Public authorities and civil parties (including law firms for class actions) will seek access to these materials to establish a corresponding case. While the disclosure of privileged documents may have achieved the desired objective of achieving a satisfactory outcome in a regulatory investigation context, these same documents may provide unnecessary ammunition in a civilian judicial environment. If a sponsor ultimately decides that he or she wishes to provide the privileged information legally to ASIC, ASIC may accept the information confidentially.9 The ASIC „Confidential Voluntary Disclosure of LLP“ agreement provides that disclosure at the time of disclosure is not a waiver of the law, but that the interviewee, as a privileged person, reserves the responsibility of protecting the privilege of counsel.10 z.B. in the event of a judicial discovery or subpoena, the interviewee bears the burden of exercising prerogatives.11 ASIC also points out that the agreement does not prevent third parties from waiving rights to be and that interviewees should consider obtaining legal advice12 Although there may be good reasons to obtain a voluntary ASIC.12 If they feel they have nothing to hide. However, regulators and law enforcement authorities around the world are increasingly pressuring companies to disclose documents that are subject to a right of privilege, either by carefully considering these claims or by requiring disclosure of information as a necessary condition for cooperation agreements or a deferred justice agreement. There may also be other benefits for businesses that, for many reasons, choose not to rely on immunity. When information is provided on a voluntary basis, the above safeguards do not apply. ASIC did not provide any information on the intention to negotiate the terms of the standard form of the voluntary disclosure agreement. However, if you wish to reach an agreement, you can negotiate additional terms to further protect the confidentiality and privilege of your documents. This article was first published in the Financial Services newsletter, Volume 11 No. 9, May 2013 ASIC may choose to voluntarily provide, on a confidential basis, inside information (or allegedly privileged information) from a recipient of a notice or other public party.
ASIC`s model agreement, the „confidential voluntary agreement on the disclosure of LPP,“ defines the conditions under which ASIC may choose to accept such information. However, the agreement provides that by voluntarily supporting ASIC, a volunteer may tacitly waive his or her legal privilege in related proceedings8.8 To avoid this, a volunteer should carefully verify the information and/or documents that AsIC must provide to ensure that it does not divdit on the advice of its legal representatives. Summary If ASIC has applied to a voluntary disclosure agreement, it is appropriate to consider carefully: the waiver of rights to be does not necessarily arise from disclosure to third parties, and the courts continue to recognize that disclosure to a regulatory authority, in accordance with a restricted waiver agreement, does not necessarily result in a more general waiver.5 Nevertheless, the disclosure of privileged documents to a third party certainly increases the risk of loss of privileges. As soon as confidentiality is lost, it cannot be recovered and can have significant consequences.6 A company under consideration can of course derive considerable benefits from cooperation with the regulator or law enforcement authority, such as a more favourable resolution or a reduction in fines or penalties.1 Some regulators have proposed, although controversial: the waiver of privileges will be a strong indicator of cooperation.2 ASIC has encouraged the voluntary and confidential disclosure of privileged information which, since then, „can help parties effectively and accurately identify critical issues that need to be addressed in the course of an investigation“ and that it is „often in the public interest that ASIC