Ethical transnational corporate activity at home and abroad: A proposal for reforming continuous disclosure obligations in Australia and the United States

Multinational Corporations establish operations in states with lower legal and ethical standards in areas including the environment, wages, labor standards, human rights, corruption, and company taxation. Corporate law scholars cannot be indifferent to the horrific consequences of these lax standards. From contributing to rapes and violent incidents stemming from trade in conflict minerals in the Congo to the killing of workers due to poor conditions in garment manufacturing units in Bangladesh, multinational corporations exploit conditions in developing countries abroad without disclosing their actions at home. We advance a normative argument to clarify and strengthen the existing model of disclosure-based regulation to hold MNCs accountable. We argue that, since the core expectations held by shareholders of companies are the same whether they are operating within our borders or externally, a harmonization of disclosure obligations imposed by law would be a more flexible and less costly solution. We posit that a broader reading of the disclosure obligations of companies under existing legislation like the Reg. S-K in the United States, the continuous disclosure rules under * Dean and Professor of Law, University of Newcastle Law School. Sandeep Gopalan would like to thank Terrie Troxel, Jack Tatom, Professor Bill Wilhelm, and the Networks Financial Institute at Indiana State University College of Business for their valuable support in conducting research for this article. We are also grateful to Audrey Son, Bassam Khawaja, and the editorial staff of the Columbia Human Rights Law Review for their excellent editorial work. ** Solicitor and doctoral candidate, University of Newcastle Law School. 2 COLUMBIA HUMAN RIGHTS LAW REVIEW [46.2:1 the Australian Corporations Act 2001, and listing rules such as those adopted by the Australian Securities Exchange and the New York Stock Exchange would require the disclosure of material corporate practices outside our national borders.

Settlement of Disputes Within the World Trade Organisation: A Guide to the Jurisprudence

The Urugauy Round of Multilateral Trade Negotiations led to the development of a revised set of procedures on dispute settlement. These procedures dealt with a number of significant problems that had arisen under GATT dispute settlement experience. In spite of these important reforms, there are numerous, complex and contentious questions of legal adjudication that any formal dispute settlement system must face. The article outlines the aims and organs of dispute settlement under the WTO. It addresses some of the key questions as to standing, interpetation, evidence and adjudicatory practices and processes. While ongoing moitoring and reform is necessary, an important thesis is that the inherent nature of legal adjudication forces uncertain determinations that can too easily give rise to unwarranted criticism of the system as a whole.

Corporate social responsibility: why business should act responsibly and be accountable

This paper identifies drivers which are pressurising organisations to adopt corporate social responsibility and produce corporate social reports. The authors discuss what constitutes a good report, some of the problems with current reporting practices, benefits to organisations which produce corporate social reports and the costs to those which do not.

The role of benchmarking and service level agreement (SLA) practices in IT outsourcing success

Despite claims in the trade literature that a number of recommended practices have been proved to lead to IT outsourcing success, few of these practices have been subject to disconfirmatory research. Even fewer have been tested statistically to determine whether they generalize to wider populations, or to determine the magnitude of their effect. In this paper, several recommended outsourcing practices associated with service level agreements (SLAs) and benchmarking are investigated. These practices are recommended extensively on the basis of case study research, yet they do have downsides, and they add substantially to the transaction costs of outsourcing. Based on a large survey of organizations engaged in IT outsourcing, this paper established that developing detailed SLAs did improve cost and service outcome, and that clients who met with vendors more frequently to renegotiate service levels reported greater outsourcing success. The research also established that benchmarking both before outsourcing commences, and once the outsourcing contract is in place, led to improvements in cost and service outcomes. Benchmarking during the outsourcing contract had the greatest effect, accounting for 10% of the variance in a success vector that included strategic, technical, cost-related and service outcomes plus an overall evaluation of satisfaction and value.

Fresh Freud: no longer lost in translation

The new translations of Freud into English highlight the question as to the nature of Freud's quest and achievement. They show a livelier Freud than the Strachey translations (Freud, 1953-1974), who used everyday language in his work instead of trying to establish a new technical vocabulary for an esoteric new discipline. However, with the new Penguin editions thus far, fresh Freud is no longer lost in translation. The Standard Edition was created importantly to create an authoritative international trademark and was made more natural "scientific" in appearance. The fresh translations show a Freud in tune with Karl Popper's (1976) approach in his later work that viewed science as essentially problem solving. The example of "Mourning and Melancholia" (Freud, 1917/ 1964, 1917/1981, 1917/2005) is discussed as an exercise in exploration, conjectures, criticism, construct formation, and problem solving. Translation issues are discussed. Instead of being a particular trade mark, the very fact of there being new and different translations opens Freud's works to further questioning about their meanings and intents in the marketplace of ideas and practices

Sir George Simpson : 19th century fur trade governor and precursor of systematic management

Purpose – Sir George Simpson, the Governor of the Hudson's Bay Company (HBC) from 1821 to his death in 1860, was the subject of numerous biographical works that described various facets of the man including his managerial abilities, literary prowess, physical stamina, abundant energy, extensive art collection and ethnological specimens. Two related aspects of his outstanding management style have been overlooked: the genesis of his management style and where it can be placed in the evolution of management practices during the 19th century.

Design/methodology/approach – Primary data from the Hudson's Bay Company archives plus secondary sources.

Findings – Simpson's management abilities came from his grammar school education and his apprenticeship to a counting house. More importantly, it can be attributed to his association with his mentor Andrew Wedderburn, his dedication to the HBC, and his high level of physical and intellectual energy. His information intensive management style was also a significant precursor to systematic management, which occurred later in the 19th century.

Research limitations/implications – Future research should examine other examples of the evolution of management during the 19th century, particularly the transition from sub-unit accountability to systematic management.

Originality/value – The paper emphasizes the importance of managers in making management systems work.

Class act : Melbourne Workers Theatre, 1987-2007

Celebrates the company's artistic achievements and successes over the last two decades through interviews, essays and high quality images of key productions, and recounts its history, its evolving relationship with the embattled trade union movement, and its on-going engagement with working class, indigenous and migrant communities.

Client identification and money laundering control : perspectives on the Financial Intelligence Centre Act 38 of 2001

The Financial Intelligence Centre Act 38 of 2001 (FICA) compels certain persons and institutions (defined as "accountable institutions'') to identify and verify the identity of a new client before any transaction may be concluded or any business relationship is established.1 Accountable institutions are listed in schedule ¹ to FICA and include banks, brokers, financial advisers, insurance companies, attorneys and estate agents. This duty to identify new clients came into effect on 30 June 2003. However, FICA also requires a similar procedure to be followed in respect of all current clients. Current clients are those with whom an accountable institution had business relationships on 30 June 2003.² After 30 June 2004 an institution may not conclude a transaction in the course of its business relationship with an unidentified current client, until it has established and verified that client's identity as prescribed. An institution that concludes any transaction in contravention of this prohibition, commits an offence and is liable to a fine not exceeding R10 million or to imprisonment of up to 15 years.³

The majority of accountable institutions and their clients failed to meet the June 2004 current client identification deadline.4 This failure posed serious economic and legal risks. With a few days to spare, the minister of finance granted a partial and temporary exemption in respect of these requirements. This article explores the statutory scheme for identification and re-identification of clients and some of the practical problems that were encountered. The June 2004 exemptions from these requirements are also considered and proposals for law reform are made.

The discussion of the FICA identification scheme necessitates the following brief overview of the international and South African money laundering control framework.

1 s 21(1) of FICA.
2 s 21(2) of FICA. See also s 82(2)(b).
3 s 46(2) of FICA read with s 68(1) of FICA.

Accounting services and SMEs : an Australian study

Background: The observance of regulation has become a fundamental part of life for the conduct of business around the world. Governments and their duly appointed designates, acting in the interest of the collective public, have relied on regulation to moderate economic and social behaviour through the imposition and enforcement of rules. While it can be commonly accepted that such a prescriptive framework may be necessary for the achievement of desired economic and social outcomes, regulation does impose costs on society and on individual firms. These costs, which can include the costs for government departments to administer, the cost for firms to comply, and the multitude of indirect costs such as lost innovation and productivity or their interrelated opportunity costs, have received ample attention.

Accountants are key advisers to all businesses on all aspects of doing business, including regulation. As such, it is appropriate that ACCA has sponsored this study, which explores the regulatory issues facing SMEs and the critical role that accountants and other organisations play in helping SMEs be aware of, comply with and generally manage effectively the regulations that apply to their business.

ACCA has consistently argued for a balanced view to be taken on regulation, recognising that certain rules are necessary for the fair development of business and for employees’ rights. Yet at the same time, ACCA recognises that SMEs are likely to be disproportionately burdened by regulatory requirements and, as a consequence, it actively campaigns for fairness in regulation, recognising the issue as a significant factor in the success, productivity and growth of small businesses.

Overview: This study complements similar research commissioned by ACCA in the United Kingdom and Canada (Blackburn et al. 2006), with the aim of helping to provide a more international picture of the effects of regulation on adviceseeking by SMEs and how accountants can help SMEs meet their regulatory obligations.

The research commenced in November 2006 and was conducted over the Australian summer period 2006/7, among SMEs and accounting practices, as follows:

* telephone survey among 250 SMEs
* postal survey among 130 accounting practitioner firms.

Key findings: The SME section of this study revealed the following points.

* Most SMEs (between 70% and 80%), agreed that the regulations under review were reasonable, however there were significantly high levels of concern regarding:
* the number of regulations affecting their business (80%)
* staying up to date with changing regulations (80%)
* complexity of regulation or the ease of understanding regulations (77%)
* inequity, or the cost of regulation in proportion to the business (66%)
* duplication, or being required to provide the same information to more than one government department (55%).
* External accountants were the most common source of advice, being used by 72% of SMEs; this was followed by federal government agencies,    62%; trade or industry bodies, 61%; and a lawyer or solicitor, 53%.
* Highest levels of satisfaction with the advice provided were recorded for lawyers/solicitors (94%), banks (91%) and external accountants (90%).
* Overall, 80% of SMEs who had used accountants rated their service as excellent or good. Thirty per cent gave accountants an excellent rating.
* Accountants rated particularly well on the following attributes:
* the potential for a long-term relationship with the business (81% excellent/good)
* technical understanding of the regulatory requirements that apply to the business (79%)
* ability to meet the needs of the business (77%)
* understanding of the business of the SME and its operations (73%).

The survey of accounting practitioners produced the following information.
* The results indicate that SME firms with fewer than 10 employees are the main source of revenue for the respondent accounting practitioners.
* Virtually all accountants provide regulatory advice, primarily in the areas of taxation (particularly Goods and Services Tax, GST), and Do-It-      Yourself (DIY) superannuation requirements. These services provided the accountants with their largest business growth in the two years before the time of the survey.

Seventy-nine per cent of accountants referred their SME clients to external professional advisers. Their comments indicate (see Appendix 4) that some accountants consider their role to be as convenors or advisers for their SME clients. Importantly, according to the accountants, SME firms with fewer than 10 employees did not update their knowledge of regulatory requirements; they relied on their accountant for the right advice. The main types of external adviser to whom accountants referred their SME clients were lawyers and financial planners.

* Accountants expressed their concern regarding the complexity and amount of regulations affecting their SME clients.
* The accountants also stated that they would like to provide additional advice to their SME clients.
 
Confidence intervals – SME survey:  The survey sample size was 250 SMEs from the total of 1.2 million Australian SMEs. Any estimate of proportions agreeing or disagreeing with particular statements must be considered with respect to the margin of possible statistical error. Owing to the small sample size, generalising the results from this study to a wider population of SMEs may be constrained.

A 95% confidence interval of the sample mean for the following estimates based on a percentage agreement of 75% to a proposition with a sample size of 250 would be from 69.5% to 80.5%. The 95% confidence interval for estimates of any other value will diverge slightly in magnitude from the numbers given.

In general then we can be highly confident that the actual sample mean will be within approximately ± 5% of the figure given, with a survey of this size. Confidence intervals – acounting practitioner survey IBISWorld estimates reveal a figure of 9,222 accounting practices in Australia as at June 2006 (IBISWorld 2007). The sample size of 133 accounting practitioners gives a 95% confidence limit that the results reported from the mail-out survey are within the ± 5% confidence interval of the reported values.

Conclusions:  This report describes the results of two parallel surveys undertaken on the impact of business regulation on small and medium-sized enterprises in Australia and on the perceptions of accounting firms about the ways in which the regulatory impact on the SME sector drove their business.

The survey of SMEs provides empirical support for many of the concerns raised with the Regulation Taskforce, which reported to the Australian government in 2006. Many businesses are concerned about the volume and complexity of government legislation as it applies to their business. They are concerned that they are unable to keep up with new legislation and that there is apparent duplication of reporting requirements across the various tiers of government.

The survey of accountants revealed that accounting firms derive a significant proportion of their revenue from SMEs. While the SMEs are concerned with regulatory changes, the accountants surveyed reported that the major growth areas in their businesses were in what could be seen as traditional accounting areas of tax and superannuation. Some SMEs sought advice on areas such as employment law, environmental regulation and health and safety but it appears that many accountants refer their clients to specialists in these areas. Recent changes to the laws regarding financial planning in Australia may lead to changes in the market for financial advice in Australia, with many accountants apparently regarding this as a key driver of future business opportunities.

The surveys were conducted using a similar instrument to similar surveys conducted in the UK and Canada and reported in Blackburn et al. (2006). Comparisons of the Australian survey results with those from the UK and Canada seem to support the perception that Australian business is not over-regulated, but the SME sector is concerned with the volume and complexity of regulation. This suggests that the SME sector wants to see improvements to Australia’s regulatory regime as a result of the work of the Regulation Taskforce undertaken in 2005/6. In its response to the work of the Taskforce the government agreed with 158 of the 178 specific recommendations of the Taskforce. This now needs to be followed through at all levels of government.

Accountants in all three countries understand their SME clients’ concerns with the burden of regulation and they are prepared to advise their clients where appropriate or refer them to specialist advisers. Most business growth for accountants has come from the taxation area. Very few accountants in the UK or Australia specialise in providing advice in the areas of environmental regulation or health and safety regulation.

International comparisons show that in all three countries accountants are generally highly regarded by SMEs for their professionalism and competence. The major area of client concern is the value for money offered by the accountant’s service. In an era of rapidly shifting professional and technical boundaries, accountants need to be more strongly attuned to levels of client satisfaction. Lawyers, financial planners and a plethora of specialist advisers operate in the business services market and if they have an opportunity to take business from accountants by competing on price they may well do so. This suggests a stronger role for professional accounting bodies in monitoring the broader business services market for opportunities and threats on behalf of their membership.

Artikel 3(1) en (2) van die Mineral and Petroleum Resources Development Act 28 van 2002: 'n herbeskouing

Sections 3(1) and 3(2) of the Mineral and Petroleum Resources Development Act 28 of 2002
This contribution entails a discussion of the impact of section 3 of the Mineral and Petroleum Resources Development Act on various aspects of the new mineral and petroleum law. At the core of the discussion is the question of how this section is interpreted by various commentators, and the implications of the different opinions on the application of the section. The initial discussion highlights problems with the new definition of a "mineral": Soil, including topsoil is at present included in die definition of a "mineral" in the act. The definition should be rectified by the legislature as it has far-reaching consequences in respect of the extent of the state's power in terms of section 3(2) of the act to grant entitlements in respect of minerals, including topsoil. The implications of section 3 for the control and management of minerals are discussed and placed in the context of the question about the constitutionality of the act. It is argued that legislative guidance is urgently needed to clarify continuing uncertainty, caused by sloppy drafting and different opinions about the connection between private law and public law in relation to minerals and the actual position of existing right holders.

Practice chains of production and consumption : mediatized practices across social fields

The argument developed in this paper is that a focus on practice provides some resolutions to methodological problems facing Bourdieuian scholarship in education. In order to develop Bourdieu's work on practice to account for the interactions between practices, this paper presents a conceptualization of practice as chains of production and consumption. The first part of the paper reviews the account of practice offered by Bourdieu both embedded in practice games and as field effects. The second part of the paper introduces practice chains of production and consumption as a way to conceptualize practice by drawing on a case involving print journalists' involvement with policy makers over the course of an Australian policy review. The final section presents a discussion of this conceptualization and highlights the potential of the concept for further research in understanding the processes of educational policy development.

Reporting of the ACT heroin trials

The aim of this research is to analyse the reports of the proposed heroin maintenance trials in the Australian Capital Territory (A.C.T.), in Melbourne print media during 1997. The proposal for trials of heroin-prescription to long-term users in the A.C.T. was based on extensive scientific research. The rejection of this proposal by Prime Minister Howard raised many questions. This study was designed to help understand what discourses and rhetorical devices were used in the reporting of heroin issues in the media and what part some sections of the media played in the government’s decision. Discourse analysis was conducted of newspaper articles from two major Melbourne newspapers, The Age and the Herald-Sun for the year 1997. All articles relating to heroin and drug-policy from the newspapers were included for analysis. Those in favour of the trials used predominantly health and social discourses. Those opposed used moral discourses supported with stereotypes, metaphors, emotive practices and ‘inaccuracies’. There were considerable differences in discourses presented by The Age and the Herald-Sun. This study demonstrates that opposition to the heroin trials relied on rhetorical strategies and sensationalistic arguments, rather than meaningful debate of scientific and social issues. Researchers should act to identify the stereotypes and metaphors used in the discourses surrounding an issue and act to disarm them.

How evidence-based teaching practices are challenged by a Deweyan approach to education

The claim is made in this paper that the discourse of education offers a challenge to evidence-based practices because this latter approach is embedded in the discourse of management. Although claiming the status of being 'scientific', this latter development is drawn upon problematically by policy makers to provide the warrant for stipulating rules and procedures for 'best practices' to which educators are being held accountable. This paper shall draw mostly upon Dewey and is structured into three sections. The first section will attempt to explain the flaw in this evidence-based approach by providing a comparison between empiricism and science. Second, a review of Dewey's recommendation for educators to become more scientific in attitude will then follow, leading to the final section, in which the case will be made that educational practice needs to become as scientific, philosophical and democratic as possible in order for educators to resist being de-professionalised.