The deliberate deception at Volkswagen along with other events such as the insider trading at ImClone Systems and rogue trading at Bearings Bank all demonstrate that employees will break the law in the course of their employment.
The consequences of criminal acts committed by employees can be very significant indeed. In addition to the legal sanctions levied against the employees themselves, business can be lost through loss of reputation, corporations can face fines running into billions of dollars and senior executives can find themselves being prosecuted because the law was broken on their watch. Given that in many cases the courts are finding that the executive leadership of corporations are also criminally liable how can the executive leadership protect themselves and their companies from being held criminally responsible for the activities of their employees?
The employer-employee relationship is undoubtedly complex. Many employees spend more of their waking hours at work than they do with their families and as such the workplace environment can have a significant effect of employees. Most workplace environments and relationships are positive with employees enjoying social events, making friends and even meeting their spouse at work. Unfortunately some are not so good but whatever the nature of the relationship it will have an influence on the employee that will extend outside of the workplace and reach into many parts of their life.
In fact, it is often said the employer-employee relationship is so complex that the second most significant legal transaction that an individual can complete is to accept a job offer, the most complex being getting married. More complex than buying a house and entering into a mortgage, a binding agreement that can last for 25-30 years. So how can it be that an agreement that can be terminated with two weeks’ notice (or even immediately) is almost as significant as a marriage?
Well, the employer will have a significant degree of control over the employee. In addition to determining where they will be and what they will do for a large amount of their time the employer can control or influence who they spend that time with, the opinions they can share, the clothes they wear and even some of their off duty conduct such as how they present themselves on social media. But most importantly, the reason that the employee accepts this level of control from their employer is the employees need to feed, clothe and provide shelter for themselves and often their family also. They are (in most cases) financially dependent on their employer and therefore the employer will have a very significant influence on the employee.
All business are under pressure. The need to be financially viable, to cover the operating costs, to make the payroll and turn a profit are behind every decision. In a today’s fast moving business world corporations need to be innovative, they need to be efficient and they need to stay ahead of their competition. Add this to the raft of regulatory compliance requirements including employment standards (including Human Rights), Occupational Health and Safety (OHS), consumer protection, financial and environmental codes and regulations we can see that business is complicated and it’s challenging. So, given the complicated nature of the employer-employee relationship and the broad range of regulatory obligations placed on corporations, should the executive leadership be held accountable for the conduct of employees, particularly when the number of employees involved can run into the tens or even hundreds of thousands?
The simple answer is yes they should, and for two reasons. The first is that corporations are in business to make money. Whatever their mission, vision or values, ultimately they are there to make a profit for the owner(s) or shareholders. For this reason they can reasonably be expected to conduct themselves ethically and in accordance with all legal obligations and requirements. To do otherwise would simply be wrong. And the second reason is that as a result of the employees financial dependence on the employer, the employee is, in some respects at least, in a position of weakness. In effect, the employer- employee relationship is not one of peers but is one of servant and master.
As previously stated most employer-employee relationships are positive, but they are still not balanced. The employee has a need to provide food, clothing and shelter for themselves and in many cases their family also. As a result they will be motivated to act in their employers best interest. Their success is mutually dependent upon their employer’s success. The business grows, the employee grows. The business stagnates, the employee stagnates. And if the business fails the employee fails. The employee’s need for the business to succeed will be a significant motivator in determining the employees actions and will influence their decisions considerably.
So how does this make the executive leadership accountable for the conduct of their employee? Aren’t the employees as adults with freedom of choice ultimately responsible for their own actions? For the most part, yes they are. Employees can and will be held legally accountable for their actions which in many cases can result in a criminal prosecution. In recent years there have been a number of high profile (and lesser known) prosecutions where employees have been fined or even incarcerated for criminal acts committed in the course of their employment. But the criminal liability doesn’t end there, and for one very important reason.
In addition to being financially dependent upon their employer, all of the employees actions at work will be conducted in an environment and a culture that is created by and is the responsibility of the corporation’s executive leadership and management. That environment and culture will shape every decision that they make to the extent that on occasion they will act in manner that may be contrary to their own values.
In the course of their employment the employee will be required to perform a number of task throughout the day. That’s life, that’s what they’re there for and it’s a perfectly reasonable expectation for the employer to have. But what happens when the employee cannot complete those tasks despite their best efforts? The likelihood is that they will cut corners, bend rules and even break rules, which could include laws, to get the job done because they are motivated to do so as a result of the need to see the business succeed. At one end of the spectrum this could mean minor infractions. Perhaps they will not follow all of the safety rules, they run in the workshop, they don’t put their safety glasses on or they don’t put their seat belt on between deliveries. No harm, no foul, right? Well, no, that’s never the case, but more importantly at the other end of the spectrum we can and do find employees breaking laws relating to matters as serious as insider trader and large scale regulatory non compliance as a result of needing to see the business succeed and to achieve the objectives required as part of their employment.
So how can the executive leadership protect themselves from being held criminally liable for the ac tions of their employees? This certainly isn’t easy given the number of employees involved, all of whom are free thinking adults with the ability to make their own decisions, but it is simple with just a few simple steps. The first is to never overtly ask an employee to commit an illegal act. It’s that simple. The second is to make it clear that no illegal activity will be tolerated by employees in the course of their employment. And to do this all the employer has to do to do this is to clearly and overtly state in their corporate values that they will conduct all of their business operations in accordance with all legal and regulatory obligations and requirements for all jurisdictions within which they conduct business. By making the statement clearly and overtly no one can hide from the requirement of the statement whatever level that they are at in the company. It’s that simple. The third is to make it acceptable for an employee to say ‘I can’t do that,’ to their supervisor or manager when they are faced with the requirement to do something that they cannot do whilst complying with all necessary legal and regulatory requirements. Whether the task at hand would require the employee to cut a corner by failing to wear their personal protective equipment or to deceive a regulatory body the corporate culture must be such that the employee is able to say ‘I can’t do that,’ without fear or recrimination and the supervisors, managers and executive leaders must accept that and be able pass the message up the chain in the same light because if the business goal cannot be achieved within the law, it is not worth achieving. It’s that simple.
Armenia’s historic vision for responsible mining
Armenia, named country of the year by the Economist Magazine in 2018, has led a peaceful transition of power, introducing significant reforms in an inclusive and democratic manner. Nikol Pashinyan, MP and opposition leader, was elected Prime Minister on May 8, 2018. The new administration has identified anti-corruption efforts, free and fair parliamentary elections, and greater equity as its priorities.
Armenia’s economy is gaining strength, growing at over 5.2% in 2018. The growth has been supported by global recovery and a strong rebound in domestic demand. However, the country remains plagued by the twin evils of high unemployment and poverty. The fruits of growth are not shared across the nation.
A country rich in natural resources, particularly copper, molybdenum, gold and dimension stones, Armenia has 27 metal mines. These mines employ 9,000 people in rural areas, while metals and gems represent over 60% of total exports. Indeed, copper ore alone accounts for over a third of all exports. While Armenia has the accurate regulatory and legal framework in place to support the sector in a way that benefits its citizens, enforcement is far from ideal.
Against this backdrop and recognizing that extractive industries can drive economic growth and poverty reduction, the Prime Minister at the time, Hovik Abrahamyan, announced on July 28, 2015 the government’s commitment to make Armenia become compliant with the globally recognized transparency standard in the extractives sector, the Extractive Industries Transparency Initiative (EITI). The government met with both the mining industry and civil society, inviting them to participate in the process by presenting nominees for a Multi-Stakeholder Group. Such a group had never been created before to agree a joint approach to the mining sector.
With issues of trust from civil society and apprehensions from industry, it appeared that the EITI process might fail to engage all parties. Following a stalemate of many months, the World Bank, funded by the Extractives Global Programmatic Support (EGPS) Multi-Donor Trust Fund, organized a workshop which brought together government, industry and non-governmental organizations for the first time. Stakeholders agreed to create a multi-stakeholder group to implement the EITI standard, with equal voting power for each party. Armenia’s first EITI report was approved and published in January 2019, covering 2016-2017 fiscal years.
The multi-stakeholder group chose to go beyond the remit of transparency and sought to develop a common vision for responsible mining that would shape the future of every mine across the country. With the help of the EGPS Multi-Donor Trust Fund, government, industry and civil society groups are now working together to develop a Mineral Sector Policy, a policy framework to guide mining operations. The policy will outline the country’s vision for the mining sector and articulate what responsible and sustainable mining looks like.
The Policy will be based upon the results of two ongoing assessments of the sector: an economic assessment and an environmental and health analysis. The economic assessment will assess the mining sector’s contribution to local, regional and national development, and the potential to develop stronger economic linkages along the supply chain. The environmental and health analysis will assess the health and safety of communities and workers, and examine the existing standards, capacity and institutions to effectively address these issues through a Mineral Sector Policy.
Alongside these assessments are ongoing consultations across government representatives, mining companies, civil society organizations and affected communities, which will be used to inform the creation of the Mineral Sector Policy.
The assessments and consultations will help to build a shared and inclusive vision of Armenia’s future mining sector.
Armenia is one of the few EITI countries to have a fully electronic reporting system up and running, receiving reports from government and companies. Given paper-based reporting has prevailed to date, this marks a significant step forward, minimizing technical errors in reports, decreasing required time for collection of reports and their reconciliation and creating a unique system of searching and downloading open data for users by applying appropriate filters.
The impact of US-China Trade war
It is highly unlikely, that any tangible solution to the Trade war between Beijing and Washington will emerge in the short run. In May 2019, Trump increased the tariffs on commodities worth 200 Billion USD, from 10% to a whopping 25%. So far, US has imposed tariffs of about 250 Billion USD on China. While China, has retaliated with tariffs on US goods estimated at well over 100 Billion USD (110 Billion.)
It would be pertinent to point out, that trade disputes have not been restricted only to Washington and Beijing. Imposition of tariffs has been a bone of contention with US allies including Japan.
Off late, trade issues have resulted in major differences between New Delhi and Washington. Even though there are convergences between both countries on numerous strategic issues, resolving the differences between both sides on trade related matters is likely to be an onerous responsibility.
In response to tariffs imposed by Washington, New Delhi retaliated, and has imposed tariffs, estimated at 200 Million USD, on 29 commodities (including Apples, Almonds and Chickpeas). India’s decision was a response to US’ decision to impose tariffs, of 10% and 25% on Aluminium and Steel in May 2018. Last year, New Delhi refrained from imposing tariffs, but did raise import taxes on a number of US goods to 120%, after Washington declined to exempt New Delhi from higher steel and aluminium tariffs. The key propelling factor for India’s recent imposition of tariffs was the US decision to scrap the Generalized System of Preferences (GSP) for India from June 5, 2019. India benefitted immensely from this scheme, as it allowed duty-free exports of upto $5.6 billion from the country.
Pressure on Trump
Even though no solution is in sight, there are a number of lobbies in the US, especially Trade groups and US businesses which have been repeatedly urging the Trump Administration to find a solution to the current impasse with China.
Only recently for instance, 600 companies, including Walmart in a letter to the U.S. President Donald Trump urged him to resolve trade disputes with China, stating that tariffs were detrimental to the interests of American businesses and consumers. The letter was sent as part of the ‘Tarriffs Hurt the Heartland’ campaign.
To underscore the detrimental impact of trade wars on the American economy some important estimates were provided. The letter stated that tariffs of upto 25% on 300 billion USD worth of goods, could lead to the loss of 2 million jobs. Costs for an average American family of 4 would also rise to an estimated 2000 USD, if such tariffs were to be imposed.
Reports indicating the challenges to the US economy and FDI from Chinese companies in US
A number of surveys and reports illustrate the profound challenges which the US economy is facing as well as a drop in FDI from China.
The University of Michigan’s consumer sentiment index also revealed a drop in consumer sentiment from 100 in May to 97.9 in June. This was attributed to trade wars between China and the US.
According to a survey released by the China General Chamber of Commerce USA, investment by Chinese companies in the United States has witnessed a significant decline since 2016 ( including a sharp drop in 2018 and early 2019)
A number of important events have been held recently, where efforts were made to draw more Chinese investments to the US. One such event was the Select USA Summit. Speaking at the Summit, US Commerce Secretary Wilbur Ross stated:
‘We welcome investment from any place as long as it’s investment that poses no challenges for national security,”
US states and FDI
What was clearly visible at the Select USA Summit was the fact, that a number of US states pitched for expanding economic ties with China, and drawing greater Foreign Direct Investment.
The state of North Carolina sought to attract investments in areas like IT, Aviation and biotech. The US headquarters of Lenovo are in the state of Carolina. Trump’s trade wars have hit the state in a big way, and one of the sufferers have been Soy bean farmers. As a result of a 25 percent imposition of tariffs the price of a bushel of Soy bean has dropped to 8 USD, from 10 USD in 2018.
Other US states brought to the fore the impact of tariffs on their respective economies. According to a senior official from the state of Louisiana for instance, Don Pierson, secretary of Louisiana Economic Development the state it has suffered immensely as a consequence of the imposition of tariffs. Agricultural commodities from Middle America to China are imported through export terminals in Louisiana. Pierson said that the agricultural economy of the state, as well as the logistics economy of the state have taken a hard hit as a consequence of the trade wars. Pierson also spoke about the possibility of exporting LNG from Louisiana to China. Major investments in the state of Louisiana include Yuhuang Chemical Group (Shandong’s) decided to invest US$1.85 billion in a methanol production complex (this was one of the largest Chinese direct investments in US). Wanhua Chemical Group invested over 1 Billion (1.2) USD in a chemical manufacturing complex in South Eastern Louisiana
A number of Chinese companies have also begun to realise, that there is need to adopt a nuanced approach too are still tapping certain US states for investment.
Another important event was the Select LA Summit. The Los Angeles Mayor Eric Garcetti, and Lenny Mendonca, chief economic adviser to the California governor assured overseas investors of all possible support from the town of LA, as well as the state of California.
Impact of trade disputes and Washington’s stance vis-à-vis Huawei
US States and Chinese Provinces have been at the forefront of improving economic ties between both countries. Both are likely to suffer as a consequence of not just the trade war between both countries, but also the US ban on Huawei. The tech company, according to a report published in 2016, contributes 7% of the GDP of the town of Shenzhen (Guangdong Province). Affiliates of Huawei provide employment to an estimated 80,000 people while a research facility in a nearby city of Dongguan, provides employment to well over 3,000
In conclusion, it is important for all stakeholders, not just businesses from both countries, to play their role in resolving economic and technological disputes between China and the US. It is also important for Chinese Provinces as well as US states to play a pro-active role in reducing tensions. Both governments while realising the importance of federating units have set up official dialogues and set up other mechanisms for sub-national exchanges. It is important that these platforms now contribute towards reducing the divergences between both countries. While all eyes are on the political leadership of both countries, it is important to realise that the stakeholders in the US-China relationship are not restricted to Beijing and Washington DC.
The Game of Tariffs
Adam Smith is considered the father of economics. Back in 18th century, he presented the concept of protectionism, which was given to promote the local industry. Nevertheless, in 21stcentury, the world is facing its repercussions.
It is time that the world should be well concerned by the actions that are being opted by the two economic giants. Trade deadlock between Beijing and Washington is getting intense. U.S. protectionist and unilateral approach is the impetus behind this trade war and hence so far no promising foreseeable future can be anticipated. Moreover, China’s economic and development initiative i.e. BRI and its successful pilot project CPEC is also giving headaches to Oval. This Game of tariffs has engulfed whole of the globe into its chakra.
Trump and his policies have always been scrutinized by the analysts everywhere. Even before the elections, Trump expressed his strong urge to subdue China by means of trade restrictions. It was clearly evident even before the elections that if Mr. Trump will somehow make his path to Oval, he will surely give Chinese a sturdy time.
In Nov 2016, it happened just as it was feared. The heat of July 2018 had resulted into an economic cold war. With the world being the witness, there is no doubt that when Washington says, it knows how to make it happen. Therefore, when Washington flaunted its intentions to put serious tariffs onto Chinese commodities, it actually meant it. What started from a mere USD 34 billion, has crossed over USD 200 billion till-date. So far, Washington has imposed tariffs on USD 250 billion worth of goods coming to United States. Furthermore, it has also threatened to increase the threshold to an approximate value of USD 325 billion. In return, Beijing retaliated with putting tariffs on US$ 110 billion worth of goods.
The latest development that added fuel to the fire was on May 10, when United States raise tariffs to 25% on $200 Billion products coming from China annually. This escalated tensions between the two more as it projected that U.S. is not coming slow. Not only this, China has also banned the trade of rare elements. These elements hold prime importance in making of a number of electronic products such as mobiles and laptops in the United States.
China’s ministry of commerce has shown concern over American intentions regarding the engagement of two in the trade war and had warned that the dispute may even lead to “largest trade war in economic history”. China has repeatedly shared its concerns over the trade stand-off between Beijing and Washington. Whereas, continuous cold responses from Washington are leading situation to worse ends. China, as a responsible state, talks about equality, inclusiveness, and shared future for the globe. It always encouraged openness and cooperation.
Stubbornness of Trump’s Administration is pushing the Globe towards an economic and trade crisis. High tariffs on products will ultimately raise the costs for suppliers, manufacturers, retailers and then eventually affecting the people at tail¬— consumers. The end consumers will have to face large price raises even for the general products. On November 30, 2018, Chief of the World Trade Organization had said that global free trade is facing its worst crisis since 1947 and warned that the current spectrum of conflict will lead to global trade crisis.
These tensions are not restricted between the two; instead, they have led the global market to fluctuations, which has put business persons and investors in a situation of uncertainty. This investment dilemma can halt the economic progress inside of both countries. International Monetary Fund has also warned that a full-blown trade war would weaken the global economy. Earlier in this month, Cristine Lagarde gave remarks on Donald Trump’s intent to tax all trade between two countries that it would “shrink the global Gross Domestic Product (GDP) by one-half of one percent”.
China is the new reality. Washington needs to realize that. There are new players onto the scene. Oval’s actions will be scrutinized now; its ways will be challenged. It will no longer go uncontested.
The world knows that global economic ship today is sailing towards east and Chinese dockyard is where it will anchor. Mutual understanding is beneficiary for both the countries as well as for the world economy. Beijing is determined to meet Washington’s intentions with full capacity. United States is inducing self-inflicting pain to itself and to the world too. Companies inside US have already started showing their grievances regarding the trade stalemate between Beijing and Washington. Over 600 companies including Walmart urged Trump to resolve the dispute with China as it directly affects the business community and customers inside US. Washington needs to comprehend that it will become victim of its own protectionist gambit if it continues to be on the route on which it has maneuvered itself.
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