Corporate Governance Exam Paper

10 October 2016

While analysing the Reality of Boardroom we say many games and tactics often employed by directors so that they don’t lose power. Some such games were alliance, coalition, lobbying, scaremongering, log rolling etc. Here also majority of BOD were near and dear ones of Bright so everybody chose to stay quiet about what is going on. Under-reserving Like we say in the HLL case under-reserving is a tactic used by firms but in the long run it cant stop companies from collapsing. Role of independent directors The question Are independent directors really independent has been topic of debate for ages.

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In the case the role played by independent directors is insignificant. Also it is questionable whether independent directors were present and in the number advised by law or not. Audit Committee The case talks about KPMG and the arguable role it played but what about the audit committee, was it existent, if so how was it functioning. Its composition and leadership needs attention. Manipulation Most of the cases of accounting frauds, falsifying records, deceiving shareholders and bankruptcy rest upon the manipulation of the balance sheet and the tactics used to fudge the data.

Ex: Enron The company needs to take inspiration from firms like GSK, Infy, and tata which serve as examples of good CG. GSK * Chairman of board is independent director along with 5 others in in board. Transparency is valued Infosys * Creating wealth legally and ethically Tata * One of the giants and still fascinating governance * In sync with the values * Very elaborate code of conduct Board composition and structure One of the major flaw ways in the board structure is everyone was quiet about the rising storm dominated by power and status of Bright.

There should be some independent directors with ability to question the acts and deeds and the following structures are recommended. European Two Tier model Shareholders Supervisory board Executive board Management Employees and staff The supervisory board overlooks functions of executive board and can question and alter the function This model is preferred over unitary board. Chinese model Here we see the presence of the state as a whole also takes society into account along with shareholders Board Leadership One of the major causes of the downfall was the role played by Bright.

He was forceful and rigid and thus not a true leader. The features desired for a leader are: Integrity The ability to differentiate between right and wrong and govern in a manner that it is morally correct and sustainable Independence The board was like a dummy/puppet with no or very less degree of independence Intellect The creativity must not come out in form of manipulation and fraud but the betterment of the firm Character He must be ethical and strong character Personality A leader must be flexible and open to new ideas and suggestions. The personality is the holistic perspective.

Communication skills, good listener, motivator etc. Board level information Desired CG was not in place and there was no clear information pathway. The board did not check or authenticate the actions. Control systems The case clearly shows violation of many acts and laws. The board was not conforming to the supervisory work. The control system was not in place. Auditors at fault: In cases like Enron and worldcom it has been seen that the external auditors are able to flee away leaving the company in distress. Usually there are tie ups between management and auditors, some internal settlement that leads to uch actions. Role of internal audit committee is arguable. The company should have gone to auditors like Delloitte who are reliable and tested. Risks that should be considered – Financial risk. Operational, compliance, Business Four aspects of CG Internal control, risk management, behavioural governance, independence Sarbax – oxley act This is one of the landmark acts that came in 2002 after Enron and Worldcomm It says criminal and civil penalties for compliances and accounting frauds, certificate for internal audits and annual report is to submitted by all public and private listed companies.

Also introduce PCAOBA (Public company accounting oversight board of America) Was criticized for high cost of compliance CG is a process by which companies are directed and controlled Many attempts have been made to define CG and this one by Cadbury is one of the most comprehensive . Cadbury’s definition – “Corporate governance is the system by which companies are directed and controlled. The boards of directors are responsible for the governance of their companies. The shareholder’s role in governance is to appoint the directors and the auditors to satisfy themselves that an appropriate governance structure is in place.

The responsibilities of the board include setting the company’s strategic aims, providing the leadership to put them into effect, supervising the management of the business and reporting to shareholders on their stewardship. The board’s actions are subject to laws, regulations and the shareholders in general meeting. ” Mike and Minnow: Corporate Governance is a process of governing and directing the performance of any company and the major actors involved are directors, management, society and shareholders CG is basically to overlook, monitor, control and direct the functioning of the management.

For this we have BOD and the code of conduct. Some acts, laws and norms facilitate this process of governance. Scope from least to highest Society Media and Press Shareholders Regulatory bodies Contractual Stakeholders Auditors Governance and Management (Diagram) As it is clear that the scope of CG is very wide. It is crucial that CG is acceptable and answerable to many. Functions of the board Majorly there are four functions of the board depending upon the conformity to past or existing and the performance expected for future.

The four functions are accountability, strategy formulation, supervising and monitoring and policy making Matrix The accountability along with monitoring and supervising is the conformance part i. e. to past or existing situation. The policy making and strategy formulation comes under the performance part with focus on future value. Usually it is seen that independent directors are forced to conformance because they only understand what is going on. Strategic Formulation * This is the most crucial step of governance There must be shared view according to which governance and management abide * It involves SWOT, PEST, Porter analysis and asking of crucial questions of long term strategic importance * It is important to have helicopter vision balanced of long and short term * San Tzu “Think the mind alike of your enemy” Policy making * This comes from the strategic formulation * Policies are rules, regulation and procedures that must be followed and abided Supervision & monitoring This is the conformance part to check that everything is happening as per the policies and rules or not Accountability * Accountability is to have proper system wherein respective people are accountable for any error or aberration * Only the top management is not accountable but usually is held responsible. Normative: How board thinks directors should spend their time How directors actually do spend their time Relation between functions Strategy formulation Policy making supervision and monitoring Accountability Roles: Agents and Stewards Agency theory

Principal shareholders contract with agents seek self interest It says that it is not possible that agents take care of other money with as much vigilance of vow. They seek personal interest and detrimental effect on shareholders Stewardship theory Owners chose and elect stewards(directors) who play the role of stewards Contrary to agency theory it says owners vest their trust in directors who act as stewards of shareholders money. Along with the board the following roles are performed by the director Managing the board Managing the meeting Strategic leadership Cooperation between board and management Company’s face to public

By means of all these functions and roles the board makes an effort towards fair and equitable distribution of profit, ethical governance of firm and deters any unethical behaviour It lays clear rules, norms, laws and code of conduct to facilitate governance Maxwell communication 1991 – Risky acquisition using pension funds leading to bankruptcy Bank of credit and commerce international Cadbury report 1992 – best practices suggested How to implement it? For a company to enter in stockmarket it has to that it follows Cadbury suggestions Corporate governance is directly related to market valuation of a company.

Better managed companies are valued more. Enron failure 2001 – faulty accounting policies; creation of special purpose entities to conceal losses; excessive executive compensation Worldcom 2002 – The BOD did not oppose the ambitious investment of Worldcom in fiber optic cables and infrastructure to become a market leader (a short term goal). This led to huge losses when the boom for dot com ended. Measures to check such scenarios * Make BOD accountable to stakeholders * Make changes in structure * Clearly explain the responsibilities of Board Make them active board – in giving a leadership to the company * Make the BOD to meet more frequently – listed company at least 4 times a year * Lay down an agenda about what must be discussed Placing constraints, checks on management power including the CEO Eg: SKF micro finance – CEO was sacked as he is no good There should be separation of position of chairman and CEO Ensuring a sound system of internal control and proper disclosure of financial information and executive compensation Auditors are continuing from 20 years Approaches to strengthen the CG 002 – there was a proposal to change companies act 1956 2012 – the bill was proposed in loksabha Very lengthy process to make a law But then one law for all companies reduces flexibility In 1998 CII appointed a committee under Rahul bajaj to create guidelines for cg which is only voluntary. Only 0. 1% adopted them. Voluntary Purely legal approach Cg code Code – a set of practices, guidelines which are expected to be followed by the companies 2 approaches for cg code 1) Principle based – lay down broad principles; comply or explain principles link it with listing.

Make the companies which are not adopting explain why they are not adopting 2) Rule based approach – comply or get prosecuted; in extreme cases companies are delisted. But then the shareholders are effected. Rule based approach is rigidity. The companies will try to outsmart the rules if they are rigid. Eg: BJP chief Nitin Gadkari driver was shown as a director in a company. The directors get huge money for just attending 4 meetings, so they agree with whatever the companies say to earn easy money or else they would be removed from the board.

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