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Regulating (from) the inside

The legal framework for internal controls in banks and financial institutions

Gebonden Engels 2015 9781849465250
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Samenvatting

This book examines a key aspect of the post-financial crisis reform package in the EU and UK – the ratcheting up of internal control in banks and financial institutions. The legal framework for internal controls is an important part of prudential regulation, and internal control also constitutes a form of internal gate-keeping for financial firms so that compliance with laws and regulations can be secured. This book argues that the legal framework for internal control, which is a form of meta-regulation, is susceptible to weaknesses, and such weaknesses are critically examined by adopting an interdisciplinary approach. The book discusses whether post-crisis reforms adequately address the weaknesses in regulating internal control and proposes an alternative strategy to enhance the ‘governance’ effectiveness of internal control.

Specificaties

ISBN13:9781849465250
Taal:Engels
Bindwijze:gebonden
Aantal pagina's:360
Druk:1
Verschijningsdatum:8-10-2015
Hoofdrubriek:Juridisch
ISSN:

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Inhoudsopgave

Acknowledgements
Table of Cases
Table of Legislation

Part I: The Elements of Internal Control in Banks and Financial Institutions

1. The Role of Internal Control in the Meta-Regulation of Financial Institutions
A. Introduction to Internal Control
Evolution of the Role of Internal Control Broadly Understood
B. The Meta-Regulation of Internal Control and the Rise in Meta-Regulation in Financial Regulation Generally
The Rise of Flexible and Alternative Models of Regulation
Flexible and Alternative Regulatory Strategies in Financial Regulation
The Importance of Meta-Regulation in Financial Regulation
Meta-Regulation and its Limitations
Excessive Proceduralisation
C. Three Paradigms in the Regulatory Framework for Internal Control in Banks and Financial Institutions
D. Structure of the Book

2. The Role of Compliance
A. The Compliance Function: A Profile Sketch
The Job Scope of the Compliance Function
The Qualifi cations of Compliance Officers
The Organisational Positioning of the Compliance Function
Accountability Channels of the Compliance Function
B. Disjunctions Between the Performance of the Compliance Function and Regulatory Expectations in Securing Firms ’Compliance: Analysing the Organisational Dimension
Distinct Department or Fused with General Counsel?
Centralisation or Decentralisation?
Risk-Based Approach to Compliance
Reporting Channels and Accountability Power
C. Disjunctions Between Regulatory Expectations and the Role of the Compliance Function:
Analysing the Professional Dimension Lack of Convergence in the Job Scope of the
Compliance Function
Excessive Proceduralisation in the Job Scope of the Compliance Function
Expanding Remit and Work Overload
Background Qualifications and Training of Compliance Officers
The Role of Ethics in Enhancing the Professionalism of the Compliance Function?
Emerging Representative Professional Bodies
D. Concluding Remarks

3. The Role of Risk Management
A. The Development and Purposes of Risk Management
B. Disjunctions Between Regulatory Expectations and the Role of the Risk Management Function:
Analysing the Organisational Dimension The Constitution of the Specialist Risk
Management Function
The Independence of the Specialist Risk Management Function
The Power and Responsibilities of the Specialist Risk Management Function
Resources for the Risk Management Function
Risk Culture
C. Disjunctions Between Regulatory Expectations and the Role of the Risk Management Function:
Analysing the Organisational Dimension
The Job Scope of Risk Management Functions
The Professional Competence of the Risk Management Function and its Limitations
A Professional Body for Risk Management
D. Conclusion

4. The Role of Internal Audit
A. Sketching the Profile of Internal Audit
B. Disjunctions Between Regulatory Expectations and the Role of the Internal Audit Function:
Analysing the Organisational Dimension
Independence of the Internal Audit Function
Positioning and Power of the Internal Audit Function
Wider Contextual Factors
C. Disjunctions Between Regulatory Expectations and the Role of the Internal Audit Function:
Analysing the Professional Dimension
Development of Internal Audit in Financial Assurance
The Role of Internal Audit in Relation to Micro-Prudential Regulation
Expanding Remit of Internal Audit ’ s Role and Implications
Professional Competencies
The Role of Internal Audit as Management Consultant
Professional Ethics and Ethical Assurance?
D. Conclusion

5. The Contextual Frameworks of Corporate Governance and Organisational Culture
A. Internal Control as Situated Within the Frameworks of Corporate Governance and Organisational Culture
B. The Salience of Corporate Governance at Banks and Financial Institutions
Aspects of Corporate Governance Relevant to Risk-Taking, Monitoring and Control
Aspects of Conventional Best Practices in Corporate Governance that may be Unsuitable for
Banks and Financial Institutions
C. Organisational Culture as the Context for Risk and Control
Modern Banking Culture as a Sectoral Phenomenon
Organisational Cultures at Banks and Financial Institutions
D. Conclusion

Part II: Making Internal Control Effective in Banks and Financial
Institutions

6. Regulating Aspects of Corporate Governance and Organisational Culture as a Broader Framework for Internal Control
A. Regulating the Boards of Banks and Financial Institutions: Structural Aspects
in Corporate Governance
The Functions of the Board
The Responsibilities of Executive Directors, in Particular the Chairman
The Special Role of Non-Executive Directors
Regulating Board Composition
B. Shareholders ’ Role
The UK Stewardship Code
Practical Challenges and Ideological Weaknesses in the Notion of Stewardship
C. The Regulation and Approval of Individuals in Banks and Financial Institutions: The UK Regime
Personal Responsibility and Liability
Liability Under APER
Enhanced Senior Persons Liability Under Senior Persons Regime
D. Reforming Banking Culture
Remuneration Reforms
Malus or Clawback
Banking Ethics
E. Structural Reforms and their Impact Upon Banking Culture
F. Conclusion

7. Incentive-Based Approaches to Improve Internal Control Efficacy: Enforcement and Whistle-Blowing
A. Regulatory Regime for Internal Control Personnel: Code of Conduct Rules
B. Key Enforcement Actions Against Internal Control Individuals in the UK
Compliance Offi cer Liability in Breach of the Principle to Exercise Due Skill, Care and Diligence
Final Notice Against Dr Sandradee Joseph (18 November 2011)
Final Notice Against Alexander Edward Ten-Holter (26 January 2012)
Final Notice Against John Douglas Leslie (26 July 2013)
Censure of Stephen Morse, Barclays Plc (27 June 2012)
Compliance Offi cer Liability Based on Other Grounds in APER
Enforcement Against Robert Stephan Addison (14 September 2012)
C. Imposing Personal Liability on Internal Control Personnel
D. Secondary Liability Regimes for Internal Control Functions
E. Internal Control Functions and the Whistle-Blowing Regime
F. Conclusion

8. The Need for Enhanced Professionalism for Internal Control Functions
A. Internal Control Functions as ‘ Gatekeepers ’
B. Enhancing Professionalism
C. Liability Regimes
D. Conclusion

9. Concluding Remarks

Bibliography
Index

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