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DODD-FRANK AT 3: ACCEPTING UNCERTAINTY

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DODD-FRANK AT 3: ACCEPTING UNCERTAINTY 1

by Carol M. Beaumier, Executive Vice President, Global Strategic Planning, Protiviti

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July 21, 2013 marked the third anniversary of the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act (DFA). This anniversary sparked the same question we heard at the two prior anniversaries: “What is taking so long?”

We have often answered that question by noting that the law’s timetable was not realistic to start with given the extensive burden it placed on regulators to promulgate hundreds of complex rules. This time, however, media stories seemed to express a bit more outrage: “But now that deadlines appear to have little meaning, it’s very hard for the financial industry to know when anything is happening, which creates a damaging sense of uncertainty.”i

Uncertainty frustrates planning efforts and some believe that “ … the persistent wave of political attacks on global universal banks” has a direct impact on stock prices of financial institutions and that this, in turn, affects banks’ abilities to help the economy grow.ii Yet, as time has passed, those in the industry have become more willing to speak up about troubling issues – and equally willing not to push aggressively for answers that may not be to their liking. Instead, they seem ready to accept the continuing uncertainty, and to focus on myriad other regulatory and business challenges.

The Uncertainties
Although those who track the DFA’s progress may not be in complete agreement on the status of rulemaking, the consensus is that approximately half of the required DFA rules have yet to be finalized. A few of the unfinished rules are:

  • The Volcker Rule, which would prohibit banking organizations from conducting proprietary trading and investing, except for a de minimis amount, in private equity and hedge funds; it remains mired in the challenge of distinguishing between legitimate market making, which would be permissible under the rule, and proprietary trading.
  • Regulation of the cross-border swaps market, which has been stalled due to lack of an international framework.
  • The so-called “Swaps Push-Out” provision, which would require banking organizations to spin off some derivatives trading operations to separate units not eligible for Federal Deposit Insurance Corporation (FDIC) insurance or Federal Reserve discount window borrowing. Institutions supervised by the Federal Reserve and Office of the Comptroller of the Currency (OCC) have been given a two-year reprieve on complying with this rule. There are industry concerns that the rule is unclear, given overlapping rules relating to swaps. There is also lack of understanding as to which activities must be pushed out.
  • The highly debated Uniform Fiduciary Standard, which could require broker-dealers to act in their clients’ best interests and not simply recommend “suitable” products; or, depending on how the cards fall, it might allow registered investment advisers to operate under the suitability standards currently imposed on broker-dealers.
  • Enhanced Prudential Standards, which would impose a host of new requirements (e.g., capital, liquidity, stress testing, single counterparty limits, risk committees, recovery and resolution frameworks) on large domestic and foreign banking organizations operating in the United States and nonbank systemically important financial institutions (SIFIs).
  • The Executive Pay Ratio Rule, a relatively straightforward, industry-agnostic requirement, which would require that the ratio of CEO pay to the median of the pay of all other employees be disclosed in a public company’s proxy statement. This rule has been met with tremendous backlash by the business community.
Carol Beaumier

Carol Beaumier

The debate even continues about rules that have been finalized. The best example is “too big to fail” (TBTF). While few would admit to being certain that we have solved TBTF (and no one likely wants to test it), supporters argue that the DFA at least has the “tools” to end TBIF, while critics say the DFA doesn’t solve the problem at all.iii

Industry Activism
With the continued delays and passage of time since the financial crisis, the financial services industry, initially humbled by criticism of its role in causing the crisis, has become more active in lobbying against provisions it does not like and in challenging the rulemaking process itself – and it is scoring some victories. Some of these have involved a willingness on the part of the U.S. Congress to reconsider certain provisions of the law; others have resulted in the courts voiding rules for perceived flaws in the rulemaking process.

Another recent development that nonbank financial services companies are likely to follow with keen interest is the decision by Prudential Insurance to challenge its proposed designation as a nonbank SIFI on the basis that it doesn’t meet the quantitative standards in the rule, and does not pose a systemic risk to the financial system. This is the first test of the nonbank SIFI designation process. While some industry observers think it will be an uphill battle, many others are cheering Prudential for taking this step.

Uncertainty Drives Congress Back into the Game
While even the staunchest opponents of the DFA say its repeal “ain’t gonna happen,”iv there seem to be more and more bills being introduced to try to improve the law and address provisions that may have unintended consequences, particularly for smaller community banks and end users in the derivatives market. For many, the willingness of Congress to redress onerous provisions of a hastily passed law is viewed as a positive development, though some will correlate an increase in lobbying spending with a more engaged Congress. Of course, not all of the legislation being introduced is viewed positively by the industry – the McCain-Warren Glass-Steagall bill, for example.

Looking Ahead to DFA Year 4
As we contemplate what might happen in Year 4 of the DFA, we know that predicting what will happen within the Beltway is a fool’s errand. Nonetheless, our best guess is that rules that affect the domestic financial services industry only, or primarily, and can be issued by a single agency will be finalized, but many other requirements will continue to be mired in international debate and disagreements among multiple regulators  and a year from now, we will still be talking about the status of DFA rulemaking.

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Return to Work Doesn’t Mean Business as Usual When it Comes to Travel and Expense

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Return to Work Doesn’t Mean Business as Usual When it Comes to Travel and Expense 2

By Rob Harrison, MD UK & Ireland, SAP Concur

The last few months have been an exercise in adaptability for businesses across the UK. With the sudden mandate to work from home, company processes that were ingrained in employees’ day-to-day routines were either put on hold or turned upside down. The new office normal now includes virtual meetings, conversing through instant messaging instead of in the hallway, and the redefining of “business casual” attire.

Many of the processes that have undergone changes fall into the category of travel and expense. With most business travel on hold and the nature of expenses changing, finance managers have had to adjust policies and practices to accommodate the new world of work. Recent SAP Concur research found that 72% of businesses have seen changes in the levels and types of expenses submitted, but only 24% have changed their policies to support this. Examples of travel and expense related changes that were made at the beginning of work from home mandates include:

  • A halt to business travel and its associated expenses.
  • Temporarily ending expensed meals for business lunches, dinners, or in-office meetings.
  • Increase in office expenses like monitors and chairs as employees furnish their home offices.
  • New expenses to consider like Internet and cell phone bills for employees who must work from home.

Now, as companies begin thinking about return to work plans, finance managers are discovering it’s not simply business as usual again. SAP Concur research found that many expect finance will return to normal quicker than general workplace practices, but vast majority see the process taking up to 12 months. New policies and processes need to be put in place to accommodate travel restrictions and changes in expenses. While finance managers need to stay flexible as the business environment continues to evolve, spend control and compliance should still be a high priority.

Here are a few questions that can help finance managers prepare for return to work while keeping control and compliance top of mind:

  • What will travel look like for the company? Finance managers must work with travel and HR counterparts to determine the need for employee travel, if at all, and how to keep employees safe. At SAP Concur, we surveyed 500 UK business travellers and found that health and safety is now seen as more than twice as important than their business goals being met on trips (34% versus 16%. Clear guidelines should be developed, even if they are temporary or evolving, so it’s clear who can travel, when they can travel, and how they can travel. Duty of care plans should also be re-evaluated and businesses should ensure they know at all times where employees are traveling for business and how they can communicate with them in the event of an emergency.
  • Who needs to approve travel and expenses? While it may be temporary, businesses may have to implement a more stringent approval policy for travel and other expenses. Due to health concerns related to travel and the need to conserve cash flow, business leaders like CFOs may want to have final approval over all travel and expenses until the situation stabilises. To help ensure new approval processes don’t cause delays and inefficiencies, finance managers should implement an automated solution that streamlines the process and allows business leaders to review and approve travel requests, expenses, and invoices right from their phones. According to SAP Concur research, 11% of UK businesses implemented some automation of financial processes in response to COVID-19. This is definitely set to increase post-pandemic.
  • Rob Harrison

    Rob Harrison

    What types of expenses are within policy? Prior to social distancing, employees may have been allowed to take clients out to dinner. In-person team meetings held during the lunch hour, may have included expensed lunches. As employees return to work, finance managers need to determine if these activities and expenses will be allowed again. Clear guidelines must be put in place and expense policies need to be updated to reflect any changes.

  • What happens to home office items that were purchased? While new office equipment may have been purchased for employees’ home offices, they remain the business’s property and what to do with them as employees return to work needs to be determined. Perhaps employees will continue to work from home a few days a week and need to keep the equipment to ensure productivity. However, if a full return to work is expected, finance managers have options that can maximise their asset investment and possibly save the company money, like replacing old office equipment with the new purchases, reselling to a used office furniture company, or donating to a non-profit.
  • How can cost control be ensured? For many businesses, cash flow will be tight for the foreseeable future. Spend needs to be managed to help ensure recovery and stability. An important aspect of controlling costs is having full visibility of expenses throughout the company. Implementing an automated spend management solution that integrates expense and invoice management brings together a business’s spend, giving finance managers an understanding of where they can save, where to renegotiate, and where to redirect budgets based on plans and priorities.

Once finance managers have asked themselves the questions above and determined how they want to approach travel and expense procedures, it’s vital they create guidelines and communicate clearly to employees. Compliance can only be ensured if employees have a clear understanding of what has and has not changed with travel and expense policies and what’s expected as they return to work.

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Spotting the warning signs – minimising the risk of post-Covid corporate scandals

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Spotting the warning signs – minimising the risk of post-Covid corporate scandals 3

By Professor Guido Palazzo is Academic Director at Executive Education HEC Lausanne.

A recent report from the Association of Certified Fraud Examiners (ACFE) found that almost seven out of 10 anti-fraud professionals have experienced or observed an increase in fraud levels during the Covid pandemic, with a-quarter saying this increase has been significant. Almost all of those questioned (93%) said they expected an increase in fraud over the next 12 months and nearly three-quarters said that preventing, detecting, and investigating fraud has become significantly more difficult.

For corporations, banks and financial directors, this is a clear warning signal of new risks ahead. Indeed, it’s not difficult to predict that the birth of next big corporate scandal will be traced back to this period. As the ACFE put it, the pandemic is “a perfect storm for fraud. Pressures motivating employee fraud are high at the same time that defenses intended to safeguard against fraud have been weakened.”

If we want to stop corporate misconduct, where should we be focusing our efforts? What should we do to minimise the chances of corporate scandals, fraud and unethical decision-making? Compliance and risk management are obviously critical in detecting fraud, but given that corporate scandals keep happening, perhaps it’s time to ask ourselves whether we need to take a different, more holistic approach to combat unethical behaviour.

Bad Apples or Toxic Cultures?

Most compliance is based on the premise that we need to keep bad people in check and to root out the ‘bad apples’ who usually get blamed when there’s a corporate scandal. When the scandal breaks, we all ask, “how was that possible? What were they thinking?” And we also tell ourselves that we could never behave like that and that it could never happen in our organisation – it’s not our problem.

But are those who succumb to this temptation really ‘bad apples’ or rather people like you and I? Most models of (un)ethical decision-making assume that people make rational choices and are able to evaluate their decisions from a moral point of view. However, if you made a list of the character traits of a rule breaker in an organisation and then compared it to a list of your own, you might be surprised to find a lot of overlap.

When we examine corporate scandals, what we invariably see is good people doing bad things in highly stressful circumstances. If you put sufficient pressure on an individual and they start making ill-advised decisions or behaving unethically, the first reaction is fear as they realise what they are doing is wrong. But then they will start to rationalise their actions to justify what they are doing. Over time, such behaviour becomes normalised and they convince themselves that there is no wrongdoing involved. That’s something that my HEC Lausanne colleagues, Franciska Krings and Ulrich Hoffrage, and I have termed ‘ethical blindness’, and it is a phenomenon that plays a fundamental role in systematic organisational wrongdoing.

Professor Guido Palazzo

Professor Guido Palazzo

The trouble with conventional technical and regulatory compliance strategies is that while policies, codes of conduct and formal processes are all very necessary, they don’t take into consideration the importance of leadership behaviour or human psychology.   We can’t pre-empt those who succumb to the temptation to do bad things in difficult circumstances unless we understand why they behave in the way they do. If we simply attribute problems to the psychological failings of ‘bad apples’ while ignoring the context, culture and leadership style which made their wrongdoing possible, then the barrel will still be contagious.

So what can be done to reduce the chances of new corporate scandals emerging in these challenging times? One take-away from previous scandals is the learning how to read the warning signals. This entails a deep understanding the psychological and emotional factors behind human risk, which surprisingly is not included in most compliance and ethics training. These small signals viewed in isolation may seem insignificant, but over time they can combine to create a dysfunctional context and culture where it can be all too easy for people to slip into the dark side.

Develop a Speak Up Culture

One of the most potent antidotes to that sort of dysfunction and the ethical blindness it encourages is a culture in which individuals at all levels feel able to speak up to their superiors about problems and ethical issues without fear of retaliation. But that will only happen if their own bosses are prepared to speak up and the tone for this must be set at the top. So, the critical question every executive needs to ask themselves is, “do I speak up?” Then they need to reflect on whether people come to them and speak up freely without fear of the consequences. That’s an approach to compliance that offers real protection against the onset of ethical blindness in a way that no conventional strategy can match.

This understanding of human risk element also elevates compliance to a leadership topic with all kinds of positive implications beyond compliance.  Whilst on the one hand, this approach helps to boost the status of the compliance and risk function, my experience of working with senior executives is that when they start to understand the psychological elements of the dark side, it shines a light on their own behaviour. One thing they realise is that, yes, it perhaps could have been them doing those things in one of those scandals. The other is understanding that their leadership style can unwittingly creating the context for unethical behaviour.

That’s one reason I invited two former senior executives who were involved in corporate scandals to share their first-hand experience as teachers on our new certificate in ethics and compliance. Andy Fastow is the former CFO of Enron and Richard Bistrong is a former sales executive involved in an international bribery scandal. Amongst other things, the valuable insights of people like these can help others to understand how risks accumulate over time and how this can impact the integrity of an organisation. Their stories also highlight the temptation that people can face as a result of the tension between the pressure to succeed and the pressure to comply.

Traditionally, compliance training and development has been technical and regulatory – what are the rules, what are people allowed to do or not allowed to do, and how do we demonstrate to the authorities that we did everything possible to ensure that people understand the laws and regulations? But what’s becoming increasingly clear is that it’s time for a multi-disciplinary approach if we are to start redressing the balance between the legal dimension of risk management and the human element.

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Trust is a critical asset

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Trust is a critical asset 4

By Graham Staplehurst, Global Strategy Director, BrandZ, explains how it’s evolving.

Trust is what makes us return to the same brands, particularly during times of uncertainty and crisis.

Pampers is an instinctive choice for many parents. It’s the go-to global nappy brand whether they shop online or in-store. By our reckoning, it’s also the world’s most trusted brand, driven primarily through its perceived superiority over competitors, which it has honed through a relentless focus on technological improvements that make its products the best in the category.

BrandZ has been tracking Trust since 1998 because it’s a critical ingredient in delivering both reassurance and simplifying brand choice, thereby boosting brand value. It’s also become extra critical in delivering business performance at a time when consumers are uncertain and often anxious.

Even brands that haven’t been available during Covid-19 lockdowns, brands that are already trusted, have found that they are more reassuring to consumers when they start returning to market with new safety measures such as protecting staff, which will be seen as evidence that the brand will take similar steps to protect customers.

With a growing demand from consumers for more responsible corporate behaviour, this in turn amplifies the need for brands to make a positive difference.

Alongside Pampers, other brands in this year’s BrandZ Top 100 Most Valuable Brands ranking that have strengthened their trust and responsibility credentials include the Indian bank HDFC, which has supported customer initiatives across its consumer and business banking and life insurance operations – with innovations such as mobile ATMs, and DHL, which has proven itself even more essential as a delivery service during the COVID-19 outbreak.

New brands too have managed to grow Trust relatively rapidly. Second in the Top 10 most trusted brands was Chinese lifestyle brand Meituan with a trust score of 130. This delivery and online ordering brand, which was launched just over a decade ago, has clearly demonstrated its understanding of what consumers want and developed a strong reputation for customer care.

Then there’s streaming service Netflix – founded in 1997 but which only became a streaming service in 2007 – which scored 127 and was the fifth most trusted brand in our ranking. Netflix has created a strong association with being open and honest compared to other ‘content’ platforms, despite the fact that it uses customer’s personal data to suggest future viewing options.

Top 10 Most Trusted Brands in the BrandZ Top 100 Ranking 2020

Position Brand Category Trust Score (Average is 100) Position in Top 100 ranking
1 Pampers Baby Care 136  70
2 Meituan Lifestyle Platform 130  54
3 China Mobile Telecom Providers 129  36
4 Visa Payments 128  5
5 Netflix Entertainment 127  26
6 LIC Insurance 125  75
7 FedEx Logistics 124  88
8 Microsoft Technology 124  3
9 BCA Regional Banks 124  90
10 UPS Logistics 124  20

What defines trust?

The nature of trust is evolving with ‘responsibility’ to consumers forming an increasingly large proportion of what builds perceptions of trust.  This amplifies the need for brands in all categories to act as a positive force in the world.

Traditionally, consumers trusted well-established brands based on two factors:

  • Proven expertise, the knowledge that the brand will deliver on its brand promise, reliably and consistently over time.
  • Corporate responsibility, which is about the business behind the brand. Does it show concern over the environment, its employees, and so on?

In recent years, the latter factor has become increasingly important. It is now three times more important to corporate reputation than 10 years ago and accounts for 40% of reputation overall, with environmental and social responsibility the most important component, alongside employee responsibility and the supply chain.

Companies such as Toyota, with its emphasis on sustainability, Nike, with its campaigns around social responsibility, and FedEx focusing on employee responsibility, highlight the fact that responsibility is high on the agenda for many brands in the BrandZ Global Top 100 Most Valuable Brands, which has been tracking rises and falls in brand value via a mix of millions of consumer interviews and financial performance data since 2006.

Such actions explain why trust in the Top 100 brands has been increasing not declining, filling the gap as trust declines in other institutions like government and the media. This is being driven largely by consumer concerns over the bigger issues including sustainability and climate change that society faces today.

One of the challenges that we face in assessing trust is understanding how and why consumers will trust brands they hardly know or have never used? Why do we trust Uber the first time if we’ve never used the platform before, or Airbnb the first time we rent an apartment or holiday accommodation?

The answer is that there are three elements that build trust and confidence when a brand is new to a market. These are:

  • Identifying with the needs and values of consumers
  • Operating with integrity and honesty
  • Inclusivity, i.e. treating every type of consumer equally.

New brands that can develop these associations not only build trust rapidly and more strongly but also tend to outperform their competitors in growing their brand value.

As a result of this new understanding we have added an additional pillar to our previous understanding of Trust builders. Alongside proven expertise and corporate responsibility, we have a new quality of ‘inspiring expectation’ driven by our three key factors of identification, integrity and inclusivity.

Airbnb, for example, has long had promoted a platform of inclusivity for both renters and users of properties on the platform, helping it to build an overall Consumer Trust Index of up to 105 – and 110+ on the specific dimension of Inclusivity.

Flying Fish in South Africa is a premium flavoured beer that has gone from a launch in October 2013 to being the second-most drunk brand in the country, with trust equal to the vastly more established Castle and Carling brands.  It has appealed to a new generation of beer drinkers with strong integrity and inclusion, using a playful mix of young men and women in its messaging to portray South Africa’s multicultural society.

Brands have a unique opportunity to earn valuable trust and create change, providing this is seen to be genuine. Being sincere, empathetic and ensuring your brand remains consistent with its core values will ensure your corporate reputation is not compromised.

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