular attention paid to the operative part. This also includes declaratory decisions, orders to bring an infringement to an end and the imposition of remedies, as well as fines and periodic penalty payments imposed on undertakings for infringements of the substantive provisions of Articles 101 and 102 TFEU.
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Susskind, Richard. "Why Courts Matter." In Online Courts and the Future of Justice. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198838364.003.0003.

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Modern courts can be traced directly to bodies that came into being around 900 years ago. Today, they sit at the heart of all democratic societies, undertaking a remarkable variety of work. They handle quarrels amongst citizens, disagreements within families, conflicts between individuals and the state, and disputes between businesses. They determine the guilt or innocence of people accused of crimes and they settle sensitive questions of national security. In resolving disputes, judges apply the law when it is clear, bring clarity when there is uncertainty, develop the law (to some extent) as changing circumstances require, and set precedents that influence later cases. The judgments of courts differ from all other decisions in society—they are binding, enforceable, and backed ultimately by the coercive powers of the state.
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"On the other hand (and paradoxically?), Lord Ackner’s judgment does go some way down the road of a requirement of good faith, in that he is of the opinion that an undertaking to use best endeavours to negotiate an agreement with the other party could be sufficiently certain to be enforceable. Surely this imports an element of good faith? If someone undertakes to use his best endeavours to reach an agreement, there must be circumstances in which those best endeavours are unsuccessful. If they are unsuccessful this may be because the defendant, in bad faith, has failed to attempt to reach an agreement. In having recognised one variety of duty to negotiate in good faith, the bare assertion that a general duty to negotiate in good faith is unenforceable on the grounds of lack of certainty and general ‘policy’ seems very unconvincing." In Sourcebook on Contract Law, 243–44. Routledge-Cavendish, 1995. http://dx.doi.org/10.4324/9781843141518-94.

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