Search results

In most industries, legal entities of a certain size and complexity must have a compliance function. Such requirement is either set forth by regulatory law or the governance rules of the relevant organisation. In the highly regulated credit industry, the role and responsibilities of the compliance function are more precisely defined than in other industries. This paper aims to analyse the personal accountability of senior compliance officers in a bank’s compliance function when there is a failure of proper compliance.

This paper is based on a keynote addressed at Jesus College, University of Cambridge, 7 September 2016. The author approaches the issue of senior compliance management by analysing development of international financial regulation with respect to legal requirements for compliance function. Subsequently, the author determines what constitutes senior compliance management and applies the various legal regimes to situations of compliance failures.

While the accountability of the chief compliance officer and deputy for compliance failures is not set forth in regulatory law, courts and scholars have acknowledged such personal responsibility exists resorting to principles of civil law (contracts or torts), criminal law or employment law. Approaches and questions for this legal analysis are similar in a civil law as well as in common law jurisdiction. The most relevant breach of contract of the chief compliance officer will be an omission to act (forbearance), i.e. the failure to properly organize the compliance function and/or to immediately report a compliance risk to the board.

Scholarly work in the law of compliance is still somewhat limited, thus the research also includes practitioners’ observations. The accountability of senior compliance management for compliance failures represents a growing trend in corporate governance to seek individual accountability for corporate misconduct; see, for example, US Department of Justice (DOJ) in its so-called Yates memorandum on “individual accountability for corporate wrongdoing”.

In incidents of non-compliance, banks and their compliance officers should be able to exculpate themselves if they can demonstrate proper organization of the compliance function.

The originality of this general review is to focus the analysis of accountability of senior compliance management on the credit industry and to consider latest developments in international financial regulation, such as the supervisory review and evaluation process (SREP) by the European Central Bank (ECB) in the single supervisory mechanism (SSM) or the corporate governance principles for banks by the Basel Committee on Banking Supervision (BCBS).

This study challenges the conventional theoretical approach of the ‘Three Lines of Defence’ Model adopted by most of the Maltese credit institutions. The authors propose a paradigm shifting conceptualised framework that would alter the corporate governance structures of banks. The objective is to test the feasibility and willingness of credit institutions to adopt such an approach.

This study challenges the current practices of the internal auditing profession and organisations and invites them to evaluate their structures whilst recognising the benefits of adopting a combined assurance function.

In order to test this hypothesis, the authors sought out semi-structured interviews with controllers (Internal Auditors, Risk Managers and Compliance Officers) within Maltese Credit Institutions, varying in size from significant, medium-sized and small institutions; personal from the Malta Financial Services Authority – The regulator, the Big four audit firms and members of the Malta Forum of Internal Auditors, and practitioners working both within and outside the financial industry.

There were two contrasting opinions regarding the suggested proposition. On the one hand, those operating within the credit institutions, as well as the regulator and the external auditors, do not believe that the proposition of integrating risk, compliance and internal audit functions (IAF) in one team would be possible; the reason being that independence, which is the cornerstone of every IAF, would be severely impacted. On the other hand, there were those practitioners working outside the banking industry but with sufficient experience and knowledge in the field, who challenged the traditional concept of independence. They argue that the functions should not be separate from each other because they have much in common.

Four themes emerged from the study: (1) challenges as a concept, (2) benefits, (3) risks and (4) condition for successful implementation. All interviewees, from risk departments, boards, external auditors and regulators agree that a strong, knowledgeable and independent IAF is fundamental to every organisation but more so within the financial industry. Nevertheless, this study revealed two schools of thought that emerged from the findings in relation to the IAF and its regulation, and specifically, when the authors presented the proposition of an integrated function.

The Equal Pay Act 1970 (which came into operation on 29 December 1975) provides for an “equality clause” to be written into all contracts of employment. S.1(2) (a) of the 1970 Act (which has been amended by the Sex Discrimination Act 1975) provides:

Knight's Industrial Law Reports goes into a new style and format as Managerial Law This issue of KILR is restyled Managerial Law and it now appears on a continuous updating basis rather than as a monthly routine affair.

Hisbah is one of the distinguished institutions that had emerged since the early days of the Islamic empire. Based on its cardinal duty to enjoin good and prohibit evil, over time, its functions gradually expanded, and its responsibilities increasingly grew. In light of the contemporary trend in establishing institutional framework for consumer protection, entrusting an agency with multifarious tasks may not be the best and effective way in handling consumer protection issues. Thus, this chapter attempts to explore the new paradigm of hisbah as a consumer protection institution in Malaysia with a special reference to the Islamic consumer credit industry. While utilising the doctrinal legal research methodology, relevant sources of law have been examined and analysed. This research finds that the classical hisbah institution provides a good reference point in establishing regulatory agency and dispute management body. Nevertheless, some modifications are required to remain relevant especially in terms of specialisation of role and function. Likewise, it is viewed that adjustment of the hisbah institution is also necessary regarding the characteristic of the muhtasib (ombudsman).

The Howard Shuttering Contractors case throws considerable light on the importance which the tribunals attach to warnings before dismissing an employee. In this case the tribunal took great pains to interpret the intention of the parties to the different site agreements, and it came to the conclusion that the agreed procedure was not followed. One other matter, which must be particularly noted by employers, is that where a final warning is required, this final warning must be “a warning”, and not the actual dismissal. So that where, for example, three warnings are to be given, the third must be a “warning”. It is after the employee has misconducted himself thereafter that the employer may dismiss.

A distinction must be drawn between a dismissal on the one hand, and on the other a repudiation of a contract of employment as a result of a breach of a fundamental term of that contract. When such a repudiation has been accepted by the innocent party then a termination of employment takes place. Such termination does not constitute dismissal (see London v. James Laidlaw & Sons Ltd (1974) IRLR 136 and Gannon v. J. C. Firth (1976) IRLR 415 EAT).

The Bureau of Economics in the Federal Trade Commission has a three-part role in the Agency and the strength of its functions changed over time depending on the preferences and ideology of the FTC’s leaders, developments in the field of economics, and the tenor of the times. The over-riding current role is to provide well considered, unbiased economic advice regarding antitrust and consumer protection law enforcement cases to the legal staff and the Commission. The second role, which long ago was primary, is to provide reports on investigations of various industries to the public and public officials. This role was more recently called research or “policy R&D”. A third role is to advocate for competition and markets both domestically and internationally. As a practical matter, the provision of economic advice to the FTC and to the legal staff has required that the economists wear “two hats,” helping the legal staff investigate cases and provide evidence to support law enforcement cases while also providing advice to the legal bureaus and to the Commission on which cases to pursue (thus providing “a second set of eyes” to evaluate cases). There is sometimes a tension in those functions because building a case is not the same as evaluating a case. Economists and the Bureau of Economics have provided such services to the FTC for over 100 years proving that a sub-organization can survive while playing roles that sometimes conflict. Such a life is not, however, always easy or fun.

The purpose of this paper is to discuss rise and growth of the “compliance industry” in Belgium by looking at the reasons why this industry became such an important element in the battle against money laundering. The “compliance industry” represents the commercial market that surrounds the battle against money laundering. We aim to map this industry and want to explore how this industry fits in the battle against money laundering.

This paper represents the final phase of a PhD research, studying the origins of battle against money laundering and the private actors within this battle, the compliance officers. The research starts from a criminological point of view. This paper is based on a survey of compliance officers and interviews with both compliance officers and members of the “compliance industry”.

The compliance industry is a booming industry on the market on anti‐money laundering. Their services are mainly focused on software packages, advice, training and consultancy. Although this industry has grown as a result of legislation and regulation, there are some problems, mainly related to privacy issues.

For this paper, only a limited amount of corporations within the compliance industry were interviewed, which may result in an incomplete picture of this industry.

Belgium implemented a regulatory framework in 2001, obliging the installment of a compliance function within banks. The value of this research lies in the fact that neither this booming professional group, nor the surrounding market (including the compliance industry) has never been subject of research before.

The Basel Committee on Banking Supervision under the auspices of the Bank for International Settlements (BIS) published a consultation paper in late 2003 on the compliance function in banks. The aim of the consultation paper is to set out the views of banking supervisors and provide basic guidance for banks. Whereas there is no attempt to prescribe a uniform approach, a clear set of general principles is laid down for the role of the compliance function within banking organisations. Furthermore, recognition is given to the fact that diversity exists between banks with respect to their internal organisation of the compliance function and also to diversity in the legal and regulatory environment affecting the compliance function across jurisdictions. The core objectives of this paper are to examine the BIS approach to the compliance function and look at how this is likely to evolve. The authors draw on experience from the UK life assurance industry where substantial inroads have been made to embed a compliance competent culture within such types of financial institutions. A partnership approach is highlighted as essential to achieving a viable and meaningful compliance function. Finally, an ethical approach is explored as the possible future direction for banks. The first section reviews the new principles for the compliance function; the second section describes issues that arise; the third section analyses a partnership approach and explores an ethical approach; and the final section provides a summary and conclusion.