The second annual International Governance Workshop is complete. A small(ish) group of leading thinkers assembled at the Toulouse Business School in Barcelona to discuss and debate emergent research and to ask the "So what?" question. Overall, the presentations and papers were of a high standard, as was the discussion and debate that followed each paper. Also:
While this conference was amongst the smallest (in terms of delegates) that I have attended in recent years, the quality of the discussion and debate was amongst the highest that I have experienced anywhere. Senior academics openly interacted less experienced researchers and other attendees in the discussions, to the extent that it was hard to tell who was who unless you looked at the titles on name tags. From small beginnings in 2014, the TBS team has a clear vision of what they want to achieve. This second workshop built on the first workshop (I am told, I did not attend the first one), which augers well for the future. I commend this workshop to all academics, consultants, advisors and serving directors with an interest in board practice and business performance.
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The second International Governance Workshop got underway at Toulouse Business School, Barcelona Campus on Thursday 11 June 2015. Professor Morten Huse, an esteemed corporate governance scholar from Norway, provided the opening day keynote. Huse has been studying boards for a long time—the mid 1970s—so when he speaks, people tend to listen. Here's four of the points from his talk: Huse's talk set the scene for a lively debate through the balance of the conference. It will be very interesting to see how this develops.
Martin Wolf CBE, Associate Editor and Chief Economics Commentator at the Financial Times, delivered a rousing keynote talk to wrap up the final day of the ICGN annual conference. After observing that the limited liability, joint-owned corporation had been the cause and consequence of almost all economic activity over the last two hundred years, Wolf posed and commented on four questions. He qualified his comments by saying that he expected they might raise some profound questions. Indeed, some of Wolf's comments were controversial—the evidence being the questions asked by some members of the audience after he finished speaking. What is a limited liability corporation? They are a semi-permanent entity designed to outlast small-medium enterprises (because founders retire—the corner store conundrum) and markets, and they are a construct for the consolidation of relational and implicit contracts. Their genius is the importation of older hierarchical forms (to get things done) into the market system. With scale comes efficiency, endurance and effectiveness (but not always!). What is their purpose? The apparent purpose of the LLC is to generate economic value. However, this is insufficient. Wolf asserted that LLCs should also pursue a wider remit, by seeking to 'add value' in social terms (through the provision of payments for services rendered—wages and salaries—for example). What is their operational goal? The oft-quoted goal, of maximising shareholder returns, is far too simplistic, according to Wolf. It is selfish and can only lead to failure elsewhere in society. Rather, the operational goal of LLCs needs to include ethical constraints to protect all participants and in so doing ensure the good of society (at no point did Wolf pursue or even imply any form of Marxist agenda). Who should control them? Economically, shareholders bear residual risks following corporate activity and, therefore, shareholders should possess control rights. Wolf challenged this commonly-held view as folly because shareholders are unable to exert full control over the affairs of the corporation. Managers may manipulate the affairs of the company, sometimes to the detriment of shareholders and other stakeholders. Short-term incentives, implemented to motivate managers towards the maximisation of shareholder returns, rarely position the company for longer-term success. Wolf concluded by saying that LLCs are a wonderful construct. However, he went on to say that the two associated doctrines (of shareholder control and value maximisation) are unhelpful because they are too short-sighted. He told the shareholders in the room that "it is in your interest not to control the corporation completely". Other parties—large bondholders, for example—also bear residual risks. Why would they not have decision rights? Wolf's comments were demonstrably controversial (amongst some of the audience at least). However, the poor reputation of big business amongst the general populace suggest Wolf's comments might be closer to the 'truth' than what many in the audience might care to admit. Wolf closed with this demanding challenge: A better approach might be "to let a hundred flowers bloom", so that the best [control] model might rise up and be applied for a given situation—the beneficiary being society at large.
Robert AG (Bob) Monks is a experienced shareholder activist and pioneer in corporate governance. The tall octogenarian has spent a lifetime influencing boards and board performance, especially in corporate America. Monks was invited to deliver the keynote address the ICGN conference. Monks, a gifted orator, spoke from the heart, and he had the gathered delegates enthralled as he did so. Reviving memories of the wartime leader Winston Churchill, Monks reminded delegates that, while they had come far, they were not at the end (ie. 'arrived') nor were they at the beginning of the end. They were, he said, "at the end of the beginning". He went on to suggest:
Monks continued by offering several recommendations to the audience (comprised largely of institutional investor representatives but also other participants in the corporate governance community including academics and advisors). He said that shareholders need to be genuinely engaged (by specifying what they want from their investment); that integrated reporting is crucial (to provide clarity around actual business performance); and, that all publicly-listed companies need to have real (identifiable) owners (to satisfy the engagement challenge. Monks received a standing ovation from some of the delegates, such was the power of his oratory and the high esteem in which he is held. One surprise: neither value creation or strategy was mentioned. I wonder what Monks thinks about these activities and the board's role therein. Rather than guess, I'm going to ask him. Congratulations to the conference organisers for securing Bob Monks' contribution to the debate.
Sophie L'Helias, Senior Fellow, Governance at Governance Board chaired a very interesting panel discussion. The panel was asked to discuss whether corporate governance had progressed or regressed over the last twenty years (since ICGN was formed). The opening observation was that much had changed, yet much remained the same:
This first panel session of the conference provided an interesting opening play, upon which later discussants could build (or otherwise!). The main takeaway for me was that shareholders and boards need to 'grow up'. Looking over the fence at each other (and, in some cases, simply ignoring each other) is not a healthy context for either productive ownership or effective control. Boards were created to bridge between owners and managers, yet many boards seem to be far more interested in pursuing their own interests and priorities (than acting in the best interests of the company or the shareholders). While we appear to have come far, we still have much to learn.
Is it ever OK to sell a major company asset to one of the company's directors? One must be careful, very careful. The safe answer is probably 'no', because the proximity of conflict is ever-present and the question of whether the transaction satisfies the director's duties provisions (to act in the best interests of the company) sets a very high bar to clear. However, a recent case in New Zealand suggests that such transactions can be completed, and well, if certain provisions are satisfied. In this case, Dorchester Property Trust (DPT) wanted to sell one of its properties the Goldridge Resort Queenstown (GRQ). A DPT director wanted to acquire the asset. The DPT board acted cautiously. The director took no part in determining whether the asset should be offered for sale, and was excluded from the process of assessing acquisition offers. As such the board's handling of the matter satisfied the related party transaction requirements. While some investors were a bit scratchy over some some matters (see the article), few if any concerns over the GRQ transaction have been raised. This suggests that the board handled the matter well, in both a legal and a moral–ethical sense. Well done to the DPT board.
David Thodey, outgoing chief executive of Telstra, has just gone on record: CEO pay is out of control. Swimming against the tide, Thodey said his remuneration was indefensible, and called for change. A cynic might suggest that it is all very well for Thodey to say these things, especially after he pocketed $27M while he was the chief executive. Nevertheless, Thodey's call is not unique. One in four chief executives think that time is more important the money. Is Thodey's call, and those of others, a harbinger of change to rein in executive pay? I hope so. History tells us that gross disparities between the 'haves' and the 'have nots' can lead to uprisings and, potentially, bloodshed. The French revolution, Bolshevik Revolution and the Arab Spring are notable examples, although there are many others. To make some adjustments now may be just the pressure release valve that many in society are looking for.
Is the worm starting to turn? After many years of relative calm—save a small number of judgements including this example from the New Zealand finance sector—directors seem to be facing increased levels of scrutiny, including being held accountable for actions (or inaction). A new judgement, by the Supreme Court in England, places a stake in the ground for British companies. The seven judges determined (unanimously) that directors were responsible for their actions, and that where those actions were fraudulent directors should be held personally accountable. No doubt some directors will throw their arms up in horror, asking how they could possibly know everything in order to make informed decisions. Yet directors are responsible for the overall operation and performance of the business they govern. Therefore, directors have a duty of care to become informed before they make a decision. The Jetivia–Bilta judgement provides a timely reminder to directors. Precedents have now been set in several countries. The buck stops with us (yes, I am a director too). Directors need to ponder the implications carefully. Thankfully, those who are not happy to carry the responsibility and accountability that goes with every appointment have an 'out'—they can (and should) resign.
Most of the elections and meeting resolutions that I have been involved in over the past 35 years have used 50% as the acceptance threshold. Gain the support of at least half of the decision-makers and the proposal is accepted or candidate appointed. While this is an easy threshold to understand (more people support the idea or person than don't), the possibility of a large pool (sometimes close to half) of people who are opposed means that the post-decision period can be filled with angst and opposition. I've long wondered whether a higher threshold might be appropriate, especially when voting for company directors and making major (read: strategic) decisions. In other words, big decisions need widespread support. If a director candidate or a proposal fails to gain the support of most of those with decision rights, then clearly the body is not in strong agreement. Two of the social enterprises that I have been involved with for many years work this way: one uses 66% and the other 75% as their decision threshold. Yes, sometimes it takes a little longer to get agreement, but the time-to-benefits is usually much less because people are more united. Overall, the approach has served the enterprises, and those they serve, well. The question of decision thresholds was raised in the business press recently. Seventy per cent was mooted as a possible threshold. Might such a proposal have legs? Would directors would be more likely to think and act in the best interests of the company? Candidates and those promoting various proposals would need to work harder to gain more widespread support, that's for sure. Decision timeframes would probably blow out; director candidates and strategy proposals might need to be more populist to garner the widespread support needed to breech the threshold; and, necessary but unpopular proposals might fail to attract the required levels of support thus putting unnecessary pressure on people, resources and possibly business viability. While these downsides might seem daunting, the idea of raising the decision threshold on major decisions (like director elections and the approval of strategy, for example) might be worth some consideration. After all, the more united a group can be, the more likely it is of achieving its goal and, therefore, realising the expected benefits. What do you think?
Petrobras, Brazil's state-owned oil company, hit the headlines today, saying that it intends to revise its governance and organisational management model. The company has had problems with corruption and, just recently, employed a governance, risk and compliance (GRC) officer, its first. Interestingly, the review will be conducted by a "group of executives with experience in various areas of the company". This sounds reasonable enough, until you consider that the stated problem is corruption. The review is being conducted by the very people that may (or may not) have been involved. How much confidence should one place in the internal panel isolating the problem(s) and, having done so, the Petrobras board making changes to get its house in order? Usually, such reviews are conducted by external parties, if they are to be afforded any credibility. This will be interesting to watch.
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