Europe: corporate governance statements and the auditors' assurance role - FEE discussion paper

The Federation of European Accountants (FEE) has published a a discussion paper concerning the auditor's assurance role in respect of corporate governance statements: see here (pdf). The paper presents, inter alia, the results of a survey carried out by the FEE during 2007/08 regarding governance codes in the Member States. The FEE found (to quote from the paper):  

.... despite the range of legal systems, institutional frameworks and traditions, there is considerable convergence across Europe in the elements of national corporate governance codes. Most of these codes are closely related to the OECD’s Principles of Corporate Governance – either by making explicit reference, or by incorporating the principles within the national code, supplemented by local rules and guidance".

Hong Kong: company law reform

The Standing Committee on Company Law Reform has published its 2008/09 annual report: see here (pdf). The report highlights those matters considered by the committee over the past year as part of the companies ordinance rewrite and the committee's recommendations in this regard. The committee has, for example, recommended that:

• the director's duty of skill, care and diligence should be codified
• all companies should have at least one natural person acting as a director
• reduction of capital should be permitted through a court-free procedure involving a solvency test
• the statutory derivative action should be extended to include multiple derivative actions, thereby bringing it in line with the shareholder's common law right to bring an action on behalf of the company following the decision of the Hong Kong Court of Final Appeal in Waddington Ltd v Chan Chun Hoo Thomas and others [2008] FACV 15/2007.
  

A draft Bill is expected next month. 

India: MCA seeks comments on task force report and recommendations

The Ministry of Corporate Affairs is seeking comments on the draft report and recommendations of the Corporate Governance Task Force appointed by the Confederation of Indian Industry. The task force makes wide ranging recommendations and its report provides some interesting insights into the structure of listed companies in India. For example, in the context of discussion about whether the roles of the chairman and chief executive should be separated - which the task force believes should be the case - it is noted: 

Most Indian listed companies are controlled by promoters, often holding over 50 per cent of the voting stock. Indeed, many in corporate India feel that the separation is not desirable — that the dominant, risk taking shareholder being both the Chairman and Chief Executive of a company gives a greater notion of commitment than otherwise".

UK: the FSA's governance and authorisation advisory panel

The Financial Services Authority has announced that Sir Dominic Cadbury, Baroness Hogg, Lord Marshall, Sir Brian Pitman and Sir David Scholey, will become the first members of its new advisory panel on governance and authorisation. The panel members will join the FSA's significant influence function (SIF) interview panels - about which see here (pdf) - to offer guidance as well as contributing to the development of the FSA's regulatory framework for ensuring effective governance in financial institutions. See here for further information.

UK: the Walker Review of bank governance - final recommendations published

Sir David Walker has this morning published his final recommendations following his review of the governance of banks and other financial institutions. An overview is available in the accompanying press release. Amongst Sir David's 38 recommendations are the following:

• Institutional shareholders to sign up to a Stewardship Code, sponsored by the Financial Reporting Council with compliance monitored by the Financial Services Authority (the Code on the Responsibilities of Institutional Investors prepared by the Institutional Shareholders’ Committee will become the Stewardship Code)
• Annual re-election for the chairman of the board
• The chairman of a major bank should be expected to commit a substantial proportion of his or her time, probably around two-thirds, to the business
• An expanded role for the remuneration committee with regard to firm wide remuneration policy and "high end" employees
• Disclosure, within remuneration bands, of the number of "high end" employees (including executive directors)
• Deferral of incentive payments should provide the primary risk adjustment mechanism to align rewards with sustainable performance for executive board members and “high end” employees
• If the remuneration report receives less than 75% of the votes cast the remuneration committee chair should stand for re-election in the following year
• Greater expectations placed on non-executive directors regarding time commitment and tougher scrutiny by the Financial Services Authority
• Banks should have a board level risk committee chaired by a non-executive director
• The chief risk officer should have a reporting line to the risk committee and his or her removal should require board approval

Sir David proposes that most of his recommendations should be enforced through inclusion in the Combined Code on Corporate Governance or a separate Stewardship Code for institutional investors, both of which operate on a 'comply or explain' basis. The recommendations on pay disclosure will be included in the Financial Services Bill currently before Parliament.

Related video and audio resources: Sir David discussed his recommendations on the Radio 4 Today programme this morning: listen here. The BBC News website has a short video of Sir David discussing remuneration here. A video of Sir David's appearance before the Treasury Committee, where he was questioned on his review, appears here. 

Other materials: FSA statement | FRC statement | Government statement | 

UK: objecting to a company's registered office address - BIS consultation

The Department for Business, Innovation and Skills has published a consultation paper - see here (pdf) - in which it states that there is "some evidence that companies may incorrectly use, as their registered office address, the address of another business or private individual with whom they have no connection". The consultation paper seeks views on whether, and if so how, the law should be changed to deal with this problem.

UK: notices of auditors leaving office - BIS consultation

The Department for Business, Innovation and Skills has today published a consultation paper concerning the simplification of the arrangements for the provision of information when an auditor leaves office: see here (pdf). In particular, the Government is seeking views on:

• removing the duty to notify audit authorities of an auditor’s departure in some cases where it is of little interest to those authorities;
• removing the duty on the audit authorities to notify the accounting authorities of all auditor departures of which they are informed;
• whether there should be any changes to requirements for information to be provided to investors when auditors leave listed companies;
• removing the need for companies to notify Companies House in certain cases of auditor departure; and 
• simplifying the legislation by clarifying definitions.
  

Australia: directors' duty to prevent insolvent trading - draft ASIC guidance

The Australian Securities and Investments Commission has published for a comment draft guidance concerning directors' duty to prevent insolvent trading under Section 588G of the Corporations Act (2001): see here (pdf). The guidance identifies the key matters which ASIC considers directors should take into account in meeting the duty as well as explaining those factors which ASIC will consider when determining if there has been a breach of the duty.  

UK: Lord Myners on corporate governance

Lord Myners, HM Treasury's Financial Services Secretary, delivered a speech yesterday at the Hermes and City of London Corporation Responsible Asset Management Conference. His speech was wide ranging and, once more, he put forward the view that shareholders should view themselves as the "owners" of companies. In this regard he observed:

The problem is that most shareholders do not believe that they are owners; they do not feel responsible for the functioning or the future of companies in which they hold shares. This has profound consequences. The reality of ‘ownerless corporations’ disadvantages public equity as a form of ownership compared with other models – particularly private equity; it leads to pressure for more regulation to offset the vacuum in engaged oversight and it potentially subserviates and alienates employees who cannot diversify employer risk and find themselves working for companies with ‘here today, gone tomorrow’ owners".

Ownership is, of course, a difficult concept because companies, with their own legal personality, cannot be owned in the conventional sense. Lord Myners concluded his speech with the following suggestion:

... the investment community needs to take seriously the case for an organisation to promote and further the debate on governance and stewardship. A number of trade associations – the ABI, IMA, NAPF and others – have devoted resources to governance, but their primary role is to further the interest of their members; they mostly speak for the agents rather than investor principals. A strong, well-resourced body speaking solely on behalf of investors (the ultimate clients) would represent a valuable addition to the forces working for better governance and stewardship.I have called before on the fund management industry to endorse and fund such a body, possibly in partnership with a major business school (and endorse it without strings attached)".

UK: the Bribery Bill and the failure of commercial organisations to prevent bribery

The Bribery Bill received its first reading last week in the House of Lords with second reading timetabled for 9 December. The Bill was published in draft earlier this year and contains provisions for the introduction of a new offence: the failure to prevent bribery by a commercial organisation (defined in clause 7(5) to include, inter alia, companies incorporated in the UK).

Clause 7(1) provides that the offence is committed where a person associated with the organisation bribes another person intending (a) to obtain or retain business for the organisation or (b) to obtain or retain an advantage in the conduct of the organisation's business. A defence is, however, provided in clause 7(2), where the organisation is able to prove that it had in place adequate procedures designed to prevent the bribery. Clause 11(5) provides that the offence is committed irrespective of whether the acts or omissions which form part of the offence take place in the UK or elsewhere. 

There is an important difference between the draft Bill and the Bill as introduced in the House of Lords regarding this new offence: the Government has removed the requirement for the prosecution to prove that the bribery took place as a result of negligence by a "responsible person" within the organisation. In its response to the Joint Committee on the draft Bill, the Government explained it change of position:

... the Government agrees that there may be a risk that requiring the prosecution to prove negligence may involve unnecessary complexity and may have the potential to undermine the broad policy objectives of bringing about a shift away from a corporate culture that is more tolerant of bribery and promoting effective corporate anti-bribery procedures".

UK: updated guidance booklets from Companies House

Companies House has published revised editions, dated November 2009, of two of its Companies Act (2006) guidance booklets:

• GP1 - Incorporation and names (see: html | pdf)
• GP2 - Life of a Company: Part 1 Annual Requirements (see: html | pdf)
  

UK: statements of capital under the Companies Act (2006) - BIS consultation

The Department for Business, Innovation and Skills has published a consultation paper concerning the financial information required in statements of capital under the Companies Act (2006). The consultation highlights problems with the current requirements - some of which were highlighted by ICSA earlier this year - and sets out a proposed response involving changes in the Act which BIS believes would simply the information required and avoid the need to disaggregate any information below the level of class of share.

UK: the disclosure of directors' loans in company accounts

Earlier this year the Department for Business, Innovation and Skills published a consultation paper concerning the scope of the requirement for disclosure of directors' loans in company accounts under Section 413 of the Companies Act (2006). The paper outlined various proposals for amending Section 413 as part of the Government's review of the adequacy of information provided to shareholders and other users of accounts in respect of directors' loans.

Responses to the consultation have now been published (see here - .zip file) along with the Government's response (see here - pdf). The Government proposes, in the short-term, amending the 2006 Act in order to clarify the disclosure required by banks in respect of directors loans, credits and guarantees.

UK: Scotland: remedies for unfairly prejudicial conduct and the powers of the court

The Court of Session (Inner House) has today given its opinion in Li v Holouis Ltd [2009] CSIH 87. The principal issue before the court concerned the remedies available to the Sheriff court when granting relief for unfairly prejudicial conduct under Section 996 of the Companies Act (2006). Lord Carloway delivered the opinion of the court and, at paras. [14] and [15], stated:

Section 994 of the Companies Act 2006 provides, inter alia, that a shareholder can apply to the Court for relief in a situation where a company's affairs are being, or have been, conducted in a manner unfairly prejudicial to him. Section 996 allows the Court to "make such order as it thinks fit". It is recognised that this gives a court the "widest possible discretion" in the selecting the remedy (Wilson v Jaymarke Estates Ltd 2006 SCLR 510, Lord President (Cullen) at para [12]). However, this does not mean that the court can create new remedies, of a type which it otherwise has no power to grant. Thus, it can select from its armoury of competent remedies the one which it thinks appropriate to a given situation. Obvious examples will be orders for payment, ad factum praestandum and interdict. But, in the absence of an express statutory provision, a court cannot grant a remedy which it has no general power to grant.

The Sheriff Court has no jurisdiction to grant the remedy of reduction of documents (Dobie: Sheriff Court Practice, p 22, under reference to Donald v Donald 1913 SC 274). As distinct from the situation where a statute permits the Sheriff Court to "set aside" a decision or other matter as between the parties to a cause or where reduction ope exceptionis constitutes a defence, reduction of deeds can have a much wider effect. It can affect third parties, over which the Sheriff Court may have no general jurisdiction. In the case of heritable rights, any potential Sheriff Court jurisdiction may rest exclusively in another Sheriffdom. Hence, reduction has tended to be restricted to the Court of Session. It may be that this will change in the future (Report of the Scottish Civil Courts Review chapter 4, para 141, recommendation 29) but that is the law at present. The Sheriff's objections to it, however well reasoned in practical terms, cannot change that. In short, the Sheriff Court has no power to grant reduction in a petition under section 994".

Note: a glossary of Scottish legal terms is available here. 

Singapore: new governance council + code review

The chief executive of the Monetary Authority of Singapore - Mr Heng Swee Keat - yesterday announced the formation of a corporate governance council to promote high standards of corporate governance in listed companies. An immediate task for the Council, he said, would be a review of Singapore's Code of Corporate Governance, published in 2005.

New Zealand: Commission finds lack of transparency in financial statements

Issue 49 (October 2009) of the quarterly newsletter of the New Zealand Securities Commission has been published: see here (html). This contains, inter alia, a brief summary of the Commission's analysis of the financial statements of 20 companies. The Commission found what it described as a "widespread lack of transparency", particularly with regard to the disclosure of related party transactions and the underlying assumptions used to value assets. The chairman of the Commission, Jane Diplock, observed:

... all directors should remember that ensuring financial statements comply with the law is a primary duty of company directors. NZ IFRS have been mandatory in New Zealand since 2007. New Zealand companies have had long enough to comply with NZ IFRS. The standards demand greater transparency and if their financial statements are not fully compliant, then company directors should be concerned that they are failing one of their basic duties to shareholders. Company directors are personally responsible to ensure that financial statements tell an entity's story completely and transparently. They should remember that they can be prosecuted under the Financial Reporting Act if their company publishes non-compliant financial statements. If misleading financial information is published in a prospectus, directors can also face prosecution under the Securities Act".

UK: the Financial Services Bill - first reading in the House of Commons

The Financial Services Bill received its first reading in the House of Commons today. The Bill's second reading is provisionally scheduled for 30 November. A copy of the Bill as introduced at first reading is available here (html) and here (pdf). Explanatory notes are available here (html) and here (pdf). The Bill contains 19 clauses, arranged as follows:

• The Council for Financial Stability (clauses 1, 2, 3 and 4).
• The objectives of the Financial Services Authority (clauses 5, 6, 7 and 8).
• The remuneration of executives of authorised persons (clauses 9, 10 and 11).
• Recovery and resolution plans (clause 12).
• Short selling (clause 13).
• The FSA's disciplinary powers (clauses 14, 15, 16 and 17).
• Collective proceedings (clauses 18 and 19).
  

The clauses concerning remuneration have attracted widespread attention. Clause 9 gives the Treasury the power to make regulations (a form of secondary legislation) regarding the preparation, approval and disclosure of executives' remuneration reports. 

Clause 11 will amend the Financial Services and Markets Act (2000) through the insertion of new section 139A. Section 139A will require the Financial Services Authority to impose on authorised firms the obligation to have, and to act in accordance with, a remuneration policy. This remuneration policy must be consistent with the effective management of risks and the Implementation Standards for Principles for Sound Compensation Practices issued by the Financial Stability Board on 25 September 2009. Where a remuneration policy is not consistent with these requirements, Section 139A(7) states that the FSA "must take such steps as it considers appropriate to deal with the failure" and in this regard it is specifically given the power to require changes in the remuneration policy. 

Section 139A(9) provides that the FSA's rules on remuneration may prohibit individuals from receiving certain types of remuneration, with agreements in contravention of this prohibition being void.

UK: FTSE100 boards and female directors

Cranfield School of Management has today published its 2009 Female FTSE board report. The report notes that 12% of FTSE100 board directorships are held by women and one in four companies have exclusively male boards. An overview of the report's findings is available here.

A lecture with Bob Monks

Robert A.G. Monks - better known as Bob Monks - recently lectured on Harvard Law School's Corporate Governance Program. His subject was corporate governance past, present and future. Mr Monks' lecture (including his answers to questions) can be watched here (.mov format) and the paper accompanying his lecture is available here.

UK: the Financial Services Bill

In today's Queen's Speech - containing the Government's legislative programme for the months that remain before a general election must be called - was mention of the Government's heavily trailed proposals for the financial sector. A Financial Services Bill is proposed, the main elements of which include (to quote from a short overview of the Bill prepared by the Government):

• Establishing a new statutory Council for Financial Stability (‘the Council’), to replace the Standing Committee, chaired by the Chancellor and comprising the Treasury, Bank of England and the Financial Services Authority.
• Strengthening the Financial Services Authority, including through providing explicit objectives, formalising its international work, and expanding the remit of the Financial Services Compensation Scheme.
• Taking action, nationally and internationally, on remuneration.
• Tougher requirements on systemically important financial firms to set up recovery and resolution plans (ie ‘living wills’), that will make banks safer and easier to wind down in the event of a future crisis.
• Enabling the roll-out of a national money guidance service, to be delivered by a new Consumer Financial Education Body.
• The creation of better routes for consumer redress, including enabling a representative to bring an action through the courts on behalf of a group of consumers, and streamlining the FSA’s powers to order a review of past business and secure compensation if there have been legal or regulatory breaches.
• Banning unsolicited credit card cheques, to prevent financial institutions from encouraging customers to borrow more than they can afford.
  

The devil will, of course, be in the detail and for this we will have to wait. The Guardian newspaper reports that the Bill will be published in full tomorrow. This raises the question how the Government will implement the Walker Review final recommendations, which will be published next week. In a speech delivered earlier this month, the Chancellor said that the Government would "legislate to make further reforms [to the financial regulation framework], including the implementation of Sir David Walker’s report on corporate governance in the financial sector".

UK: the Responsibilities of Institutional Investors - ISC Code published

The Institutional Shareholders Committee - comprising the Association of British Insurers, the Association of Investment Companies, the National Association of Pension Funds and the Investment Management Association - has published a code on institutional investors' responsibilities. The Code operates on a 'comply or explain' basis (institutions not wishing to engage with companies are expected to explain why) and provides, in the view of the ISC, best practice for institutions with regard to their engagement with companies. This best practice takes the form of seven principles and accompanying guidance. The seven principles are: 

• Institutional investors should publicly disclose their policy on how they will discharge their stewardship responsibilities.
• Institutional investors should have a robust policy on managing conflicts of interest in relation to stewardship and this policy should be publicly disclosed.
• Institutional investors should monitor their investee companies.
• Institutional investors should establish clear guidelines on when and how they will escalate their activities as a method of protecting and enhancing shareholder value.
• Institutional investors should be willing to act collectively with other investors where appropriate.
• Institutional investors should have a clear policy on voting and disclosure of voting activity.
• Institutional investors should report periodically on their stewardship and voting activities.
  

The Financial Times newspaper reports that Lord Myners, the Financial Services Secretary to the Treasury, has welcomed the Code's publication but is nevertheless critical of the self-governance model on which it is based.

UK: current economic conditions - challenges for audit committees

Yesterday the Financial Reporting Council published a document highlighting the challenges for audit committes arising from current economic conditions. The document contains questions which are designed to identify issues of relevance to the work of audit committees over the coming months. It also contains the following assessment:

The current economic outlook appears to be less depressed than this time last year. However, significant economic risks remain and will present challenges for many audit committees during the 2009/10 reporting season. Past experience shows that insolvencies have increased after the technical end of recessions as companies run out of working capital. Such conditions mean that the next twelve months are likely to be particularly difficult for management and may increase the risk that annual reports and accounts misreport facts and circumstances and contain uncorrected errors and omissions".

Canada: Canadian Securities Administrators decide to maintain current governance regime

In December last year the Canadian Securities Administrators published for consultation a proposal for changes in the governance regime in Canada. Last week the CSA announced that this proposal would not be implemented. In CSA Staff Notice 58-305 – Status Report on the Proposed Changes to the Corporate Governance Regime, the CSA explained:

We received numerous comments about the timing of the Proposal. A majority of commenters expressed the view that now is not an appropriate time to introduce significant changes to the corporate governance regime in Canada. Commenters pointed out that issuers are currently focused on business sustainability issues in a challenging economic climate, and on the transition to International Financial Reporting Standards. We also received significant comments on a wide range of other matters related to the Proposal. Based on the comments we received, the CSA does not intend to implement the Proposal as originally published. We have concluded that now is not an appropriate time to recommend significant changes to the corporate governance regime.

We are reconsidering whether to recommend any changes to the corporate governance regime. We will publish any proposed changes for comment. They would not be effective until the 2011 proxy season at the earliest. The CSA will provide sufficient advance notice for issuers to adapt their corporate governance practices to fully comply with any revised regime".

UK: Treasury Committee finds serious problems with European Commission's proposals for European financial supervision

The Treasury Committee has today published an interim report in which its sets out its opinion on the European Commission's proposals for European financial supervision: see here (html) or here (pdf). The Committee concludes, inter alia, that "even on a cursory examination there are serious problems with the Commission's proposals which need to be dealt with before the Council agrees to the draft legislation" (para. 28). 

UK: Companies House - electronic incorporation

Companies House has a target for the processing of electronic incorporations of 95% within 3 working days. A written answer in the House of Commons last week indicated that 19% of incorporations did not meet this target last month (the target was met in the previous three months). Ian Lucas MP, the Minister for Business and Regulatory Reform, provided this explanation for the target not being met in October:

The increase in numbers of incorporations failing to meet the target in October was due to the implementation of the Companies Act 2006 and a variety of factors including: data processing issues; customer and staff lack of familiarity with new requirements; and initial issues with system performance. Steps taken include: assigning resources; identifying and fixing data validation issues; clarifying and communicating policy issues. These steps resulted in incorporations targets being met from 9 October onwards".

Australia: credit rating agencies - regulatory change

The Australian Securities and Investments Commission has announced changes to the regulation of credit rating agencies, effective from 1 January 2010. See here for further information. 

UK: Coroners and Justice Bill receives Royal Assent

The Coroners and Justice Bill received Royal Assent last week. A copy of the Act will be available here shortly. Section 109 of the Act amends Section 71(4) of the Serious Organised Crime and Police Act (2005) by the insertion of the following as specified prosecutors: [a] the Financial Services Authority and [b] the Secretary of State for Business, Innovation and Skills, acting personally. The effect of this amendment is to give the FSA and Secretary of State the power to grant individuals - e.g., those assisting in criminal cases - immunity from prosecution. 

Update (20 November 2009): a copy of the Act is available here (pdf). 

Update 2 (23 November 2009): a copy of the Act is available here (html). 

UK: Supreme Court to hear appeal in de facto director case

A post on the UK Supreme Court blog - a blog about the court with editors from Matrix Chambers and Olswang LLP , which was formally launched last week - informs me that permission has been granted for an appeal to the Supreme Court in Holland v HMRC [2009] EWCA Civ 625, [2009] 2 BCLC 309, [2009] STC 1639. For a summary of the Court of Appeal's decision, see this post. 

UK: England and Wales: unfair prejudice - improper accounting and removal of an auditor

Judgment was given today in Kohli v Lit & Ors [2009] EWHC 2893 (Ch), a case in which a shareholder successfully sought relief for unfairly prejudicial conduct under sections 994 to 996 of the Companies Act (2006). The allegations were wide-ranging but of particular interest are those concerning the preparation of accounts and the non-disclosure of directors' remuneration, which the trial judge (HHJ Purle QC, sitting as a High Court judge) held established unfair prejudice. The trial judge also discussed Section 994(1A) and this would appear to be the first time that this new provision has been judicially considered. 

In the case, the remuneration of the highest paid director was not, as required, disclosed and had been included in an amount for "administrative expenses".  It was argued that this did not matter because a shareholder could have asked a question at an annual general meeting in order to elicit further information. The trial judge rejected this position, observing that (para. [218]): 

Transparency demands that the unvarnished truth should be revealed by the accounts, not hidden, and not left to the shareholder to ask questions at a shareholders' meeting".

Although the trial judge found that there was no deliberate plan to conceal the truth from the petitioning shareholder, it was, he observed (para. [224]):

... readily understandable that the improper accounting should cause her to lose all confidence in the competence and integrity of the board, or (which is probably a more realistic appraisal of the situation) that such possibility that there ever was that she should regain trust and confidence in the board has been destroyed".

It would appear that this finding was an important factor in the trial judge's finding of unfair prejudice.  In reaching this decision, HHJ Purle QC briefly considered the knowledge of accounting to be expected of individual directors (para. [220]):

It would be wrong to expect individual directors to be on top of the detail of the accounting requirements of successive Companies Acts and allied regulations. It is their duty, however, to read the accounts carefully before their approval and query anything that strikes them as odd, or questionable".

Elsewhere in his judgment, when exploring the extent to which breaches of companies legislation should be unfairly prejudicial, he referred to Section 994(1A) - inserted by Regulation 42 of the Statutory Auditors and Third Country Auditors Regulations 2007 - and which provides that "a removal of a company's auditor from office - (a) on grounds of divergence of opinions on accounting treatments or audit procedures, or (b) on any other improper grounds - shall be treated as being unfairly prejudicial to the interests of some part of the company's members". HHJ Purle QC observed that the effect of Section 994(1A) was that (para. [20]): 

[there must] be a finding of unfair prejudice even though the effect of the conduct complained of has no necessary impact on the value of the complaining shareholders' investment. Moreover, a board acting in good faith may genuinely, and correctly, disagree with (say) the accounting treatments, but removal of the auditor on those grounds will be unfairly prejudicial, reflecting the importance the law attaches to absolute standards of behaviour in the accounting process. Whilst this particular provision is new, I regard it as declaratory (except as to its mandatory application) of the kind of conduct that can amount to unfair prejudice, both today, and in a case concerning events before 2008, as this case does. Having said that, it does not follow, even where unfair prejudice is established, that the Court will necessarily grant relief. There will be cases where the Court concludes that the unfair prejudice is not sufficiently serious to justify its intervention, or its intervention may be limited".

USA: NYSE corporate governance commission

The New York Stock Exchange has announced that it has completed the formation of its commission on corporate governance. A list of members is available here. The commission's mission statement explains:

The NYSE’s Commission on Corporate Governance will address U.S. corporate governance reform and the overall proxy voting process for publicly traded entities. The Commission will take a comprehensive look at the multitude of issues facing Directors, Management,  Stockholders, regulators and other constituencies in the on-going public debate about best practices for corporate governance".

UK: FRC responds to Treasury Committee recommendations

The chief executive of the Financial Reporting Council, Paul Boyle, has written to the Rt. Hon. John McFall MP, the chairman of the Treasury Committee, to explain what the FRC has done in respect of the recommendations addressed to it by the Committee in its report Banking crisis: reforming corporate governance and pay in the City. Mr Boyle's letter notes, inter alia, that: improving the quality of corporate reporting will be one of the FRC's priority projects next year; and the FRC is working with the Financial Services Authority to assess communication between the FSA and auditors. 

UK: executive pay - NAPF principles

The chief executive (Joanne Segars) and head of corporate governance (David Paterson) of the National Association of Pension Funds have written to FTSE350 chairmen setting out several principles for the alignment of executive pay with shareholders' interests. The letter, published today, also states the NAPF's view that "a review of accepted best practice, which serves neither shareholders nor management well, is warranted and we have made these views clear to Government and in the FRC consultation on the Combined Code".

UK: Scotland: winding-up unregistered companies

Lord Hodge, sitting in the Court of Session (Outer House) has ordered the winding-up, under Section 221 of the Insolvency Act (1986), of eleven companies registered overseas but with their principal place of business in Scotland: see HSBC Bank Plc, Re An Order To Wind Up Kirkbride Investments Ltd [2009] CSOH 147. With regard to the exercise of the court's discretion, Lord Hodge observed that the approach adopted by the English courts was appropriate in Scotland. He stated (para. [11]):

There is no recent Scots case law on this issue but I am satisfied that the approach of the English courts is appropriate and I recall that our courts have adopted that approach in applications which have not resulted in written opinions. In similar circumstances Lord Grieve in Inland Revenue Commissioners v Highland Engineering Limited 1975 SLT 203 relied on English case law in his interpretation of the provisions of the Companies Act 1948 in relation to the winding up of unregistered companies and observed that it was desirable that the courts in each jurisdiction should interpret a United Kingdom statute, such as the Companies Act, in the same way. In Marshall, Petitioner (1895) 22 R 697 the First Division used English authority to inform their interpretation of section 199 of the Companies Act 1862".

USA: Restoring American Financial Stability - discussion draft published by Senate Banking Committee

The United States Senate Committee on Banking, Housing and Urban Affairs has published a discussion draft titled Restoring American Financial Stability. The Committee advocates, inter alia, the creation of a single, federal bank regulator and providing shareholders with a non-binding vote over executive pay. Some of what the Committee proposes is already being pursued by the SEC, including making it easier for shareholders to nominate directors. A summary of the discussion draft is available here (pdf) and the Committee's press release is available here.

UK: OECD Guidelines for Multinational Enterprises - BIS consults on review's terms of reference

The Department for Business, Innovation and Skills has published a consultation paper regarding the terms of reference for an update of the OECD Guidelines for Multinational Enterprises. The purpose of the consultation is to develop a UK position with regard to the scope of the OECD's review.

Luxembourg: ALFI Code of Conduct for Luxembourg Investment Funds

The codes directory maintained by the European Corporate Governance Institute has been updated to include a copy of the Association of the Luxembourg Fund Industry Code of Conduct for Luxembourg Investment Funds: see here. The code provides boards with a framework of high-level principles and best practice recommendations for the governance of Luxembourg investment funds.

UK: England and Wales: schemes of arrangement and the meaning of 'creditors'

The Court of Appeal has delivered an important decision concerning schemes of arrangement under Part 26 of the Companies Act (2006). At issue in Re Lehman Brothers International (Europe) [2009] EWCA Civ 1161 was the meaning of 'creditors' within Section 895(1) of the 2006 Act. Section 895(1) provides that Part 26 applies "where a compromise or arrangement is proposed between a company and - (a) its creditors, or any class of them, or (b) its members, or any class of them".

The court held, in the absence of a statutory definition, that a creditor within Section 895 did not include a beneficiary of property held on trust by the company. Patten LJ, with whom the Master of the Rolls and Longmore LJ agreed, observed (at paras. [59] and [66]):

It is obvious that someone with a purely proprietary claim against the company is not its creditor in any conventional sense of that word. As a matter of ordinary language, a creditor is someone to whom money is owed. The use of this word with that meaning is a long-established and essential part of English company law ... Given that "creditor" is not defined in the legislation, it is inconceivable that Parliament should have used the word in the 2006 Act in any but its literal sense ... A person is the creditor of a company only in respect of debts or similar liabilities due to him from the company. I am not persuaded that Parliament can have intended to allow creditors to be compelled (if necessary) to give up not merely those contractual rights but also their entitlement to their own property held by the company on their behalf".

Update (10 November 2009): the ICLR, as part of its WLR Daily service, has provided a summary of the decision here.

UK: directors, ethics and the FSA

The chief executive of the Financial Services Authority, Hector Sants, delivered a speech yesterday titled Intensive Supervision: delivering the best outcomes. Mr Sants used his speech to defend the current tripartite regulatory structure and to make the case for cultural change within regulated firms. Regarding the latter, Mr Sants envisaged a greater role for the FSA with regard to the assessment of senior executives' ability to set a "strong ethical framework". To quote directly from his speech:

Real reform requires both change to the regulatory rules and change to the industry’s culture. Expressions of acceptable ethical frameworks exist in a variety of guises. There are numerous thoughtfully articulated industry codes. The problem is not so much about defining the ethical framework but rather the issue of identifying and encouraging the right cultures which ensure their application. The FSA believes that such issues are potentially so important to improving governance that we, as the regulator, should try to take them into account. We recognise that there is no single ideal culture across the financial services industry, and that all cultures are likely to have good and bad aspects. Our aim would, therefore, be to seek to facilitate the creation of good cultures and intervene when bad ones seem to be creating unacceptable outcomes.

There are two principal tools at the disposal of the regulator to influence culture: governance systems and people. Going forward, we will be seeking to identify mechanisms for assessing the effectiveness of culture during our risk review process. This would certainly include when assessing board effectiveness, looking at their impact on an institution’s culture. However, I believe the key enabler should be our ‘fit and proper’ regime. We all recognise that culture is driven by individuals and in particular senior executives who: ‘set the tone from the top’. I thus strongly believe that our authorisation regime should seek to make a determination of an executive’s ability to set a strong ethical framework and to foster the right culture".

UK: Audit Inspection Unit reports published

The Professional Oversight Board, part of the Financial Reporting Council, has published inspection reports by the Audit Inspection Unit for 2008/9 in respect of Grant Thornton UK LLP (here); Horwath Clark Whitehill LLP (here); KPMG LLP and KPMG Audit PLC (here); and PricewaterhouseCoopers LLP (here). In general, the reports indicate that audit procedures were being performed to a good or acceptable standard in the audits surveyed. Nevertheless, in several of the audits reviewed the AIU identified the need for improvements in the obtaining and/or recording of audit evidence. 

Europe: Commission consultation on access to company registers

The European Commission has published a green paper to launch a consultation on improving access to company registers across the EU. It has also published a progress report concerning the interconnection of European company registers in which it describes the current legal and factual position regarding access to information and co-operation between business registries. The Commission provides this short overview in the green paper (at pp. 2 and 3):

There is an increasing demand for access to information on companies in a cross-border context, either for commercial purposes or to facilitate access to justice. However, while official information on companies is easily available in the country of their registration, access to the same information from another Member State may be hindered by technical or language barriers. In these circumstances, facilitating cross-border access to official and reliable company information for creditors, business partners and consumers is necessary to ensure an appropriate degree of transparency and legal certainty in the markets all over the EU. To achieve this, the cross-border cooperation of business registers is indispensable.

Efficient cross-border cooperation between the registers is not only essential for a smooth functioning of the Single Market. It also significantly reduces the costs for companies operating cross-border. ... The existing voluntary cooperation between business registries is, however, not enough. There is a need for enhanced cooperation between them. ... This Green Paper describes the existing framework and considers possible ways forward to improve access to information on businesses across the EU and more effective application of the company law directives".

Responses to the green paper should be made here.

USA: shareholder voting - SEC chairman speech

The SEC chairman, Mary Schapiro, delivered a speech yesterday at the Practising Law Institute's 41st Annual Institute on Securities Regulation. Her focus was shareholder voting and she provided a review of recent and proposed SEC action in this regard. She began her overview of proposed action with the following observations: 

The proxy statement is crucial to our system of corporate governance. It is the only communication a company makes that is specifically addressed to, and intended for, shareholders. It is where shareholders discover who the nominees are for board elections. It is where shareholders can submit proposals on important company matters, including governance, for consideration by their fellow shareholders. In other words, it is where shareholders can formally and regularly participate in the governance of the corporation they own.

With over 800 billion shares being voted every year at over 7,000 company meetings, it is imperative that our proxy voting process work — starting with the quality of proxy disclosure and continuing through to the accuracy of the annual meeting voting results. That is why we are undertaking a series of initiatives related to the fundamental goal of enhancing the system through which shareholders exercise their franchise. Many of these are admittedly controversial. In fact, they raise difficult legal, philosophical and logistical issues that have derailed previous efforts at reform. But, time has not made these issues go away, and the failure to reform the shareholder voting process in the past has, in my view, affected company and board responsiveness to shareholder concerns".

UK: internal audit services/extended assurance services - FRC advises caution

The Auditing Practices Board - part of the Financial Reporting Council - last month published a consultation paper concerning audit firms' provision of non-audit services to the listed companies they audit. Against this background, the FRC today announced that it had written to larger audit firms explaining the work it is doing with regard to audit firms' provision of internal audit services and extended assurance services in connection with the audit. Whilst the letter has not been published, in the relevant press release the FRC's chief executive, Paul Boyle, is quoted:

The FRC believes it is important that audit firms and their clients should be aware of the steps being taken and may want to be cautious before entering into arrangements which stretch the internal/external audit boundary, not least because it could prove to be inconvenient and/or costly to change such arrangements should the outcome of the FRC’s work be that the Ethical Standards are changed in a way that affects the provision of such services".

UK: corporation tax, small companies' rate - proposed reform to the associated companies' test

HM Treasury and HMRC have published a consultation paper setting out a proposed new test for determining whether companies are associated for the purposes of the small companies' rate of corporation tax. Where a company is deemed to be associated with other companies the corporation tax thresholds are reduced. The purpose of reform (to quote from the consultation paper (at para. 3.3):

... is to provide a test that retains those aspects of the current test that work well within a new test that attributes rights held between linked persons only in circumstances where actual links between the companies make it appropriate to do so. Put broadly, the new test seeks to ensure that companies cannot be associated by an attribution of rights by mere ‘accident of circumstance’".

Poland: European Commission refers Poland to the ECJ

The European Commission has referred Poland to the European Court of Justice because, in the Commission's view, the Polish Act on Special Powers of the Treasury and their Exercise in Companies of Special Importance for Public Order or Public Security (and two implementing ordinances) is contrary to the principle of free movement of capital and freedom of establishment under the EC Treaty. 

The Act grants the State special rights - including a right of veto in respect of important management decisions - in thirteen Polish companies in the copper ore mining, media/audiovisual, railway infrastructure, electricity, gas and petroleum, motor spirits and diesel oil sectors.  Further information is available here. 

UK: Sir David Walker appears before the Treasury Committee

Sir David Walker, who later this month will publish a final report following his review of the corporate governance of banks and other financial institutions, appears before the Treasury Committee this morning. Sir David will be answering questions about his review, as part of the Committee's broader enquiry into financial regulation. The proceedings can be watched here (the default media player is Microsoft Silverlight but the proceedings can also be watched using Windows Media Player). 

UK: the Companies’ Remuneration Reports Bill

The Companies’ Remuneration Reports Bill, which was introduced by Lord Gavron in the House of Lords last December, has received its first reading in the House of Commons. The Bill's second reading is scheduled for this coming Friday, 6 November, but it seems likely that the House will not sit on this day. 

The Parliamentary timetable is such that the Bill will not become law. Prorogation takes place on 12 November and a new session of Parliament begins on 18 November with the State Opening of Parliament and the Queen's Speech. The Bill cannot be carried forward and would have to be reintroduced in the new session. 

Australia: improving the protection provided to whistleblowers

The Minister for Financial Services, Superannuation and Corporate Law - the Hon Chris Bowen MP - has published an options paper exploring ways to improve the protection provided to corporate whistleblowers: see here (pdf) or here (rtf). In the accompanying press release it is stated:

Information from whistleblowers can make an invaluable contribution to the protection of investor interests and the preservation of market integrity. However, whistleblowers must be shielded from the risks they face in coming forward. Currently, corporate whistleblowers are protected under Part 9.4AAA of the Corporations Act 2001. However, these protections have been in place since 2004 and only four whistleblowers have felt safe enough using them to provide information to ASIC. 'I am concerned that the existing protections for corporate whistleblowers contain fundamental shortcomings,' Mr Bowen said".