Are the current laws and potential enforcement measures effective in achieving the accountability of bank directors for their actions, or the actions of the banks they manage? A comparison of UK and US approaches

摘要

The recent banking crisis has highlighted deficiencies in the regulation of banks and in 2011 this gave rise to a full scale review of the banking sector and how it is regulated. New regulation came in the form of the Financial Services Act which received Royal Assent in December 2012. The aim of this chapter is to assess the accountability of bank directors, specifically their liability for the actions of their banks and whether current sanctions being imposed hold them to account. This is of particular relevance in the light of the LIBOR scandal in which involvement at a high level within banks was exposed; as well as the wrongdoing of former CEOs, who appear to have avoided accountability for their actions, such as Fred Goodwin. Despite recent charges against individuals; so far the punishments have been imposed on the banks as companies and not on individuals. The lack of individual liability raises questions over the effectiveness of bank sanctions. The financial sanctions imposed have been of record values but still arguably affordable when compared to the bank profits. Alternative sanctions; through either criminal or civil law, aimed at the individuals responsible might be a more effective approach, which this chapter seeks to demonstrate. The chapter uses real world examples and academic theory to assess the sanctions used by regulators with regard to the impact these sanctions have on the behaviour and mentality of bank directors. Comparisons are drawn between the United Kingdom (UK) and the United States of America (US) approaches to the issue, as well as other relevant jurisdictions and international initiatives.