Analysis of the gatekeeping nature of credit reporting agencies, ‎whistleblowers, and inspectors of commercial companies compared to ‎similar institutions (A comparative study in Iranian and American law)‎

Document Type : Research Paper

Author

Department of Private Law, Department of Private Law, Faculty of Law, Tarbiat Modares ‎University, Tehran, Iran

Abstract

To protect capital owners, safeguard their interests, maintain their confidence, and ensure that the capital market is fair, efficient, and transparent, corporate governance, together with financial reporting requirements, requires a coherent regulatory structure that ensures the quality and accuracy of the information provided by managers through verifying and validating the information that forms the basis for investor decision-making. One of the most important controllers of financial information contained in the disclosure documents is professional persons outside the organizational structure of the controlled companies, known in the market as “gatekeepers.” Gatekeepers include auditors, credit rating agencies, underwriters, information processing companies, lawyers, legal advisors and securities analysts. There is a basic assumption that the category of gatekeepers is not limited to these entities, and it is possible that corporate governance, together with market dynamics, the creation of new financial products, and the resulting need to verify the information associated with them, will create other institutions with the function of gatekeeping in the market. Based on this assumption, many ambiguities arise regarding the gatekeeping role of credit reporting agencies, whistleblowers, and inspectors. Since gatekeeping imposes specific requirements and obligations on those subject to it, this article has attempted to answer the most important ambiguities raised about the gatekeeping nature of these financial market participants by comparing these entities with established gatekeepers and analyzing the relevant laws and regulations in the two legal systems of Iran and America. The results of the analysis show that first, any institution that investigates credit applicants' information and discloses their violations in the market cannot be considered a gatekeeper. Second, assuming that gatekeepers are not limited and perform various duties beyond monitoring functions, it is not possible to establish a new monitoring institution within the reporting control framework of commercial companies merely by introducing new terms and titles.

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References

  1. References

    1. Akerlof, G. A. (1970). The Market for “Lemons”, Quality Uncertainty and the Market Mechanism. The Quarterly Journal of Economics, 84 (3), 488-500.
    2. Amini, M&. Jafari, D. (2020). Sharing Credit Information in Iran with Regard to the World Bank Doing Business Indicator. Journal of Comparative Law Review, No.1 (11), 39-58. (in Persian), doi: 22059/JCL.2020.298769.633979
    3. Coffee Jr, J. C. (2006). Gatekeepers: The Professions and Corporate Governance, Oxford University Press, First published.
    4. Coffee Jr. J. C.(2019). Why Do Auditors Fail? What Might Work? What Won't?, Accounting and Business Research, 49 (5), 540-561.
    5. Collin, (2003). Dictionary of Banking and Finance, third edition, A&C Black Publishers Ltd, London.
    6. Consumer Reporting Employment Clarification Act of 1998.
    7. Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.
    8. M. (1997). The role of the auditor in public companies: A comparative study in Iranian, French and US law, Journal of Law and Political Science, No. 1063 (37), 33-48 (In Persian).
    9. Fair and Accurate Credit Transactions Act of 2003.
    10. Fair Credit Reporting Act of 1970-Revised 2022.
    11. Gutter, E. (2011). Whistleblowers under the Dodd-Frank Act and Their Impact on Gatekeepers.Review of Banking & Financial Law,30, pp. 753-783.
    12. hamidian F; Isaee tafreshi, M. & Saheb, T. (2022). Analysis of The Concept, Function and Effectiveness of Indirect Gatekeepers in Capital Market (A comparative study in Iranian and American law). Journal of Comparative Law Researches; No. 4 (26), 30-65 (In Persian).
    13. Hosseini, S. M. R. (2018). corporate governance requirements in the law of Iran, Britain and the United States. Journal of Comparative Law Researches; No. 2 (22), 57-90. (in Persian), doi: 1001.1.22516751.1397.22.2.2.8
    14. Internal Control-Integrated Framework, Executive summary, Committee of Sponsoring Organizations of the Treadway Commission (COSO), 2013.
    15. IOSCO Report.(2003). Report on The Activities of Credit Rating Agencies,At: iosco.org.
    16. Jafari, A. (2014). Status of Corporate Governance in Iranian Law and the necessity of reviewing new trade bill, Journal of Legal Research, No. 26 (13), 197-204 (In Persian).
    17. Jentzsch, N. (2006). The Economics and Regulation of Financial International Comparison of Credit Reporting Systems, Physica-Verlag Heidelberg, Germany.
    18. Jomezadeh, Kh & M. (2018). Analysis of the legal aspects of credit reporting agencies in Iran, Journal of International Legal Research, No. 38 (10), 57-100 (In Persian).
    19. Kabiri Shahabad, H. & Isaee tafreshi, M. (2019). The role of collateral against the asymmetric information phenomenon in the Bank lending market and the requisite for effectively play the role in movable collaterals, Journal of Private Law Research, No. 28 (8), 171-196. (in Persian), doi: https://doi.org/10.22054/jplr.2018.31161.1846
    20. Kraakman, R. (1986). Gatekeepers: The Anatomy of a Third-Party Enforcement Strategy.Journal of Law, Economics and Organization, 2 (1), 53-104.
    21. Kraakman, R; Al. (2017).The Anatomy of Corporate Law.A Comparative and Functional Approach, Third Edition, Oxford University Press.
    22. A. B. (2006). Differentiating gatekeepers. Brook. J. Corp. Fin. & Com. L, 1, 119-163, At: https://brooklynworks.brooklaw.edu/bjcfcl/vol1/iss1/6
    23. Mann, R. J. (1999). Verification Institutions in Financing Transactions.The Georgetown Law Journal, 87, pp. 2225-2272.
    24. Mirsaeidi, S.M. & Javan Mardi, M. (2016). Analysis of Illegal Expression of Inspector and Auditor’s Views on the Presented Financial Information, Journal of Criminal Law Research, No. 16 (5), 117-148. (in Persian), doi: https://doi.org/10.22054/jclr.2016.6761
    25. Moberly, R. E. (2006). Sarbanes-Oxley’s Structural Model to Encourage Corporate Whistleblowers, College of Law, Faculty Publications, 27, pp. 1107-1180.
    26. Nasiri Aghdam. A; Hosseini, S. M. R & Ghoudjani. A. (2013). Economic and Legal Foundations of Credit Rating, The office of economic studies. Majlis Research Center (MRC), First Published, Tehran.
    27. Olegario, R. (2001). Credit-Reporting Agencies:Their Historical Roots,Current Status,and Role in Market Development, Washington, D.C.:World Bank Group, (27825), pp. 1-57, At: http://documents.worldbank.org/curated/en/209261468762614853
    28. Partnoy, F. (2006). How and Why Credit Rating Agencies are not Like Other Gatekeepers.University of Sandiego, School of Law, Legal Studies Research Paper Series Research Paper, (07-46), pp. 59-102.
    29. Pasban, M. R. (2014). Company Law, Samt Press, the ninth published, Tehran.
    30. Pasban, M.R& . Madankar, N. (2019). Legal and Economic Analysis of the Triple Audit Institution in terms of Corporate Governance, Journal of Securities Exchange, No. 43 (11), 132-162. (in Persian), doi:  22034/JSE.2018.11138
    31. Pasban, M.R. (2005). Brand scientific review of system pull in Iran: review implementation with rights UK. the Quarterly Journal of Public Law Research, No. 16 (7), 83-115 (In Persian).
    32. Sarbanes-Oxley Act of 2002.
    33. Securities Act of 1933.
    34. Securities Act Release No. 33-8185,68 Fed. Reg.6296 (Jan. 29, 2003)(codified at 17 C.F.R. part. 205.At: sec.gov
    35. Securities and Exchange Commission, Whistleblower Program Rules, 17 CFR Parts 240 and 249, Release No. 34-89963; File No. S7-16-18,RIN 3235-AM11, At: sec.gov
    36. Tennant, D.F;Tracey, M. R. (2016). Sovereign Debt and Credit Rating Bias, Palgrave Macmillan, First published.
    37. World bank’s general principles for credit reporting.(2011), (70193), pp. 1-71,At: https://documents.worldbank.org/en/publication/documentsreports/documentdetail/662161468147557554/
    38. Yahyapour, J. (2018). Corporate Governance in Joint-Stoke Companies, Mizan Legal Foundation, Second published, Tehran.
Comparative Law Review
Volume 16, Issue 1 - Serial Number 31
Spring & Summer 2025
June 2025
Pages 121-148

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