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2020 | Buch

Corporate Whistleblowing Regulation

Theory, Practice, and Design

herausgegeben von: Dr. Sulette Lombard, Assoc. Prof. Vivienne Brand, Assoc. Prof. Janet Austin

Verlag: Springer Singapore

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This book adopts a cross-jurisdictional perspective to consider contemporary corporate whistleblowing issues from an ethical theoretical perspective, regulatory perspective, and practical perspective. It includes in particular arguments in favour of and against the adoption of financial incentive schemes for whistleblowers, as well as the potential implications of adopting such schemes. This approach provides a valuable opportunity for comparison from a law reform perspective.

The book brings together authors from various jurisdictions – Canada, Australia, and the USA – who, through their exposure to this area of law, be it as practitioners, regulators, or academics, offer valuable and interesting insights on the emerging and topical area of corporate whistleblowing generally, and whistleblowing rewards in particular. These three jurisdictions were selected on the basis of their reform-oriented stance on corporate whistleblowing and/or implementation of financial incentives for whistleblowing, creating an opportunity to assess contemporary regulatory structures and in particular how incentives measures could interact with corporate whistleblowing regulatory frameworks, and how they could contribute to improved governance. The reasons for the rejection of the notion of financial incentives in the United Kingdom are also reviewed, in order to provide a comparative overview.

The book provides useful guidance for those who may be affected by the implementation of corporate whistleblowing schemes, including for reward, whether as regulators, practitioners, company directors, or whistle blowers.

Inhaltsverzeichnis

Frontmatter

Corporate Whistleblowing Context in Australia, Canada and USA

Frontmatter
Chapter 1. Regulatory Policies and Practices to Optimize Corporate Whistleblowing: A Comparative Analysis
Abstract
Measures to encourage corporate whistleblowing and reap subsequent regulatory benefits of increased whistleblowing activity have been a focus point in a number of jurisdictions. However, none of these measures will be able to achieve optimum success in encouraging corporate whistleblowing if corporate whistleblowers are not able to access them in a practical, meaningful way. It is also important to recognise that every element of a whistleblowing framework forms part of a bigger whole, and that individual elements and their impact can only be properly understood where the context of their operation is appreciated. For these reasons, this chapter aims to provide a broad, comparative overview of measures encouraging whistleblowing—including, for example, financial incentives for whistleblowers—that were adopted in the USA, Canada, and Australia, as well as the regulatory background against which they operate. It therefore also considers whether the corporate whistleblowing framework as a whole, as well as local institutional arrangements, is able to support these measures appropriately in order to encourage corporate whistleblowing.
Sulette Lombard
Chapter 2. The Ethics of Corporate Whistleblowing Rewards
Abstract
Corporate whistleblowing regulation has experienced rapid evolution in a number of significant jurisdictions in recent years, most notably in the United States. One of the most controversial aspects of contemporary reform in corporate whistleblowing regimes is the debate over whether or not to introduce whistleblowing rewards or ‘bounties’. This chapter considers the ethical analysis that can be brought to bear in relation to the offering of corporate whistleblowing rewards, and how that might assist in ensuring that rewards have a place in an effective corporate whistleblowing regulatory environment.
Vivienne Brand
Chapter 3. To Reward or Not to Reward: A Cross-Jurisdictional Comparison of the Reasons Why Securities Regulators Have Adopted or Rejected Policies to Pay Whistleblowers
Abstract
The idea that securities regulators should reward persons who ‘blow the whistle’ on fraudulent or corrupt conduct is starting to gain some traction around the world. Spurred on by the apparent success of the whistleblower award program administered by the Securities and Exchange Commission (SEC) in the United States, other countries have considered whether or not their securities regulators should adopt similar program. This article examines the reasons behind the introduction of the SEC program as well as the approach in three other jurisdictions, being Canada, Australia and the UK, all of which have considered whether to introduce such a regime. This analysis demonstrates that whether an award program for whistleblowers was adopted, and the form of the program, depended upon a number of factors. Such factors include whether or not the regulator itself supported the introduction of the program, the political landscape generally and opposition from business. Although empirical evidence about the costs and benefits of such programs contributed to the debate, it was not determinative because such empirical evidence is currently inconclusive. As such, there is a pressing need for more empirical evidence to fully assess the costs and benefits of such programs.
Janet Austin

Regulatory, Theoretical and Governance Aspects in Relation to Corporate Whistleblowing

Frontmatter
Chapter 4. Paid Whistleblowers and Paid Compliance Programs: Opposite Sides of the Same Coin
Abstract
The phrase “paid whistleblower” conjures up for most people the image of a person “coming in from the cold” to the office of a governmental regulator and receiving a bounty for so doing. In this chapter, I argue that the flip side of the coin (that is, payments to a whistleblower) is the concept of paying people for compliant behaviour as part of their annual performance or compensation review. Why should we wait for really bad events to occur in order to pay people for ethical conduct? To the contrary, a compensation system should recognize and reward compliant behavior. This is not the norm in North America, but should be.
Ken Jull
Chapter 5. External Regulation and Internal Whistleblowing Frameworks: An Australian Perspective
Abstract
Internal corporate whistleblowing systems, or ‘institutionalised’ whistleblowing, could offer valuable corporate governance benefits, particularly around notions of compliance and risk management. There are sound regulatory theories to explain the value of such systems as part of a corporate governance framework. The Australian legislature clearly recognises the benefits of such systems, as is illustrated by recent legislative reform that includes mandatory development of such systems for some companies. This chapter provides an overview of recent legislative reforms in relation to corporate whistleblowing, particularly around provisions aimed at ensuring development of internal whistleblowing frameworks. In addition, it analyses the approach adopted by the Australian legislature with reference to theories in relation to corporate governance and regulatory approaches to ensure development of such internal whistleblowing systems. The chapter lastly provides some comparison between the pre-reform practices of some of Australia’s largest companies and the requirements of the new regime.
Sulette Lombard, Vivienne Brand
Chapter 6. Directors’ Duties and Whistleblowing
Abstract
The relationship between whistleblowing and directors’ duties is not straightforward. Directors’ core duties (duty of care, duties to act in good faith in the interests of the company and for proper purposes, and duties to avoid unauthorised conflicts and profits) are owed to the company and not directly to whistleblowers or employees. On the other hand, a company’s reputation is a key factor in its success and one that is increasingly recognised in the application of the duty to act in good faith in the interests of the company and, more recently, in the application of the duty of care. Corporate codes may also contain material concerning whistleblowing, and a question arises as to how binding these codes are and the consequences of non-compliance. This chapter explores the interaction between whistleblowing and directors’ core duties, as well as the potential implications of non-compliance with whistleblowing provisions in corporate codes by companies and directors. The analysis relates primarily to Australian law, but comparison is made with other Commonwealth jurisdictions.
Rosemary Teele Langford

Practical Implications of Corporate Whistleblowing Measures

Frontmatter
Chapter 7. The United States Securities and Exchange Commission Whistleblower Program: A Long and Winding Road
Abstract
As a lawyer, I have represented or conferred with dozens of individuals who have wanted to become whistleblowers under the US Securities and Exchange Commission’s Whistleblower Program and have represented clients who have received awards. In this chapter, I describe the process of being a whistleblower under this Program from the inside out, including advice on how to decide if one has a viable case which can qualify under the myriad of unforgiving and dense thicket of rules that the SEC carefully crafted to govern the program. The opportunities to fail in this process are many, the time periods can be quite long (into the years) and the process from the whistleblower’s perspective can be very frustrating. On the other hand, the prospect that your information can bring down the awesome power and expertise of the SEC on your target after providing the initial information and otherwise qualifying as a whistleblower, can be downright thrilling, and supremely satisfying as you see the “bad guys” getting their due. By describing my practice and cases, if even in a somewhat generic outline, I can give some guidance to readers who may be considering what will become one of the most important decisions of their lives—to “tell truth to power” and become a whistleblower in aid of the U.S. government’s worldwide enforcement of its powerful securities laws.
Daniel J. Hurson
Chapter 8. Directors Dealing with Whistleblowing
Abstract
Increased regulatory focus on the role performed by corporate whistleblowers and how Australian laws should better protect and encourage whistleblowing represents one of the most significant developments in Australian corporate law in recent years, and offers insight into the evolving area of corporate whistleblowing regulation more broadly. Recent wide-ranging reforms to better protect private sector whistleblowing are designed to rewrite the way in which whistleblowing allegations are handled in the corporate context. A revamped victimisation offence, as well as the related compensation right, have significantly complicated the handling of whistleblower complaints and the role played by Australian directors in dealing with such matters. The question arises as to the approach Australian directors should now take in dealing with whistleblowing complaints. In the past it could have been expected that many examples of whistleblower complaints did not reach the boards of major Australian corporations. Key questions to be considered in light of the new regime include whether directors should make changes so that all complaints of material breaches of law made by whistleblowers are notified to the board, and the responsibility of directors for whistleblowing within the context of corporate culture. These issues have potential implications for corporate governance elsewhere, as attitudes to corporate whistleblowing and its management continue to evolve.
Greg Golding
Metadaten
Titel
Corporate Whistleblowing Regulation
herausgegeben von
Dr. Sulette Lombard
Assoc. Prof. Vivienne Brand
Assoc. Prof. Janet Austin
Copyright-Jahr
2020
Verlag
Springer Singapore
Electronic ISBN
978-981-15-0259-0
Print ISBN
978-981-15-0258-3
DOI
https://doi.org/10.1007/978-981-15-0259-0

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