Yes
@THGH, I agree that is partially what the disagreement is about, to my understanding. It appears ASX can request it, and that ISX is compelled to provide it. However, ASX is required to have barriers in place to ensure confidentiality of information but ISX has proof that this has been breached in the past and information has been passed on to the media and to at least one short seller. And ASX continues to refuse to ensure verbally that ASX will protect information that is given to them. ISX has not refused to give the information to ASIC.
In the ASX's own document
Managing Regulatory Conflicts1 it states, "Information barriers and, where necessary, physical barriers are in place to ensure that physical access to hard copy information and electronic access to soft copy information are quarantined, as required, within each unit of ASX Compliance, so as to protect confidential information relating to compliance or enforcement matters. If such information is shared outside of ASX Compliance, it is done in accordance with ASX‟s organisational and departmental policies and procedures.
9"
9 "For example, ASX Compliance staff participate in, and share information with, a number of ASX internal governance committees, as part of the ASX Group coordinating its activities to meet its various licence obligations (for example, when managing responses to potential events of defaults or other incidents involving participants). ASX Compliance also has extensive interaction with ASX staff from other business units on a range of issues. These include day-to-day operational issues and other matters, such as new products or other projects and initiatives, that may raise Listing Rule or Operating Rule compliance issues. In having these interactions,
ASX Compliance staff are conscious of their confidentiality obligations and only discuss confidential matters of a regulatory nature with other staff on a strict „need to know‟basis."
I am not aware of what the arrangement is for confidentiality if there isn't a conflict of interest, but I would think this same would apply. ASX is required to declare their conflict of interests, and regarding ISX they have not done so.
The above document goes on to say, "Under the Corporations Act, each ASX group company that holds a licence to operate:
- a market in Australia is obliged, to the extent reasonably practicable, to do all things necessary to ensure that the market is fair, orderly and transparent (its “FOT obligation”);
- a clearing and settlement facility in Australia is obliged, to the extent reasonably practicable, to do all things necessary to ensure that the facility‟s services are provided in a fair and effective way (its “FE obligation”).
Each licensee is also obliged to have adequate arrangements for handling conflicts (“regulatory conflicts”) between the commercial interests of the licensee and the need for the licensee to ensure:- in the case of a market licensee, that the market operates in a fair, orderly and transparent way; and
- in the case of a clearing and settlement facility licensee, that the facility‟s services are provided in a fair and effective way.
This document also supports my argument that ISX may be going to argue that ASX is in competition/has a conflict of interest which may be introduced as evidence to support the claim that ASX is not acting (i) in good faith;(ii) honestly and fairly and/or reasonably or providing procedural fairness in accordance with their rules on managing regulatory conflicts. Please consider
@ChillingOut 's comments on this in
Post #:46250388 when reflecting on this.
1 https://www.asx.com.au/documents/about/managing-regulatory-conflicts.pdf
