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Article
Publication date: 1 January 1976

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…

Abstract

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.

Details

Managerial Law, vol. 19 no. 1
Type: Research Article
ISSN: 0309-0558

Article
Publication date: 30 August 2019

Meng Chen

This paper aims to evaluate the effectiveness of the reforming Chinese arbitration judicial review process and supplement the corresponding suggestions and analyze the…

Abstract

Purpose

This paper aims to evaluate the effectiveness of the reforming Chinese arbitration judicial review process and supplement the corresponding suggestions and analyze the practical trends of Chinese arbitration.

Design/methodology/approach

This paper presents considerable evidence that includes the latest empirical data and iconic cases to demonstrate the Chinese judicial system’s acts of internationalizing Chinese arbitration. This paper then elaborates the Chinese Supreme People’s Court (hereinafter SPC) recent reforms of the mechanisms of arbitration judicial review.

Findings

The SPC’s efforts to coordinate Chinese arbitration practice with international standards are effective and fruitful. However, even after recent reforms, there are still inherent deficiencies and important omissions that hinder the efficiency of Chinese arbitration.

Originality/value

The major contributions of this paper are providing latest empirical data to evaluate effectiveness of current Chinese arbitration judicial review and analyzing latest SPC’s legal interpretations.

Details

International Journal of Conflict Management, vol. 31 no. 1
Type: Research Article
ISSN: 1044-4068

Keywords

Article
Publication date: 4 September 2017

Breon S. Peace, Jennifer Kennedy Park, Robin M. Bergen and Nowell D. Bamberger

To explain and analyze two Enforcement Advisories that set forth the factors the US Commodity Futures Trading Commission Division of Enforcement may consider in assessing…

218

Abstract

Purpose

To explain and analyze two Enforcement Advisories that set forth the factors the US Commodity Futures Trading Commission Division of Enforcement may consider in assessing cooperation by companies and individuals in the context of CFTC enforcement proceedings.

Design/methodology/approach

Explains the background, including the 2007 Enforcement Advisory for Companies. Explains the 2017 Enforcement Advisory for Companies and the parallel Enforcement Advisory for Individuals, including policy-based considerations and factors such as the materiality, timeliness, nature, and quality of a company’s cooperation; the value of a company’s cooperation to the Commission’s broader law enforcement interests; and the company’s culpability, culture and other relevant factors. Provides examples of uncooperative conduct. Discusses a broader trend among enforcement authorities in the US and abroad of setting higher cooperation standards.

Findings

The new Advisories make clear that merely complying with requests for information from the CFTC staff will not be sufficient; a company or individual seeking cooperation credit as part of a resolution with the CFTC must go above and beyond its legal obligations in order to qualify for such credit.

Originality/value

Practical guidance from experienced white collar defense, regulatory enforcement, civil litigation and arbitration lawyers.

Details

Journal of Investment Compliance, vol. 18 no. 3
Type: Research Article
ISSN: 1528-5812

Keywords

Article
Publication date: 14 August 2007

Courtney J. Linn

In today's global economy, the public routinely engages in international financial transactions via the internet. This has created opportunities for online fraud. The…

Abstract

Purpose

In today's global economy, the public routinely engages in international financial transactions via the internet. This has created opportunities for online fraud. The paper aims to explain what policymakers who are serious about providing crime victims with an effective restitution remedy can learn from the US Government's experience with forfeiture.

Design/methodology/approach

The paper, by an Assistant US Attorrney, combines narrative with argument and analysis.

Findings

Existing restitution law is ineffective. Prosecutors have used forfeiture laws as an indirect mean of providing compensation for crime victims, but forfeiture law has its limits. The better approach would be for Congress to authorize the pretrial seizure and restraint of assets directly for restitution, utilizing standards comparable to those that exist in current forfeiture law. To address situations where a defendant places money overseas to avoid restitution, Congress should enact international restitution laws comparable to those that exist in forfeiture to facilitate the recovery of those assets. Without these kinds of reforms, the government will continue to struggle to collect restitution.

Originality/value

The paper provides information of value to all involved with international financial transactions and law enforcement activities.

Details

Journal of Money Laundering Control, vol. 10 no. 3
Type: Research Article
ISSN: 1368-5201

Keywords

Article
Publication date: 1 April 2019

Aneta Spaic, Claire Angelique Nolasco, Lily Chi-Fang Tsai and Michael S. Vaughn

This paper analyzes trading and tipping activities in insider trading litigation decided by federal courts from January 1, 2012 to December 31, 2014.

Abstract

Purpose

This paper analyzes trading and tipping activities in insider trading litigation decided by federal courts from January 1, 2012 to December 31, 2014.

Design/methodology/approach

Legal documents from the US Securities and Exchange Commission, LexisNexis and Westlaw databases were coded to determine profile, patterns of trading and settlement outcomes.

Findings

Results of statistical analysis indicate that a defendant in both civil and criminal cases is more likely to trade on the information when he/she receives a direct, financial benefit from breaching his/her duty of confidentiality. The defendant tipper is also more likely to pass on the information to a close personal friend, business associate or family member. The average amount of profit of defendants in both civil and criminal proceedings substantially exceeds the average amount of their settlements.

Originality/value

This paper offers support for the rational choice model – insider trading is often based on rational calculations of benefits not only to the defendant but also to his/her family and associates. Although the threat of civil enforcement and criminal proceedings may possibly deter him/her from committing the crime, results indicate that the amounts of settlement in both proceedings are considerably lower than the amount of profits obtained from the offense.

Details

Journal of Financial Crime, vol. 26 no. 2
Type: Research Article
ISSN: 1359-0790

Keywords

Article
Publication date: 2 October 2019

Francesco Falco

To explain the impacts of the class action, as recently amended by the Italian Parliament, and help financial institutions to develop a compliance approach in order to…

Abstract

Purpose

To explain the impacts of the class action, as recently amended by the Italian Parliament, and help financial institutions to develop a compliance approach in order to avoid and/or mitigate the relevant risks.

Design/methodology/approach

This article provides an overview on the Italian class action, as recently amended by the Italian Law No. 31/2019, examines the relevant impact for financial institutions (taking into account some recent case law) and identifies possible compliance solutions to avoid/mitigate the relevant risks.

Findings

The recent amendments to the Italian class action may increase risks for financial institutions.

Practical implications (Optional)

Financial institutions should examine their relationships with stakeholders in the light of the new Italian class action in order to implement policies and procedures to prevent the relevant risks.

Originality/value

Practical guidance from an experienced lawyer in the litigation and compliance fields.

Details

Journal of Investment Compliance, vol. 20 no. 4
Type: Research Article
ISSN: 1528-5812

Keywords

Article
Publication date: 1 April 2004

Georgios I. Zekos

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and…

5692

Abstract

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way of using the law in specific circumstances, and shows the variations therein. Sums up that arbitration is much the better way to gok as it avoids delays and expenses, plus the vexation/frustration of normal litigation. Concludes that the US and Greek constitutions and common law tradition in England appear to allow involved parties to choose their own judge, who can thus be an arbitrator. Discusses e‐commerce and speculates on this for the future.

Details

Managerial Law, vol. 46 no. 2/3
Type: Research Article
ISSN: 0309-0558

Keywords

Book part
Publication date: 28 April 2021

Vivianna Fang He and Gregor Krähenmann

The pursuit of entrepreneurial opportunities is not always successful. On the one hand, entrepreneurial failure offers an invaluable opportunity for entrepreneurs to learn…

Abstract

The pursuit of entrepreneurial opportunities is not always successful. On the one hand, entrepreneurial failure offers an invaluable opportunity for entrepreneurs to learn about their ventures and themselves. On the other hand, entrepreneurial failure is associated with substantial financial, psychological, and social costs. When entrepreneurs fail to learn from failure, the potential value of this experience is not fully utilized and these costs will have been incurred in vain. In this chapter, the authors investigate how the stigma of failure exacerbates the various costs of failure, thereby making learning from failure much more difficult. The authors combine an analysis of interviews of 20 entrepreneurs (who had, at the time of interview, experienced failure) with an examination of archival data reflecting the legal and cultural environment around their ventures. The authors find that stigma worsens the entrepreneurs’ experience of failure, hinders their transformation of failure experience, and eventually prevents them from utilizing the lessons learnt from failure in their future entrepreneurial activities. The authors discuss the implications of the findings for the entrepreneurship research and economic policies.

Details

Work Life After Failure?: How Employees Bounce Back, Learn, and Recover from Work-Related Setbacks
Type: Book
ISBN: 978-1-83867-519-6

Keywords

Article
Publication date: 1 April 1999

Thomas C. Newkirk and Ira L. Brandriss

In a high‐profile case that first drew big media headlines last February, a New York brokerage firm and a ring of eight brokers on the floor of the New York Stock Exchange…

Abstract

In a high‐profile case that first drew big media headlines last February, a New York brokerage firm and a ring of eight brokers on the floor of the New York Stock Exchange were charged with perpetrating a scheme in which they made over $11.1m in illegal profits and at the same time covered their tracks with an elaborate fraud.

Details

Journal of Money Laundering Control, vol. 3 no. 2
Type: Research Article
ISSN: 1368-5201

Article
Publication date: 1 February 1995

Barry A.K. Rider

Enforcement as a concept imports compulsion to comply with a particular norm. Of course, the nature of enforcement might vary considerably with the norm in question or…

249

Abstract

Enforcement as a concept imports compulsion to comply with a particular norm. Of course, the nature of enforcement might vary considerably with the norm in question or society within which action is desired. Professor Gower, in his ‘Review of Investor Protection’, expressed the view that a rule that could not be or was not enforced brought the system, within which that rule was supposed to operate, into disrepute. Whether this is true or not may be a matter for debate. Most systems of control envisage rules that in practical terms are unenforceable, but that are expected to have a normative or educational effect. Such functions, in the context of securities regulation, may be thought to be of some significance. Thus, the fact that simply because a rule cannot either in its terms or in practice be sanctioned by a predictable and determinate action intended to promote compliance, does not necessarily undermine that rule let alone the system within which it exists. To assume without more that a rule that cannot be enforced is not a legal rule, or to be precise a rule of law, while no doubt appealing enough to the positivist school of jurisprudence, is simplistic and outdated. Furthermore, in the context of the sort of economic regulation that we are discussing, whether a rule is characterised as one of law or not may or may not have significance. While there is a problem with determining the appropriate degree of interface between rules bearing differing qualities, purely in terms of achieving a defined regulatory objective it might well be that a rule which is not law in the formal sense of having been promulgated by an authority with legislative power, promotes a satisfactory degree of compliance. Therefore, many of the rules that pertained prior to the creation of the regime of regulation under the Financial Services Act 1986 were essentially non‐legal in the sense that they did not carry determinate sanctions ordained by a legal process consequent upon a violation and were not promulgated by an authority with legislative power. However, to dismiss them because they were unenforceable at law would give a very false picture of the efficacy of what was for many years a satisfactory regulatory structure. Even today, although the interrelationships of legal and non‐legal rules is very much more complex, it is still the case that significant areas of regulation have been left to non‐legal authorities.

Details

Journal of Financial Crime, vol. 3 no. 1
Type: Research Article
ISSN: 1359-0790

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