Download this Paper Open PDF in Browser

Regulating Culture: Improving Corporate Governance with Anti-Arbitration Provisions for Whistleblowers

24 Pages Posted: 16 Apr 2016 Last revised: 2 Sep 2016

Nizan Geslevich Packin

City University of New York, Baruch College - Zicklin School of Business

Benjamin P. Edwards

University of Nevada, William S. Boyd School of Law

Date Written: April 14, 2016

Abstract

A focus on corporate culture, especially at financial institutions, has emerged as a regulatory, public, and media priority in the aftermath of the 2008 financial crisis. With Dodd-Frank, Congress embraced whistleblower statutes as a key instrument to improve corporate culture and governance, and to extirpate undesired and unethical business practices. Despite the clear policy goals, Dodd-Frank’s unclear statutory text has created interpretative controversies. While Dodd-Frank adds anti-arbitration provisions to preexisting whistleblower statutes, it does not include a dedicated, standalone anti-arbitration provision for Dodd-Frank’s new whistleblower cause of action.

This essay argues that courts should not allow employers to use pre-dispute arbitration agreements to compel whistleblowers to arbitrate their Dodd-Frank claims. To make the case, we review policy concerns for whistleblower actions that favor public actions in public courts. We argue for a pragmatic interpretation of the statute that protects whistleblowers and the public’s right to know by exempting Dodd-Frank’s whistleblowers from arbitration. The essay draws on existing literature discussing the importance of developing case law through court decisions, enforcement and responsiveness to reputational risk, and public supervision of corporate governance issues.

Suggested Citation

Packin, Nizan Geslevich and Edwards, Benjamin P., Regulating Culture: Improving Corporate Governance with Anti-Arbitration Provisions for Whistleblowers (April 14, 2016). 58 William & Mary L. Rev. Online 41 (2016). Available at SSRN: https://ssrn.com/abstract=2765006

Nizan Packin (Contact Author)

City University of New York, Baruch College - Zicklin School of Business ( email )

One Bernard Baruch Way
Box B9-220
New York, NY 10010
United States

Benjamin Edwards

University of Nevada, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

Paper statistics

Downloads
126
Rank
193,080
Abstract Views
660