Abstract
The regulation of insider trading is a controversial and complex area of corporate law. Increasing numbers of individual offenders have been convicted of insider trading in recent years, but there has never been a successful criminal prosecution of a corporation in Australia. The absence of any successful prosecution, and the dearth of cases concerning corporate defendants, means the law is untested on many relevant issues, complicated by conflicting views as to the manner in which insider trading laws are to be applied to corporations. If difficulties in applying insider trading laws to corporations were to be appropriately resolved, greater insider trading enforcement action might be brought against corporations, increasing the general deterrent effect for all potential offenders. Additionally, corporations would have greater certainty as to their potential liability.This two-part article focuses on corporate criminal liability for insider trading. Part I sets out the nature of the insider trading offence, discusses the criminal liability of corporations, and identifies the many difficulties and inconsistencies which exist when seeking to apply elements of the insider trading offence to corporations. Part II analyses the Chinese Wall defence to insider trading and identifies problems in its application to corporations. It concludes with a proposal for a new model of corporate criminal liability for insider trading, aimed at addressing the various problems identified in both Parts I and II of this article, based on the need for legislative certainty and the market integrity rationale which underpins Australia's insider trading laws.
| Original language | English |
|---|---|
| Pages (from-to) | 314-332 |
| Number of pages | 19 |
| Journal | Australian Journal of Corporate Law |
| Volume | 32 |
| Issue number | 3 |
| Publication status | Published - Nov 2017 |
| Externally published | Yes |
Keywords
- insider trading
- corporations law
- law reform
- corporate criminal liability
