The Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act) passed in July is the single most sweeping financial regulatory reform in the United States since the securities acts of 1933 and 1934. Its scope is wide and broad but its implications are grey and murky. While American companies and industries sort through the 2,300 pages of the Dodd-Frank Act to find out what the new legislation means for them, the international implications have gone largely unexplored.
The Act significantly changes the U.S. federal regulatory framework as it relates to many types of financial services companies, especially banks and other deposit-taking institutions, both foreign and domestic. For example, it permits the Federal Reserve to terminate activities of U.S. branches, agencies or commercial lending subsidiaries of a non-U.S. entity if the Federal Reserve determines that the home country has not adopted appropriate systems to mitigate risk and if it may present a systemic risk to the U.S.
Added Responsibilities for SEC
The law also expands the scope of new responsibilities for the Securities and Exchange Commission (SEC). Congress has asked the SEC, among other things, to constantly monitor and oversee all domestic as well as international proposals and developments inclusive of the insurance industry and accounting profession. The SEC has to report back to Congress annually about all new proposals that affect the financial industry and how they affect the stability therein. These new requirements have increased some concern that coordinating everything on a global level may lead to a high margin of error.
Serious concerns were raised by the AICPA and others regarding government oversight of accounting standard-setting bodies in earlier stages of the legislation. Congress modified the original language to direct the Financial Stability Oversight Council to review and, as appropriate, “submit comments” to the SEC and any standard-setting body with respect to an existing or proposed accounting principle, standard or procedure. In earlier versions, the Council was given increased power to directly influence standards. The AICPA successfully advocated for preserving an independent board to monitor these standards.
PCAOB to Inspect Foreign Audit Firms
Additionally, Dodd-Frank amended the Sarbanes-Oxley Act (SOX), granting the authority for the Public Company Accounting Oversight Board (PCAOB) to now inspect foreign audit firms that practice in the U.S. or have U.S. clients. For example, any registered public accounting firm (domestic or foreign) that relies, in whole or in part, on the work of a foreign public accounting firm in issuing an audit report, performing audit work or conducting an interim review must:
Produce the foreign firm’s audit work papers and all related documents if the SEC or PCAOB requests them; and
Secure the foreign firm’s agreement to produce those documents as a condition of relying on the work of that firm.
The general international impact of Dodd-Frank is on external auditors and preparers who must comply with SOX, as amended by the Dodd-Frank Act, because they are employed or engaged by international/global public companies that list on U.S. exchanges.
When SOX was enacted, few comparable audit oversight bodies existed around the globe; because of this, SOX did not address the sharing of information with foreign authorities. Dodd-Frank goes that extra step by allowing the exchange of information between foreign audit oversight authorities. This is helped by the fact that many countries have since established audit oversight bodies. SOX requires the PCAOB to inspect the auditors of U.S. public companies in foreign jurisdictions. This increases financial stability because many U.S. public companies perform a significant portion of their operations overseas. As of early January, the board has conducted 268 inspections of firms located in 34 jurisdictions – many of the inspections performed jointly with local auditor oversight authorities.
Dodd-Frank allows the PCAOB, in certain circumstances, to share information with foreign auditor oversight authorities, potentially helping the board gain access to foreign regulators’ inspection information. Former Acting PCAOB Chairman Dan Goezler recently spoke at the AICPA National Conference on Current SEC and PCAOB Developments, where he described the ability to share information with non-U.S. counterparts as “an additional tool,” stating that it “removes obstacles.” There are still important countries in which the U.S. cannot inspect, including China and Switzerland; negotiations with these countries are ongoing. Up until recently, this list included the U.K., but on January 10, the PCAOB announced an agreement with U.K. regulators to increase its oversight of auditors in the U.K. who work with U.S. public companies. Shortly after that announcement, the European Union's internal market and services commissioner added 10 non-EU countries, including Australia, Canada, China, Switzerland and the U.S., to a list of countries that will cooperate with EU members on auditor oversight.
Creating a Loophole?
The Act exempts public companies under $75 million USD market capitalization from SOX Section 404(b). This section requires an external auditor’s attestation report on management’s assessment of the effectiveness of internal control over financial reporting of the issuer. The Center for Audit Quality, affiliated with the AICPA, and a handful of other organizations believed this was an ill-advised amendment to SOX and co-authored several letters outlining the problems. Among them is the belief that investors of all companies should receive the same assurances regarding the accuracy of public company financial statements regardless of the size of the company.
Effects Still to Unfold
A large portion of the Act’s impact, especially internationally, cannot fully be determined yet. It is important to remember that while the Act itself was a large piece of legislation, it really is only the opening salvo. The real scope and magnitude of the Act only will come into focus once the follow-up work is completed. More than 60 studies and reports, to be conducted by roughly 10 regulatory agencies, will take place in the coming months. The addition of hundreds of rulemakings will further delay and no doubt complicate the understanding of the Act’s international implications.
Update - April 2011
PCAOB Chairman James Doty announced in early April an agreement with Swiss authorities to inspect Swiss audit firms whose clients trade in the United States. According to Doty, the agreement includes U.S. multinational companies with operations in Switzerland. Swiss authorities and the PCAOB are expected to begin jointly inspecting audit firms in May.
Doty added that the PCAOB continues to encounter resistance regarding inspections in China. The inability to inspect Chinese audit firms creates a “gaping hole in investor protection,” considering the number of Chinese companies listing in the U.S.
For general information on the Dodd-Frank Act, click here. AICPA members can see how the Act affects CPAs by reading the Dodd-Frank Whitepaper.