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0900-0945 |
Opening Remarks
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Malcolm Rodgers, Australian Securities and Investments Commission
Justin O’Brien, CAPPE |
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0945-1100 |
Law and the Market: The Impact of Enforcement |
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John Coffee, Columbia Law School [download paper, pdf] |
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Enforcement
may dissuade issuers from entering a particular market. It thus may be
responsible for the asserted decline in the “competitiveness” of the U.S.
capital markets. The essay suggests that enforcement intensity accounts for the
leading difference between civil and common law systems and between the U.S.
and the rest of the world. This difference was hardly hidden, and might have
been detected early on, but was missed, largely because of researchers’
steadfast focus on “law on the books” – that is, on formal and substantive
legal rules not outputs. The essay
assesses the implications for policy calibration and wider market governance.
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Discussant: Ian Ramsay, University of Melbourne |
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1100-1115 |
Morning Tea |
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1115-1230 |
Overlapping Fields and Constructed Legalities: The Endogeneity of Law
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Lauren Edelman, Boalt School of Law UC Berkeley [download paper, pdf] |
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Accounts of law and organizations generally presume
that law is exogenous to organizations and constitutes a force that is
authoritative, coercive, and relatively unambiguous. In contrast, this article develops a theory
of law as endogenous; in this view, law is generated within the social realm
that it seeks to regulate. Building on
neo-institutional organization theory, which invokes the construct of
organizational fields to explore the force of institutionalized logics, structures, models, and rituals within recognized
areas of social life, I suggest that social and legal fields overlap.
Ultimately, judges interpret laws regulating organizations in ways that give
deference to organizational practices so that the meaning of law is shaped by
organizational actors and through organizational fields. |
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Discussants:
John Braithwaite, ANU; Sally Wheeler, QUB |
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1230-1345 |
Lunch |
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|
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1345-1500 |
Evolving Rules of the Game in Corporate Governance Reform |
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Jennifer Hill, University of Sydney [download paper, pdf] |
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At the beginning of this decade, some scholars claimed
that convergence of corporate governance regimes was both imminent and
inevitable. An embedded assumption in
this argument was that a unified Anglo-American governance model existed and
would form the point of convergence. The
convergence/divergence debate has been complicated since its highpoint. First,
common law jurisdictions, such as the US, UK and Australia, introduced a
variety of regulatory responses to international corporate collapses,
epitomized by Enron. Secondly,
interesting forms of backlash are now emerging against some aspects of the
post-scandal reforms, such as the recent report of the Committee on Capital
Markets Regulation, warning of the danger to US competitiveness posed by the
stringency of the US reforms. |
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Discussant:
Stephen Bottomley, ANU |
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1500-1515 |
Coffee |
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1515-1630 |
Roundtable 1: The
Professions as Regulators |
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Chair: Keith Houghton, ANU
Nick Hodson, Dean Cocking and Malcolm Rodgers |
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1630 -1645 |
Break |
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1645-1800 |
A Chronicle of a Death Foretold: The Corporate Governance Implications
of the Global Private Equity Boom |
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Justin O’Brien, CAPPE [download paper, pdf] |
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At the height of the last leveraged buyout boom it was
argued that we were witnessing the ‘eclipse of the public corporation’ (Jensen
1989). Private equity providers have once more become increasingly influential
actors within capital markets. Their trading strategies succeed in partially bypassing
the elaborate corporate governance, financial reporting and disclosure
obligations imposed in the aftermath of scandal. Regulators in the United
States, Australia and the United Kingdom have expressed concern that private
equity expansion adds to systemic financial risk. The paper argues that it is
impossible to understand the nature of the risk without disentangling the
complex, conflicting and contingent nature of financial intermediary
preferences and how these actors influence the trajectory of policy
calibration. The impact of private equity is therefore tracked across a number
of critical pressure points: within the corporation; within the professions who
provide intermediating services to the market; within regulatory bodies; and,
ultimately, within the political system itself. |
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Discussant:
John Coffee, Columbia Law School |
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1800 |
Drinks Reception, Law School |
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1930 |
Dinner at Vivaldi Restaurant (on campus) |
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|
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THE DYNAMICS OF
CAPITAL MARKET GOVERNANCE: 15 MARCH 2007
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0900-1030 |
Structural Limitations of Enforcement of Capital Market Regulation
The United Kingdom and its International Markets |
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Iain McNeil, School of Law, University of Glasgow [download paper, pdf] |
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In this paper I propose to examine how the structure
and objectives of the regulatory regime for capital markets contains within
itself limitations on the extent to which enforcement can be regarded as a
credible strategy for promoting compliance. The analysis is built around
several characteristics of the regulatory regime which are relevant for
enforcement: (a) the nature of and relationship between the rules that comprise
the regulatory framework; (b) the complexities in rule formulation and
enforcement that arise in international markets (with particular reference to
foreign listing); (c) the role of self-regulation and market discipline in the
regulatory regime (with particular reference to corporate governance codes);
(d) matching sanctions to contraventions (with particular reference to control
structures within companies); and (e) the respective roles of public and
private enforcement. These characteristics mean that the role envisaged for
enforcement is limited. If that is the case, expectations as to what
enforcement can achieve should be adjusted accordingly. |
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|
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Expecting Too
Much? Enforcement Limitations in the Regulation of Financial Markets |
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George Gilligan, Department of Business Law and
Taxation, Monash University [download paper, pdf] |
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In recent years scandals such as World Com and Enron
in the US, and HIH, One Tel and the AWB in Australia have sprawled across all
forms of the media, with attendant coverage about the allegedly dire state of
contemporary business practice that would allow such disasters, interspersed
with complaints that somebody should have had their eyes on the game and not
allowed such egregious behaviour to occur. However, are contemporary expectations simply too high with regard to
the capability of regulatory enforcement, especially in relation to the
financial sector? This paper considers
this issue in relation to Australia and the UK, drawing on the general
literature in relation to enforcement, and the specific regulatory histories of
the Australian and UK financial sectors. |
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|
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Discussants; Jennifer Hill, University of Sydney; Neill Buck, Neill
Buck & Associates |
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|
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1030-1045 |
Morning Tea |
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|
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1045-1200 |
Sarbanes-Oxley and the Search for Accountable Corporate Governance |
| |
Melvin Dubnick,
Department of Political Science, University of New Hampshire [download paper, pdf] |
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Failures of contemporary efforts to reform governance
in the corporate and public sectors have been attributed to flaws in the design
and/or execution of the policies, but little or no attention has been paid to
the basic assumptions upon which such accountability policies are
constructed. This paper highlights a
"fundamental error" in assumptions of such policies regarding the
role of agency in accountable governance and uses the
case of Sarbanes Oxley to demonstrate the consequences and implications of that
error. |
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Discussant: Lauren Edelman, UC Berkeley |
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|
|
1200-1330 |
Lunch |
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|
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1330-1515 |
Enforcing Ethics: New Strategies for Tackling Creative Compliance |
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Doreen McBarnet, University of Oxford [download paper, pdf] |
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This paper looks at the interweaving of law and ethics in the regulatory
aspirations and enforcement strategies of the post-Enron era. What
constitutes compliance is being increasingly recognized as problematic,
with a growing intolerance of mere technical or ‘creative compliance’, and growing
demand for what might be thought of as ‘ethical compliance’. The paper examines
and assesses the strategies being brought into play to foster and enforce
ethical compliance, looking not only at the initiatives of regulatory
authorities but at new developments in the corporate accountability agenda of
civil society. |
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|
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Embedding Ethics |
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Seumas
Miller, CAPPE [download paper, pdf] |
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Ensuring and managing compliance with ethical standards in the professions,
including auditing, is a complex challenge. The challenge is twofold. In
the first place, ethical concepts such as integrity and fairness are
inherently complex, and in some cases contested. The second challenge
pertains more to professionals who might not necessarily be well
intentioned or, at least, be more susceptible to external pressures to
unacceptably bend or breach ethical requirements. Here the problem is
essentially one of institutional design: which admixture of monitoring
and disciplinary processes should be put in place to secure optimal
levels of compliance with relatively well-understood ethical
requirements. The paper evaluates the effectiveness of the audit
governance framework to address whether a recalibration is warranted
and, if so, how. |
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Discussant:
Sally Wheeler, Queen’s Belfast |
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|
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1515-1545 |
Coffee |
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|
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1545-1645 |
Roundtable 2: Legal Theory, Ethics and the Limits of Regulatory Governance |
| |
Chair: Ian Ramsay, University of Melbourne
Tom
Campbell, CAPPE
John Coffee,
Columbia Law School
Paul Redmond,
University of Technology, Sydney
Sally Wheeler,
QUB |
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1645 |
Closing Remarks |
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1830 |
Informal Dinner at Bellucis, Manuka. |
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