Negative evidence of the SOX Act and legal liability
-
The SOX Act increases the liability of enterprise management, such as the requirement to seek recovery of property proceeds from misleading statements and the requirement to disclose insider trading information for less than two days. Violations can result in large fines and up to 20 years in prison. For legal reasons, enterprise management may undertake more short-sighted actions, such as risky and innovative investments and negative enterprise value. Implementing these measures makes the enterprise think only about immediate benefits and not about its sustainable development. Ref.
[24] find that the SOX Act leads to lower CEO incentives, lower willingness of enterprises to take risks, and lower levels of investment, suggesting that the Act is detrimental to enterprise innovation and long-term growth. Ref.
[25] argue that at least two aspects of post-SOX Act regulations significantly constrain enterprise risk-taking and innovation. They find that US enterprises affected by the SOX Act are less willing to engage in risky investment, and have a significantly lower willingness to take risks compared to other countries at around the same time. Ref.
[94][67] finds that certain enterprises obtain exemptions from the SOX Act by reducing investments, paying more dividends to shareholders, reducing the shareholding of non-affiliates in their shares, disclosing more bad news, and reporting lower earnings to circumvent the SOX Act. Ref.
[102][68] find that CEOs and CFOs face a higher probability of being rotated out due to violations of laws and regulations after the SOX Act’s implementation. The implementation of the SOX Act put tremendous pressure on enterprises’ management and constrained their sustainable development.
Extensive evidence suggests that the SOX Act leads to a loss of enterprise wealth rather than increased enterprise wealth. Ref.
[103][69] finds that US capital market-listed enterprises reacted in a significantly negative way around significant points in time associated with the SOX Act, suggesting that the capital market does not view the SOX Act favorably. Ref.
[104][70] finds that enterprises subject to the SOX Act experienced a significant decline in stock prices before and after the passage of the SOX Act compared to enterprises not affected by it. Ref.
[29][71] find that the SOX Act does not improve the quality of accounting information for bondholders, and reduces bondholders’ value. This finding suggests that the SOX Act is significantly and negatively associated with the sustainability of both bondholders and enterprises.
4. Analysis at Different Country Levels
The SOX Act originates from the US implementation of a mandatory internal control audit system. However, the legislation in practice and the empirical evidence from academia show that the SOX Act has created a huge controversy regarding enterprise sustainability. Therefore, it is worth considering the future of the SOX Act and what it means for the sustainable development of Chinese enterprises. Based on this, the
prese
nt study suarch summarizes and examines the impact of the SOX Act on enterprise sustainability in various countries through on a
literature reviewresearch.
4.1. The Impact of Internal Controls in the SOX Act Framework on the Sustainable Development of U.S. Enterprises
Ref.
[105][72] note that anti-SOX interests have taken several strategic actions to reshape the SOX Act, including the appointment of an enterprise-friendly SEC chair, threats to block SEC funding allocations, and several other strategic activities to effectively leverage its positive effects on enterprise sustainability and minimize or avoid negative impacts. In addition, the PCAOB has expressed concern about the declining disclosure of internal control deficiencies over the years due to continued delays in compliance with mandatory internal control audits by small enterprises before the permanent exemption and the replacement of AS2 by AS5 for internal control audits.
Meanwhile, ref.
[28][73] find that the quality inspections imposed by the PCAOB on auditor enterprises lead to a significant increase in auditor enterprises’ post hoc audits. The empirical evidence is consistent with
[105][72] assertion that financial scandals drive the SOX Act to reduce public outrage. Yet, financial fraud and insider trading in “repeated violations of the US securities laws” lead accounting historians to argue that many of these laws are symbolic and ineffective. The SOX Act may have been weakened after the emergency relief of investor fear and anger. On the other hand, the transient nature of inspections by the relevant regulators may have led to a significant improvement in the quality of internal controls of the regulated enterprises.
An important question is whether internal control audits and disclosure need to be enforced in the form of legislation. For example, ref.
[106][74] imply that although hedge funds are not subject to the SOX Act’s internal mandatory control audits, enterprises with higher ex ante agency costs, such as in places with poor offshore investor protection, managers actively seek internal control audits for institutional investors. This implication suggests that internal control audits as a governance mechanism to reduce agency costs are not externally imposed, and are rather the result of market demand. Conversely, enterprises that opt for privatization or de-listing tend to be small or fundamentally poor
[22,23][22][23]. Thus, the US SOX Act responds to the market demand of large enterprises and enterprises with good fundamentals, which is positive for their sustainable development, while burdening SMEs and enterprises with poor fundamentals, which is not conducive to their sustainable development.
4.2. The Impact of Internal Control on the Sustainable Development of Chinese Enterprises under the SOX Act Framework
This
subsec
tion coompares the economic consequences of China’s SOX Act in four dimensions: purpose and background, institutional provisions, theoretical evolution, and empirical investigation.
In terms of the purpose and background of the legislation, unlike in the US, internal controls in China are not implemented to prevent financial fraud in listed enterprises, but instead to better serve sustainable development. China’s capital market was established just over thirty years ago. It has rapidly grown from eight listed enterprises with a market capitalization of about USD 2.4 billion in 1990 to over 4000 listed enterprises with a total market capitalization of over USD 70 trillion in 2020. As a result, enterprises are becoming larger. Their business is becoming more complex. They urgently need a standardized system to control risks. In particular, the failure of many large SOEs to operate globally has led the Chinese government to consider introducing internal controls to reduce risk and develop a “Chinese-style Sarbanes–Oxley Act” to protect the sustainable development of enterprises and of the whole society and economy.
The Singapore CNA bankruptcy case is a typical case triggered by the lack of internal control. Founded in 1993, CNOOC Singapore is an overseas subsidiary of a large state-owned enterprise directly under the Central Government. In 2001, CNOOC Singapore was listed on the Singapore Exchange, becoming the first Chinese-owned enterprise to use its assets to list abroad. From a trading enterprise on the verge of bankruptcy, CNOOC Singapore developed into a combined industry and trade entity, expanding its business from a single purchase of imported jet fuel to international oil trading, growing its net assets from USD 219,000 in 1997 to over USD 100 million in 2003. However, in 2006, the president of CNOOC Singapore violated the law by trading high-risk oil options, resulting in serious losses and the eventual bankruptcy of the enterprise. The cause was a lack of internal control in the enterprise. The manager conducted high-risk business irregularities according to his wishes rather than following strict procedures, which ultimately led to the failure of the business.
In terms of the institution, the Chinese version of the SOX Act is less strict than the US and more flexible. The introduction of the SOX Act in China was marked in June 2008 by the Ministry of Finance, the Securities Regulatory Commission, the Audit Office, the Banking Regulatory Commission, and the Insurance Regulatory Commission, which jointly issued the “Basic Standard for Enterprise Internal Control” requiring the disclosure of internal control information by the above enterprises. In 2012, listed enterprises were formally required to implement a mandatory internal control audit system. Despite the short time that the this version of the SOX Act has been in force, there has been a great deal of research and discussion on topics related to internal control auditing and sustainability. However, the theoretical framework of internal control continues to be based primarily on an information economics perspective that explores the economic consequences of internal control. Related empirical studies focus on the positive effects of internal control, such as the information environment, spillover effects, and derivation effects. However, almost all studies show that improving the quality of internal control increases the positive impact of sustainable business growth. There is little empirical literature examining the negative effects of internal controls.
However, the Chinese version of the SOX Act is more flexible in its practical operation. For example, in practice, CPAs in China often carry out internal control audits during the auditing of financial reports, known as “integrated audits”, in order to reduce costs. In contrast, the US version states that audits of financial reporting and internal control reports cannot be performed as an integrated audit, and need to be completed by different auditors. In addition, in terms of audit scope CPAs need to focus on the effectiveness of internal control over financial and non-financial reporting, unlike in the US, where the emphasis is on the former.
In terms of theoretical evolution, there have been two major changes in studying the economic consequences of internal control in China. The first was in 2008, when empirical studies on the economic consequences of internal controls began to emerge. The reason for this is that in 2008, the Chinese government began to promote the construction of an internal control system by drawing on the COSO framework, which has sparked theoretical concerns. However, the disclosure of internal control information of listed enterprises was not fully implemented then, and the empirical data were mainly based on the information voluntarily disclosed by listed enterprises. The second time was in 2013, when research on internal control in China shifted from normative to empirical studies. As a result, 2013 is the second year of full implementation of internal control audits and disclosure for listed enterprises in China, for which access to data has now become easy. At this time, research on the economic consequences of internal control in China has shifted from a mainly normative to empirical research, and empirical research has become the main stream of research focus in China.
There are several distinctive features of domestic empirical studies on internal control. First, the research paradigm follows the US empirical research idea. The theoretical framework of internal control continues to be based primarily on an information economics perspective that explores the economic consequences of internal control. Second, while the empirical content framework is the same as that in the United States, the empirical findings are biased toward positive consequences. Related empirical studies focus on the positive effects of internal control, such as the information environment, spillover effects, and derived effects. However, almost all studies show that improving the quality of internal control increases the positive impact of sustainable enterprise growth. There is little empirical literature examining the negative effects of internal controls. A possible explanation is that China has become more flexible in its legal provisions and specific practices to reduce enterprise compliance costs, such as consolidation of audits and exemptions for SMEs, after taking into account the delayed or exempted implementation of the system in the US for this reason. The difficulty of directly estimating compliance costs is another possible reason. Third, more studies have been conducted in the context of local characteristics in China, such as how ownership attributes affect the role of internal control
[107][75] and exploring the role of internal control in the context of policy and regulatory enactments
[108][76].
Ref.
[109][77] find that internal control can eliminate earning-management practices in financially distressed enterprises, significantly improving sustainability. Ref.
[14] examine changes in the quality of enterprise financial information before and after the mandatory implementation of China’s internal control audit and information disclosure system. They find that enterprises’ financial information quality significantly improves after implementing the Chinese SOX Act. Consistent with this, ref.
[110][78] find that Chinese listed enterprises began implementing internal control audits on a trial basis in 2007. The audit quality of enterprises that voluntarily implemented and disclosed internal control audits was significantly better than in the previous year.
- 2.
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Positive evidence of SOX derivation effects
-
Ref.
[111][79] find that high-quality internal control can improve stock liquidity in the capital market. For internal enterprise management, ref.
[112][80] find that internal control can effectively implement the time budget, although ex ante moral hazard increases the possibility of budget slack. Ref.
[17] find that internal controls effectively reduce redundant cash holdings or cash holding shortages, increasing the value of cash holdings. Ref.
[113][81] find that poor internal control exacerbates overinvestment and underinvestment in investment and financing. Finally, ref.
[114][82] find that internal control can significantly increase enterprise value. Various studies provide the positive impact of derivation effects on enterprise sustainability.
- 3.
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Positive evidence of SOX spillover effects
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The quality of internal controls affects the decisions of stakeholders such as bondholders, suppliers, and auditors, and thus the level of enterprise sustainability. Ref.
[115][83] find that the more effective the internal control, the higher the quality of commercial credit liabilities and assets and the larger the size of commercial credit funding. These results suggest that a higher quality of internal control makes it easier to gain the trust of suppliers and obtain more high-quality credit funding. Ref.
[116][84] find a significant positive association between internal control deficiencies and debt financing costs. Their results indicate that enterprises with poor internal control quality trigger concern among debt holders, increasing the borrowing interest rate. From a litigation perspective, ref.
[117][85] find that the internal controls of offending enterprises are more likely to be deficient and to have higher audit fees. This suggests that internal control deficiencies affect auditors’ perception of risk.
4.3. The Impact of Internal Control under the SOX Act Framework on the Sustainable Development of Enterprises in Other Countries
The Japanese version of the SOX Act (J-SOX) was designed to prevent the growing number of financial fraud scandals, such as the Liverdoor and Seibu Railway scandals that occurred in Japan around 2000. In 2005, the Business Accounting Council in Japan began to explore ways to improve the quality of corporate financial reporting in Japan by drawing on the SOX Act.
The Japanese version of the SOX Act has the following characteristics in its theoretical construction, judicial practice, and findings of empirical studies. First, from the perspective of internal control framework theory, Japan advocates for comprehensive internal control, including non-financial internal control under the COSO framework. Second, judicial practice of internal control has significantly reduced the legal liability of auditors in Japan by focusing their responsibility on the effectiveness of internal control over financial reporting and by making them responsible only for the effectiveness of internal control as declared by management, rather than directly for the effectiveness of internal control audits. Third, the findings of the empirical study assert the positive consequences of internal control. For example, the enactment of the Japanese SOX Act was able to improve information quality and correct discontinuity in the distribution of profits due to corporate manipulation of accounting earnings
[118][86], with spillover effects such as lower investor evaluations of enterprises with internal control deficiencies
[119][87] This is mainly because Japanese law allows management to establish a system of internal controls commensurate with its affordability, and does not bring about problems such as high implementation costs and the flight of foreign capital which occurred due to the implementation of SOX in the United States.