With globalization, securities markets have become increasingly interconnected, and securities fraud frequently crosses borders, creating problems for national regulators seeking to deter and punish fraud. The United States’ well-developed private enforcement mechanism for securities fraud is very attractive to investors around the world who are harmed by transnational securities fraud, particularly those from countries where private enforcement mechanisms do not exist or fraud is under-regulated. However, the application of U.S. securities law to foreign investors presents a number of challenges, creating the potential both for under and over regulation, as well as possible conflict with the regulatory systems of other jurisdictions. This Article outlines the current law on extraterritorial application of the securities antifraud rules, including a number of important recent developments in the case law. It examines the challenges presented by the increasing globalization of financial markets, and provides a fresh perspective in the debate on the proper scope of the extraterritorial application of U.S. securities law. Ultimately, this Article argues against further judicial limitations on the extraterritorial application of the securities laws, but urges the development of a multilateral agreement to address the numerous and significant challenges presented by transnational securities fraud.
{"title":"Transnational Securities Fraud and the Extraterritorial Application of U.S. Securities Laws: Challenges and Opportunities","authors":"Genevieve A. Beyea","doi":"10.2139/ssrn.1773744","DOIUrl":"https://doi.org/10.2139/ssrn.1773744","url":null,"abstract":"With globalization, securities markets have become increasingly interconnected, and securities fraud frequently crosses borders, creating problems for national regulators seeking to deter and punish fraud. The United States’ well-developed private enforcement mechanism for securities fraud is very attractive to investors around the world who are harmed by transnational securities fraud, particularly those from countries where private enforcement mechanisms do not exist or fraud is under-regulated. However, the application of U.S. securities law to foreign investors presents a number of challenges, creating the potential both for under and over regulation, as well as possible conflict with the regulatory systems of other jurisdictions. This Article outlines the current law on extraterritorial application of the securities antifraud rules, including a number of important recent developments in the case law. It examines the challenges presented by the increasing globalization of financial markets, and provides a fresh perspective in the debate on the proper scope of the extraterritorial application of U.S. securities law. Ultimately, this Article argues against further judicial limitations on the extraterritorial application of the securities laws, but urges the development of a multilateral agreement to address the numerous and significant challenges presented by transnational securities fraud.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128772490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Frequent government changes, often bringing reversals in ideological orientations, forced agents in economies in transition to make economic decisions without knowing whether their next government would be more or less benevolent, democratic, corrupt, or able and willing to pursue economic growth. We present a model of agents facing the uncertainty of two future forms of government, who are able to insure against this uncertainty by opting out of the legal part of the economy. They opt out through a criminal act, specifically, hiding funds from taxation. In order to choose whether or not to steal, agents need to know what each government would do should it come to power. But each government, before it could make its decision, would need to know the choices of the agents who would, for example, produce tax revenues. This informational tension is resolved endogenously. We derive the resulting crime level in society and the optimal choices made by the potential governments. We examine how changes in governmental structure would affect the crime level, and how that, in turn, would affect capital flight.
{"title":"The Crime of Tax Evasion in Transition Economies","authors":"B. Katz, Joel Owen","doi":"10.2139/ssrn.1836718","DOIUrl":"https://doi.org/10.2139/ssrn.1836718","url":null,"abstract":"Frequent government changes, often bringing reversals in ideological orientations, forced agents in economies in transition to make economic decisions without knowing whether their next government would be more or less benevolent, democratic, corrupt, or able and willing to pursue economic growth. We present a model of agents facing the uncertainty of two future forms of government, who are able to insure against this uncertainty by opting out of the legal part of the economy. They opt out through a criminal act, specifically, hiding funds from taxation. In order to choose whether or not to steal, agents need to know what each government would do should it come to power. But each government, before it could make its decision, would need to know the choices of the agents who would, for example, produce tax revenues. This informational tension is resolved endogenously. We derive the resulting crime level in society and the optimal choices made by the potential governments. We examine how changes in governmental structure would affect the crime level, and how that, in turn, would affect capital flight.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127781262","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ryan A. Compton, Daniel Sandler, Lindsay M. Tedds, Christopher C. Nicholls
This paper examines the pre- and post-tax returns to Canadian and US executives who receive backdated stock options (that appear to be at-the-money options) compared to currently-dated in-the-money options. We begin by comparing the Black-Scholes value of backdated at-the-money options to currently-dated in-the-money options (with the same strike price as the back-dated options). We then contrast the pre- and post-tax returns of such options on the assumption that the options are eventually exercised at a time when the options are in-the-money and the shares sold (either immediately or later) at a profit. We demonstrate that a Canadian executive can earn a significantly larger after-tax return from backdated options compared to a US executive due to the favourable Canadian tax treatment of executive options relative to their treatment in the United States. The comparison suggests that the personal tax regime may have had an impact on the desire to receive backdated options in lieu of other forms of compensation in Canada but not so in the United States.
{"title":"Quantifying the Personal Income Tax Benefits of Backdating: A Canada - US Comparison","authors":"Ryan A. Compton, Daniel Sandler, Lindsay M. Tedds, Christopher C. Nicholls","doi":"10.2139/SSRN.1586994","DOIUrl":"https://doi.org/10.2139/SSRN.1586994","url":null,"abstract":"This paper examines the pre- and post-tax returns to Canadian and US executives who receive backdated stock options (that appear to be at-the-money options) compared to currently-dated in-the-money options. We begin by comparing the Black-Scholes value of backdated at-the-money options to currently-dated in-the-money options (with the same strike price as the back-dated options). We then contrast the pre- and post-tax returns of such options on the assumption that the options are eventually exercised at a time when the options are in-the-money and the shares sold (either immediately or later) at a profit. We demonstrate that a Canadian executive can earn a significantly larger after-tax return from backdated options compared to a US executive due to the favourable Canadian tax treatment of executive options relative to their treatment in the United States. The comparison suggests that the personal tax regime may have had an impact on the desire to receive backdated options in lieu of other forms of compensation in Canada but not so in the United States.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121917119","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As one piece of evidence in the prosecution of fraud and Ponzi scheme charges against R. Allen Stanford, James M. Davis, and Laura Pendergest-Holt of the Stanford International Bank, Ltd., the Stanford Group Company, and Stanford Capital Management, LLC, the Securities and Exchange Commission noted that the firm had reported consecutive identical four-digit returns of 15.71% in 1995 and 1996. An unidentified expert and Ms. Pendergest-Holt asserted that this result was unlikely, and the SEC has viewed it as evidence of long-term fraudulent activity. This paper examines the likelihood of consecutive identical four digit returns using simulation over a variety of market parameters with both equity and interest rate volatility and several general types of investment strategies. Given our results on the frequency of this event and the fact that there are about 300,000 investment managers in the United States, it is quite possible that many investment managers experience consecutive identical four-digit returns over a two-year period. In low risk environments and following low risk strategies, there could easily be more than 100. The combination of consecutive identical four-digit returns with evidence of fraud may be inculpatory evidence but the former, by itself, should not be considered unusual for the totality of investment managers in the market.
作为对斯坦福国际银行有限公司、斯坦福集团公司和斯坦福资本管理有限责任公司的R. Allen Stanford、James M. Davis和Laura pender- holt的欺诈和庞氏骗局起诉的证据之一，证券交易委员会指出，该公司在1995年和1996年连续报告了15.71%的四位数回报率。一位身份不明的专家和彭德杰斯特-霍尔特断言，这一结果不太可能出现，证交会将其视为长期欺诈活动的证据。本文考察了连续相同的四位数回报的可能性，使用模拟在各种市场参数与股票和利率波动和几种一般类型的投资策略。考虑到我们对这一事件发生频率的研究结果，以及美国大约有30万名投资经理的事实，很有可能许多投资经理在两年的时间里连续获得相同的四位数回报。在低风险环境和遵循低风险策略的情况下，很容易超过100个。连续相同的四位数回报与欺诈证据相结合，可能是有罪的证据，但对于市场上的所有投资经理来说，前者本身不应被视为不寻常。
{"title":"Consecutive Identical Returns and the Stanford Group Scandal","authors":"D. Chance, Ashley R. Schexnaildre","doi":"10.2139/ssrn.1532377","DOIUrl":"https://doi.org/10.2139/ssrn.1532377","url":null,"abstract":"As one piece of evidence in the prosecution of fraud and Ponzi scheme charges against R. Allen Stanford, James M. Davis, and Laura Pendergest-Holt of the Stanford International Bank, Ltd., the Stanford Group Company, and Stanford Capital Management, LLC, the Securities and Exchange Commission noted that the firm had reported consecutive identical four-digit returns of 15.71% in 1995 and 1996. An unidentified expert and Ms. Pendergest-Holt asserted that this result was unlikely, and the SEC has viewed it as evidence of long-term fraudulent activity. This paper examines the likelihood of consecutive identical four digit returns using simulation over a variety of market parameters with both equity and interest rate volatility and several general types of investment strategies. Given our results on the frequency of this event and the fact that there are about 300,000 investment managers in the United States, it is quite possible that many investment managers experience consecutive identical four-digit returns over a two-year period. In low risk environments and following low risk strategies, there could easily be more than 100. The combination of consecutive identical four-digit returns with evidence of fraud may be inculpatory evidence but the former, by itself, should not be considered unusual for the totality of investment managers in the market.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133901240","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Missing trader intra-community (MTIC) fraud has been slowly morphing from cell phones and computer chips to other commodities. In the last few months however MTIC made a dramatic appearance in tradable CO2 permits. It closed exchanges and prompted France and the Netherlands to unilaterally change their tax treatment of CO2 trades. The UK has followed the French treatment in large measure. On Monday June 8, 2009 rumors of MTIC fraud in carbon emission permits closed the main European exchange for spot trading of European Union carbon emissions permits and Kyoto offsets. When BlueNext began trading permits again on Wednesday, June 10, 2009, the certificates, which had previously been subject to the 19.6% French VAT, were exempt (without right of deduction). MTIC fraud in tradable CO2 permits presents a high level policy dilemma – how do you aggressively pursue tax fraud without destroying the tradable permits market? Traditional tax enforcement (aside from direct pursuit of the missing trader) centers on denying deductions for VAT paid to the trader who purchased from the missing trader. This trader could well be innocent, and that is the problem. The standard of proof for allowing this deduction is whether or not this party knew or had reasonable grounds to suspect that the VAT payable in respect of the supply (or any previous or subsequent supply) would go unpaid. The underlying difficulty for the CO2 market is – even if there is no fraud – just the possibility of being denied millions of euro in VAT deductions is a significant increase in risk. On October 13, 2003 the European Parliament and the Council set out the rules for the trading of greenhouse gas emission allowances. The Directive follows from the UN Framework Convention on Climate Change and the Kyoto Protocol. The intent is to reduce greenhouse gas emissions by 8% relative to 1990 levels. The trading system began on January 1, 2005. The French, UK and the Dutch have taken self-help measures to prevent MTIC losses. None of these jurisdictions have received permission to make these changes, and objections have been raised in this regard. Each country approaches the problem structurally. The French (and now the UK) have elected (unilaterally) to treat transactions in tradable emission permits as exempt (the French exemption is without right of deduction; the UK is with the right of deduction). The Dutch have taken a different (unilateral) route – a full reverse charge regime. There is a third way, one that approaches the problem through administrative (not structural) mechanisms. It is technology-intensive, requires software certification, but is perfectly fit to a MTIC fraud problem embedded in a regulated digital marketplace. This paper presents this third method.
{"title":"The Morphing of MTIC Fraud: VAT Fraud Infects Tradable CO2 Permits","authors":"R. T. Ainsworth","doi":"10.2139/SSRN.1443279","DOIUrl":"https://doi.org/10.2139/SSRN.1443279","url":null,"abstract":"Missing trader intra-community (MTIC) fraud has been slowly morphing from cell phones and computer chips to other commodities. In the last few months however MTIC made a dramatic appearance in tradable CO2 permits. It closed exchanges and prompted France and the Netherlands to unilaterally change their tax treatment of CO2 trades. The UK has followed the French treatment in large measure. On Monday June 8, 2009 rumors of MTIC fraud in carbon emission permits closed the main European exchange for spot trading of European Union carbon emissions permits and Kyoto offsets. When BlueNext began trading permits again on Wednesday, June 10, 2009, the certificates, which had previously been subject to the 19.6% French VAT, were exempt (without right of deduction). MTIC fraud in tradable CO2 permits presents a high level policy dilemma – how do you aggressively pursue tax fraud without destroying the tradable permits market? Traditional tax enforcement (aside from direct pursuit of the missing trader) centers on denying deductions for VAT paid to the trader who purchased from the missing trader. This trader could well be innocent, and that is the problem. The standard of proof for allowing this deduction is whether or not this party knew or had reasonable grounds to suspect that the VAT payable in respect of the supply (or any previous or subsequent supply) would go unpaid. The underlying difficulty for the CO2 market is – even if there is no fraud – just the possibility of being denied millions of euro in VAT deductions is a significant increase in risk. On October 13, 2003 the European Parliament and the Council set out the rules for the trading of greenhouse gas emission allowances. The Directive follows from the UN Framework Convention on Climate Change and the Kyoto Protocol. The intent is to reduce greenhouse gas emissions by 8% relative to 1990 levels. The trading system began on January 1, 2005. The French, UK and the Dutch have taken self-help measures to prevent MTIC losses. None of these jurisdictions have received permission to make these changes, and objections have been raised in this regard. Each country approaches the problem structurally. The French (and now the UK) have elected (unilaterally) to treat transactions in tradable emission permits as exempt (the French exemption is without right of deduction; the UK is with the right of deduction). The Dutch have taken a different (unilateral) route – a full reverse charge regime. There is a third way, one that approaches the problem through administrative (not structural) mechanisms. It is technology-intensive, requires software certification, but is perfectly fit to a MTIC fraud problem embedded in a regulated digital marketplace. This paper presents this third method.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114825825","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article addresses the trend of using private citizens to help prosecutors detect and prove fraud. The "premiere" white collar crime tool used by the United States Department of Justice is the civil False Claims Act (FCA) which, with its promise of sharing judgments collected from lawsuits filed with private individuals, encourages individuals to bring information about fraud to DOJ. With generous awards of attorneys' fees and costs, the FCA also encourages private attorneys to partner with DOJ lawyers in investigating and litigating these complex cases. But does this prosecutorial model work? In the most thorough study done of this trend, we address this question. In a study of prosecutors in the fifty states and the District of Columbia we examine whether the states have responded to Congressional incentives to pass their own False Claims Acts, and why or why not. In the states that have enacted False Claims Acts, we look at whether these statutes are working as hoped. Our Article contains the results of our study and analysis of those results.
{"title":"States, Statutes and Fraud: Emerging State Efforts to Combat White Collar Crime","authors":"P. Pierson","doi":"10.2139/SSRN.1372345","DOIUrl":"https://doi.org/10.2139/SSRN.1372345","url":null,"abstract":"This article addresses the trend of using private citizens to help prosecutors detect and prove fraud. The \"premiere\" white collar crime tool used by the United States Department of Justice is the civil False Claims Act (FCA) which, with its promise of sharing judgments collected from lawsuits filed with private individuals, encourages individuals to bring information about fraud to DOJ. With generous awards of attorneys' fees and costs, the FCA also encourages private attorneys to partner with DOJ lawyers in investigating and litigating these complex cases. But does this prosecutorial model work? In the most thorough study done of this trend, we address this question. In a study of prosecutors in the fifty states and the District of Columbia we examine whether the states have responded to Congressional incentives to pass their own False Claims Acts, and why or why not. In the states that have enacted False Claims Acts, we look at whether these statutes are working as hoped. Our Article contains the results of our study and analysis of those results.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122120336","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Public corruption cases are, at their core, about intent, whether an official acted corruptly in accepting a benefit and whether the payer sought to influence or reward the exercise of governmental authority. Prosecutions in this field often revolve around the testimony of cooperating witnesses who can explain the reason for the offer of money or some other benefit, and the attitude and viewpoint of the official who accepted it. For the defendant, especially an elected official, there will be a powerful urge to testify to explain to a jury why the person acted in a way that triggered criminal charges. When a public official is accused of corruption, testifying at trial may well be the one - and perhaps final - chance to save a career.Given the importance of testimony about intent, the role of witness preparation will be prominent in the public corruption trial. The professional responsibility rules say little about that process of witness preparation beyond prohibiting a lawyer from offering false evidence. Witness preparation is not only accepted, but even viewed as necessary in the representation of a client. Yet, there comes a point when the preparation can slide into creating evidence, but where is that line. Moreover, even if the preparation is acceptable, how should a lawyer react when the witness - whether a cooperator or the defendant - adds details or embellishes a story to strengthen the presentation of the case. In this short essay, I raise the question of how the lawyer should respond when the rules of the profession tell us so little about what is and is not permissible.
{"title":"The Pitfalls of Dealing With Witnesses in Public Corruption Prosecutions","authors":"Peter J. Henning","doi":"10.2139/SSRN.1368788","DOIUrl":"https://doi.org/10.2139/SSRN.1368788","url":null,"abstract":"Public corruption cases are, at their core, about intent, whether an official acted corruptly in accepting a benefit and whether the payer sought to influence or reward the exercise of governmental authority. Prosecutions in this field often revolve around the testimony of cooperating witnesses who can explain the reason for the offer of money or some other benefit, and the attitude and viewpoint of the official who accepted it. For the defendant, especially an elected official, there will be a powerful urge to testify to explain to a jury why the person acted in a way that triggered criminal charges. When a public official is accused of corruption, testifying at trial may well be the one - and perhaps final - chance to save a career.Given the importance of testimony about intent, the role of witness preparation will be prominent in the public corruption trial. The professional responsibility rules say little about that process of witness preparation beyond prohibiting a lawyer from offering false evidence. Witness preparation is not only accepted, but even viewed as necessary in the representation of a client. Yet, there comes a point when the preparation can slide into creating evidence, but where is that line. Moreover, even if the preparation is acceptable, how should a lawyer react when the witness - whether a cooperator or the defendant - adds details or embellishes a story to strengthen the presentation of the case. In this short essay, I raise the question of how the lawyer should respond when the rules of the profession tell us so little about what is and is not permissible.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124532508","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One of the effects of this historic financial crisis and its spotlight on corporate conduct is likely to be an increased pressure to allocate blame. That pressure is bound to be directed toward identifying culpable employees within a firm, given the desire to spare corporations from indictment and prosecution. Thus corporate directors will have to consider the potential implications to the firm of the process required to identify such culpable employees- corporate investigations. Additionally, should the firm succeed in being spared an indictment it will likely be subject to ongoing oversight through a Deferred or Non-prosecution agreement (“DPA” and “NPA,” respectively). This paper will trace the tortured trail of the Department of Justice (“DOJ”) in creating various iterations of Principles of Federal Prosecutions of Corporations. Notwithstanding nearly a decade of memoranda addressing these issues the DOJ has left the corporation vulnerable to undermining important legal protections and ethical principles. Furthermore, should a corporation succeed in avoiding indictment and entering into a deferred or non-prosecution agreement its directors need to be aware of the unchartered waters in which they may be operating. This paper will also address the specific governance issues surrounding such agreements.
这场历史性的金融危机及其对企业行为的关注的影响之一，可能是分配责任的压力加大。考虑到公司不受起诉和起诉的愿望，这种压力必然会指向公司内部有罪的员工。因此，公司董事将不得不考虑查明这些有罪员工所需的程序——公司调查——对公司的潜在影响。此外，如果公司成功避免被起诉，它可能会通过延期或不起诉协议(分别为“DPA”和“NPA”)受到持续的监督。本文将追溯美国司法部(“DOJ”)在制定《联邦起诉公司原则》(Principles of Federal prosecution of Corporations)的各种版本时所经历的痛苦历程。尽管美国司法部为解决这些问题制定了近十年的备忘录，但该公司仍容易受到重要法律保护和道德原则的破坏。此外，如果一家公司成功地避免了起诉，并签订了延期或不起诉协议，其董事需要意识到他们可能在经营的未知水域。本文还将讨论围绕此类协议的具体治理问题。
{"title":"Corporate Investigations - Challenges in Corporate Governance","authors":"K. Brenner","doi":"10.2139/SSRN.1684238","DOIUrl":"https://doi.org/10.2139/SSRN.1684238","url":null,"abstract":"One of the effects of this historic financial crisis and its spotlight on corporate conduct is likely to be an increased pressure to allocate blame. That pressure is bound to be directed toward identifying culpable employees within a firm, given the desire to spare corporations from indictment and prosecution. Thus corporate directors will have to consider the potential implications to the firm of the process required to identify such culpable employees- corporate investigations. Additionally, should the firm succeed in being spared an indictment it will likely be subject to ongoing oversight through a Deferred or Non-prosecution agreement (“DPA” and “NPA,” respectively). This paper will trace the tortured trail of the Department of Justice (“DOJ”) in creating various iterations of Principles of Federal Prosecutions of Corporations. Notwithstanding nearly a decade of memoranda addressing these issues the DOJ has left the corporation vulnerable to undermining important legal protections and ethical principles. Furthermore, should a corporation succeed in avoiding indictment and entering into a deferred or non-prosecution agreement its directors need to be aware of the unchartered waters in which they may be operating. This paper will also address the specific governance issues surrounding such agreements.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131592755","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
“We do see market abuse - of which insider dealing is the highest profile aspect …[as] a financial crime - it may not attract the immediate moral outrage of a violent crime against a person but it is, in our view, and the view of the UK government, a serious white collar crime with potential sentences of up to 7 years imprisonment … We have not yet used our power to prosecute insider dealing as a criminal offence and we recognise that effective deterrence involves ensuring both that people fear being caught [and] they fear the consequences of being caught … but we also see the risk of criminal convictions and custodial penalties playing a real part in that.” Margaret Cole, Director of Enforcement, FSA addressing the American Bar Association (October 4, 2007). This study seeks to provide an analysis of, the current legislative, institutional and regulatory structure in the United Kingdom (UK) for punishing those who are regarded to commit ‘financial crime’,1 and more broadly what is commonly referred to as ‘white collar crime.’ This paper will therefore focus on the approaches taken to define ‘financial crime’ in the English law context, including the legal attempts over the years to criminalise ‘white collar crime.’ It will also highlight the difficulty that authorities have faced in pinning down financial crimes over the years. Further, the study will also delve into the institutional framework that has been devised to combat ‘financial crime’ over the years. These include: the Crown Prosecution Service, the Serious Fraud Office, other statutory regulatory bodies such as the Financial Services Authority (FSA) and the Department of Trade and Industry which has since been renamed the Department of Business, Enterprise and Regulatory Reform (BERR). This commentary will demonstrate the challenges that these institutions have gone through in a bid to address financial crime and that the Government has prioritised addressing the problem of financial crime; hence the multiple legislative and institutional responses directed at alleviating the problem. The study will also examine the legislative framework that has been directed at fighting white collar crime and pinpoint the challenges in the development of the criminal law and sanctions dealing with white collar crimes. It alludes to the diverse approaches advocated by various scholars over the years to address white collar criminality. This study will analyse what impact the new Fraud Act 2006 may have on the fight against white collar crime in the UK. The paper is primarily focussed on the UK jurisdiction and may in certain instances examine the European and US practices regarding financial crime.
{"title":"Is Financial Crime a 'Crime', Proper so Called? A Study of the Legislative Developments in Sanctioning 'White Collar Crime' and an Assessment of What the Future Holds for Financial Fraud","authors":"Brian Ikol Adungo","doi":"10.2139/SSRN.1354052","DOIUrl":"https://doi.org/10.2139/SSRN.1354052","url":null,"abstract":"“We do see market abuse - of which insider dealing is the highest profile aspect …[as] a financial crime - it may not attract the immediate moral outrage of a violent crime against a person but it is, in our view, and the view of the UK government, a serious white collar crime with potential sentences of up to 7 years imprisonment … We have not yet used our power to prosecute insider dealing as a criminal offence and we recognise that effective deterrence involves ensuring both that people fear being caught [and] they fear the consequences of being caught … but we also see the risk of criminal convictions and custodial penalties playing a real part in that.” Margaret Cole, Director of Enforcement, FSA addressing the American Bar Association (October 4, 2007). This study seeks to provide an analysis of, the current legislative, institutional and regulatory structure in the United Kingdom (UK) for punishing those who are regarded to commit ‘financial crime’,1 and more broadly what is commonly referred to as ‘white collar crime.’ This paper will therefore focus on the approaches taken to define ‘financial crime’ in the English law context, including the legal attempts over the years to criminalise ‘white collar crime.’ It will also highlight the difficulty that authorities have faced in pinning down financial crimes over the years. Further, the study will also delve into the institutional framework that has been devised to combat ‘financial crime’ over the years. These include: the Crown Prosecution Service, the Serious Fraud Office, other statutory regulatory bodies such as the Financial Services Authority (FSA) and the Department of Trade and Industry which has since been renamed the Department of Business, Enterprise and Regulatory Reform (BERR). This commentary will demonstrate the challenges that these institutions have gone through in a bid to address financial crime and that the Government has prioritised addressing the problem of financial crime; hence the multiple legislative and institutional responses directed at alleviating the problem. The study will also examine the legislative framework that has been directed at fighting white collar crime and pinpoint the challenges in the development of the criminal law and sanctions dealing with white collar crimes. It alludes to the diverse approaches advocated by various scholars over the years to address white collar criminality. This study will analyse what impact the new Fraud Act 2006 may have on the fight against white collar crime in the UK. The paper is primarily focussed on the UK jurisdiction and may in certain instances examine the European and US practices regarding financial crime.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127460248","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On January 28, 2008 the Quebec Minister of Revenue, Jean-Marc Fournier, announced that by late 2009 the MRQ will begin testing a device, the module d'enregistrement des ventes (MEV) that is projected to substantially reduce tax fraud in the restaurant sector. By 2010 or 2011 MEVs will be mandatory in all Quebec restaurants, where they will assure accuracy and retention of business records within electronic cash registers (ECRs). This paper moves beyond a discussion of the variety of sales suppression programs in use - zappers and phantom-ware. The concern here is on enforcement efforts, particularly the MEV. The intent is to assess the workability and effectiveness of the MEV solution by contrasting it with solutions adopted elsewhere. Two policy orientations guide enforcement actions in this area - one approach is rules-based; the other is principles-based. They are not mutually exclusive - degrees of blending are common. Rules-based jurisdictions adopt comprehensive and mandatory legislation regulating, and/ or certifying cash registers. Jurisdictions taking this approach include Greece and Germany. With the adoption of the MEV, Quebec will also fall within this group. Principles-based jurisdictions rely on compliant taxpayers following the rules. Compliance is enforced with an enhanced audit regime. The Netherlands and the UK fall into this group. After presenting a rough schematic of a how a zapper or phantom-ware facilitates a skimming fraud (absent many of the details considered in earlier papers), this paper will consider three rules-based enforcement approaches: the Greek "fiscal electronic devices" or FEDs, the Quebec MEVs and the German "smart cards." The Dutch principles-based approach which is also favored by the UK will provide a policy contrast. A final section will consider how CSPs in a SSUTA framework could be used to achieve very similar outcomes as is currently realized under either the rules-based or principles-based approaches. CSPs in a SSUTA context blend the rules-based and principles-based approach within a unique (private sector) solution.
{"title":"Quebec's Module D'Enregistrement Des Ventes (MEV): Fighting the Zapper, Phantomware and Tax Fraud with Technology","authors":"R. T. Ainsworth","doi":"10.2139/ssrn.1345123","DOIUrl":"https://doi.org/10.2139/ssrn.1345123","url":null,"abstract":"On January 28, 2008 the Quebec Minister of Revenue, Jean-Marc Fournier, announced that by late 2009 the MRQ will begin testing a device, the module d'enregistrement des ventes (MEV) that is projected to substantially reduce tax fraud in the restaurant sector. By 2010 or 2011 MEVs will be mandatory in all Quebec restaurants, where they will assure accuracy and retention of business records within electronic cash registers (ECRs). This paper moves beyond a discussion of the variety of sales suppression programs in use - zappers and phantom-ware. The concern here is on enforcement efforts, particularly the MEV. The intent is to assess the workability and effectiveness of the MEV solution by contrasting it with solutions adopted elsewhere. Two policy orientations guide enforcement actions in this area - one approach is rules-based; the other is principles-based. They are not mutually exclusive - degrees of blending are common. Rules-based jurisdictions adopt comprehensive and mandatory legislation regulating, and/ or certifying cash registers. Jurisdictions taking this approach include Greece and Germany. With the adoption of the MEV, Quebec will also fall within this group. Principles-based jurisdictions rely on compliant taxpayers following the rules. Compliance is enforced with an enhanced audit regime. The Netherlands and the UK fall into this group. After presenting a rough schematic of a how a zapper or phantom-ware facilitates a skimming fraud (absent many of the details considered in earlier papers), this paper will consider three rules-based enforcement approaches: the Greek \"fiscal electronic devices\" or FEDs, the Quebec MEVs and the German \"smart cards.\" The Dutch principles-based approach which is also favored by the UK will provide a policy contrast. A final section will consider how CSPs in a SSUTA framework could be used to achieve very similar outcomes as is currently realized under either the rules-based or principles-based approaches. CSPs in a SSUTA context blend the rules-based and principles-based approach within a unique (private sector) solution.","PeriodicalId":376821,"journal":{"name":"White Collar Crime eJournal","volume":"122 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122305693","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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