An Scoil Dli, UCDUCD School of Law Decision Making in the Context of the Administrative Sanctions Procedure A programme for Inquiry Members of the Financial Service Regulatory Authority 19 and 26 May, 2007 G Brian Hutchinson, BCL LLM DAL FCIArb BL Vice Dean, School of Law

Introduction Introductions About UCD & School of Law About Expertise About the Programme About the website & contact – Password – f1nreg

About Dispute/Conflict Resolution Analysing Conflict Means of Dealing with Conflict

Analysing Conflict Continuum of Tension

Analysing Conflict Identifying underlying interests and needs Positions are irreconcilable – interests and needs need not be

Analysing Conflict What We know about Why Disputes Arise

Means of Resolving Conflict Litigation Arbitration ADR –Mediation / Conciliation –Mini Trial –Adjudication –Expert Evaluation –Ombuds Negotiation –Direct / Assisted / Structured Non alternatives…

Means of Resolving Conflict Table 1: –Litigation / Arbitration / Mediation / Adjudication –Relative strengths and weaknesses Table 2: –Pros and Cons –Important factors in the choice

Experiment / Exercise Analyse / Classify the types of conflict encountered by: –The Financial Regulator –The Inquiry

Introducing the Administrative Sanctions Procedure Legal Basis: –Addressed only to Regulated Financial Service Providers Including management –Prescribed Contraventions S33AN Central Bank Act, 1942 –of Designated Enactments Schedule 2, 1942 Act Directions Codes –“Contravention” S33AN Central Bank Act, 1942 Attempt; Secondary Parties; Conspiring –Process governed by Guidelines

The Objectives of Enforcement Action “The following overriding objectives will be considered: The enforcement action should promote compliance by the regulated financial service provider or persons concerned in its management; The enforcement action should promote compliance within the industry or sector; The enforcement action should be proportionate, and be likely to support the economic, efficient and effective pursuit of the strategic objectives of the Financial Regulator.”

The Administrative Sanctions Procedure Supervisory Function or External / Information Gathered / Report Prepared / Opportunity to Respond / Confidential / Reasonable grounds required / efficient, effective and economic use or resources to be considered

The Inquiry Administrative Sanctions Procedure Guidelines –Paragraphs 8 to 13 (Table 3) –To determine on the Balance of Probabilities if there has been a prescribed contravention –To determine the appropriate sanction

The Inquiry in Detail Pages 11 to 18 of the “Administrative Sanctions Procedure Overview” –Diagram Inquiry notice Inquiry Sanctions Inquiry Points of Law Appeals –Inquiry Notice –Representations In advance –Form of Inquiry Informality Procedural decisions Factors to consider Right of Submission –Admissions –Denials

The Inquiry in Detail Public or Private –Submissions taken Rules of Inquiry –Burden of Proof – Rests on Regulator –Not Bound by rules of evidence –Adhere to natural and constitutional justice Composition –Non-delegation Decisions –Majority –Presiding person has procedural decision making powers –Written Reasons required if prescribed contravention found: Findings of fact Grounds for findings of fact Sanctions, if any, to be imposed Types of Sanctions and the Factors to be taken into account –Nature and Seriousness –Conduct after the contravention –Previous Record –General Considerations Publicity Appeals