File #2862: "2020_Book_CorporateWhistleblowingRegulat.pdf"
Testo
1|Foreword|5
1|Acknowledgements|7
1|Introduction|8
2|Corporate Whistleblowing|8
2|Organisation and Contributions|11
2|Comment|12
1|Contents|14
1|Editors and Contributors|16
1|Corporate Whistleblowing Context in Australia, Canada and USA|18
1|1 Regulatory Policies and Practices to Optimize Corporate Whistleblowing: A Comparative Analysis|19
2|1.1 Introduction|19
2|1.2 Source of Corporate Whistleblowing Regulation and Regulatory Alignment|21
2|1.3 Scope of Application of Corporate Whistleblowing Regulation|25
3|1.3.1 Who Are Covered by the Whistleblowing Regulation?|25
3|1.3.2 What Type of Whistleblowing Activity Is Covered by the Whistleblowing Regulations?|27
3|1.3.3 What Type of Wrongdoing Is Covered by the Whistleblowing Regulations?|29
3|1.3.4 Whom Can Disclosures Be Made To?|30
2|1.4 Measures to Encourage Whistleblowing|34
3|1.4.1 Protecting the Whistleblower|34
3|1.4.2 Financial Incentives|39
3|1.4.3 Response to Disclosures|42
2|1.5 Ability to Access Whistleblowing Remedies|44
3|1.5.1 Whistleblowing Authority or Tribunal|45
3|1.5.2 Cost|47
3|1.5.3 Burden of Proof|48
2|1.6 Conclusion|48
2|References|49
1|2 The Ethics of Corporate Whistleblowing Rewards|52
2|2.1 Introduction|52
2|2.2 Ethics and Whistleblowing|55
3|2.2.1 Is Whistleblowing Ethical?|55
3|2.2.2 The Ethics of Whistleblowing Rewards|59
2|2.3 Theoretical Perspectives: ‘Expressive Function of Law’ Theory and Kohlberg’s Moral Development Theory|65
3|2.3.1 The Expressive Function of Law|65
3|2.3.2 Kohlberg’s Theory of Moral Development|67
2|2.4 Addressing the Ethics of Rewards in the Design of Regulatory Systems|70
3|2.4.1 Designing for Factors to Enhance the Ethicality of Whistleblowing Activity|70
3|2.4.2 Designing for Factors to Enhance the Ethicality of Rewards for Whistleblowing Activity|73
2|2.5 Conclusion|77
2|References|77
1|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|79
2|3.1 Introduction|79
2|3.2 The SEC Whistleblower Rewards Program|82
2|3.3 Canada|87
3|3.3.1 Ontario|88
3|3.3.2 Quebec|90
3|3.3.3 Alberta|92
2|3.4 The United Kingdom|93
2|3.5 Australia|95
2|3.6 What Determines Whether or not a Jurisdiction Adopts a Whistleblower Award Program?|97
3|3.6.1 Support by the Securities Regulator|98
3|3.6.2 Empirical Evidence|99
3|3.6.3 The Business Lobby|100
3|3.6.4 The Political Landscape|102
2|3.7 Conclusion|103
2|References|105
1|Regulatory, Theoretical and Governance Aspects in Relation to Corporate Whistleblowing|111
1|4 Paid Whistleblowers and Paid Compliance Programs: Opposite Sides of the Same Coin|112
2|4.1 Introduction|112
2|4.2 Paid Whistleblower Regimes|113
2|4.3 The Zone of Non-discovery by Government and Internal Whistleblowing|116
2|4.4 Proactive Compensation for Compliance|118
2|4.5 Matrix Analysis and Compensation for Compliance|121
2|4.6 Conclusion|122
2|References|124
1|5 External Regulation and Internal Whistleblowing Frameworks: An Australian Perspective|126
2|5.1 Introduction|126
2|5.2 Legislative Reform and Internal Corporate Whistleblowing Frameworks|127
2|5.3 Regulatory Theories, Elements and Instruments|129
3|5.3.1 Regulatory Theories|129
3|5.3.2 Regulatory Elements|133
3|5.3.3 Regulatory Instrument|135
3|5.3.4 How Do the Australian Legislative Reforms Compare?|136
2|5.4 Elements Comprising an Internal Whistleblowing Framework|137
3|5.4.1 A Comparison with Some Evidence from Prior Practice|138
3|5.4.2 Links to Theory and Evidence of the Prior Practices of Australian Corporations|141
2|5.5 Conclusion|143
2|References|144
1|6 Directors’ Duties and Whistleblowing|146
2|6.1 Introduction|146
2|6.2 Definition of Director—Australia|147
2|6.3 Sources of Directors’ Duties—Australia|148
2|6.4 Outline of Directors’ Duties—Australia|149
2|6.5 Duty to Act in Good Faith in the Interests of the Company—Australia|150
3|6.5.1 Stakeholder Interests|151
3|6.5.2 Section 1324|152
3|6.5.3 Reputation and Culture|153
3|6.5.4 Comparison with the UK|154
2|6.6 Duty of Care—Australia|156
3|6.6.1 Outline of Duty|156
3|6.6.2 Application in Relation to Whistleblowing|158
2|6.7 Corporate Codes|162
2|6.8 Oppression|164
2|6.9 Conclusion|167
2|References|167
1|Practical Implications of Corporate Whistleblowing Measures|169
1|7 The United States Securities and Exchange Commission Whistleblower Program: A Long and Winding Road|170
2|7.1 Introduction|170
2|7.2 My Practice Representing Whistleblowers|172
2|7.3 Where to Start: Make Sure You Really Want to Be a Whistleblower|173
2|7.4 You Must Present the SEC with “Original Information” to Qualify for an Award|175
2|7.5 Would-Be Whistleblowers Must Be Creative, and Investigate Cases Previously Brought by the SEC|176
2|7.6 Building a Successful Whistleblower Case—The Process and the Need for Patience|177
2|7.7 Make the Submission Succinct and Persuasive; Consider Carefully Which Documents to Submit|179
2|7.8 To Report up or not, and When: Important Decisions Which Can Help or Hurt Your Case|180
2|7.9 Reporting up Internally—The Right Way, and the Wrong Way|181
2|7.10 When Good Intentions Can Go Awry—The Case Against Reporting Up Internally|182
2|7.11 Timing Is Everything—The 120 Day Rules|183
2|7.12 Submitting Your Tip—Not Just Another Form to Fill Out|183
2|7.13 The Long Wait—Do the Best You Can to Help the SEC|184
2|7.14 Before Going to the Company, or to the SEC, Assess Your Personal Exposure|186
2|7.15 Construct Your Submission with the Goal of Qualifying Under the Complex Rules and Making a Strong Case that Attracts the Attention of the SEC Staff|187
2|7.16 The Award Amount Factors: Increases and Decreases|188
2|7.17 Consider Hiring a Qualified Lawyer to Assist You in Reporting to the SEC|189
2|7.18 Proceeding Toward an Award After the Company Settles with the SEC|190
2|7.19 Understanding, and Surviving, the SEC Process for Reviewing Awards|191
2|7.20 Retaliation and Whistleblowing—Frequent Warring Bedfellows|192
2|7.21 The Keys to Successful Whistleblowing—Why the SEC and CFTC Programs Are the World’s Best|193
2|7.22 Conclusion|194
2|References|194
1|8 Directors Dealing with Whistleblowing|196
2|8.1 Introduction|196
2|8.2 The Need for a Strong Functioning Policy|197
2|8.3 Directors Investigating Whistleblowing Claims|203
2|8.4 Directors Dealing with Retaliation Issues|205
3|8.4.1 What Is Detriment?|207
3|8.4.2 Individual Culpability|208
3|8.4.3 Corporate Culpability|209
3|8.4.4 Director Culpability|214
2|8.5 Directors Dealing with Compensation and Related Claims|215
3|8.5.1 Individual Culpability|216
3|8.5.2 Corporate Culpability|216
3|8.5.3 Director Culpability|220
2|8.6 So Should Directors Get Involved?|221
3|8.6.1 Direct Liability|221
3|8.6.2 Stepping Stones Liability as a Further Consideration for Directors|222
3|8.6.3 The AWB Case Study|224
2|8.7 A Concluding Comment|225
2|References|225
1|Acknowledgements|7
1|Introduction|8
2|Corporate Whistleblowing|8
2|Organisation and Contributions|11
2|Comment|12
1|Contents|14
1|Editors and Contributors|16
1|Corporate Whistleblowing Context in Australia, Canada and USA|18
1|1 Regulatory Policies and Practices to Optimize Corporate Whistleblowing: A Comparative Analysis|19
2|1.1 Introduction|19
2|1.2 Source of Corporate Whistleblowing Regulation and Regulatory Alignment|21
2|1.3 Scope of Application of Corporate Whistleblowing Regulation|25
3|1.3.1 Who Are Covered by the Whistleblowing Regulation?|25
3|1.3.2 What Type of Whistleblowing Activity Is Covered by the Whistleblowing Regulations?|27
3|1.3.3 What Type of Wrongdoing Is Covered by the Whistleblowing Regulations?|29
3|1.3.4 Whom Can Disclosures Be Made To?|30
2|1.4 Measures to Encourage Whistleblowing|34
3|1.4.1 Protecting the Whistleblower|34
3|1.4.2 Financial Incentives|39
3|1.4.3 Response to Disclosures|42
2|1.5 Ability to Access Whistleblowing Remedies|44
3|1.5.1 Whistleblowing Authority or Tribunal|45
3|1.5.2 Cost|47
3|1.5.3 Burden of Proof|48
2|1.6 Conclusion|48
2|References|49
1|2 The Ethics of Corporate Whistleblowing Rewards|52
2|2.1 Introduction|52
2|2.2 Ethics and Whistleblowing|55
3|2.2.1 Is Whistleblowing Ethical?|55
3|2.2.2 The Ethics of Whistleblowing Rewards|59
2|2.3 Theoretical Perspectives: ‘Expressive Function of Law’ Theory and Kohlberg’s Moral Development Theory|65
3|2.3.1 The Expressive Function of Law|65
3|2.3.2 Kohlberg’s Theory of Moral Development|67
2|2.4 Addressing the Ethics of Rewards in the Design of Regulatory Systems|70
3|2.4.1 Designing for Factors to Enhance the Ethicality of Whistleblowing Activity|70
3|2.4.2 Designing for Factors to Enhance the Ethicality of Rewards for Whistleblowing Activity|73
2|2.5 Conclusion|77
2|References|77
1|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|79
2|3.1 Introduction|79
2|3.2 The SEC Whistleblower Rewards Program|82
2|3.3 Canada|87
3|3.3.1 Ontario|88
3|3.3.2 Quebec|90
3|3.3.3 Alberta|92
2|3.4 The United Kingdom|93
2|3.5 Australia|95
2|3.6 What Determines Whether or not a Jurisdiction Adopts a Whistleblower Award Program?|97
3|3.6.1 Support by the Securities Regulator|98
3|3.6.2 Empirical Evidence|99
3|3.6.3 The Business Lobby|100
3|3.6.4 The Political Landscape|102
2|3.7 Conclusion|103
2|References|105
1|Regulatory, Theoretical and Governance Aspects in Relation to Corporate Whistleblowing|111
1|4 Paid Whistleblowers and Paid Compliance Programs: Opposite Sides of the Same Coin|112
2|4.1 Introduction|112
2|4.2 Paid Whistleblower Regimes|113
2|4.3 The Zone of Non-discovery by Government and Internal Whistleblowing|116
2|4.4 Proactive Compensation for Compliance|118
2|4.5 Matrix Analysis and Compensation for Compliance|121
2|4.6 Conclusion|122
2|References|124
1|5 External Regulation and Internal Whistleblowing Frameworks: An Australian Perspective|126
2|5.1 Introduction|126
2|5.2 Legislative Reform and Internal Corporate Whistleblowing Frameworks|127
2|5.3 Regulatory Theories, Elements and Instruments|129
3|5.3.1 Regulatory Theories|129
3|5.3.2 Regulatory Elements|133
3|5.3.3 Regulatory Instrument|135
3|5.3.4 How Do the Australian Legislative Reforms Compare?|136
2|5.4 Elements Comprising an Internal Whistleblowing Framework|137
3|5.4.1 A Comparison with Some Evidence from Prior Practice|138
3|5.4.2 Links to Theory and Evidence of the Prior Practices of Australian Corporations|141
2|5.5 Conclusion|143
2|References|144
1|6 Directors’ Duties and Whistleblowing|146
2|6.1 Introduction|146
2|6.2 Definition of Director—Australia|147
2|6.3 Sources of Directors’ Duties—Australia|148
2|6.4 Outline of Directors’ Duties—Australia|149
2|6.5 Duty to Act in Good Faith in the Interests of the Company—Australia|150
3|6.5.1 Stakeholder Interests|151
3|6.5.2 Section 1324|152
3|6.5.3 Reputation and Culture|153
3|6.5.4 Comparison with the UK|154
2|6.6 Duty of Care—Australia|156
3|6.6.1 Outline of Duty|156
3|6.6.2 Application in Relation to Whistleblowing|158
2|6.7 Corporate Codes|162
2|6.8 Oppression|164
2|6.9 Conclusion|167
2|References|167
1|Practical Implications of Corporate Whistleblowing Measures|169
1|7 The United States Securities and Exchange Commission Whistleblower Program: A Long and Winding Road|170
2|7.1 Introduction|170
2|7.2 My Practice Representing Whistleblowers|172
2|7.3 Where to Start: Make Sure You Really Want to Be a Whistleblower|173
2|7.4 You Must Present the SEC with “Original Information” to Qualify for an Award|175
2|7.5 Would-Be Whistleblowers Must Be Creative, and Investigate Cases Previously Brought by the SEC|176
2|7.6 Building a Successful Whistleblower Case—The Process and the Need for Patience|177
2|7.7 Make the Submission Succinct and Persuasive; Consider Carefully Which Documents to Submit|179
2|7.8 To Report up or not, and When: Important Decisions Which Can Help or Hurt Your Case|180
2|7.9 Reporting up Internally—The Right Way, and the Wrong Way|181
2|7.10 When Good Intentions Can Go Awry—The Case Against Reporting Up Internally|182
2|7.11 Timing Is Everything—The 120 Day Rules|183
2|7.12 Submitting Your Tip—Not Just Another Form to Fill Out|183
2|7.13 The Long Wait—Do the Best You Can to Help the SEC|184
2|7.14 Before Going to the Company, or to the SEC, Assess Your Personal Exposure|186
2|7.15 Construct Your Submission with the Goal of Qualifying Under the Complex Rules and Making a Strong Case that Attracts the Attention of the SEC Staff|187
2|7.16 The Award Amount Factors: Increases and Decreases|188
2|7.17 Consider Hiring a Qualified Lawyer to Assist You in Reporting to the SEC|189
2|7.18 Proceeding Toward an Award After the Company Settles with the SEC|190
2|7.19 Understanding, and Surviving, the SEC Process for Reviewing Awards|191
2|7.20 Retaliation and Whistleblowing—Frequent Warring Bedfellows|192
2|7.21 The Keys to Successful Whistleblowing—Why the SEC and CFTC Programs Are the World’s Best|193
2|7.22 Conclusion|194
2|References|194
1|8 Directors Dealing with Whistleblowing|196
2|8.1 Introduction|196
2|8.2 The Need for a Strong Functioning Policy|197
2|8.3 Directors Investigating Whistleblowing Claims|203
2|8.4 Directors Dealing with Retaliation Issues|205
3|8.4.1 What Is Detriment?|207
3|8.4.2 Individual Culpability|208
3|8.4.3 Corporate Culpability|209
3|8.4.4 Director Culpability|214
2|8.5 Directors Dealing with Compensation and Related Claims|215
3|8.5.1 Individual Culpability|216
3|8.5.2 Corporate Culpability|216
3|8.5.3 Director Culpability|220
2|8.6 So Should Directors Get Involved?|221
3|8.6.1 Direct Liability|221
3|8.6.2 Stepping Stones Liability as a Further Consideration for Directors|222
3|8.6.3 The AWB Case Study|224
2|8.7 A Concluding Comment|225
2|References|225