A new understanding between ASIC and the Takeovers Panel

A new memorandum of understanding (MOU) between the Takeovers Panel (the Panel) and ASIC was recently released, replacing the previous MOU signed in August 2001.

While the new MOU continues to reinforce the separate, but complementary roles of the Panel and ASIC (to regulate takeovers and control transactions), a comparison against the previous MOU shows a change in tone and approach between the two bodies.

The description of ASIC’s role has shifted from an almost exclusive focus on contravention to a broader outcomes based approach, recognising the need for greater facilitation of transactions at the same time as maintaining investor protections, together with further guidance on ASIC’s approach in exercising its discretion under the Corporations Act 2001 (Cth).

Shifting from a summary of the mechanics of interactions between ASIC and the Panel, the new MOU emphasises the need for both entities to ‘promote a clear and consistent regulatory framework for control transactions’. It primarily seeks to achieve this by increasing the number of liaison meetings from biannually to quarterly. In addition, information sharing and unsolicited assistance between ASIC and the Panel has been simplified to encourage the sharing of information that may assist ‘in the performance of their functions or the discharge of their duties’, moving beyond recognition that information may be shared to instead indicating that the entities will share information, with due regard to confidentiality, procedural fairness, and any applicable statutory limitations.

Time will tell whether this new MOU changes the roles played by each of ASIC and the Panel. The parameters of their interactions and necessary separation are clear. What this MOU does indicate is a more open dialogue with the goal of each body to develop policy that promotes the clear and consistent regulatory framework the market requires.

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