Corporate governance. A comparison between the US and the EU. Corporate governance: a US/EU comparison Miguel A. Mendez

Transcription

1 Corporate governance A comparison between the US and the EU

2 What is corporate governance? Shareholders (providers of capital) Owners Elects, reports, delegates Governing body ( Board(s) ) Governance Other parties Executive management Appoints, reports, delegates Operations Managers

3 Roles and prerogatives of the key players Shareholders Shareholders meetings Supervisory board Unitary / management board Executive management Governing body Unitary board Two-tier board

4 Factors shaping corporate governance Cultural and historical factors Control and shareholding structures Highly dispersed / fairly concentrated role of shareholders Economic model Consensus driven or market driven role of financial and markets forces Legal model Role and influence of various stakeholders Primacy of shareholders interest Primacy of the company s interest External or exceptional factors European integration and convergence Recent scandals ( Enron, WorldCom etc.)

5 Influence of economic and legal models on corporate governance Anglo-Saxon US - UK Continental/Rhineland Continental Europe Bank, network oriented Market oriented Consensus driven Competition driven winner take all Less developed Financial markets More developed Financial Markets Longer term strategy Shorter term strategy Greater reliance on debt Greater reliance on equity Stakeholders/ company focus Shareholder primacy Co-determination/ worker councils No employee involvement Concentrated ownership & control Dispersed shareholding structure Strong blockholders Strong managers weak owners weak dispersed owners

6 Whose interests is the board looking after? The shareholder s interest or The Company s interest Employees shareholders Creditors/ State/ Suppliers Community Customers Senior Management Customers Employees Senior Shareholders Management State/ Community Creditors/ Suppliers

7 Ownership and control patterns 100% 99% USA UK 98% % of companies having no holders with majority control 50% Sweden 84% Spain 74% Netherlands 67% 61% Italy 44% Germany Austria 36% 34% 36% 33% 32% Belgium 34% 0% 20% % of companies having no holder with at least 25% 17% 14% 6%

8 Separation of ownership and voting power Dispersed Voting power Concentrated US :Management thru proxy voting Ownership Dispersed Concentrated US - UK Management control is likely strong managers weak owners Companies in countries that allow voting right restrictions ( voting caps of 5% ) Continental Europe: Devices overriding one share one vote Other devices separating ownership and control Continental Europe US and the UK

9 One share one vote restrictions in Europe 39% comply with one share one vote 35% multiple voting rights 23% ceiling on voting rights 26% golden shares 16% non voting shares 10% ownership ceiling.

10 The rise of institutional ownership in the US 55.8% 46.9% 33.9% 19.4% 61.4% 57.2% 46.6% Equities held by inst. In markets Institutional ownership in top 1.000

11 Role of the governing body Promotes and safeguards the interests of the shareholders /the company and balances the various interests Oversees and monitors of all critical functions and exerts full control over the company s affairs Interacts with shareholders and senior management Organizes the functioning of said governing body Information flow meeting s agendas & schedules It appoints, removes management and sets its compensation It determines the strategic direction of the company capital allocation, lines of business, long range financial goals

12 Organizational structures Unitary structure Board of directors Executive & non-executive members Two-tier structure Supervisory board only non-executive members Quasi Two-tier structure Other board ( board of auditors ) Board of directors Executive & non-executive members committees committees committees Executive committee Management board Executive members only Managing Director

13 Unitary governance model: variations Shareholders Lead director chairman Lead director chairman Supervisory function Chairman&CEO Board Executive & non-executive members CEO + other executives Executive committee Management function

14 Two-tier structure details Larger Meets less frequently Employee represented Smaller Formal two-tier Supervisory board Management board Quasi-two-tier Supervisory board Management board No overlap in membership some overlap

15 Organizational framework Unitary board Separation of Chairman & CEO Unitary board Exec.committee Ireland UK Two tier board Netherlands Belgium Lux Denmark Germany Finland Unitary (exec.committee) two tier board Austria Italy Portugal Spain Unitary board Other board Exec.committee Greece

16 Concentration of power US vs UK 3% 3% 14% chairman is an independent director chairman is outside related party 70% chairman is former executive 79% Chairman & CEO 24% US S&P 500 UK FTSE 100 5%

17 Board representation: the actors Significant or controlling shareholders Independent directors (Representing the shareholders at large) Executive directors Employees

18 Board representation: the shakers and movers (Weight and influence of different stakeholders on the board) Shareholders employees Shareholders employees Significant shareholders employees US United Kingdom Continental Europe

19 Employee representation Finland USA Ireland UK Netherlands Belgium Lux Denmark Germany Sweden mandatory Advisory role,presence but no vote contemplated Austria No representation Italy Portugal Spain Greece

20 Shareholders representation: who nominates directors? US / UK => board driven process» Non executive chairman» Chairman & CEO» Nominating committee Continental Europe => shareholders and ownership driven process» Shareholders committees» Controlling or significant shareholders

21 Sources of Chairman/CEO s power Knowledge of company s affairs Presiding over board meeting Setting the agenda Deciding what information directors receive Leading board discussions Selecting other board members Acting as spokesman for the company Interacting with shareholders Control of the purse

22 Board committees and alternative governing organs Audit committee Board of auditors Dual auditorship Internal auditor Supervisory Unitary board Executive committee Remuneration committee Nominating committee Governance committee Proportional representation Shareholder s committee Controlling shareholder election list

23 Independence impairments Former executive appointed director CEO is also chairman of the board Supplier, advisor, partner of the company also director Represents or has ties to a shareholder Has served on the board more than 10 years Holds cross-directorships or has significant links with other directors through involvement in other companies or bodies Has close family ties with any of the company s advisors, directors, or senior executives

24 Shareholders Accountability Supervision of management And stewardship of the company Financial markets Regulatory bodies Governing body Management of the company & stewardship of its operations Other stakeholders Employee etc Executive management

25 Level and mix of CEO compensation % in $ millions % 60% \ 46% 54% 60% 2 40% 1 8% Total pay Equity based pay Salary & bonus

26 Key differences in the governance models European model(s) Greater emphasis on check and balances Sharper distinction between oversight and management functions Governing body as a check and counterweight to executive power American model Greater emphasis on unfettered leadership Watered down distinction and emphasis on managing the corporation Governing body manages the corporation