Sarbanes-Oxley Act: Regulating Competition and Ethics

Introduction: The History of Competition Regulation

Competition is as old as trade itself, and despite the general perception that regulations were only recently implemented, they were in fact adopted soon after the first trade operations commenced. In recent years, competition was regulated through legislative measures that generally forbade dumping prices and other such practices. The past decades brought about significant developments in the field of competition regulation, but economic agents were still able to find loopholes in the system. As a response, legislators would no longer rely solely on legislative measures to regulate unfriendly competition; they also focused on assessing the ethical characteristics of competitive decisions.

One particular means by which legislative and ethical elements were combined to regulate unfriendly competition was materialized in the 2002 enactment of the Sarbanes-Oxley Act. The name of the Act is derived from the names of the two United States politicians who promoted the law — Paul Sarbanes and Michael G. Oxley. The Act was implemented in the aftermath of several accounting scandals, such as the one that led to the bankruptcy of ENRON. In a context in which Wall Street players seemed able to embezzle millions upon millions while the average citizen lost their life savings, the Act came as a promise for a better-regulated business environment — one that would no longer be able to lie, steal, and defraud the American public.

Origins of the Sarbanes-Oxley Act

The Sarbanes-Oxley Act is mandatory for all economic organizations, regardless of their size or nature of operations, and it introduces "major changes to the regulation of financial practice and corporate governance" (Sox Law, 2006). Some of the basic provisions are as follows:

1. Auditor remuneration transparency. The mechanism for compensating auditors would be made more upfront, clear, and transparent.

2. Executive accountability for financial statements. The chief executive officer and chief financial officer are required to assume full responsibility for the organization's financial statements.

Key Provisions of the Sarbanes-Oxley Act

3. Prohibition of company loans to directors and officers. Company directors and executive officers are prohibited from receiving company loans. In the case of ENRON, executives had contracted massive loans from the company and failed to reimburse them. This situation — now considered illegal — was previously only unethical. Its prohibition significantly decreases the incidence of conflicts of interest.

4. Assessment and disclosure of internal controls. All organizational managers are required to assess and reveal the effectiveness of their internal control processes. Each audit committee must include an accounting specialist capable of explaining and implementing audit mechanisms and of readily identifying inconsistencies across organizational documents or deviations from accepted standards.

5. Mandatory code of ethics. All companies are required to enforce a code of ethics applicable to all people in financial and other key positions. Unethical behavior in the business climate can easily produce economically disastrous effects. Some examples of legal but unethical business conduct include:

— The implementation of higher retail prices in the absence of competition
— The impolite treatment of employees, taken to a point at which pre-, during-, or after-sale services are not provided
— The selling of products harmful to the health of the consumer, such as alcohol or cigarettes
— The direct or indirect bribery of state officials, business partners, or other categories of stakeholders (Tutor2U)

6. Criminal penalties for document tampering. Company members who falsify, alter, destroy, or otherwise tamper with organizational documents risk punishments ranging from fines to up to 20 years' imprisonment.

7. Whistleblower protection. Organizational staff members who notify their superiors or legal authorities of fraudulent operations are protected under the whistleblower protection provision. People who retaliate against individuals who provide condemning information about the company are punished with anything from a fine to up to ten years' imprisonment (Prahalad, 2008).