Corporate governance patterns in oecd economies: is convergence
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- Bu səhifədəki naviqasiya:
- Path dependency and the politics of governance
- Legal convergence
- V. Conclusions
- BIBLIOGRAPHY
21 their stakes in suppliers (or major customers) and concentrate on providing more returns to their shareholders. Market-driven or functional convergence 37 may be the most important force behind the emergence of international principles, such as the OECD Principles of Corporate Governance. The Principles are the first multilateral instrument in the area of corporate governance and the most important attempt to date at establishing elements of a global corporate governance language. Their preamble, however, suggests that a systemic convergence of legal systems is not part of their direct objectives: “The (Principles') purpose is to serve as a reference point. They can be used by policy makers as they develop their legal and regulatory frameworks for corporate governance that reflect their own economic, social, legal and cultural circumstances, and by market participants as they develop their own practices". 38
The political and historical reasons for national idiosyncrasies in economic organisation have been the topic of many discussions among scholars. Some 39 have argued that history has sowed considerable divergence into national systems which are “path-dependent” and, hence, unlikely to converge at least in the medium-term, notwithstanding pressures from the capital markets. In other words, the dynamics of history should not be taken lightly when it comes to the shape of legal norms and institutions. While political and institutional resistance to alien concepts, irrespective of their perceived efficiency, is a considerable constraint to convergence 40 , these factors should not be overestimated in OECD countries, especially in our post-cold war, Internet era. Citizens are increasingly open to foreign ideas, customs and norms. The acquisition of major industrial companies (for example, Chrysler by Daimler Benz) or financial institutions (see the fate of the quasi totality of the British merchant banks) by foreign competitors does not seem to have caused any political problems. Shareholder activism a l’americaine seems to be paying well even in such a staunchly “continental” corporate governance environment as Switzerland’s; and recently a company which only two years ago was a state-owned telecom monopoly was subject to a highly contested hostile take-over bid in Italy. There is also top-down convergence. The increasing exposure of policy makers to regional and global policy debates and the importance of international dialogue in shaping leaders’ minds about reforms is more intense today than it was just a decade ago. European integration has made possible the implementation of a number of policies - such as widespread privatisation - that were hitherto politically unthinkable. The availability of other countries' experience and the wish to be part of an open world has made a lot of changes possible. Korea is a case in point: previous governments would have thought of announcing the sale of two of Korea's largest commercial banks to foreigners within the same month as nothing short of political suicide. Finally, the fact that a group of government officials negotiated a “universal” text such as the OECD Principles in one year’s time speaks volumes about the political trends of convergence that are developing. 37 See Gilson (1998). 38 OECD (1999). 39 Bebchuk and Roe (1998). 40 See Charny (1998). 22 Legal convergence Finally, there is the issue of laws and regulations. Legal infrastructure and its dynamics are included in the path dependency argument as they are an important part of the institutional apparatus, but it might make practical sense to look at them separately from the rest of political and social institutions. Widely differing systems of corporate law and securities regulation have been credited with an important role in explaining divergences between national ownership and control environments. Some commentators have made a distinction between common law and civil law countries and have analysed the impact of the two systems on governance. Under common law, the firm can contract out of most legal norms. In contrast, civil law, with its more rigid statutory rights, is perceived as less flexible in terms of economic decision making. 41 Company law itself comes in many different shapes. The central concept of limited liability may be treated differently in different jurisdictions. In some countries, the “firewall” between a corporation and its shareholders is impenetrable, but for the worst kind of abuse. Others take a less austere view. In Germany, group legislation allows for piercing the corporate veil in situations where one firm in practice assumes decision-making functions of another. 42 In the Anglo-Saxon tradition, the corporate concept is based on a fiduciary relationship between shareholders and the managers. In the continental tradition, the company has an independent will, i.e. in theory, what is good for the corporations might not be good for its shareholders. These differences penetrate down to company law particulars such as shareholder rights, the role of statutory capital and the responsibility of the board, just to mention a few. However, these differences might not be as important as they look and they might be getting less and less important. All countries recognise the preponderance of owners as the final arbiters of corporate strategy and make the concept of residuality central to the governance structure of the corporation, albeit at differing degrees. In addition, the increasing importance of equity markets have subject a large segment of the corporate sector to securities regulation - statutory law that firms cannot contract out of and that is fairly similar in common and civil law countries 43 .
German legislation has substantially tilted the control of the decision making process toward shareholders and has increased transparency in the way accounts are prepared, especially as regards consolidation; it has also made important steps in facilitating take-overs. In France, the 1997 Marini Report on company law reform, recognised the need for a “contractualisation” of French company law, by allowing firms more liberties in the way they shape their financial structures. In Italy, the so-called “Draghi” law of 1997, significantly increased shareholder rights. In all of the above countries share buy-backs were allowed, in recognition to the fact that companies need more flexible tools to return money to their shareholders. At the other side of the spectrum, the US Securities and Exchange Commission is becoming more tolerant of “relationship” investors and is more and more willing to grant so-called “safe harbours” for consultations between them and company management. Finally, convergence is also the result of an increasing tendency of large firms to “choose” their regulatory environment. This, of course, is not due to legal eclecticism but rather to the need to tap the most liquid 41 See La Porta et al (1997). 42 See Hadden (1983). 43 Coffee (1998) points out that “... convergence can occur (and is arriving) at the level of securities regulation, even while corporate law convergence has been largely frustrated”. 23 and cheap sources of capital. By choosing, for example to list their shares in the NYSE, large companies from a growing number of jurisdictions become subject to US securities rules and accounting norms. This will in time have a powerful impact on the shape of rules and institutions in their home countries. 44
We have seen from the above discussion that convergence is indeed taking place for reasons related to the globalisation of financial and product markets, an increasing proximity of legal and institutional norms and a more open circulation of and attitude towards foreign ideas. Having said this, one should not expect uniform corporate governance institutions and arrangements in the world, just as one cannot expect the end of nation states in the foreseeable future. Ownership and control arrangements are still a part of a society’s core characteristics and will remain to a considerable degree idiosyncratic. More cross-border equity investment and the growth of domestic and international market institutions should be expected to result in a better mutual understanding between overseas investors and companies and consequently in an increased capacity for companies to access international sources of finance. Investors need to understand and assess their investments. Convergence in transparency and useful disclosure norms is therefore a key area where a lot needs to be done. A growing consideration of stakeholder interests is viewed increasingly as a key growth factor in the long- term value of companies. In multinational companies, stakeholders come from many different countries. The emergence of unified strategies to deal with these issues across national boundaries is in itself another driver of convergence. The OECD Principles of Corporate Governance are both a result and a facilitator of convergence. Without the latter, the need for a common language between the 29 Member states of the OECD and beyond would not have emerged. The multilateral character of this instrument testifies to the strong consensus emerging for the need of a common understanding on these issues. On the other hand, the open-ended and non- prescriptive character of the OECD Principles makes them a very valuable tool for the development of international dialogue for the promotion of better corporate governance. As this article has demonstrated, the variety of corporate governance arrangements found among OECD countries gives the Principles a universal character that transcends the developed/developing demarcation line. Last but not least, convergence does not mean victory of one system over another. It should rather be seen as giving more choices to the enterprises, when it comes to following a corporate finance and governance “path”. In fact, the patterns of ownership and control should ultimately correspond more to the needs and characteristics of a particular enterprise than to the “system” prevalent in the country. Firms should have the possibility to move smoothly from one regime to another as they grow and their needs and constituencies change. 44 See Coffee (1998). 24 BIBLIOGRAPHY Bebchuk, Lucien and Mark Roe (1998), "A theory of path dependence in corporate governance", paper presented at the “Corporate Governance Today” conference, organised by the Sloan Project on Corporate Governance at Columbia Law School, May 1998. Black, Bernard and Reinier Kraakman (1996), "A self-enforcing model of corporate law", Harvard Law
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Schmidt, Peter (1998), “Disclosure and auditing: a German auditor’s perspective”, in Hopt, Kanda, Roe Wymeerch, Prigge (eds) Comparative Corporate Governance, Clarendon, Oxford; p. 743. Thompson, John K. (1999), “Reforming banking in Korea”, Financial Market Trends, No. 72, OECD. Yasui, Takahiro (2000), “Corporate Governance in Japan”, infra. Yüklə 279,73 Kb. Dostları ilə paylaş:
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