G20/OECD Principles
of Corporate Governance
G20/OECD Principles
of Corporate Governance
ISBN: 978-92-64-23687-5 (print)
ISBN: 978-92-64-23688-2 (PDF)
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FOREWORD
G20/OECD PRINCIPLES OF CORPORATE GOVERNANCE © OECD 2015
3
Foreword
The G20/OECD Principles of Corporate Governance help policy makers evaluate
and improve the legal, regulatory, and institutional framework for corporate governance,
with a view to supporting economic efficiency, sustainable growth and financial
stability.
First published in 1999, the Principles have since become an international
benchmark for policy makers, investors, corporations and other stakeholders worldwide.
They have also been adopted as one of the Financial Stability Board’s Key Standards for
Sound Financial Systems and form the basis for the World Bank Reports on the
Observance of Standards and Codes (ROSC) in the area of corporate governance.
This edition contains the results of the second review of the Principles, conducted
in 2014/15. The basis for the review was the 2004 version of the Principles, which
embrace the shared understanding that a high level of transparency, accountability,
board oversight, and respect for the rights of shareholders and role of key stakeholders
is part of the foundation of a well-functioning corporate governance system. These core
values have been maintained and strengthened to reflect experiences since 2004 and
ensure the continuing high quality, relevance and usefulness of the Principles.
The second review was conducted under the responsibility of the OECD Corporate
Governance Committee chaired by Mr. Marcello Bianchi. All non-OECD G20 countries
were invited to participate on an equal footing. Experts from relevant international
organisations, notably the Basel Committee on Banking Supervision, the Financial
Stability Board and the World Bank Group, also participated actively in the review.
Significant contributions were received from the OECD’s regional corporate
governance roundtables in Latin America, Asia and the Middle East and North Africa,
experts, an online public consultation and the OECD’s official advisory bodies, the
Business and Industry Advisory Committee (BIAC) and the Trade Union Advisory
Committee (TUAC).
A draft of the Principles was discussed by the G20/OECD Corporate Governance
Forum in April 2015. Following that meeting, the OECD Council adopted the Principles
on 8 July 2015. The Principles were then submitted to the G20 Leaders Summit on
15-16 November 2015 in Antalya, where they were endorsed as the G20/OECD Principles
of Corporate Governance.
In order to ensure their continuing relevance and accuracy, the review of the
Principles was supported and informed by extensive empirical and analytical work
FOREWORD
G20/OECD PRINCIPLES OF CORPORATE GOVERNANCE © OECD 2015
4
addressing relevant changes in both the corporate and financial sectors. In this work,
the OECD Secretariat and the Corporate Governance Committee reached out to a large
number of experts, organisations and research institutions. Support for research was
also received from relevant academic institutions, including Bo aziçi University.
The next step for the OECD working with the G20 and stakeholders is to promote
and monitor effective implementation of the revised Principles. This will include a
comprehensive review of the Methodology for Assessing the Implementation of
the Principles of Corporate Governance.
TABLE OF CONTENTS
G20/OECD PRINCIPLES OF CORPORATE GOVERNANCE © OECD 2015
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Table of contents
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
About the Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I. Ensuring the basis for an effective corporate governance
framework. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
II. The rights and equitable treatment of shareholders and key
ownership functions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
III. Institutional investors, stock markets, and other intermediaries. . . . . 29
IV. The role of stakeholders in corporate governance . . . . . . . . . . . . . . . . . 34
V. Disclosure and transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
VI. The responsibilities of the board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Annex. Recommendation of the Council on Principles of Corporate
Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
G20/OECD PRINCIPLES OF CORPORATE GOVERNANCE © OECD 2015
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PREFACE
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Preface
The purpose of corporate governance is to help build an environment of
trust, transparency and accountability necessary for fostering long-term
investment, financial stability and business integrity, thereby supporting
stronger growth and more inclusive societies.
The G20/OECD Principles of Corporate Governance provide this benchmark.
They clearly identify the key building blocks for a sound corporate governance
framework and offer practical guidance for implementation at a national level.
Partnering with the G20 gives the Principles a global reach and further
underlines that they reflect experiences and ambitions in a wide variety of
countries at different stages of development and with varying legal systems.
To be relevant, it is essential that corporate governance rules and
regulations are adapted to the reality in which they will be implemented. That is
why the update of the Principles has been supported by extensive empirical and
analytical work on emerging trends in both the financial and corporate sectors.
This includes corporate governance lessons from the global financial crisis, the
increase in cross-border ownership, changes in the way that stock markets
function and the consequences of a longer and more complex investment chain
from household savings to corporate investments. The conclusions of this factbased
research are reflected in the recommendations. The Principles also
address the rights of the many stakeholders whose jobs and retirement savings
depend on the performance and integrity of the corporate sector.
Now, the priority is to put the Principles to good use and for countries and
corporations to harvest the benefits of better corporate governance. For this
purpose, the OECD will work with the G20, national institutions and other
international organisations to assess the quality of the corporate governance
framework and to support implementation of the Principles on the ground.
Angel Gurría
OECD Secretary-General
ABOUT THE PRINCIPLES
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About the Principles
The Principles are intended to help policymakers evaluate and improve the
legal, regulatory, and institutional framework for corporate governance, with a
view to support economic efficiency, sustainable growth and financial
stability. This is primarily achieved by providing shareholders, board members
and executives as well as financial intermediaries and service providers with
the right incentives to perform their roles within a framework of checks and
balances.
The Principles are intended to be concise, understandable and accessible
to the international community. On the basis of the Principles, it is the role of
government, semi-government or private sector initiatives to assess the
quality of the corporate governance framework and develop more detailed
mandatory or voluntary provisions that can take into account country-specific
economic, legal, and cultural differences.
The Principles focus on publicly traded companies, both financial and
non-financial. To the extent they are deemed applicable, they might also be a
useful tool to improve corporate governance in companies whose shares are
not publicly traded. While some of the Principles may be more appropriate for
larger than for smaller companies, policymakers may wish to raise awareness
of good corporate governance for all companies, including smaller and unlisted
companies.
Corporate governance involves a set of relationships between a company’s
management, its board, its shareholders and other stakeholders. Corporate
governance also provides the structure through which the objectives of the
company are set, and the means of attaining those objectives and monitoring
performance are determined.
The Principles do not intend to prejudice or second-guess the business
judgment of individual market participants, board members and company
officials. What works in one company or for one group of investors may not
necessarily be generally applicable to all of business or of systemic economic
importance.
The Principles recognise the interests of employees and other stakeholders
and their important role in contributing to the long-term success and performance
of the company. Other factors relevant to a company’s decision-making
ABOUT THE PRINCIPLES
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processes, such as environmental, anti-corruption or ethical concerns, are
considered in the Principles but are treated more explicitly in a number of other
instruments including the OECD Guidelines for Multinational Enterprises, the
Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions, the UN Guiding Principles on Business and Human Rights, and the ILO
Declaration on Fundamental Principles and Rights at Work, which are referenced in
the Principles.
The Principles are developed with an understanding that corporate
governance policies have an important role to play in achieving broader
economic objectives with respect to investor confidence, capital formation
and allocation. The quality of corporate governance affects the cost for
corporations to access capital for growth and the confidence with which those
that provide capital – directly or indirectly – can participate and share in their
value-creation on fair and equitable terms. Together, the body of corporate
governance rules and practices therefore provides a framework that helps to
bridge the gap between household savings and investment in the real
economy. As a consequence, good corporate governance will reassure
shareholders and other stakeholders that their rights are protected and make
it possible for corporations to decrease the cost of capital and to facilitate their
access to the capital market.
This is of significant importance in today’s globalised capital markets.
International flows of capital enable companies to access financing from a
much larger pool of investors. If companies and countries are to reap the full
benefits of the global capital market, and if they are to attract long-term
“patient” capital, corporate governance arrangements must be credible, well
understood across borders and adhere to internationally accepted principles.
Even if corporations do not rely primarily on foreign sources of capital, a
credible corporate governance framework, supported by effective supervision
and enforcement mechanisms, will help improve the confidence of domestic
investors, reduce the cost of capital, underpin the good functioning of
financial markets, and ultimately induce more stable sources of financing.
There is no single model of good corporate governance. However, some
common elements underlie good corporate governance. The Principles build on
these common elements and are formulated to embrace the different models
that exist. For example, they do not advocate any particular board structure
and the term “board” as used in the Principles is meant to embrace the different
national models of board structures. In the typical two-tier system, found in
some countries, “board” as used in the Principles refers to the “supervisory
board” while “key executives” refers to the “management board”. In systems
where the unitary board is overseen by an internal auditor’s body, the
principles applicable to the board are also, mutatis mutandis, applicable. As the
definition of the term “key executive” may vary among jurisdictions and
ABOUT THE PRINCIPLES
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depending on context, for example remuneration or related party transactions,
the Principles leave it to individual jurisdictions to define this term in a functional
manner that meets the intended outcome of the Principles. The terms
“corporation” and “company” are used interchangeably in the text.
The Principles are non-binding and do not aim at detailed prescriptions for
national legislation. Rather, they seek to identify objectives and suggest various
means for achieving them. The Principles aim to provide a robust but flexible
reference for policy makers and market participants to develop their own
frameworks for corporate governance. To remain competitive in a changing
world, corporations must innovate and adapt their corporate governance
practices so that they can meet new demands and grasp new opportunities.
Taking into account the costs and benefits of regulation, governments have an
important responsibility for shaping an effective regulatory framework that
provides for sufficient flexibility to allow markets to function effectively and to
respond to new expectations of shareholders and other stakeholders.
The Principles are widely used as a benchmark by individual jurisdictions
around the world. They are also one of the Financial Stability Board’s Key
Standards for Sound Financial Systems and provide the basis for assessment
of the corporate governance component of the Reports on the Observance of
Standards and Codes of the World Bank.
The Principles themselves are evolutionary in nature and are reviewed in
light of significant changes in circumstances in order to maintain their role as
a leading instrument for policy making in the area of corporate governance.
The Principles are presented in six different chapters: I) Ensuring the basis
for an effective corporate governance framework; II) The rights and equitable
treatment of shareholders and key ownership functions; III) Institutional
investors, stock markets, and other intermediaries; IV) The role of
stakeholders; V) Disclosure and transparency; and VI) The responsibilities of
the board. Each chapter is headed by a single principle that appears in bold
italics and is followed by a number of supporting sub-principles. The Principles
are supplemented by annotations that contain commentary on the Principles
and are intended to help readers understand their rationale. The annotations
may also contain descriptions of dominant or emerging trends and offer
alternative implementation methods and examples that may be useful in
making the Principles operational.
G20/OECD Principles of Corporate Governance
© OECD 2015
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I. Ensuring the basis for an effective
corporate governance framework
The corporate governance framework should promote transparent
and fair markets, and the efficient allocation of resources. It should
be consistent with the rule of law and support effective supervision
and enforcement.
Effective corporate governance requires a sound legal, regulatory and
institutional framework that market participants can rely on when they
establish their private contractual relations. This corporate governance
framework typically comprises elements of legislation, regulation, self-regulatory
arrangements, voluntary commitments and business practices that are the
result of a country’s specific circumstances, history and tradition. The desirable
mix between legislation, regulation, self-regulation, voluntary standards, etc.,
will therefore vary from country to country. The legislative and regulatory
elements of the corporate governance framework can usefully be complemented
by soft law elements based on the “comply or explain” principle such as
corporate governance codes in order to allow for flexibility and address
specificities of individual companies. What works well in one company, for one
investor or a particular stakeholder may not necessarily be generally applicable
to corporations, investors and stakeholders that operate in another context
and under different circumstances. As new experiences accrue and business
circumstances change, the different provisions of the corporate governance
framework should be reviewed and, when necessary, adjusted.
Countries seeking to implement the Principles should monitor their
corporate governance framework, including regulatory and listing requirements
and business practices, with the objective of maintaining and strengthening
its contribution to market integrity and economic performance. As part of
this, it is important to take into account the interactions and complementarity
between different elements of the corporate governance framework and its
overall ability to promote ethical, responsible and transparent corporate
governance practices. Such analysis should be viewed as an important tool in
the process of developing an effective corporate governance framework. To
this end, effective and continuous consultation with the public is an essential
element. In some jurisdictions, this may need to be complemented by
initiatives to inform companies and their stakeholders about the benefits of
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implementing sound corporate governance practices. Moreover, in developing
a corporate governance framework in each jurisdiction, national legislators
and regulators should duly consider the need for, and the results from,
effective international dialogue and co-operation. If these conditions are met,
the corporate governance framework is more likely to avoid over-regulation,
support the exercise of entrepreneurship and limit the risks of damaging
conflicts of interest in both the private sector and in public institutions.
A. The corporate governance framework should be developed with a view
to its impact on overall economic performance, market integrity and the
incentives it creates for market participants and the promotion of
transparent and well-functioning markets.
The corporate form of organisation of economic activity is a powerful
force for growth. The regulatory and legal environment within which
corporations operate is therefore of key importance to overall economic
outcomes. Policy makers also have a responsibility to put in place a framework
that is flexible enough to meet the needs of corporations operating in widely
different circumstances, facilitating their development of new opportunities
to create value and to determine the most efficient deployment of resources.
Where appropriate, corporate governance frameworks should therefore allow
for proportionality, in particular with respect to the size of listed companies.
Other factors that may call for flexibility include the company’s ownership
and control structure, geographical presence, sectors of activity, and the
company’s stage of development. Policy makers should remain focussed on
ultimate economic outcomes and when considering policy options, they will
need to undertake an analysis of the impact on key variables that affect the
functioning of markets, for example in terms of incentive structures, the
efficiency of self-regulatory systems and dealing with systemic conflicts of
interest. Transparent and well-functioning markets serve to discipline market
participants and to promote accountability.
B. The legal and regulatory requirements that affect corporate governance
practices should be consistent with the rule of law, transparent and
enforceable.
If new laws and regulations are needed, such as to deal with clear cases
of market imperfections, they should be designed in a way that makes them
possible to implement and enforce in an efficient and even handed manner
covering all parties. Consultation by government and other regulatory
authorities with corporations, their representative organisations and other
stakeholders, is an effective way of doing this. Mechanisms should also be
established for parties to protect their rights. In order to avoid over-regulation,
unenforceable laws, and unintended consequences that may impede or
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distort business dynamics, policy measures should be designed with a view to
their overall costs and benefits.
Public authorities should have effective enforcement and sanctioning
powers to deter dishonest behaviour and provide for sound corporate
governance practices. In addition, enforcement can also be pursued through
private action, and the effective balance between public and private enforcement
will vary depending upon the specific features of each jurisdiction.
Corporate governance objectives are also formulated in voluntary codes
and standards that do not have the status of law or regulation. While such
codes play an important role in improving corporate governance arrangements,
they might leave shareholders and other stakeholders with uncertainty
concerning their status and implementation. When codes and principles are
used as a national standard or as a complement to legal or regulatory
provisions, market credibility requires that their status in terms of coverage,
implementation, compliance and sanctions is clearly specified.
C. The division of responsibilities among different authorities should be
clearly articulated and designed to serve the public interest.
Corporate governance requirements and practices are typically influenced
by an array of legal domains, such as company law, securities regulation,
accounting and auditing standards, insolvency law, contract law, labour law and
tax law. Corporate governance practices of individual companies are also often
influenced by human rights and environmental laws. Under these
circumstances, there is a risk that the variety of legal influences may cause
unintentional overlaps and even conflicts, which may frustrate the ability to
pursue key corporate governance objectives. It is important that policy-makers
are aware of this risk and take measures to limit it. Effective enforcement also
requires that the allocation of responsibilities for supervision, implementation
and enforcement among different authorities is clearly defined so that the
competencies of complementary bodies and agencies are respected and used
most effectively. Potentially conflicting objectives, for example where the same
institution is charged with attracting business and sanctioning violations,
should be avoided or managed through clear governance provisions.
Overlapping and perhaps contradictory regulations between jurisdictions is
also an issue that should be monitored so that no regulatory vacuum is allowed
to develop (i.e. issues slipping through in which no authority has explicit
responsibility) and to minimise the cost of compliance with multiple systems by
corporations. When regulatory responsibilities or oversight are delegated to
non-public bodies, it is desirable to explicitly assess why, and under what
circumstances, such delegation is desirable. In addition, the public authority
should maintain effective safeguards to ensure that the delegated authority is
applied fairly, consistently, and in accordance with the law. It is also essential
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that the governance structure of any such delegated institution be transparent
and encompass the public interest.
D. Stock market regulation should support effective corporate governance.
Stock markets can play a meaningful role in enhancing corporate
governance by establishing and enforcing requirements that promote effective
corporate governance by their listed issuers. Also, stock markets provide
facilities by which investors can express interest or disinterest in a particular
issuer’s governance by allowing them to buy or sell the issuer’s securities, as
appropriate. The quality of the stock market’s rules and regulations that
establish listing criteria for issuers and that govern trading on its facilities is
therefore an important element of the corporate governance framework.
What traditionally were called “stock exchanges” today come in a variety of
shapes and forms. Most of the large stock exchanges are now profit maximising
and themselves publicly traded joint stock companies that operate in
competition with other profit maximising stock exchanges and trading venues.
Regardless of the particular structure of the stock market, policy makers and
regulators should assess the proper role of stock exchanges and trading venues in
terms of standard setting, supervision and enforcement of corporate governance
rules. This requires an analysis of how the particular business models of stock
exchanges affect the incentives and ability to carry out these functions.
E. Supervisory, regulatory and enforcement authorities should have the
authority, integrity and resources to fulfil their duties in a professional
and objective manner. Moreover, their rulings should be timely, transparent
and fully explained.
Supervisory, regulatory and enforcement responsibilities should be
vested with bodies that are operationally independent and accountable in the
exercise of their functions and powers, have adequate powers, proper
resources, and the capacity to perform their functions and exercise their
powers, including with respect to corporate governance. Many countries have
addressed the issue of political independence of the securities supervisor
through the creation of a formal governing body (a board, council, or
commission) whose members are given fixed terms of appointment. If the
appointments are staggered and made independent from the political
calendar, they can further enhance independence. These bodies should be
able to pursue their functions without conflicts of interest and their decisions
should be subject to judicial or administrative review. When the number of
corporate events and the volume of disclosures increase, the resources of
supervisory, regulatory and enforcement authorities may come under strain.
As a result, in order to follow developments, they will have a significant
demand for fully qualified staff to provide effective oversight and investigative
capacity which will need to be appropriately funded. The ability to attract staff
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on competitive terms will enhance the quality and independence of
supervision and enforcement.
F. Cross-border co-operation should be enhanced, including through bilateral
and multilateral arrangements for exchange of information.
High levels of cross-border ownership and trading require strong international
co-operation among regulators, including through bilateral and multilateral
arrangements for exchange of information. International co-operation is
becoming increasingly relevant for corporate governance, notably where
companies are active in many jurisdictions through both listed and unlisted
entities, and seek multiple stock market listings on exchanges in different
jurisdictions.
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II. The rights and equitable treatment
of shareholders and key ownership functions
The corporate governance framework should protect and facilitate
the exercise of shareholders’ rights and ensure the equitable treatment
of all shareholders, including minority and foreign shareholders.
All shareholders should have the opportunity to obtain effective redress
for violation of their rights.
Equity investors have certain property rights. For example, an equity share
in a publicly traded company can be bought, sold, or transferred. An equity
share also entitles the investor to participate in the profits of the corporation,
with liability limited to the amount of the investment. In addition, ownership of
an equity share provides a right to information about the corporation and a
right to influence the corporation, primarily by participation in general
shareholder meetings and by voting.
As a practical matter, however, the corporation cannot be managed by
shareholder referendum. The shareholding body is made up of individuals
and institutions whose interests, goals, investment horizons and capabilities
vary. Moreover, the corporation’s management must be able to take business
decisions rapidly. In light of these realities and the complexity of managing
the corporation’s affairs in fast moving and ever changing markets, shareholders
are not expected to assume responsibility for managing corporate activities.
The responsibility for corporate strategy and operations is typically placed in
the hands of the board and a management team that is selected, motivated
and, when necessary, replaced by the board.
Shareholders’ rights to influence the corporation centre on certain
fundamental issues, such as the election of board members, or other means of
influencing the composition of the board, amendments to the company’s
organic documents, approval of extraordinary transactions, and other basic
issues as specified in company law and internal company statutes. This
Section can be seen as a statement of the most basic rights of shareholders,
which are recognised by law in most countries. Additional rights such as the
approval or election of auditors, direct nomination of board members, the
ability to pledge shares, the approval of distributions of profits, shareholder
ability to vote on board member and/or key executive compensation, approval
II. THE RIGHTS AND EQUITABLE TREATMENT OF SHAREHOLDERS AND KEY OWNERSHIP FUNCTIONS
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of material related party transactions and others have also been established in
various jurisdictions.
Investors’ confidence that the capital they provide will be protected from
misuse or misappropriation by corporate managers, board members or
controlling shareholders is an important factor in the development and proper
functioning of capital markets. Corporate boards, managers and controlling
shareholders may have the opportunity to engage in activities that advance
their own interests at the expense of non-controlling shareholders. In providing
protection to investors, a distinction can usefully be made between ex ante and
ex post shareholder rights. Ex ante rights are, for example, pre-emptive rights
and qualified majorities for certain decisions. Ex post rights allow the seeking
of redress once rights have been violated. In jurisdictions where the
enforcement of the legal and regulatory framework is weak, it can be desirable
to strengthen the ex ante rights of shareholders such as by low share
ownership thresholds for placing items on the agenda of the shareholders
meeting or by requiring a supermajority of shareholders for certain important
decisions. The Principles support equal treatment for foreign and domestic
shareholders in corporate governance. They do not address government
policies to regulate foreign direct investment.
One of the ways in which shareholders can enforce their rights is to be
able to initiate legal and administrative proceedings against management and
board members. Experience has shown that an important determinant of the
degree to which shareholder rights are protected is whether effective methods
exist to obtain redress for grievances at a reasonable cost and without
excessive delay. The confidence of minority investors is enhanced when the
legal system provides mechanisms for minority shareholders to bring lawsuits
when they have reasonable grounds to believe that their rights have been
violated. The provision of such enforcement mechanisms is a key responsibility
of legislators and regulators.
There is some risk that a legal system which enables any investor to
challenge corporate activity in the courts can become prone to excessive
litigation. Thus, many legal systems have introduced provisions to protect
management and board members against litigation abuse in the form of tests
for the sufficiency of shareholder complaints, so-called safe harbours for
management and board member actions (such as the business judgement
rule) as well as safe harbours for the disclosure of information. In the end, a
balance must be struck between allowing investors to seek remedies for
infringement of ownership rights and avoiding excessive litigation. Many
countries have found that alternative adjudication procedures, such as
administrative hearings or arbitration procedures organised by the securities
regulators or other regulatory bodies, are an efficient method for dispute
settlement, at least at the first instance level. Specialised court procedures can
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also be a practical instrument to obtain timely injunctions, and ultimately
facilitate the rapid settlement of disputes.
A. Basic shareholder rights should include the right to: 1) secure methods
of ownership registration; 2) convey or transfer shares; 3) obtain relevant
and material information on the corporation on a timely and regular
basis; 4) participate and vote in general shareholder meetings; 5) elect
and remove members of the board; and 6) share in the profits of the
corporation.
B. Shareholders should be sufficiently informed about, and have the right to
approve or participate in, decisions concerning fundamental corporate
changes such as: 1) amendments to the statutes, or articles of incorporation
or similar governing documents of the company; 2) the authorisation of
additional shares; and 3) extraordinary transactions, including the
transfer of all or substantially all assets, that in effect result in the sale of
the company.
The ability of companies to form partnerships and related companies and
to transfer operational assets, cash flow rights and other rights and
obligations to them is important for business flexibility and for delegating
accountability in complex organisations. It also allows a company to divest
itself of operational assets and to become only a holding company. However,
without appropriate checks and balances such possibilities may also be
abused.
C. Shareholders should have the opportunity to participate effectively and
vote in general shareholder meetings and should be informed of the rules,
including voting procedures, that govern general shareholder meetings:
1. Shareholders should be furnished with sufficient and timely information
concerning the date, location and agenda of general meetings, as well as
full and timely information regarding the issues to be decided at the
meeting.
2. Processes and procedures for general shareholder meetings should
allow for equitable treatment of all shareholders. Company procedures
should not make it unduly difficult or expensive to cast votes.
The right to participate in general shareholder meetings is a fundamental
shareholder right. Management and controlling investors have at times
sought to discourage non-controlling or foreign investors from trying to
influence the direction of the company. Some companies have charged fees
for voting. Other potential impediments include prohibitions on proxy voting,
the requirement of personal attendance at general shareholder meetings to
vote, holding the meeting in a remote location, and allowing voting by show of
hands only. Still other procedures may make it practically impossible to
exercise ownership rights. Voting materials may be sent too close to the time
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of general shareholder meetings to allow investors adequate time for
reflection and consultation. Many companies are seeking to develop better
channels of communication and decision-making with shareholders. Efforts
by companies to remove artificial barriers to participation in general meetings
are encouraged and the corporate governance framework should facilitate the
use of electronic voting in absentia, including the electronic distribution of
proxy materials and reliable vote confirmation systems. In jurisdictions where
private enforcement is weak, regulators should be in a position to curb unfair
voting practices.
3. Shareholders should have the opportunity to ask questions to the board,
including questions relating to the annual external audit, to place items
on the agenda of general meetings, and to propose resolutions, subject
to reasonable limitations.
In order to encourage shareholder participation in general meetings,
many jurisdictions have improved the ability of shareholders to place items on
the agenda through a simple and clear process of filing amendments and
resolutions, and to submit questions in advance of the general meeting and to
obtain replies from management and board members. Shareholders should
also be able to ask questions relating to the external audit report. Companies
are justified in assuring that abuses of such opportunities do not occur. It is
reasonable, for example, to require that in order for shareholder resolutions to
be placed on the agenda, they need to be supported by shareholders holding a
specified market value or percentage of shares or voting rights. This threshold
should be determined taking into account the degree of ownership
concentration, in order to ensure that minority shareholders are not effectively
prevented from putting any items on the agenda. Shareholder resolutions that
are approved and fall within the competence of the shareholders’ meeting
should be addressed by the board.
4. Effective shareholder participation in key corporate governance decisions,
such as the nomination and election of board members, should be
facilitated. Shareholders should be able to make their views known,
including through votes at shareholder meetings, on the remuneration
of board members and/or key executives, as applicable. The equity
component of compensation schemes for board members and
employees should be subject to shareholder approval.
To elect the members of the board is a basic shareholder right. For the
election process to be effective, shareholders should be able to participate in
the nomination of board members and vote on individual nominees or on
different lists of them. To this end, shareholders have access in a number of
countries to the company’s voting materials which are made available to
shareholders, subject to conditions to prevent abuse. With respect to nomination
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of candidates, boards in many companies have established nomination
committees to ensure proper compliance with established nomination
procedures and to facilitate and co-ordinate the search for a balanced and
qualified board. It is regarded as good practice for independent board
members to have a key role on this committee. To further improve the selection
process, the Principles also call for full and timely disclosure of the experience
and background of candidates for the board and the nomination process,
which will allow an informed assessment of the abilities and suitability of
each candidate. It is considered good practice to also disclose information
about any other board positions that nominees hold, and in some jurisdictions
also positions that they are nominated for.
The Principles call for the disclosure of remuneration of board members
and key executives. In particular, it is important for shareholders to know
the remuneration policy as well as the total value of compensation
arrangements made pursuant to this policy. Shareholders also have an
interest in how remuneration and company performance are linked when
they assess the capability of the board and the qualities they should seek in
nominees for the board. The different forms of say-on-pay (binding or
advisory vote, ex ante and/or ex post, board members and/or key executives
covered, individual and/or aggregate compensation, compensation policy
and/or actual remuneration) play an important role in conveying the
strength and tone of shareholder sentiment to the board. In the case of
equity-based schemes, their potential to dilute shareholders’ capital and to
powerfully determine managerial incentives means that they should be
approved by shareholders, either for individuals or for the policy of the
scheme as a whole. Shareholder approval should also be required for any
material changes to existing schemes.
5. Shareholders should be able to vote in person or in absentia, and equal
effect should be given to votes whether cast in person or in absentia.
The objective of facilitating shareholder participation suggests that
jurisdictions and/or companies promote the enlarged use of information
technology in voting, including secure electronic voting in all listed companies.
The Principles recommend that voting by proxy be generally accepted. Indeed, it
is important to the promotion and protection of shareholder rights that
investors can place reliance upon directed proxy voting. The corporate
governance framework should ensure that proxies are voted in accordance with
the direction of the proxy holder. In those jurisdictions where companies are
allowed to obtain proxies, it is important to disclose how the Chairperson of the
meeting (as the usual recipient of shareholder proxies obtained by the
company) will exercise the voting rights attaching to undirected proxies. Where
proxies are held by the board or management for company pension funds and
for employee stock ownership plans, the directions for voting should be
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disclosed. It is regarded as good practice that treasury shares and shares of the
company held by subsidiaries should not be allowed to vote, nor be counted for
quorum purposes.
6. Impediments to cross border voting should be eliminated.
Foreign investors often hold their shares through chains of
intermediaries. Shares are typically held in accounts with securities
intermediaries, that in turn hold accounts with other intermediaries and
central securities depositories in other jurisdictions, while the listed company
resides in a third country. Such cross-border chains cause special challenges
with respect to determining the entitlement of foreign investors to use their
voting rights, and the process of communicating with such investors. In
combination with business practices which provide only a very short notice
period, shareholders are often left with only very limited time to react to a
convening notice by the company and to make informed decisions concerning
items for decision. This makes cross border voting difficult. The legal and
regulatory framework should clarify who is entitled to control the voting rights
in cross border situations and where necessary to simplify the depository
chain. Moreover, notice periods should ensure that foreign investors in effect
have the same opportunities to exercise their ownership functions as domestic
investors. To further facilitate voting by foreign investors, laws, regulations and
corporate practices should allow participation through electronic means in a
non-discriminatory way.
D. Shareholders, including institutional shareholders, should be allowed to
consult with each other on issues concerning their basic shareholder
rights as defined in the Principles, subject to exceptions to prevent abuse.
It has long been recognised that in companies with dispersed ownership,
individual shareholders might have too small a stake in the company to
warrant the cost of taking action or for making an investment in monitoring
performance. Moreover, if small shareholders did invest resources in such
activities, others would also gain without having contributed (i.e. they are
“free riders”). This effect, which serves to lower incentives for monitoring, is
probably less of a problem for institutions, particularly financial institutions
acting in a fiduciary capacity, in deciding whether to increase their ownership
to a significant stake in individual companies, or to rather simply diversify.
However, other costs with regard to holding a significant stake might still be
high. In many instances institutional investors are prevented from doing this
because it is beyond their capacity or would require investing more of their
assets in one company than may be prudent. To overcome this asymmetry
which favours diversification, they should be allowed, and even encouraged,
to co-operate and co-ordinate their actions in nominating and electing board
members, placing proposals on the agenda and holding discussions directly
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with a company in order to improve its corporate governance. More generally,
shareholders should be allowed to communicate with each other without
having to comply with the formalities of proxy solicitation.
It must be recognised, however, that co-operation among investors could
also be used to manipulate markets and to obtain control over a company
without being subject to any takeover or disclosure regulations. Moreover,
co-operation might also be for the purposes of circumventing competition law.
However, if co-operation does not involve issues of corporate control, or
conflict with concerns about market efficiency and fairness, the benefits of
more effective ownership may still be obtained. To provide clarity among
shareholders, regulators may issue guidance on forms of co-ordination and
agreements that do or do not constitute such acting in concert in the context
of takeover and other rules.
E. All shareholders of the same series of a class should be treated equally.
Capital structures and arrangements that enable certain shareholders to
obtain a degree of influence or control disproportionate to their equity
ownership should be disclosed.
1. Within any series of a class, all shares should carry the same rights. All
investors should be able to obtain information about the rights attached
to all series and classes of shares before they purchase. Any changes in
economic or voting rights should be subject to approval by those
classes of shares which are negatively affected.
The optimal capital structure of the firm is best decided by the management
and the board, subject to the approval of the shareholders. Some companies
issue preferred (or preference) shares which have a preference in respect of
receipt of the profits of the firm but which normally have limited or no voting
rights. Companies may also issue participation certificates or shares with
limited or no voting rights, which would presumably trade at different prices
than shares with full voting rights. All of these structures may be effective in
distributing risk and reward in ways that are thought to be in the best interests
of the company and to cost-efficient financing.
Investors can expect to be informed regarding their voting rights before
they invest. Once they have invested, their rights should not be changed unless
those holding voting shares have had the opportunity to participate in the
decision. Proposals to change the voting rights of different series and classes of
shares should be submitted for approval at general shareholders meetings by a
specified (normally higher) majority of voting shares in the affected categories.
2. The disclosure of capital structures and control arrangements should be
required.
Some capital structures allow a shareholder to exercise a degree of
control over the corporation disproportionate to the shareholders’ equity
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ownership in the company. Pyramid structures, cross shareholdings and
shares with limited or multiple voting rights can be used to diminish the
capability of non-controlling shareholders to influence corporate policy.
In addition to ownership relations, other devices can affect control over
the corporation. Shareholder agreements are a common means for groups of
shareholders, who individually may hold relatively small shares of total
equity, to act in concert so as to constitute an effective majority, or at least the
largest single block of shareholders. Shareholder agreements usually give
those participating in the agreements preferential rights to purchase shares if
other parties to the agreement wish to sell. These agreements can also contain
provisions that require those accepting the agreement not to sell their shares
for a specified time. Shareholder agreements can cover issues such as how the
board or the Chairman will be selected. The agreements can also oblige those
in the agreement to vote as a block. Some countries have found it necessary to
closely monitor such agreements and to limit their duration.
Voting caps limit the number of votes that a shareholder may cast,
regardless of the number of shares the shareholder may actually possess.
Voting caps therefore redistribute control and may affect the incentives for
shareholder participation in shareholder meetings.
Given the capacity of these mechanisms to redistribute the influence of
shareholders on company policy, the disclosure of such capital structures and
arrangements should be required. Disclosure about such schemes also allows
shareholders and potential investors to make better informed decisions (see
Chapter V.3).
F. Related-party transactions should be approved and conducted in a manner
that ensures proper management of conflict of interest and protects the
interest of the company and its shareholders.
1. Conflicts of interest inherent in related-party transactions should be
addressed.
The potential abuse of related party transactions is an important policy
issue in all markets, but particularly in those where corporate ownership is
concentrated and corporate groups prevail. Banning these transactions is
normally not a solution as there is nothing wrong per se with entering into
transactions with related parties, provided that the conflicts of interest
inherent in those transactions are adequately addressed, including through
proper monitoring and disclosure. This is all the more important where
significant portions of income and/or costs arise from transactions with
related parties.
Jurisdictions should put in place an effective framework for clearly
flagging these transactions. They include broad but precise definitions of what
is understood to be a related party as well as rules to disregard some of these
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transactions when they are not material because they do not exceed ex ante
thresholds, can be regarded as recurrent and taking place at verifiable market
terms or taking place with subsidiaries where no specific interest of a related
party is present. Once the related party transactions have been identified,
jurisdictions set procedures for approving them in a manner that minimises
their negative potential. In most jurisdictions, great emphasis is placed on
board approval, often with a prominent role for independent board members,
or a requirement for the board to justify the interest of the transaction for the
company. Shareholders may also be given a say in approving certain
transactions, with interested shareholders excluded.
2. Members of the board and key executives should be required to disclose
to the board whether they, directly, indirectly or on behalf of third
parties, have a material interest in any transaction or matter directly
affecting the corporation.
Members of the board, key executives and, in some jurisdictions,
controlling shareholders have an obligation to inform the board where they
have a business, family or other special relationship outside of the company
that could affect their judgement with respect to a particular transaction or
matter affecting the company. Such special relationships include situations
where executives and board members have a relationship with the company
via their association with a shareholder who is in a position to exercise
control. Where a material interest has been declared, it is good practice for
that person not to be involved in any decision involving the transaction or
matter and for the decision of the board to be specifically motivated against
the presence of such interests and/or to justify the interest of the transaction
for the company, notably by mentioning the terms of the transaction.
G. Minority shareholders should be protected from abusive actions by, or in
the interest of, controlling shareholders acting either directly or indirectly,
and should have effective means of redress. Abusive self-dealing should
be prohibited.
Many publicly traded companies have a large controlling shareholder.
While the presence of a controlling shareholder can reduce the agency problem
by closer monitoring of management, weaknesses in the legal and regulatory
framework may lead to the abuse of other shareholders in the company.
Abusive self-dealing occurs when persons having close relationships to the
company, including controlling shareholders, exploit those relationships to the
detriment of the company and investors.
The potential for abuse is marked where the legal system allows, and the
market accepts, controlling shareholders to exercise a level of control which does
not correspond to the level of risk that they assume as owners through exploiting
legal devices to separate ownership from control, such as pyramid structures or
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multiple voting rights. Such abuse may be carried out in various ways, including
the extraction of direct private benefits via high pay and bonuses for employed
family members and associates, inappropriate related party transactions,
systematic bias in business decisions and changes in the capital structure
through special issuance of shares favouring the controlling shareholder.
In addition to disclosure, a key to protecting minority shareholders is a
clearly articulated duty of loyalty by board members to the company and to all
shareholders. Indeed, abuse of minority shareholders is most pronounced in
those countries where the legal and regulatory framework is weak in this
regard. A particular issue arises in some jurisdictions where groups of
companies are prevalent and where the duty of loyalty of a board member
might be ambiguous and even interpreted as to the group. In these cases, some
countries have developed sets of rules to control negative effects, including by
specifying that a transaction in favour of another group company must be offset
by receiving a corresponding benefit from other companies of the group.
Other common provisions to protect minority shareholders, which have
proven effective, include pre-emptive rights in relation to share issues,
qualified majorities for certain shareholder decisions and the possibility to
use cumulative voting in electing members of the board. Under certain
circumstances, some jurisdictions require or permit controlling shareholders
to buy-out the remaining shareholders at a share-price that is established
through an independent appraisal. This is particularly important when
controlling shareholders decide to de-list an enterprise. Other means of
improving minority shareholder rights include derivative (including multiple)
and class action law suits. Some regulators have established complaint
facilities, and some have the possibility to support lawsuits through disclosure
of relevant information and/or funding. With the common aim of improving
market credibility, the choice and ultimate design of different provisions to
protect minority shareholders necessarily depends on the overall regulatory
framework and the national legal system.
H. Markets for corporate control should be allowed to function in an efficient
and transparent manner.
1. The rules and procedures governing the acquisition of corporate control
in the capital markets, and extraordinary transactions such as
mergers, and sales of substantial portions of corporate assets, should
be clearly articulated and disclosed so that investors understand their
rights and recourse. Transactions should occur at transparent prices
and under fair conditions that protect the rights of all shareholders
according to their class.
2. Anti-take-over devices should not be used to shield management and
the board from accountability.
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In some jurisdictions, companies employ anti-take-over devices.
However, both investors and stock exchanges have expressed concern over the
possibility that widespread use of anti-take-over devices may be a serious
impediment to the functioning of the market for corporate control. In some
instances, take-over defences can simply be devices to shield the management
or the board from shareholder monitoring. In implementing any anti-takeover
devices and in dealing with take-over proposals, the fiduciary duty of the
board to shareholders and the company must remain paramount. Some
jurisdictions provide options for exit to dissenting shareholders in case of
major corporate restructurings including mergers and amalgamations.
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III. Institutional investors, stock markets,
and other intermediaries
The corporate governance framework should provide sound incentives
throughout the investment chain and provide for stock markets
to function in a way that contributes to good corporate governance.
In order to be effective, the legal and regulatory framework for corporate
governance must be developed with a view to the economic reality in which it
is to be implemented. In many jurisdictions, the real world of corporate
governance and ownership is no longer characterised by a straight and
uncompromised relationship between the performance of the company and
the income of the ultimate beneficiaries of shareholdings. In reality, the
investment chain is often long and complex, with numerous intermediaries
that stand between the ultimate beneficiary and the company. The presence
of intermediaries acting as independent decision makers influences the
incentives and the ability to engage in corporate governance.
The share of equity investments held by institutional investors such as
mutual funds, pension funds, insurance companies and hedge funds has
increased significantly, and many of their assets are managed by specialised
asset managers. The ability and interest of institutional investors and asset
managers to engage in corporate governance varies widely. For some,
engagement in corporate governance, including the exercise of voting rights,
is a natural part of their business model. Others may offer their beneficiaries
and clients a business model and investment strategy that does not include or
motivate spending resources on active shareholder engagement. If
shareholder engagement is not part of the institution’s business model and
investment strategy, mandatory requirements to engage, for example through
voting, may be ineffective and lead to a box-ticking approach.
The Principles recommend that institutional investors disclose their
policies with respect to corporate governance. Voting at shareholder meetings
is, however, only one channel for shareholder engagement. Direct contact and
dialogue with the board and management, represent other forms of
shareholder engagement that are frequently used. In recent years, some
countries have begun to consider adoption of codes on shareholder engagement
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(“stewardship codes”) that institutional investors are invited to sign up to on a
voluntary basis.
A. Institutional investors acting in a fiduciary capacity should disclose their
corporate governance and voting policies with respect to their investments,
including the procedures that they have in place for deciding on the use of
their voting rights.
The effectiveness and credibility of the entire corporate governance
framework and company oversight depend to a large extent on institutional
investors’ willingness and ability to make informed use of their shareholder
rights and effectively exercise their ownership functions in companies in
which they invest. While this principle does not require institutional investors
to vote their shares, it calls for disclosure of how they exercise their ownership
rights with due consideration to cost effectiveness. For institutions acting in a
fiduciary capacity, such as pension funds, collective investment schemes and
some activities of insurance companies, and asset managers acting on their
behalf, the right to vote can be considered part of the value of the investment
being undertaken on behalf of their clients. Failure to exercise the ownership
rights could result in a loss to the investor who should therefore be made
aware of the policy to be followed by the institutional investors.
In some countries, the demand for disclosure of corporate governance
policies to the market is quite detailed and includes requirements for explicit
strategies regarding the circumstances in which the institution will intervene in
a company; the approach they will use for such intervention; and how they will
assess the effectiveness of the strategy. Disclosure of actual voting records is
regarded as good practice, especially where an institution has a declared policy
to vote. Disclosure is either to their clients (only with respect to the securities of
each client) or, in the case of investment advisors to registered investment
companies, to the market. A complementary approach to participation in
shareholders’ meetings is to establish a continuing dialogue with portfolio
companies. Such a dialogue between institutional investors and companies
should be encouraged, although it is incumbent on the company to treat all
investors equally and not to divulge information to the institutional investors
which is not at the same time made available to the market. The additional
information provided by a company would normally therefore include general
background information about the markets in which the company is operating
and further elaboration of information already available to the market.
When institutional investors have developed and disclosed a corporate
governance policy, effective implementation requires that they also set aside
the appropriate human and financial resources to pursue this policy in a way
that their beneficiaries and portfolio companies can expect. The nature and
practical implementation of an active corporate governance policy by such
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institutional investors, including staffing, should be transparent to clients
who rely on institutional investors with active corporate governance policies.
B. Votes should be cast by custodians or nominees in line with the directions
of the beneficial owner of the shares.
Custodian institutions holding securities as nominees for customers
should not be permitted to cast the votes on those securities unless they have
received specific instructions to do so. In some jurisdictions, listing
requirements contain broad lists of items on which custodians may not vote
without instruction, while leaving this possibility open for certain routine
items. Rules should require custodian institutions to provide shareholders
with timely information concerning their options in the exercise of their
voting rights. Shareholders may elect to vote by themselves or to delegate all
voting rights to custodians. Alternatively, shareholders may choose to be
informed of all upcoming shareholder votes and may decide to cast some
votes while delegating some voting rights to the custodian.
Holders of depository receipts should be provided with the same ultimate
rights and practical opportunities to participate in corporate governance as
are accorded to holders of the underlying shares. Where the direct holders of
shares may use proxies, the depositary, trust office or equivalent body should
therefore issue proxies on a timely basis to depository receipt holders. The
depository receipt holders should be able to issue binding voting instructions
with respect to the shares, which the depositary or trust office holds on their
behalf.
It should be noted that this principle does not apply to the exercise of
voting rights by trustees or other persons acting under a special legal mandate
(such as, for example, bankruptcy receivers and estate executors).
C. Institutional investors acting in a fiduciary capacity should disclose how
they manage material conflicts of interest that may affect the exercise of
key ownership rights regarding their investments.
The incentives for intermediary owners to vote their shares and exercise
key ownership functions may, under certain circumstances, differ from those of
direct owners. Such differences may sometimes be commercially sound but may
also arise from conflicts of interest which are particularly acute when the
fiduciary institution is a subsidiary or an affiliate of another financial institution,
and especially an integrated financial group. When such conflicts arise from
material business relationships, for example, through an agreement to manage
the portfolio company’s funds, such conflicts should be identified and disclosed.
At the same time, institutions should disclose what actions they are
taking to minimise the potentially negative impact on their ability to exercise
key ownership rights. Such actions may include the separation of bonuses for
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fund management from those related to the acquisition of new business
elsewhere in the organisation. Fee structures for asset management and other
intermediary services should be transparent.
D. The corporate governance framework should require that proxy advisors,
analysts, brokers, rating agencies and others that provide analysis or
advice relevant to decisions by investors, disclose and minimise conflicts
of interest that might compromise the integrity of their analysis or advice.
The investment chain from ultimate owners to corporations does not
only involve multiple intermediary owners. It also includes a wide variety of
professions that offer advice and services to intermediary owners. Proxy
advisors who offer recommendations to institutional investors on how to vote
and sell services that help in the process of voting are among the most
relevant from a direct corporate governance perspective. In some cases, proxy
advisors also offer corporate governance related consulting services to
corporations. Other service providers rate companies according to various
corporate governance criteria. Analysts, brokers and rating agencies, perform
similar roles and face the same potential conflicts of interest.
Considering the importance of – and sometimes dependence on – various
services in corporate governance, the corporate governance framework should
promote the integrity of professions such as analysts, brokers, rating agencies,
and proxy advisors. When managed appropriately, these can play an
important role in shaping good corporate governance practices. At the same
time, conflicts of interest may arise and affect judgement, such as when the
provider of advice is also seeking to provide other services to the company in
question, or where the provider has a direct material interest in the company
or its competitors. Many jurisdictions have adopted regulations or encouraged
the implementation of self-regulatory codes designed to mitigate such
conflicts of interest or other risks related to integrity, and have provided for
private and/or public monitoring arrangements.
Providers of proxy advisory services should, where appropriate in each
context, disclose publicly and/or to investor clients the process and
methodology that underpin their recommendations, and the criteria for their
voting policies relevant for their clients.
E. Insider trading and market manipulation should be prohibited and the
applicable rules enforced.
As insider trading entails manipulation of the capital markets, it is
prohibited by securities regulations, company law and/or criminal law in most
countries. These practices can be seen as constituting a breach of good
corporate governance as they violate the principle of equitable treatment of
shareholders. However, the effectiveness of such prohibition depends on
vigorous enforcement action.
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F. For companies who are listed in a jurisdiction other than their jurisdiction
of incorporation, the applicable corporate governance laws and regulations
should be clearly disclosed. In the case of cross listings, the criteria and
procedure for recognising the listing requirements of the primary listing
should be transparent and documented.
It is increasingly common that companies are listed or traded at venues
located in a different jurisdiction than the one where the company is
incorporated. This may create uncertainty among investors about which
corporate governance rules and regulations apply for that company. It may
concern everything from procedures and locations for the annual shareholders
meeting, to minority rights. The company should therefore clearly disclose
which jurisdiction’s rules are applicable. When key corporate governance
provisions fall under another jurisdiction than the jurisdiction of trading, the
main differences should be noted.
Another important consequence of increased internationalisation and
integration of stock markets is the prevalence of secondary listings of an
already listed company on another stock exchange, so called cross-listings.
Companies with cross-listings are often subject to the regulations and
authorities of the jurisdiction where they have their primary listing. In case of
a secondary listing, exceptions from local listing rules are typically granted
based on the recognition of the listing requirements and corporate governance
regulations of the exchange where the company has its primary listing. Stock
markets should clearly disclose the rules and procedures that apply to crosslistings
and related exceptions from local corporate governance rules.
G. Stock markets should provide fair and efficient price discovery as a means
to help promote effective corporate governance.
Effective corporate governance means that shareholders should be able
to monitor and assess their corporate investments by comparing marketrelated
information with the company’s information about its prospects and
performance. When shareholders believe it is advantageous, they can either
use their voice to influence corporate behaviour, sell their shares (or buy
additional shares), or re-evaluate a company’s shares in their portfolios. The
quality of and access to market information including fair and efficient price
discovery regarding their investments is therefore important for shareholders
to exercise their rights.
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IV. The role of stakeholders
in corporate governance
The corporate governance framework should recognise the rights
of stakeholders established by law or through mutual agreements
and encourage active co-operation between corporations
and stakeholders in creating wealth, jobs, and the sustainability
of financially sound enterprises.
A key aspect of corporate governance is concerned with ensuring the flow
of external capital to companies both in the form of equity and credit.
Corporate governance is also concerned with finding ways to encourage the
various stakeholders in the firm to undertake economically optimal levels of
investment in firm-specific human and physical capital. The competitiveness
and ultimate success of a corporation is the result of teamwork that embodies
contributions from a range of different resource providers including investors,
employees, creditors, customers and suppliers, and other stakeholders.
Corporations should recognise that the contributions of stakeholders
constitute a valuable resource for building competitive and profitable
companies. It is, therefore, in the long-term interest of corporations to foster
wealth-creating co-operation among stakeholders. The governance framework
should recognise the interests of stakeholders and their contribution to the
long-term success of the corporation.
A. The rights of stakeholders that are established by law or through mutual
agreements are to be respected.
The rights of stakeholders are often established by law (e.g. labour,
business, commercial, environmental, and insolvency laws) or by contractual
relations that companies must respect. Nevertheless, even in areas where
stakeholder interests are not legislated, many firms make additional
commitments to stakeholders, and concern over corporate reputation and
corporate performance often requires the recognition of broader interests. For
multinational enterprises, this may in some jurisdictions be achieved by
companies using the OECD Guidelines for Multinational Enterprises for due
diligence procedures that address the impact of such commitments.
B. Where stakeholder interests are protected by law, stakeholders should
have the opportunity to obtain effective redress for violation of their rights.
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The legal framework and process should be transparent and not impede
the ability of stakeholders to communicate and to obtain redress for the
violation of rights.
C. Mechanisms for employee participation should be permitted to develop.
The degree to which employees participate in corporate governance
depends on national laws and practices, and may vary from company to
company as well. In the context of corporate governance, mechanisms for
participation may benefit companies directly as well as indirectly through the
readiness by employees to invest in firm specific skills. Examples of
mechanisms for employee participation include: employee representation on
boards; and governance processes such as works councils that consider
employee viewpoints in certain key decisions. International conventions and
national norms also recognise the rights of employees to information,
consultation and negotiation. With respect to performance enhancing
mechanisms, employee stock ownership plans or other profit sharing
mechanisms are to be found in many countries. Pension commitments are also
often an element of the relationship between the company and its past and
present employees. Where such commitments involve establishing an
independent fund, its trustees should be independent of the company’s
management and manage the fund for all beneficiaries.
D. Where stakeholders participate in the corporate governance process, they
should have access to relevant, sufficient and reliable information on a
timely and regular basis.
Where laws and practice of corporate governance frameworks provide for
participation by stakeholders, it is important that stakeholders have access to
information necessary to fulfil their responsibilities.
E. Stakeholders, including individual employees and their representative
bodies, should be able to freely communicate their concerns about illegal
or unethical practices to the board and to the competent public authorities
and their rights should not be compromised for doing this.
Unethical and illegal practices by corporate officers may not only violate
the rights of stakeholders but also be to the detriment of the company and its
shareholders in terms of reputation effects and an increasing risk of future
financial liabilities. It is therefore to the advantage of the company and its
shareholders to establish procedures and safe-harbours for complaints by
employees, either personally or through their representative bodies, and
others outside the company, concerning illegal and unethical behaviour. The
board should be encouraged by laws and or principles to protect these
individuals and representative bodies and to give them confidential direct
access to someone independent on the board, often a member of an audit or
an ethics committee. Some companies have established an ombudsman to
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deal with complaints. Several regulators have also established confidential
phone and e-mail facilities to receive allegations. While in certain countries
representative employee bodies undertake the tasks of conveying concerns to
the company, individual employees should not be precluded from, or be less
protected, when acting alone. In the absence of timely remedial action or in
the face of reasonable risk of negative employment action to a complaint
regarding contravention of the law, employees are encouraged to report their
bona fide complaint to the competent authorities. Many countries also provide
for the possibility to bring cases of violations of the OECD Guidelines for
Multinational Enterprises to the National Contact Point. The company should
refrain from discriminatory or disciplinary actions against such employees or
bodies.
F. The corporate governance framework should be complemented by an
effective, efficient insolvency framework and by effective enforcement of
creditor rights.
Creditors are a key stakeholder and the terms, volume and type of credit
extended to firms will depend importantly on their rights and on their
enforceability. Companies with a good corporate governance record are often
able to borrow larger sums and on more favourable terms than those with
poor records or which operate in less transparent markets. The framework for
corporate insolvency varies widely across countries. In some countries, when
companies are nearing insolvency, the legislative framework imposes a duty
on directors to act in the interests of creditors, who might therefore play a
prominent role in the governance of the company. Other countries have
mechanisms which encourage the debtor to reveal timely information about
the company’s difficulties so that a consensual solution can be found between
the debtor and its creditors.
Creditor rights also vary, ranging from secured bond holders to unsecured
creditors. Insolvency procedures usually require efficient mechanisms for
reconciling the interests of different classes of creditors. In many jurisdictions
provision is made for special rights such as through “debtor in possession”
financing which provides incentives/protection for new funds made available
to the enterprise in bankruptcy.
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V. Disclosure and transparency
The corporate governance framework should ensure that timely
and accurate disclosure is made on all material matters regarding
the corporation, including the financial situation, performance,
ownership, and governance of the company.
In most countries a large amount of information, both mandatory and
voluntary, is compiled on publicly traded and large unlisted enterprises, and
subsequently disseminated to a broad range of users. Public disclosure is
typically required, at a minimum, on an annual basis though some countries
require periodic disclosure on a semi-annual or quarterly basis, or even more
frequently in the case of material developments affecting the company.
Companies often make voluntary disclosure that goes beyond minimum
disclosure requirements in response to market demand.
The Principles support timely disclosure of all material developments that
arise between regular reports. They also support simultaneous reporting of
material or required information to all shareholders in order to ensure their
equitable treatment. In maintaining close relations with investors and market
participants, companies must be careful not to violate this fundamental
principle of equitable treatment.
Disclosure requirements are not expected to place unreasonable
administrative or cost burdens on enterprises. Nor are companies expected to
disclose information that may endanger their competitive position unless
disclosure is necessary to fully inform the investment decision and to avoid
misleading the investor. In order to determine what information should be
disclosed at a minimum, many countries apply the concept of materiality.
Material information can be defined as information whose omission or
misstatement could influence the economic decisions taken by users of
information. Material information can also be defined as information that a
reasonable investor would consider important in making an investment or
voting decision.
A strong disclosure regime that promotes real transparency is a pivotal
feature of market-based monitoring of companies and is central to
shareholders’ ability to exercise their shareholder rights on an informed basis.
Experience shows that disclosure can also be a powerful tool for influencing
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the behaviour of companies and for protecting investors. A strong disclosure
regime can help to attract capital and maintain confidence in the capital
markets. By contrast, weak disclosure and non-transparent practices can
contribute to unethical behaviour and to a loss of market integrity at great
cost, not just to the company and its shareholders but also to the economy as
a whole. Shareholders and potential investors require access to regular,
reliable and comparable information in sufficient detail for them to assess the
stewardship of management, and make informed decisions about the
valuation, ownership and voting of shares. Insufficient or unclear information
may hamper the ability of the markets to function, increase the cost of capital
and result in a poor allocation of resources.
Disclosure also helps improve public understanding of the structure and
activities of enterprises, corporate policies and performance with respect to
environmental and ethical standards, and companies’ relationships with the
communities in which they operate. The OECD Guidelines for Multinational
Enterprises may, in many jurisdictions be relevant for multinational enterprises.
A. Disclosure should include, but not be limited to, material information on:
1. The financial and operating results of the company.
Audited financial statements showing the financial performance and the
financial situation of the company (most typically including the balance sheet,
the profit and loss statement, the cash flow statement and notes to the
financial statements) are the most widely used source of information on
companies. They enable appropriate monitoring to take place and also help to
value securities. Management’s discussion and analysis of operations is
typically included in annual reports. This discussion is most useful when read
in conjunction with the accompanying financial statements. Investors are
particularly interested in information that may shed light on the future
performance of the enterprise.
Arguably, failures of governance can often be linked to the failure to
disclose the “whole picture”, particularly where off-balance sheet items are
used to provide guarantees or similar commitments between related companies.
It is therefore important that transactions relating to an entire group of
companies be disclosed in line with high quality internationally recognised
standards and include information about contingent liabilities and offbalance
sheet transactions, as well as special purpose entities.
2. Company objectives and non-financial information.
In addition to their commercial objectives, companies are encouraged to
disclose policies and performance relating to business ethics, the environment
and, where material to the company, social issues, human rights and other
public policy commitments. Such information may be important for certain
investors and other users of information to better evaluate the relationship
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between companies and the communities in which they operate and the steps
that companies have taken to implement their objectives.
In many countries, such disclosures are required for large companies,
typically as part of their management reports, or companies disclose nonfinancial
information voluntarily. This may include disclosure of donations for
political purposes, particularly where such information is not easily available
through other disclosure channels.
Some countries require additional disclosures for large companies, for
example net turnover figures or payments made to governments broken down
by categories of activity and country (country-by-country reporting).
3. Major share ownership, including beneficial owners, and voting rights.
One of the basic rights of investors is to be informed about the ownership
structure of the enterprise and their rights vis-à-vis the rights of other owners.
The right to such information should also extend to information about the
structure of a group of companies and intra-group relations. Such disclosures
should make transparent the objectives, nature and structure of the group.
Disclosure of ownership data should be provided once certain thresholds of
ownership are passed. Such disclosure might include data on major
shareholders and others that, directly or indirectly, significantly influence or
control or may significantly influence or control the company through, for
example, special voting rights, shareholder agreements, the ownership of
controlling or large blocks of shares, significant cross shareholding relationships
and cross guarantees. It is also good practice to disclose shareholdings of
directors, including non-executives.
Particularly for enforcement purposes, and to identify potential conflicts
of interest, related party transactions and insider trading, information about
record ownership needs to be complemented with current information about
beneficial ownership. In cases where major shareholdings are held through
intermediary structures or arrangements, information about the beneficial
owners should therefore be obtainable at least by regulatory and enforcement
agencies and/or through the judicial process. In addition, the OECD template
Options for Obtaining Beneficial Ownership and Control Information and the
Financial Action Task Force’s Guidance on Transparency and Beneficial
Ownership can be useful in this regard.
4. Remuneration of members of the board and key executives.
Information about board and executive remuneration is also of concern to
shareholders. Of particular interest is the link between remuneration and longterm
company performance. Companies are generally expected to disclose
information on the remuneration of board members and key executives so that
investors can assess the costs and benefits of remuneration plans and the
contribution of incentive schemes, such as stock option schemes, to company
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performance. Disclosure on an individual basis (including termination and
retirement provisions) is increasingly regarded as good practice and is now
mandated in many countries. In these cases, some jurisdictions call for
remuneration of a certain number of the highest paid executives to be disclosed,
while in others it is confined to specified positions.
5. Information about board members, including their qualifications, the
selection process, other company directorships and whether they are
regarded as independent by the board.
Investors require information on individual board members and key
executives in order to evaluate their experience and qualifications and assess
any potential conflicts of interest that might affect their judgement. For board
members, the information should include their qualifications, share
ownership in the company, membership of other boards, other executive
positions, and whether they are considered by the board to be an
independent member. It is important to disclose membership of other boards
not only because it is an indication of experience and possible time pressures
facing a member of the board, but also because it may reveal potential
conflicts of interest and makes transparent the degree to which there are
inter-locking boards.
National principles, and in some cases laws, lay down specific duties for
board members who can be regarded as independent and recommend that a
significant part, in some instances a majority, of the board should be
independent. It should be incumbent on the board to set out the reasons why a
member of the board can be considered independent. It is then up to the
shareholders, and ultimately the market, to determine if those reasons are
justified. Several countries have concluded that companies should disclose the
selection process and especially whether it was open to a broad field of
candidates. Such information should be provided in advance of any decision by
the general shareholder’s meeting or on a continuing basis if the situation has
changed materially.
6. Related party transactions.
To ensure that the company is being run with due regard to the interests of
all its investors, it is essential to fully disclose all material related party
transactions and the terms of such transactions to the market individually. In
many jurisdictions this is indeed already a legal requirement. In case the
jurisdiction does not define materiality, companies should be required to also
disclose the policy/criteria adopted for determining material related party
transactions. Related parties should at least include entities that control or are
under common control with the company, significant shareholders including
members of their families and key management personnel. While the definition
of related parties in internationally accepted accounting standards provides a
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useful reference, the corporate governance framework should ensure that all
related parties are properly identified and that in cases where specific interests
of related parties are present, material transactions with consolidated subsidiaries
are also disclosed.
Transactions involving the major shareholders (or their close family,
relations, etc.), either directly or indirectly, are potentially the most difficult type
of transactions. In some jurisdictions, shareholders above a limit as low as 5 per
cent shareholding are obliged to report transactions. Disclosure requirements
include the nature of the relationship where control exists and the nature and
amount of transactions with related parties, grouped as appropriate. Given the
inherent opaqueness of many transactions, the obligation may need to be
placed on the beneficiary to inform the board about the transaction, which in
turn should make a disclosure to the market. This should not absolve the firm
from maintaining its own monitoring, which is an important task for the board.
To make disclosure more informative, some jurisdictions distinguish
related party transactions according to their materiality and conditions.
Ongoing disclosure of material transactions is required, with a possible
exception for recurrent transactions on “market terms”, which can be disclosed
only in periodic reports. To be effective, disclosure thresholds may need to be
based mainly on quantitative criteria, but avoidance of disclosure through
splitting of transactions with the same related party should not be permitted.
7. Foreseeable risk factors.
Users of financial information and market participants need information
on reasonably foreseeable material risks that may include: risks that are
specific to the industry or the geographical areas in which the company
operates; dependence on commodities; financial market risks including
interest rate or currency risk; risk related to derivatives and off-balance sheet
transactions; business conduct risks; and risks related to the environment.
The Principles envision the disclosure of sufficient and comprehensive
information to fully inform investors of the material and foreseeable risks of
the enterprise. Disclosure of risk is most effective when it is tailored to the
particular company and industry in question. Disclosure about the system for
monitoring and managing risk is increasingly regarded as good practice.
8. Issues regarding employees and other stakeholders.
Companies are encouraged, and in some countries even obliged, to provide
information on key issues relevant to employees and other stakeholders that
may materially affect the performance of the company or that may have
significant impacts upon them. Disclosure may include management/employee
relations, including remuneration, collective bargaining coverage, and
mechanisms for employee representation, and relations with other stakeholders
such as creditors, suppliers, and local communities.
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Some countries require extensive disclosure of information on human
resources. Human resource policies, such as programmes for human resource
development and training, retention rates of employees and employee share
ownership plans, can communicate important information on the
competitive strengths of companies to market participants.
9. Governance structures and policies, including the content of any corporate
governance code or policy and the process by which it is implemented.
Companies should report their corporate governance practices, and such
disclosure should be mandated as part of the regular reporting. Companies
should implement corporate governance principles set, or endorsed, by the
regulatory or listing authority with mandatory reporting on a “comply or
explain” or similar basis. Disclosure of the governance structures and policies
of the company, including, in the case of non-operating holding companies,
that of significant subsidiaries, is important for the assessment of a
company’s governance and should cover the division of authority between
shareholders, management and board members. Companies should clearly
disclose the different roles and responsibilities of the CEO and/or Chair and,
where a single person combines both roles, the rationale for this arrangement.
It is also good practice to disclose the articles of association, board charters
and, where applicable, committee structures and charters.
As a matter of transparency, procedures for shareholders meetings
should ensure that votes are properly counted and recorded, and that a timely
announcement of the outcome is made.
B. Information should be prepared and disclosed in accordance with high
quality standards of accounting and financial and non-financial reporting.
The application of high quality accounting and disclosure standards is
expected to significantly improve the ability of investors to monitor the
company by providing increased relevance, reliability and comparability of
reporting, and improved insight into company performance. Most countries
mandate the use of internationally recognised standards for financial
reporting, which can serve to improve transparency and the comparability of
financial statements and other financial reporting between countries. Such
standards should be developed through open, independent, and public
processes involving the private sector and other interested parties such as
professional associations and independent experts. High quality domestic
standards can be achieved by making them consistent with one of the
internationally recognised accounting standards. In many countries, listed
companies are required to use these standards.
C. An annual audit should be conducted by an independent, competent and
qualified, auditor in accordance with high-quality auditing standards in
order to provide an external and objective assurance to the board and
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shareholders that the financial statements fairly represent the financial
position and performance of the company in all material respects.
In addition to certifying that the financial statements represent fairly the
financial position of a company, the audit statement should also include an
opinion on the way in which financial statements have been prepared and
presented. This should contribute to an improved control environment in the
company. In some jurisdictions, the external auditors are also required to
report on the company’s corporate governance.
The independence of auditors and their accountability to shareholders
should be required. The designation of an audit regulator independent from
the profession, consistent with the Core Principles of the International Forum
of Independent Audit Regulators (IFIAR), is an important factor in improving
audit quality.
It is good practice for external auditors to be recommended by an
independent audit committee of the board or an equivalent body and to be
appointed either by that committee/body or by shareholders directly.
Moreover, the IOSCO Principles of Auditor Independence and the Role of Corporate
Governance in Monitoring an Auditor’s Independence states that, “standards of
auditor independence should establish a framework of principles, supported
by a combination of prohibitions, restrictions, other policies and procedures
and disclosures, that addresses at least the following threats to independence:
self-interest, self-review, advocacy, familiarity and intimidation”.
The audit committee or an equivalent body should provide oversight of
the internal audit activities and should also be charged with overseeing the
overall relationship with the external auditor including the nature of nonaudit
services provided by the auditor to the company. Provision of non-audit
services by the external auditor to a company can significantly impair their
independence and might involve them auditing their own work. To deal with
the skewed incentives which may arise, the disclosure of payments to
external auditors for non-audit services should be required. Examples of
other provisions designed to promote auditor independence include, a total
ban or severe limitation on the nature of non-audit work which can be
undertaken by an auditor for their audit client, mandatory rotation of
auditors (either partners or in some cases the audit partnership), a fixed
tenure for auditors, joint audits, a temporary ban on the employment of an
ex-auditor by the audited company and prohibiting auditors or their
dependents from having a financial stake or management role in the
companies they audit. Some countries take a more direct regulatory approach
and limit the percentage of non-audit income that the auditor can receive
from a particular client or limit the total percentage of auditor income that
can come from one client.
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An issue which has arisen in some jurisdictions concerns the pressing
need to ensure the competence of the audit profession. A registration process
for individuals to confirm their qualifications is considered good practice. This
needs, however, to be supported by ongoing training and monitoring of work
experience to ensure appropriate levels of professional competence and
scepticism.
D. External auditors should be accountable to the shareholders and owe a
duty to the company to exercise due professional care in the conduct of
the audit.
The practice that external auditors are recommended by an independent
audit committee of the board or an equivalent body and that external auditors
are appointed either by that committee/body or by the shareholders’ meeting
directly can be regarded as good practice since it clarifies that the external
auditor should be accountable to the shareholders. It also underlines that the
external auditor owes a duty of due professional care to the company rather
than any individual or group of corporate managers that they may interact
with for the purpose of their work.
E. Channels for disseminating information should provide for equal, timely
and cost-efficient access to relevant information by users.
Channels for the dissemination of information can be as important as the
content of the information itself. While the disclosure of information is often
provided for by legislation, filing and access to information can be
cumbersome and costly. Filing of statutory reports has been greatly enhanced
in some countries by electronic filing and data retrieval systems. Countries
should move to the next stage by integrating different sources of company
information, including shareholder filings. Company websites also provide
the opportunity for improving information dissemination, and some countries
now require companies to have a website that provides relevant and
significant information about the company itself.
Provisions for ongoing disclosure which includes periodic disclosure and
continuous or current disclosure which must be provided on an ad hoc basis
should be required. With respect to continuous/current disclosure, good
practice is to call for “immediate” disclosure of material developments,
whether this means “as soon as possible” or is defined as a prescribed
maximum number of specified days. The IOSCO Principles for Periodic Disclosure
by Listed Entities set guidance for the periodic reports of companies that have
securities listed or admitted to trading on a regulated market on which retail
investors participate. The IOSCO Principles for Ongoing Disclosure and Material
Development Reporting by Listed Entities set forth common principles of ongoing
disclosure and material development reporting for listed companies.
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VI. The responsibilities of the board
The corporate governance framework should ensure the strategic
guidance of the company, the effective monitoring of management
by the board, and the board’s accountability to the company
and the shareholders.
Board structures and procedures vary both within and among countries.
Some countries have two-tier boards that separate the supervisory function and
the management function into different bodies. Such systems typically have a
“supervisory board” composed of non-executive board members and a
“management board” composed entirely of executives. Other countries have
“unitary” boards, which bring together executive and non-executive board
members. In some countries there is also an additional statutory body for audit
purposes. The Principles are intended to apply to whatever board structure is
charged with the functions of governing the enterprise and monitoring
management.
Together with guiding corporate strategy, the board is chiefly responsible
for monitoring managerial performance and achieving an adequate return for
shareholders, while preventing conflicts of interest and balancing competing
demands on the corporation. In order for boards to effectively fulfil their
responsibilities they must be able to exercise objective and independent
judgement. Another important board responsibility is to oversee the risk
management system and systems designed to ensure that the corporation
obeys applicable laws, including tax, competition, labour, environmental,
equal opportunity, health and safety laws. In some countries, companies have
found it useful to explicitly articulate the responsibilities that the board
assumes and those for which management is accountable.
The board is not only accountable to the company and its shareholders but
also has a duty to act in their best interests. In addition, boards are expected to
take due regard of, and deal fairly with, other stakeholder interests including
those of employees, creditors, customers, suppliers and local communities.
Observance of environmental and social standards is relevant in this context.
A. Board members should act on a fully informed basis, in good faith, with
due diligence and care, and in the best interest of the company and the
shareholders.
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In some countries, the board is legally required to act in the interest of the
company, taking into account the interests of shareholders, employees, and
the public good. Acting in the best interest of the company should not permit
management to become entrenched.
This principle states the two key elements of the fiduciary duty of board
members: the duty of care and the duty of loyalty. The duty of care requires
board members to act on a fully informed basis, in good faith, with due diligence
and care. In some jurisdictions there is a standard of reference which is the
behaviour that a reasonably prudent person would exercise in similar
circumstances. In nearly all jurisdictions, the duty of care does not extend to
errors of business judgement so long as board members are not grossly negligent
and a decision is made with due diligence, etc. The principle calls for board
members to act on a fully informed basis. Good practice takes this to mean that
they should be satisfied that key corporate information and compliance systems
are fundamentally sound and underpin the key monitoring role of the board
advocated by the Principles. In many jurisdictions this meaning is already
considered an element of the duty of care, while in others it is required by
securities regulation, accounting standards, etc. The duty of loyalty is of central
importance, since it underpins effective implementation of other principles in
this document relating to, for example, the equitable treatment of shareholders,
monitoring of related party transactions and the establishment of remuneration
policy for key executives and board members. It is also a key principle for board
members who are working within the structure of a group of companies: even
though a company might be controlled by another enterprise, the duty of loyalty
for a board member relates to the company and all its shareholders and not to
the controlling company of the group.
B. Where board decisions may affect different shareholder groups differently,
the board should treat all shareholders fairly.
In carrying out its duties, the board should not be viewed, or act, as an
assembly of individual representatives for various constituencies. While
specific board members may indeed be nominated or elected by certain
shareholders (and sometimes contested by others) it is an important feature
of the board’s work that board members when they assume their
responsibilities carry out their duties in an even-handed manner with respect
to all shareholders. This principle is particularly important to establish in the
presence of controlling shareholders that de facto may be able to select all
board members.
C. The board should apply high ethical standards. It should take into account
the interests of stakeholders.
The board has a key role in setting the ethical tone of a company, not only
by its own actions, but also in appointing and overseeing key executives and
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consequently the management in general. High ethical standards are in the
long term interests of the company as a means to make it credible and
trustworthy, not only in day-to-day operations but also with respect to longer
term commitments. To make the objectives of the board clear and operational,
many companies have found it useful to develop company codes of conduct
based on, inter alia, professional standards and sometimes broader codes of
behaviour, and to communicate them throughout the organisation. The latter
might include a voluntary commitment by the company (including its
subsidiaries) to comply with the OECD Guidelines for Multinational Enterprises
which reflect all four principles contained in the ILO Declaration on Fundamental
Principles and Rights at Work. Similarly, jurisdictions are increasingly demanding
that boards oversee the finance and tax planning strategies management is
allowed to conduct, thus discouraging practices, for example the pursuit of
aggressive tax avoidance, that do not contribute to the long term interests of
the company and its shareholders, and can cause legal and reputational risks.
Company-wide codes serve as a standard for conduct by both the board
and key executives, setting the framework for the exercise of judgement in
dealing with varying and often conflicting constituencies. At a minimum, the
ethical code should set clear limits on the pursuit of private interests,
including dealings in the shares of the company. An overall framework for
ethical conduct goes beyond compliance with the law, which should always be
a fundamental requirement.
D. The board should fulfil certain key functions, including:
1. Reviewing and guiding corporate strategy, major plans of action, risk
management policies and procedures, annual budgets and business
plans; setting performance objectives; monitoring implementation
and corporate performance; and overseeing major capital expenditures,
acquisitions and divestitures.
An area of increasing importance for boards and which is closely related
to corporate strategy is oversight of the company’s risk management. Such
risk management oversight will involve oversight of the accountabilities and
responsibilities for managing risks, specifying the types and degree of risk
that a company is willing to accept in pursuit of its goals, and how it will
manage the risks it creates through its operations and relationships. It is thus
a crucial guideline for management that must manage risks to meet the
company’s desired risk profile.
2. Monitoring the effectiveness of the company’s governance practices and
making changes as needed.
Monitoring of governance by the board also includes continuous review of
the internal structure of the company to ensure that there are clear lines of
accountability for management throughout the organisation. In addition to
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requiring the monitoring and disclosure of corporate governance practices on
a regular basis, many countries have moved to recommend, or indeed
mandate, self-assessment by boards of their performance as well as
performance reviews of individual board members and the Chair and the CEO.
3. Selecting, compensating, monitoring and, when necessary, replacing key
executives and overseeing succession planning.
In most two tier board systems the supervisory board is also responsible
for appointing the management board which will normally comprise most of
the key executives.
4. Aligning key executive and board remuneration with the longer term
interests of the company and its shareholders.
It is regarded as good practice for boards to develop and disclose a
remuneration policy statement covering board members and key executives.
Such policy statements specify the relationship between remuneration and
performance, and include measurable standards that emphasise the longer
run interests of the company over short term considerations. Policy
statements generally tend to set conditions for payments to board members
for extra-board activities, such as consulting. They also often specify terms to
be observed by board members and key executives about holding and trading
the stock of the company, and the procedures to be followed in granting and
re-pricing of options. In some countries, policy also covers the payments to be
made when hiring and/or terminating the contract of an executive.
In large companies, it is considered good practice that remuneration
policy and contracts for board members and key executives be handled by a
special committee of the board comprising either wholly or a majority of
independent directors and excluding executives that serve on each other’s
remuneration committees, which could lead to conflicts of interest. The
introduction of malus and claw-back provisions is considered good practice.
They grant the company the right to withhold and recover compensation from
executives in cases of managerial fraud and other circumstances, for example
when the company is required to restate its financial statements due to
material noncompliance with financial reporting requirements.
5. Ensuring a formal and transparent board nomination and election process.
These Principles promote an active role for shareholders in the
nomination and election of board members. The board has an essential role to
play in ensuring that this and other aspects of the nominations and election
process are respected. First, while actual procedures for nomination may
differ among countries, the board or a nomination committee has a special
responsibility to make sure that established procedures are transparent and
respected. Second, the board has a key role in defining the general or
individual profile of board members that the company may need at any given
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time, considering the appropriate knowledge, competencies and expertise to
complement the existing skills of the board. Third, the board or nomination
committee has the responsibility to identify potential candidates to meet
desired profiles and propose them to shareholders, and/or consider those
candidates advanced by shareholders with the right to make nominations.
There are increasing calls for open search processes extending to a broad
range of people.
6. Monitoring and managing potential conflicts of interest of management,
board members and shareholders, including misuse of corporate
assets and abuse in related party transactions.
It is an important function of the board to oversee the internal control
systems covering financial reporting and the use of corporate assets and to
guard against abusive related party transactions. These functions are often
assigned to the internal auditor which should maintain direct access to the
board. Where other corporate officers are responsible such as the general
counsel, it is important that they maintain similar reporting responsibilities as
the internal auditor.
In fulfilling its control oversight responsibilities it is important for the
board to encourage the reporting of unethical/unlawful behaviour without
fear of retribution. The existence of a company code of ethics should aid this
process which should be underpinned by legal protection for the individuals
concerned. A contact point for employees who wish to report concerns about
unethical or illegal behaviour that might also compromise the integrity of
financial statements should be offered by the audit committee or by an ethics
committee or equivalent body.
7. Ensuring the integrity of the corporation’s accounting and financial
reporting systems, including the independent audit, and that appropriate
systems of control are in place, in particular, systems for risk management,
financial and operational control, and compliance with the law and
relevant standards.
The Board should demonstrate a leadership role to ensure that an
effective means of risk oversight is in place. Ensuring the integrity of the
essential reporting and monitoring systems will require the board to set and
enforce clear lines of responsibility and accountability throughout the
organisation. The board will also need to ensure that there is appropriate
oversight by senior management. Normally, this includes the establishment of
an internal audit system directly reporting to the board. It is considered good
practice for the internal auditors to report to an independent audit committee
of the board or an equivalent body which is also responsible for managing the
relationship with the external auditor, thereby allowing a co-ordinated
response by the board. It should also be regarded as good practice for this
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committee, or equivalent body, to review and report to the board the most
critical accounting policies which are the basis for financial reports. However,
the board should retain final responsibility for oversight of the company’s risk
management system and for ensuring the integrity of the reporting systems.
Some jurisdictions have provided for the chair of the board to report on the
internal control process. Companies with large or complex risks (financial and
non-financial), not only in the financial sector, should consider introducing
similar reporting systems, including direct reporting to the board, with regard
to risk management.
Companies are also well advised to establish and ensure the effectiveness
of internal controls, ethics, and compliance programmes or measures to
comply with applicable laws, regulations, and standards, including statutes
criminalising the bribery of foreign public officials, as required under the OECD
Anti-Bribery Convention, and other forms of bribery and corruption. Moreover,
compliance must also relate to other laws and regulations such as those
covering securities, competition and work and safety conditions. Other laws
that may be applicable include those relating to taxation, human rights, the
environment, fraud, and money laundering. Such compliance programmes will
also underpin the company’s ethical code. To be effective, the incentive
structure of the business needs to be aligned with its ethical and professional
standards so that adherence to these values is rewarded and breaches of law
are met with dissuasive consequences or penalties. Compliance programmes
should also extend to subsidiaries and where possible to third parties, such as
agents and other intermediaries, consultants, representatives, distributors,
contractors and suppliers, consortia, and joint venture partners.
8. Overseeing the process of disclosure and communications.
The functions and responsibilities of the board and management with
respect to disclosure and communication need to be clearly established by the
board. In some jurisdictions, the appointment of an investment relations
officer who reports directly to the board is considered good practice for large
listed companies.
E. The board should be able to exercise objective independent judgement
on corporate affairs.
In order to exercise its duties of monitoring managerial performance,
preventing conflicts of interest and balancing competing demands on the
corporation, it is essential that the board is able to exercise objective
judgement. In the first instance this will mean independence and objectivity
with respect to management with important implications for the composition
and structure of the board. Board independence in these circumstances
usually requires that a sufficient number of board members will need to be
independent of management.
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In countries with single tier board systems, the objectivity of the board
and its independence from management may be strengthened by the
separation of the role of chief executive and Chair. Separation of the two posts
is generally regarded as good practice, as it can help to achieve an appropriate
balance of power, increase accountability and improve the board’s capacity for
decision making independent of management. The designation of a lead
director is also regarded as a good practice alternative in some jurisdictions if
that role is defined with sufficient authority to lead the board in cases where
management has clear conflicts. Such mechanisms can also help to ensure
high quality governance of the enterprise and the effective functioning of the
board.
The Chairman or lead director may, in some countries, be supported by a
company secretary. In the case of two tier board systems, consideration
should be given to whether corporate governance concerns might arise if
there is a tradition for the head of the lower board becoming the Chairman of
the Supervisory Board on retirement.
The manner in which board objectivity might be underpinned also
depends on the ownership structure of the company. A dominant shareholder
has considerable powers to appoint the board and the management. However,
in this case, the board still has a fiduciary responsibility to the company and
to all shareholders including minority shareholders.
The variety of board structures, ownership patterns and practices in
different countries will thus require different approaches to the issue of board
objectivity. In many instances objectivity requires that a sufficient number of
board members not be employed by the company or its affiliates and not be
closely related to the company or its management through significant
economic, family or other ties. This does not prevent shareholders from being
board members. In others, independence from controlling shareholders or
another controlling body will need to be emphasised, in particular if the
ex ante rights of minority shareholders are weak and opportunities to obtain
redress are limited. This has led to both codes and the law in most jurisdictions
to call for some board members to be independent of dominant shareholders,
independence extending to not being their representative or having close
business ties with them. In other cases, parties such as particular creditors
can also exercise significant influence. Where there is a party in a special
position to influence the company, there should be stringent tests to ensure
the objective judgement of the board.
In defining independence for members of the board, some national
principles of corporate governance have specified quite detailed presumptions
for non-independence which are frequently reflected in listing requirements.
While establishing necessary conditions, such “negative” criteria defining
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when an individual is not regarded as independent can usefully be complemented
by “positive” examples of qualities that will increase the probability of effective
independence.
Independent board members can contribute significantly to the decisionmaking
of the board. They can bring an objective view to the evaluation of the
performance of the board and management. In addition, they can play an
important role in areas where the interests of management, the company and
its shareholders may diverge such as executive remuneration, succession
planning, changes of corporate control, take-over defences, large acquisitions
and the audit function. In order for them to play this key role, it is desirable
that boards declare who they consider to be independent and the criterion for
this judgement. Some jurisdictions also require separate meetings of
independent directors on a periodic basis.
1. Boards should consider assigning a sufficient number of non-executive
board members capable of exercising independent judgement to tasks
where there is a potential for conflict of interest. Examples of such key
responsibilities are ensuring the integrity of financial and non-financial
reporting, the review of related party transactions, nomination of board
members and key executives, and board remuneration.
While the responsibility for financial reporting, remuneration and
nomination are frequently with the board as a whole, independent nonexecutive
board members can provide additional assurance to market
participants that their interests are safeguarded. The board should consider
establishing specific committees to consider questions where there is a
potential for conflict of interest. These committees should require a minimum
number or be composed entirely of non-executive members. In some
countries, shareholders have direct responsibility for nominating and electing
non-executive directors to specialised functions.
2. Boards should consider setting up specialised committees to support
the full board in performing its functions, particularly in respect to
audit, and, depending upon the company’s size and risk profile, also
in respect to risk management and remuneration. When committees
of the board are established, their mandate, composition and working
procedures should be well defined and disclosed by the board.
Where justified in terms of the size of the company and its board, the use
of committees may improve the work of the board. In order to evaluate the
merits of board committees it is important that the market receives a full and
clear picture of their purpose, duties and composition. Such information is
particularly important in the many jurisdictions where boards have
established independent audit committees with powers to oversee the
relationship with the external auditor and to act in many cases independently.
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Audit committees should also be able to oversee the effectiveness and
integrity of the internal control system. Other such committees include those
dealing with nomination, compensation, and risk. The establishment of
additional committees can sometimes help avoid audit committee overload
and to allow more board time to be dedicated to those issues. Nevertheless,
the accountability of the rest of the board and the board as a whole should be
clear. Disclosure need not extend to committees set up to deal with, for
example, confidential commercial transactions.
3. Board members should be able to commit themselves effectively to their
responsibilities.
Service on too many boards can interfere with the performance of board
members. Some countries have limited the number of board positions that can be
held. Specific limitations may be less important than ensuring that members of
the board enjoy legitimacy and confidence in the eyes of shareholders. Disclosure
about other board memberships to shareholders is therefore a key instrument to
improve board nominations. Achieving legitimacy would also be facilitated by the
publication of attendance records for individual board members (e.g. whether
they have missed a significant number of meetings) and any other work
undertaken on behalf of the board and the associated remuneration.
4. Boards should regularly carry out evaluations to appraise their performance
and assess whether they possess the right mix of background and
competences.
In order to improve board practices and the performance of its members,
an increasing number of jurisdictions now encourage companies to engage in
board training and voluntary board evaluation that meet the needs of the
individual company. Particularly in large companies, board evaluation can be
supported by external facilitators to increase objectivity. Unless certain
qualifications are required, such as for financial institutions, this might
include that board members acquire appropriate skills upon appointment.
Thereafter, board members may remain abreast of relevant new laws,
regulations, and changing commercial and other risks through in-house
training and external courses. In order to avoid groupthink and bring a
diversity of thought to board discussion, boards should also consider if they
collectively possess the right mix of background and competences.
Countries may wish to consider measures such as voluntary targets,
disclosure requirements, boardroom quotas, and private initiatives that
enhance gender diversity on boards and in senior management.
F. In order to fulfil their responsibilities, board members should have access
to accurate, relevant and timely information.
Board members require relevant information on a timely basis in order to
support their decision-making. Non-executive board members do not
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typically have the same access to information as key managers within the
company. The contributions of non-executive board members to the company
can be enhanced by providing access to certain key managers within the
company such as, for example, the company secretary, the internal auditor,
and the head of risk management or chief risk officer, and recourse to
independent external advice at the expense of the company. In order to fulfil
their responsibilities, board members should ensure that they obtain accurate,
relevant and timely information. Where companies rely on complex risk
management models, board members should be made aware of the possible
shortcomings of such models.
G. When employee representation on the board is mandated, mechanisms
should be developed to facilitate access to information and training for
employee representatives, so that this representation is exercised
effectively and best contributes to the enhancement of board skills,
information and independence.
When employee representation on boards is mandated by the law or
collective agreements, or adopted voluntarily, it should be applied in a way
that maximises its contribution to the board’s independence, competence and
information. Employee representatives should have the same duties and
responsibilities as all other board members, and should act in the best interest
of the company.
Procedures should be established to facilitate access to information,
training and expertise, and the independence of employee board members
from the CEO and management. These procedures should also include
adequate, transparent appointment procedures, rights to report to employees
on a regular basis – provided that board confidentiality requirements are duly
respected – training, and clear procedures for managing conflicts of interest. A
positive contribution to the board’s work will also require acceptance and
constructive collaboration by other members of the board as well as by
management.
RECOMMENDATION OF THE COUNCIL ON PRINCIPLES OF CORPORATE GOVERNANCE
G20/OECD PRINCIPLES OF CORPORATE GOVERNANCE © OECD 2015
55
ANNEX
Recommendation of the Council
on Principles of Corporate Governance
8 July 2015
THE COUNCIL,
HAVING REGARD to Article 5b) of the Convention on the Organisation for
Economic Co-operation and Development of 14 December 1960;
HAVING REGARD to the Recommendation of the Council on OECD Guidelines
on Corporate Governance of State-Owned Enterprises which sets complementary
guidelines for state-owned enterprises;
HAVING REGARD to the Guidelines for Multinational Enterprises, which form an
integral part of the Declaration on International Investment and Multinational
Enterprises, the Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions, and the Recommendation of the Council on
Gender Equality in Education, Employment and Entrepreneurship;
CONSIDERING that the Principles have gained worldwide recognition and serve
as an important basis for national and international efforts to improve
corporate governance;
RECOGNISING that the implementation of the Principles depends on varying
legal, economic, social, and regulatory settings;
On the proposal of the Corporate Governance Committee:
I. RECOMMENDS that Members and non-Members having adhered to this
Recommendation (hereafter the “Adherents”) take due account of the Principles
which are set out in the Appendix to this Recommendation and form an integral
part thereof;
II. INVITES the Secretary-General to disseminate this Recommendation;
III. INVITES Adherents to disseminate this Recommendation;
IV. INVITES non-Adherents to take due account of and adhere to this
Recommendation;
RECOMMENDATION OF THE COUNCIL ON PRINCIPLES OF CORPORATE GOVERNANCE
G20/OECD PRINCIPLES OF CORPORATE GOVERNANCE © OECD 2015
56
V. INSTRUCTS the Corporate Governance Committee to follow-up on the
implementation of this Recommendation and to report to Council no later
than five years following its adoption and as appropriate thereafter.
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G20/OECD Principles of Corporate
Governance
The G20/OECD Principles of Corporate Governance help policy makers evaluate and
improve the legal, regulatory, and institutional framework for corporate governance.
They also provide guidance for stock exchanges, investors, corporations, and others
that have a role in the process of developing good corporate governance. First
issued in 1999, the Principles have become the international benchmark in corporate
governance. They have been adopted as one of the Financial Stability Board’s Key
Standards for Sound Financial Systems and endorsed by the G20.
This 2015 edition takes into account developments in both the financial and corporate
sectors that may influence the efficiency and relevance of corporate governance policies
and practices.