Regulatory Guide 248 - Litigation schemes and proof of debt schemes: Managing conflicts of interest CPD
This guide sets out ASIC’s approach on how a person who provides a financial service can satisfy the obligation to maintain adequate practices and follow certain procedures for managing potential and actual conflicts of interest in relation to a litigation scheme or a proof of debt scheme.
A person providing financial services for litigation schemes and proof of debt schemes is exempt from the requirements that would otherwise apply under Ch 7 of the Corporations Act 2001 (Corporations Act), but the person must maintain, for the duration of the scheme, adequate practices for managing any conflicts of interest that may arise in relation to the scheme.
ASIC’s guidance on managing conflicts of interest applies to you to the extent that you are involved in a litigation scheme or proof of debt scheme and you rely on the exemptions under the Corporations Regulations 2001 (Corporations Regulations) for litigation schemes or proof of debt schemes, or conduct your activities under an Australian financial services (AFS) licence.
RG 248 sets out our expectations for compliance with the obligation to maintain adequate practices to manage conflicts of interest. ASIC expect that you will be;
• Responsible for determining your own arrangements to manage interests that may conflict; and
• Able to demonstrate that you have adequate practices to manage conflicts of interest, including documenting, implementing and reviewing your arrangements.
• To meet your obligation to maintain adequate practices and follow certain procedures to manage conflicts of interest, you must be able to show through documentation that:
• You have conducted a review of your business operations that relate to the litigation scheme or proof of debt scheme to identify and assess potential conflicting interests;
• You have written procedures for identifying and managing conflicts of interest;
• You have effectively implemented the procedures;
• You regularly review the written procedures at intervals of not less than 12 months; and
• Your senior management or partners oversee the implementation, monitoring and management of your procedures (reg 7.6.01AB(4)).