![Chairman – Roles and Responsibilities
Responsibility
• Ensure the long-term success
of the company by having and
managing an effective Board
(The Code provides that the
Chairman should be
independent)
Roles (A.3)
•
•
•
•
•
•
•
responsible for the leadership of the Board
and ensuring it is effective
setting the board’s agenda and ensuring
that adequate time is available for
discussion of all agenda items
promote a culture of openness and debate
by facilitating effective contribution of
NEDs
ensure that directors receive
accurate, timely and clear info
ensure effective communication with
shareholders
[B.4.1] ensure that new directors receive a
full, formal and tailored induction on
joining the board
[B.4] ensure that directors continually
update their skills and knowledge and
familiarity with the company
36](https://image.slidesharecdn.com/p1lecture-131223030838-phpapp02/85/P1-lecture-35-320.jpg)
![Nominations Committee
• Purpose (D.1)
• Ensure that there is a
formal, rigorous and
transparent procedure
for the appointment of
new directors
• Majority NEDs
• Roles
• Appointments to the board should
be on merit and against objective
criteria including making due regard
to the benefits of diversity on the
board. [B.2SP]
• Plans should be in place for orderly
succession for appointments to the
board and to senior management, so
as to maintain an appropriate
balance of skills and experience
within the company and on the
board and to ensure progressive
refreshing
46](https://image.slidesharecdn.com/p1lecture-131223030838-phpapp02/85/P1-lecture-45-320.jpg)
P1 lecture
- 1. Legislation • Corporate governance is enforced by Governments • The main forms are the UK Corporate Governance Code and the US Sarbannex Oxley Code • Others that you need to be aware of are international codes of corporate governance 2
- 2. Important supplementary reading • UK Corporate Governance Code (Sep 2012) • Guidance on Audit Committees (Smith Guidance) • Internal Control Revised Guidance for Directors on the Combined Code 3
- 3. Development of Corporate Governance in the UK 4
- 4. Governance and Responsibility • Meaning of Corporate Governance (1.a) • Responsibilities for Corporate governance • Source: 1992 Cadbury Report • Cadbury Committee – the system by which companies are directed and controlled. • BODs responsible for CG • Shareholders role is to appoint directors and auditors 5
- 5. Background and Issues in Corporate Governance (1.b) • • • • • Development of company limited by shares Separation of ownership and control Free market philosophy and globalisation Financial scandals such as Enron, Maxwell Continuing financial scandals seen recently in the banking industry 6
- 6. Corporate Governance Theory- Principles The principles/concepts underling CG are: (FIJIOPRAR) • • • • • • • • • Fairness Independence Judgement Integrity Openess/Transparency Probity Responsibility Accountability Reputation 7
- 7. Corporate Governance Theory – Agency Problem • The agency problem arises when the interests of principals and agents are non-aligned ie in conflict • 3 theories can be used to illustrate the agency problem Agency theory Transaction cost theory Stakeholder theory 8
- 8. Agency Theory Concepts • An agent is employed by the principal to perform a task on its behalf covering the Board, mgmt & staff • Principals are the employers, the company • Agency refers to the contractual relationship between a principal and agent • Agency costs are costs incurred by principals to monitor agency behavior and performance. This is incurred due to a lack of trust • Accountability refers to the agent’s accountability for his performance and result to the principal • Fidiuciary responsibilities mean that the agent should always act in the principal’s best interests and avoid conflicts of interest • Stakeholders are persons/groups that can be affected by the agency 9
- 9. Agency Theory – agency relationship 10
- 10. Agency Theory – Separation of ownership and management • Expansion of business needs more capital which is sourced externally • Increasing complexity in business activities needs professional agents • The agency/corporate governance problem arises when the interests of principals and agents are not aligned 11
- 11. Agency Theory – agency accountability and agency costs • A principal has to incur agency costs to determine agency accountability/performance • Such costs comprise of: Monitoring costs Bonding costs Residual loss 12
- 12. Agency Theory – ways to reduce agency costs • Remuneration package for agents which achieves the goals of shareholders • Having debt in the overall capital structure • Having a capable Board • Shareholders’ exercising their voting rights effectively • Role of Institutional investors 13
- 13. Agency Problem - Transaction cost theory • Example the activity of purchasing gives rise to the following transaction costs Sourcing seller – search & information costs Buying the component – bargaining and decision costs Checking quality – policing and enforcement costs • In terms of company profit and looking after shareholders’ interests, goal is to minimise transaction costs • Minimising the costs depends on the capabilities of management and also how “opportunistic” they are • Opportunitism is defined in transaction cost theory as acting in their best interests • Therefore transaction cost theory explains the agency problem by managers’ opportunism 14
- 14. Agency Problem - Stakeholder theory • Managers should take decisions that take into consideration the interests of all the stakeholders • As stakeholders have different goals from shareholders, the latter’s interests will not be the main goal • Therefore the agency problem exists because of the need to look after different interests 15
- 15. Corporate Governance – Purpose and Objectives • Purpose – what is the reason for corporate governance? According to the UKCGC, the purpose of corporate governance is to facilitate effective, entrepreneurial and prudent management that can deliver the long term success of the company. • This is achieved by monitoring those parties in an organisation that have control over the organisation’s resources • Objectives (goals) of corporate governance • Create long-term shareholder value by helping to improve corporate performance and accountability • This would increase investor confidence • Help create a richer nation 16
- 16. Scope of CG – Impact on the Org Areas in an Org affected by Corp Gov Board of Directors •Duties and functions •Appointments •Composition/balance •Remuneration •Reliability of risk management and internal control systems •Reliability and compliance in financial reporting Relations with shareholders •Dialogue with shareholders •Constructive use of AGM 17
- 17. CG issues of different types of Orgs CG issues Public sector orgs •Owned and controlled by govt •Agency problem difficult to control as principals often do not have power •Problem is worsened by poor culture and corruption •Systems of audit often not as efficient as in the private sector Private sector orgs •Family owned and managed •Agency problem theoretically reduced as business if managed by owners Non-govt. orgs •Owned and controlled by nongovt •Agency problem worsened by lack of transparency and reporting standards •Staff often non-commercial and resistant to change 18
- 18. Stakeholders in Corporate governance • A stakeholder can be defined as any group or individual who is or can be affected by the company’s activities • Examples include: Employees Directors Shareholders Local community Govt and its institutions Customers suppliers 19
- 19. Classification of Stakeholders • Internal and external stakeholders – internal are part of the company (management, employees), external are not part of it (suppliers, customers) • Narrow and wide - narrow are those that are the most affected by the actions and decisions of the organization (shareholders, directors, other management, employees, suppliers and customers). Wide are those groups that are less dependent on the organization (government and the wider community) • Primary and secondary - primary is a group that is essential for the continuation of the company as a going concern (customers, suppliers and employees may be primary stakeholders). Secondary stakeholders are those that the organisation does not directly rely on for its continued survival, at least in the short term • Active and Passive - active are those that seek to get involved in the company’s activities and decisions (management, employees and sometimes pressure groups). Passive are those stakeholders who do not usually try to get involved with a company’s policy-making (govt and local communities) 20
- 20. Classification of Stakeholders (cont.) • Voluntary and involuntary - voluntary is someone who becomes a stakeholder voluntarily (employess, shareholder, customer, supplier). Involuntary are those who do not choose to be stakeholders but have no choice (local communities, stakeholders who suffer from the effect of the company’s operations on the environment, and future generations. Most competitors are also involuntary stakeholders) • Legitimate and illegitimate - legitimate stakeholders are those with a ‘right’ to make a claim on the company(a ‘legitimate’ claim). Illegitimate stakeholders are those that do not have such a ‘right’. Deciding whether stakeholders have legitimate or illegitimate claims on a company may depend on a person’s viewpoint, and the distinction is therefore to some extent a matter of judgement 21
- 21. Role of internal parties of an org in CG Stakeholder Role in corporate performance Role in corporate governance Directors Long term success of org by strategic management Play a central role in success of CG Company secretary Ensuring compliance with rules and regulations Assist Board in complying with CG regulations Sub-board management Long term success of org by executing strategic plans Success in CG depends on how well they ensure CG systems are working well Employees Long term success of org by implementing management plans Success in CG depends o n how well they carry out their duties and responsibilities 22
- 22. Role of external parties of an org in CG Stakeholder Role in corporate performance Role in corporate governance Shareholders Electing and effective Board and auditors Use their voting rights effectively Dialogue with board Whistleblowing Auditors Provide independent assurance of accuracy of financial reporting Highlight governance and reporting issues to investors Government Provision of stable and conducive conditions in the country Introduction,promotion, improvement and monitoring of CG activities Stock exchanges Provision of funds Ensure that stock exchange regulations are carried out 23
- 23. Role of external parties of an org in CG (cont) Stakeholder Role in corporate performance Role in corporate governance Small investors Electing and effective Board and auditors Small shareholders can be effective if they can find a common group Institutional investors Electing and effective Board and auditors Use their status and power to influence board performance through various channels – voting, dialogue, blacklist, complaints to authorities 24
- 24. Stakeholders’ claims and their management 25
- 25. Types of Boards – Unitary and Two-tier 26
- 26. Unitary and Two-tier Boards – main features • Unitary • Dual Common in UK, US 1 Board comprising of EDs and NEDs Performance of directors reviewed by board members Board members are elected by shareholders Common in Europe Comprises of a supervisory board and a management board Management board is responsible for managing the operations of the business and is accountable to and supervised by the supervisory board Members of both boards are elected by shareholders Supervisory board consists of Chairman and NEDs drawn from unions, banks and majore shareholders 27
- 27. Unitary and Two-tier Boards – which is better? No universal answer! • 2 tier advantages: • 2 tier disadvantages • Clear separation between those that manage the company and those that own it or must control it for the benefit of shareholders. Implicit shareholder involvement in most cases since these structures are used in countries where insider control is prevalent. Wider stakeholder involvement implicit through the use of worker representation. Independence of thought, discussion and decision since board meetings and operation are separate. Direct power over management through the right to appoint members of the management board. • Dilution of power through stakeholder involvement. Isolation of supervisory board through nonparticipation in management meetings. Agency problems between the two boards. Added bureaucracy and slower decision making. Reliant upon an effective relationship between chairman and CEO. • • • • • • • • 28
- 28. BOD – Roles and Responsibilities (UKCGC A.1) Responsibility • The long-term success of the company Roles • • • • • • • • Provide entrepreneurial leadership of the company Provide a framework of prudent and effective controls which enables risk to be assessed and managed Set the company’s strategic aims Ensure that the necessary financial and human resources are available Review management performance Set the company’s values and standards Ensure that its obligations to its shareholders and others are understood and met Act in the best interests of the company 29
- 29. BOD – Characteristics, composition and types of directors • Characteristics (B.1) They should have skills, experience and knowledge of the company • Composition (B.1) Board should be of sufficient size to suit the business they are in Board should comprise of an appropriate combination of executive and nonexecutive directors so that no individual group can dominate decision-taking • Types (B.1) EDs are both full-time employees and board members NEDs are members of the Board who do not hold full time positions in the company 30
- 30. BOD(NEDs) - Purpose, Roles and Responsibilities • • • • • • • The main purpose is to ensure the long term success of the company As NEDs their main responsibilities should be to constructively challenge and help develop proposals on strategy The main roles they can play are: Strategy role – (A.4MP) constructively challenge and help develop proposals on strategy Scrutiny role – (A.4SP) scrutinize the performance of management in meeting agreed goals and objectives and monitor the reporting of performance Risk management role – (A.4SP) satisfy themselves on the integrity of financial information and that financials controls and systems of risk management are robust and defensible HR role – (A.4SP) responsible for determining appropriate levels of remuneration of EDs and have a prime role in appointing and where necessary removing EDs and in succession planning 31
- 31. BOD(NEDs)-Qualifications (B.1.1) • Code provision B.1.1 is designed to reduce threats to independence of NEDs. It provides that a person cannot be an NED if he/she: Has been an employee of the company within the last 5 years Has within the last 3 years, a material business relationship with the company either directly, or as a partner/director/shareholder/senior employee of an org Has received additional remuneration from the company apart from directors fee, has ESOS, pension payment Has close family ties with any of the company’s advisors/directors/senior employees Holds cross directorships or has significant links with other directors of the company Represents a significant shareholder of the company Has served on the board for more than 9 years from the date of his 1st election 32
- 32. Cross directorships • A cross directorship occurs when 2 directors hold directorship positions in 2 companies • What is the problem here? • If B was admitted as an NED in Co X, his independence may be under threat because A is an NED in Co Y. He could be tempted to treat issues concerning A in a biased manner. Co. X Co. Y Director A ED NED Director B NED ED 33
- 33. NEDs – Advantages • • • • • • NEDs may have knowledge from other companies, which they are able to contribute in strategic decision-making. Decision reached in consultation with NEDs is more likely to be acceptable to all stakeholders due to their independent status. NEDs sitting in the board can enhance confidence of investors in the company due to having independent personnel safeguarding their investment NEDs sitting in audit committee can provide significant independence to internal & external auditors, to whom auditors can raise to issues of concern in the event of conflict with management. NEDs sitting in audit committee can enhance the reliability of financial information presented to shareholders and other stakeholders NEDs sitting in remuneration committee can prevent executive directors from rewarding themselves excessive remunerations. 34
- 34. NEDs – Disadvantages • Recommendations of NEDs can be easily disregarded on the grounds of lack of company and industry related knowledge and experience. • It is difficult to identify quality NEDs having sufficient knowledge, skills, experience and degree of independence to make reasonable and unbiased judgements. • NEDs are highly skilled personnel and having at least equal number of them as executive directors gives rise to significant costs. This cost may not exceed benefits from having of non executive directors on the board. • NEDs can make the decision making process slow. As more personnel will sit on the board, more viewpoints have to be considered and an agreement may be difficult to reach. • NEDs may have executive responsibilities in other organizations. They may not have sufficient time to devote to attend board meetings and monitor company affairs 35
- 35. Chairman – Roles and Responsibilities Responsibility • Ensure the long-term success of the company by having and managing an effective Board (The Code provides that the Chairman should be independent) Roles (A.3) • • • • • • • responsible for the leadership of the Board and ensuring it is effective setting the board’s agenda and ensuring that adequate time is available for discussion of all agenda items promote a culture of openness and debate by facilitating effective contribution of NEDs ensure that directors receive accurate, timely and clear info ensure effective communication with shareholders [B.4.1] ensure that new directors receive a full, formal and tailored induction on joining the board [B.4] ensure that directors continually update their skills and knowledge and familiarity with the company 36
- 36. CEO – Roles and Responsibilities Responsibility • Ensure the long term success of the org by managing the operations of the company well Roles • Help to create appropriate strategies and implements board’s strategic objectives • Ensures that adequate resources and competences are in place to carry out the strategic objectives • Ensures that a proper system of internal controls and risk management is in place and functioning well 37
- 37. Chairman and CEO - Comparison Chairman CEO Part time, independent director Full-time, executive director Company secretary and CEO reports to the Chairman All executive managers report directly or indirectly to the CEO Chairman reports to the shareholders CEO reports to the Chairman and main board Leader of the Board Leader of executive management Ensure that directors contribute to the work of the board effectively Ensure that executive management work effectively in carrying out the strategic plans of the company 38
- 38. Chairman and CEO – Separation of the Roles • A.2.1 of the Code provides that the roles of chairman and CEO should not be exercised by the same person • As the Chairman is recommended by th Code to be independent, it also follows that a CEO should not ascend immediately to the post of Chairman • The purpose of these guiding principles is to ensure that no one person is able to dominate the Board and lose the important quality of independence 39
- 39. BOD – Induction and CPD of Directors 40
- 40. BOD – Performance Evaluation 41
- 41. BOD - Committees Nominations Committee Remuneration Committee Audit Committee Risk Committee Board appointments Remuneration policy Controls, inter nal and external audit Risk management policy Majority NEDs 100% NEDs 100% NEDs (3/2) Majority NEDs 42
- 42. BOD – Reasons for Committees • Boards often work through committees • Committees can help the board to use its resources and the time of its members more efficiently. • To avoid possible conflicts of interest, the Board can delegate suitable directors to specific committees 43
- 43. BOD – Committees Role of NEDs Committee Role Nominations Independent non-executives should have some influence in the nominations process to make sure that new appointments to the board will not be selected ‘yes men’ and supporters of the CEO or chairman. Remunerations As NEDs are not remunerated in the same way as executive directors they are not likely to have a personal interest in the remuneration structure for senior executives and so come up with a remuneration policy with less bias Audit NEDs can monitor financial reporting and auditing, to satisfy themselves that these are carried out to a satisfactory standard, and that executive management are not ‘hiding’ information or presenting a misleading picture of the company’s financial affairs. Risk Management NEDs should satisfy themselves that executive management have a suitable system of risk management and internal controls in place, and that these systems function effectively 44
- 44. Remuneration Committee • • • Purpose (D.1) Come up with a remuneration policy for the company which should be sufficient to attract, retain and motivate directors to run the company successfully 100% NEDs. For larger cos the remuneration committe should have at least 3 NEDs or 2 NEDs for smaller companies • • • • • • • • • • Roles Ensure that performance related elements of pay are extensive and promote the long term success of the co. Be sensitive to pay and employment conditions in the group (ensure fairness) Judge where to place the company in relation to other competitors D.1.1 follow the provision sin schedule A of the Code D.1.3 ensure that remuneration of NEDs should reflect the time commitment and responsibilities of the role. In particular they should not be paid ESOS, performance related elements D.1.4 avoid rewarding poor performance particularly in the case of compensation to directors for loss of office D.1.5 ensure that contract periods are set at 1 year or less. D.2 Ensure that there is a formal and transparent process for developing policy on remuneration of directors D.2 Ensure that no director may decide his own remuneration 45
- 45. Nominations Committee • Purpose (D.1) • Ensure that there is a formal, rigorous and transparent procedure for the appointment of new directors • Majority NEDs • Roles • Appointments to the board should be on merit and against objective criteria including making due regard to the benefits of diversity on the board. [B.2SP] • Plans should be in place for orderly succession for appointments to the board and to senior management, so as to maintain an appropriate balance of skills and experience within the company and on the board and to ensure progressive refreshing 46
- 46. Audit Committee • Purpose (D.1) • To establish formal and transparent arrangements to ensure that corporate reporting, risk management and internal controls principles are correctly done in the company • • • • • • • Roles Monitoring the integrity of financial statements and formal announcements including reviewing the judgements contained in them Reviewing the company’s internal control and risk management systems Monitor and review the effectiveness of internal audit Recommend to the board appointment, reappointment and removal of external auditors including their fee Monitor and review the external auditor’s independence and effectiveness Recommend to the board a policy re use of external auditor for non-audit services 47
- 47. Risk Committee • Purpose (D.1) • To establish formal and transparent arrangements to ensure that risk management principles are correctly done in the company • • • • • • • Roles Agree and approve the risk management strategy and risk management policy. Assist the board to define the risk appetite of the organisation. Provide general and explicit guidance to the main board on emerging risks and to report on existing risks. Reviewing reports on key risks prepared by management. Monitor overall exposure and specific risks. Monitor the effectiveness of independence risk management functions throughout the organisation. 48
- 48. Directors and the Law Service contracts Removal Retirement by rotation Disqualification Conflict and disclosure of interest Time-limited appointments Legal rights and Responsibilities Directors Insider dealing/trading 49
- 49. Directors’ Legal Rights and Responsibilities Rights (Articles) • inspect the company’s accounting records • claim reimbursement for expenses incurred • discharge their duties without interference from co-directors • participate in the strategic management of the company and attend and vote at board meetings • receive reasonable notice of meetings • take independent professional advice at the expense of the company Responsibilities (CA 2006) • to act within powers • to promote the success of the company • to exercise independent judgement • to exercise reasonable care, skill and diligence • to avoid conflicts of interest • not to accept benefits from third parties • to declare interests in proposed transactions or arrangements with the company 50
- 50. Time limited Appointments • The Companies Act 2006 says that: Contracts of more than two years’ duration need to be approved by shareholders in general meeting. In the absence of such an approval, the term is void and the contract terminable on reasonable notice. • The UK Corporate Governance Code says that: notice or contract periods should be set at one year or less; if it is necessary to offer longer notice or contract periods to new directors recruited from outside, such periods should reduce to one year or less after the initial period. 51
- 51. Retirement by Rotation • At the 1st AGM of the company, all directors retire by rotation • At each subsequent AGM, 1/3 of the directors are subject to retirement by rotation • The directors to retire are those who have been longest in office • Directors should be re-elected at least every 3 yrs 52
- 52. Directors’ Service Contracts • The Companies Act imposes certain constraints on the length of notice periods and fixed terms. • A director should not be personally involved in their own service agreement and remuneration package. • There should be clarity about who has responsibility for negotiating service agreements and remuneration packages for directors. 53
- 53. Removal of Directors • Under CA 2006 S168 by ordinary resolution • Under provisions in the Articles • If disqualified from acting 54
- 54. Disqualification by Law A director shall lose his office if he becomes disqualified by law. This can happen when a director is guilty of: • allowing the company to trade while insolvent • not keeping proper accounting records • failing to prepare and file accounts • not sending returns to Companies House • failing to send tax returns and pay tax 55
- 55. Conflict and Disclosure of Interest 56
- 56. Insider Dealing/Trading • • • • • • Insider trading/dealing is a criminal offense Insider dealing/trading) is the buying or selling of company shares based on knowledge not publicly available It is illegal because if allowed, it will go against the duty of a director to always act in the best interests of shareholders Directors can trade in the shares of a company of which they are directors They are required to disclose their transactions. The directors must inform their company as soon as possible after the transaction and no later than the fifth business day after a transaction for their own account or on behalf of their spouses and children in turn, a company must inform the LSE without delay and no later than the end of the business day following receipt of the information They cannot trade during the two months preceding a preliminary, final or interim earnings announcement and one month prior to a quarterly earnings announcement. Outside the trading ban periods, directors still require clearance to trade from the board’s chairman. 57
- 57. Directors’ Remuneration – Purposes • Attraction – to attract the right people for the position • Recruitment - to be able to recruit them • Motivation – motivate directors by relating pay to performance • Retention – retain directors by good remuneration 58
- 58. Directors’ Remuneration – Caution • A company should avoid paying more than is necessary • As much of executive directors’ remuneration should be linked to performance of the company and individual • Be aware of the remuneration policy relative to other companies • Be aware also of remuneration elsewhere in the Group 59
- 59. Directors’ Remuneration - Components 60
- 60. Remuneration for NEDs • The Code proposes that NEDs should be remunerated based on the time commitment and responsibilities of the role • Remuneration should not include share options and other performance related components in order to protect independence • If a company decides to give share options, it should seek shareholder approval and the director cannot sell the shares until 1 year after he leaves the position 61
- 61. Other Remuneration Principles – Link to strategy It is good management to link remuneration to the different types of strategy followed. For example, if a company pursues a policy of cost leadership, the remuneration package will be expected to be conservative and there might be more PL than fixed components. OTOH, if the company pursues a strategy of product differentiation where branding is an important factor, is likely to need an attractive remuneration package not only to attract the right candidate (who is likely to be in short supply) but also to have more fixed components in the package 62
- 62. Other Remuneration Principles – Link to Labor Market Conditions There is much unhappiness in western countries about the remuneration packages of directors which are said to be obscene and not in alignment with high unemployment rates. Directors defend their big pay packages, citing scarcity of suitably qualified people, the high stress and difficulty of their jobs, others in the market are paying high rates for talent. It should be the corporate duty of a company to ensure that its remuneration levels is consistent and not too different from that in the region which it operates 63
- 63. Directors’ Remuneration – other issues 64
- 64. Corporate ownership structure - features • • • • Insider system Shares of the company normally illiquid Small number of controlling shareholders Ownership and control of the company in same hands Common in Europe, Asia • • • • Outsider system Liquid Large number of small shareholders Ownership and control of the company in different hands Common in the US, UK 65
- 65. Corporate ownership structure – corporate governance issues Insider system • Agency problem and costs are relatively lower than compared with outsider systems • Senior management capability may be limited as choice is limited to family members • There is less transparency and openness • Reduced agency problem is replaced by that of reduced Minority protection 66
- 66. Corporate Governance Codes • The main factors that determine the type of CG adopted by different countries are: • Culture and history – US is a legal culture and hence there is a preference for a legalistic code; commonwealth countries are heavily influenced by the colonial masters • Corporate ownership structure – in east asia, insider systems of ownership is common, hence the CG codes are less well developed • State of professionalism, education – 3rd world countries would find it difficult to implement rigorous codes 67
- 67. Different Approaches to Corporate Governance 68
- 68. Main Features of Rules and Principles based approaches Principles-based • UK and Commonwealth countries • Code of Corporate Governance is a set of “best practices” that listed companies should comply with • Companies that do not comply with the code are required to explain how good corporate governance can be achieved by the alternatives • Shareholders and other interested parties can then form their own opinions and decide on their next course of action Rules-based • US • Code of Corporate Governance is a set of provisions that listed companies have to comply with as a matter of law • As it is a matter of law, non compliance attracts heavy penalties in the form of fines/imprisonment 69
- 69. Main advantages/disadvantages of Rules based approach Advantages • • • Companies do not have the choice of ignoring the rules. All companies are required to meet the same minimum standards of corporate governance. Investor confidence in the stock market might be improved if all the stockmarket companies are required to comply with recognised corporate governance rules. Disadvantages • • • • • In order for all cos to be able to comply, the rules cannot be set too high. Therefore, they are the minimum standards of CG and can result in rules which are not excellent. Tends to encourage ways to play around the rules or find loopholes You need to cover all possibilities, this is impossible to achieve Tends to increase the cost of compliance Cos following CG adopt a checklist approach 70
- 70. Main advantages/disadvantages of Principles based approach Advantages • Principles have no minimum standards • There is incentive to improve over time due to investor confidence in good companies • Carefully worded principles avoids the problem of covering all circumstances • Not as high in compliance costs • Cos are encouraged to adopt CG by following the spirit of the word rather than the letter of the law Disadvantages • As companies have to decide by themselves how to comply with the principles, there is greater uncertainty as to interpretation • Slower implementation as cos can have the option to explain non compliance 71
- 71. Comply or Explain A criticism of the comply or explain approach is that cos do not explain satisfactorily. For example, in the principle of appointment of NEDs, some companies were not complying and their explanations were unsatisfactory because: • Failed to explain the specific reason why • They tend to use the same standard explanation This effectively means that they are choosing not to comply. The CG code has included a specific write up on this issue. It now provides clear guidance of what companies need to do when providing their explanations - reasons for noncompliance should be explained clearly and carefully. It should explain why its current practices are consistent with good corporate governance, the background reasons and if it intends to comply in future, indicate when. 72
- 72. Sarbanes-Oxley Act – Main Provisions 73
- 73. International Codes of Corporate Governance 74