亚洲的企业管治概述

亚洲的企业管治摘要：在企业社会责任推行是否需要良好企业管治配合的争论日益增长的时期，威理夫教授详细地分析了亚太地区企业管治对于企业可持续性发展，推行企业社会责任的重要性，以及在各地区的企业管治的特点。 Corporate Governance in AsiaAn increasingly important part of debates surrounding CSR practices revolves around the need for good corporate governance in the Asia-Pacific region. It is clear that a weak institutional framework for corporate governance is incompatible with the sustainable development of an economy and that poor governance is a barrier to inward investment. Good governance has to be seen as important therefore to the development of all economies, but particularly emerging markets in the region. Therefore, promoting improved corporate governance along with CSR practices is an important part of ensuring development is in the interests of more than just a dominant minority.Good corporate governance increases investor confidence and there is evidence that suggests that where companies introduce good governance practices, share prices rise. But corporate governance is also about creating beneficial relationships with all stakeholders, including shareholders, creditors, employees and the wider community and environment. This two-part article seeks to review corporate governance issues from an Asia perspective. Ownership and control of many companies in the region differ from that commonly seen in the West and there are therefore specific issues that need to be addressed in this context.One key characteristic about Asia is that many of the largest companies in the region are owned and controlled by major controlling shareholders. These are often individuals or families and sometimes the state. Controlling shareholders have strong incentives for monitoring the company and its management and can often have a positive impact on the governance of the company. On the other hand their dominance also means that they can force a company to operate in the interests of the controlling shareholders and this can have negative impacts on smaller minority shareholders.There is therefore a potential conflict arising when dominant controlling shareholders decide to extract private benefits out of a firm to the detriment of minorities. One aspect of corporate governance important in the region is to make sure that powerful individuals and their families do not damage the interests of minority shareholders. It is clear to see therefore, that poor corporate governance can be costly to minority shareholders. On the other hand, controlling shareholders can also suffer from poor corporate governance structures in the form of lower stock valuations, restricted access to equity finance and difficulties in getting credit. Even large listed companies in Asia more often than not have a controlling shareholder. Indeed, it is estimated by the OECD that 85% are under some sort of majority control (defined as having 20% or more of the voting rights). The table below provides an overview of the situation with respect to publicly traded companies in a number of Asian locations:It can be seen therefore that the great majority of controlling shareholders are families or individuals. In some cases it is the state, a financial institution or foreign multinational. In such circumstances, it is assumed that the controlling shareholder has enough votes to prevent unwanted takeovers, appoint directors and determines the outcome of a normal vote at a general meeting of the company. Controlling shareholders rarely need 50% of the vote. In most cases, in combination with “allied” shareholders and passive voters who do not vote at all, control can be exerted with 30% or less of the voting rights.But the particular situation in Asia sometimes means that controlling shareholders actually have even smaller proportions of equity than this but use a number of devices to get themselves even greater voting rights. One way of doing this is to use stock with special voting rights which is allowed in some countries. But a more common way of gaining control over a whole group of companies is to make use of so-called control pyramids. This is best explained through use of an example.Let us assume that a family owns 40% of a global holding company (company A). Company A then has a 40% holding in an Asia Pacific subsidiary of that company (company B). Company B holds 40% of a particular service company (company C) and, in turn company C holds 40% of the stock of one of its contractors (company D). Since 40% is more than enough stock to effectively control a company, the family has control over this whole group. It has control over 40% of the voting power of company D, but, in actual fact only really owns only 2.56% of the stock .In Hong Kong the business empire centered around Cheung Kong and Hutchinson Wampoa owned largely by Li Ka-Shing and his family is hugely successful and enormous. A study by Stijn Classens in 2000 suggested that the Li family had 34% of the vote in Hong Kong Electric, for example, but due to an elaborate ownership structure effectively owned only 2.5% of it.These sorts of control pyramids are widespread. In Malaysia, the Philippines and Taiwan over 35% of listed companies are controlled with a pyramid structure. In Indonesia and Singapore, it is well over 50%. Sometimes they are very useful to bring a group of companies together under one well known brand. But this separation of ownership and control has important implications for the companies minority shareholders. As noted previously, in many cases controlling shareholders have an interest in seeing a well managed company and can be effective in overseeing the corporate governance of the company. But, at other times, controlling shareholders are in a position to take actions that benefit themselves at the expense of other shareholders. The treatment of minority shareholders is therefore a big issue for corporate governance in the region. The solution is to credibly signal to existing and potential shareholders that their interests will be upheld. There are a number of voluntary comply and disclose codes of conduct that can be adopted by companies and credibly audited. However, such codes, common in the London and New York stock exchanges, for example, have seen a much poorer uptake in Asia. It may well be, therefore, that in this region, there needs to be measures introduced that are backed up by strong legal protection. (This is further examined in the second part of this article).There are a number of issues connected with controlling shareholders that have to be addressed through such measures. In Asia, in particular, the most common controlling shareholder is the family. This raises big issues when it comes to succession planning and the management and control of companies. When the family founder decides to step aside for example, we may see another family member take over the leadership role even when the skills and talents of that family member would normally dictate otherwise. In this case a poor governance structure means that the company might be managed by less than fully competent personnel. In addition, however, a company with poor governance might actually find it difficult to recruit professional management to run the business group.Companies have considerable discretion about what dividends will be paid to shareholders. Shareholder buy the shares of companies looking for financial benefit in terms of both the dividend income and capital gains associated with the share price. They need assurance that fair dividends will be paid (since this also impacts on share price). Moreover, they need to know that their interests as shareholders will not be discriminated against in favour of other shareholders. In particular, it is important that controlling shareholders are not allowed to get money out of the company in other ways that suits their own interests.One way in which this often occurs in emerging market economies is through the practice commonly known and tunneling. This is the situation where company insiders take the assets for themselves. Tunneling comes at the expense of shareholders and other stakeholders and in the process reduces investor confidence, retards capital market development, reduces access to equity finance and ultimately slower growing and less stable economies. Like corruption, more generally, it destroys confidence in a whole economy, stifles inward investment and makes the poorest parts of society even poorer. Tunneling can be easily done by controlling shareholders who can often transfer money and other assets out of a company, benefiting themselves and harming minority shareholders, employees and local communities. These activities can severely damage a company and even lead to bankruptcy. There have been cases where controlling shareholders have intentionally “hollowed out” the company, leaving debts unpaid and workers without jobs.There are a number of forms of tunneling that exist. The first relates to acting on privileged information for personal gain. Additional purchases of shares by a controlling shareholder or members of the family or associated businesses can be done prior to an announcement of a deal that will send the share price higher. Such insider dealing is illegal in many Asian countries but many see it as prevalent and largely unchallenged Asset transfers on overly favourable terms to other companies owned by controlling shareholders is another tunneling tactic. Granting of specific contracts to particular companies on favourable terms and the transfer of liabilities can all benefit controlling shareholders over minority ones. Transfer pricing tactics between companies owned by the same controlling shareholder can exploit both minority shareholders and creditors. One way in which controlling shareholders can tunnel a company relates to capital increases. It is not uncommon for new shares in a company to be issued and sold either directly or through a related party to the controlling shareholder on favourable terms. This not only provides a built in premium for the dominant party, but also decreases the holding of minority shareholders. We return to this issue below.In kind contributions to controlling shareholders can also extract resources from a company even before they reach the bottom line, reducing profitability and dividends to be paid. Cars, houses, yachts, luxury business travel and other perks may be given to controlling shareholders but not others. In addition, the controlling shareholder, along with friends and relatives may also have management positions for which they are overcompensated. Investment decisions may reflect the personal interests of the controlling shareholders and low profit subsidiaries of the company created in order to satisfy the whims of children of the founder.The greatest opportunity for minority shareholders to come together and have their voices heard is the general meeting of the company where (in theory) shareholders can use their fundamental rights as owners of the company to participate in decision-making. Unfortunately, such meetings often do not live up to that promise. There have been cases in some Asian countries of shareholders actually being kept away from meetings, meetings being held unannounced, locations changed at the last minute and not communicated and security checks being so tight as to not allow members past doors into the meeting.But the ultimate question is whether the shareholder general meeting even matters if there exists a controlling shareholder. By definition the controlling shareholder can muster enough votes to control the outcomes of the meeting. But there are ways of overcoming this built-in bias. One is to use super-majority requirements for certain major transaction of important strategic company decisions. A threshold of achieving at least two-thirds or even 75% of the vote might be introduced in such circumstances.Major transactions, in particular, require special treatment when it comes to developing corporate governance guidelines because these can have a huge impact on the company, its employees and shareholders. In addition, so called related-party transactions that directly involve the interests of members of the board, management or the controlling shareholder must be subject to special provisions. Company law and, with respect to disclosure, securities regulations should normally have additional governance requirements for such transactions. It may well be that where there is a personal benefit to be gained out of a transaction, that beneficiary (including controlling shareholders) should not take place in the decision-making surrounding it. In Singapore, accounting standards require the disclosure of related-party relationships and related-party transactions have to be published with financial statements. They require immediate reporting of transactions exceeding 3% of the companys book value and details of all parties that have an interest in the transaction. For related-party transactions that exceed 5% of the issuers book value, shareholder approval is required.Where there is a major transaction in a company then good corporate governance should grant shareholders appraisal rights linked to that transaction. This means that through a fair and accurate (and often independent) appraisal, shareholders should be able to confirm that a transaction was good for the company and not biased in favour of one interested party. In many countries access to appraisal rights is being broadened, but in others the process is still dependent on shareholders going to court or petitioning regulators to get one carried out. Getting a fair and accurate appraisal is however a challenge if the company chooses who carries it out.Some countries, most notably Korea, also provide shareholders with dissenter rights if they vote against a particular proposal at the general meeting but it is still pushed through by a majority of the voters. Under such circumstances dissenting shareholders have the right to sell their shares back to the company at the price prevalent before the decision was taken (assuming that is higher), for example.In many countries proxy voting is being encouraged so that the full influence of the minority shareholders can be felt. Too often non-attendance at meetings simply allows the controlling shareholder to dominate the decision-making but if smaller shareholders can act more collectively, then this power can be somewhat mitigated. Another alternative is to introduce a system whereby the controlling shareholder cannot participate in some decisions. For example, a provision to have two directors elected by only minority shareholders may be beneficial. Alternatively, non-executive directors being appointed by minority shareholders alone might be seen as good corporate governance.As noted above one of the common strategies often adopted by companies in the region is the use of capital increases. Such increases to finance profitable investment opportunities can add significant value to a company, above and beyond the initial investment, if there are strong synergies involved. But controlling shareholders can also use changes in share capital to dilute the equity of minority shareholders. Often a controlling shareholder (or other insider) will arrange for new shares to be sold at a discount for themselves and/or associated parties. In particular, in kind share contributions where equity is issued in return for assets (often from an associated company of the controlling shareholder) are often used to dilute the holdings of minority shareholders.The very nature of capital increases and their potential for abuse means that access to this kind of strategy needs to be the subject of tight control and scrutiny within the corporate governance framework. Shareholder approval should be required and shareholders should often be given appraisal rights, particularly when in kind share issues are being used. Many countries now also have pre-emptive rights that give all shareholders the right to participate in a capital increase on equal terms, although this may still be a problem when minority shareholders lack access to further funds.One of the biggest impacts on shareholders involves the change of the control of a company. So-called control transactions can include the sale of the controlling interest in a company by the controlling shareholder, the sale of the whole company and a tender offer where a third party buys up enough dispersed shares to become the controlling shareholder. A change in the control of a company is a serious issue for governance because of a perception of unfairness when a controlling shareholder benefits more than other shareholders. This applies, in particular, when a controlling shareholder is able to sell the controlling shares at a premium above the market price for the shares, precisely because the new owner get control of the whole company and not just the share block. This may not make other shareholders worse off in the sort run, but it is quite likely that the new owner will want to recoup some of the price paid through some degree of tunneling or other more direct financial transfer.The sale of the whole company, where minority shareholders are forced to sell their shares or exchange them for shares in the purchasing company is common in emerging markets as industry consolidation occurs. Such deals should normally be subjected to super-majority voting. However, where a company is being sold to another company owned by the majority shareholder (often in order to de-list it) there has to be special protection for shareholders. If shares are transferred from a publicly listed company to a private de-listed company then they can be difficult to sell. In such circumstances they may have to be written guarantees for the controlling shareholder to buy out minority shareholder at pre-purchase p