Tax avoidance

Recent developments in corporate governance policies and practices

Since the third edition of Tricker – Corporate Governance: Principles, Policies, and Practices published in February 2015, the subject has continued to evolve in regulation, policy, and practice. Some of the more significant developments include:

Tax avoidance

The notion of aggressive tax avoidance, in which corporate groups generating profits around the world transfer profits made in high tax regimes to low-tax havens, was addressed in case 15.2 (3E, p404). This topic has continued to excite interest.

In the UK, Facebook was criticised for paying less than £5,000 in tax, despite having UK sales of more than £100 million. Facebook (UK) channels profits to its international headquarters in Ireland, which then moves them to the Cayman Islands, avoiding corporation tax. Google, Apple, and other multinational groups were also criticised for using tax avoidance devices, such as charging intellectual property and brand image rights to their subsidiaries in high tax countries, transferring the proceeds to regimes with low or no corporate taxes.

Companies resident in the USA are taxed on their global profits at relatively high rates. Some US-based companies, generating taxable profits around the world, have sought opportunities, often through M&A activity, to shift their headquarters and their tax domicile to other countries which have less demanding tax rules. Known as ‘tax inversion,’ international groups re-organize to reduce their exposure to tax. Though strictly legal, such manoeuvres are, predictably, frowned upon in the US.

Tax avoidance that exploits loop holes in the international tax system are typically compliant with local tax law, but considered by many to raise ethical questions. However, for anti-tax avoidance measures to work, nations need to cooperate. In October 2015, the G20 and the OECD, institutions representing developed nations, published a set of new measures in an attempt to stop companies exploiting tax avoidance opportunities. The OECD’s ‘base-erosion and profit-shifting project’ tries to bind multi-nationals with a set of global tax rules. Sceptics, though, wonder whether nations will be prepared to harmonize their tax laws. For example, the UK introduced a scheme in 2013, which taxed the transfer of intellectual property rights, such as patents, at a substantially lower rate. Ireland and the Netherlands have similar, but different schemes. See www.oecd.org/ctp/first-steps-towards-implementation-of-oecd-g20-efforts-against-tax-avoidance-by-multinationals.htm

The European Union has also produced a blacklist of tax haven countries, but the rather arbitrary grounds on which countries have been included has been challenged.

Bob Tricker, January 2016

G20-OECD Principles of Corporate Governance

Recent developments in corporate governance policies and practices

Since the third edition of Tricker – Corporate Governance: Principles, Policies, and Practices published in February 2015, the subject has continued to evolve in regulation, policy, and practice. Some of the more significant developments include:

G20-OECD Principles of Corporate Governance

On 5 September 2015, the G20 Finance Ministers endorsed a new set of corporate governance principles developed by the OECD. The aims of these principles are to reinforce business integrity, improve trust in capital markets, unlock investment, and boost long-term economic growth. The intention is to provide governments and those who publish codes of corporate governance throughout the G20 nations and beyond with recommendations on shareholder rights, financial disclosure, executive remuneration, and the activities of institutional investors and stock markets.

The first OECD corporate governance principles were published in 1999 and updated in 2004 (3E, p129). Following the global financial crisis, which began in 2007, the OECD standards have been recognized as key to sound financial systems. The study leading to the 2015 revision began in 2013 and involved major international institutions including the Basel Committee on Banking Supervision, the Financial Stability Board (FSB), and the World Bank.

Details of the revised principles can be accessed at G20/OECD Principles of Corporate Governance. In launching the new principles, the authorities emphasized that ‘good corporate governance is not an end in itself, but a means to support economic efficiency, sustainable growth, and financial stability. It facilitates companies’ access to capital for long-term investment and helps ensure that shareholders and other stakeholders who contribute to the success of the corporation are treated fairly.’

Bob Tricker, January 2016

Corporate governance by principle or rule

Recent developments in corporate governance policies and practices

Since the third edition of Tricker – Corporate Governance: Principles, Policies, and Practices published in February 2015, the subject has continued to evolve in regulation, policy, and practice. Some of the more significant developments include:

Corporate governance by principle or rule

In its drive to create a single capital market, the European Commission (EU) has continued its quest to harmonize corporate governance rules across member states. Inevitably, it has had to face the dilemma (3E, p477) of whether corporate governance practices should be based on principles, as in the UK’s ‘comply or explain’ approach, or determined by rules backed by law, as in Germany and many other EU states.

This is not a new problem: in 1972, the draft 5th directive, from what was then the European Economic Community would have required major companies in all member states to adopt the German two-tier board system of corporate governance, with employee directors on the supervisory board. It failed, not least because of British commitment to their unitary board system. The EU is now working on a shareholder rights directive that would apply across all member states. If enacted, it would have to be enshrined in the laws of each member state.

Around the world, if any trends can be seen, they are towards corporate governance by rules backed by legislation; for example in the Sarbanes-Oxley and the Dodds-Frank Acts in the United States. Nevertheless, the UK remains strongly committed to the principles not rules approach. In other words, companies should comply with the corporate governance code or explain why they have not done so. Britain is trying to extend this approach to the rest of Europe.

Sir Winfried Bischoff, chairman of the UK’s Financial Reporting Council (FRC), wrote (September 2015): ‘The UK Corporate Governance code recognizes the collective role of the board and makes specific mention of board members and their responsibilities – chief executives, chairmen, and non-executive and executive directors. This is the UK approach and one that Europe is now coming round to. In the last 20 years corporate governance codes have emerged across Europe as public perceptions of boardroom behaviour has widened and come under increasing scrutiny. These codes set out best practice principles for boards and generally operate on a ‘comply or explain’ basis, on the assumption that good corporate behaviour can be accomplished through transparency rather than through hard rules and unnecessary (bureaucratic) burdens.’

The FRC wrote formally to the EU on 26 June 2015 explaining that the FRC sets the framework in the UK of codes and standards for corporate reporting, accounting, auditing, and actuarial and investor communities, including the corporate governance and stewardship codes. It explained how the stock exchange listing rules for major listed companies required them to follow the codes, under the supervision of the Financial Conduct Authority. Details of the work of the FRC and their latest report is available at www.frc.org.uk/About-the-FRC.aspx

Bob Tricker, January 2016

UK reporting on ‘going concern’ taking risk into account

Recent developments in corporate governance policies and practices

Since the third edition of Tricker – Corporate Governance: Principles, Policies, and Practices published in February 2015, the subject has continued to evolve in regulation, policy, and practice. Some of the more significant developments include:

UK reporting on ‘going concern’ taking risk into account
Following the global financial crisis, the UK’s Sharman Report called for companies to give greater clarity to assurances that their company was a ‘going concern’, by identifying liquidity and solvency issues existing in potential long-term risks. In September 2014, the FRC updated the UK corporate governance code to take account of these recommendations, and issued guidance information. See www.frc.org.uk/getattachment/591a5e2a-35d7-4470-a46c-30c0d8ca2a14/Sharman-Inquiry-Final-Report.aspx and www.frc.org.uk/Our-Work/Codes-Standards/Corporate-governance.aspx

The code now calls for companies to monitor risk management and internal controls and, at least annually, to carry out a review of their effectiveness, and further to report on that review in the annual report. Since boards are unlikely to want to report on their exposure to risk, it is likely that external auditors will include such reviews in their audit programmes.

However, these changes applied only to companies coved by the code. In October 2015, the FRC issued a further consultation paper for all companies, including those not covered by the corporate governance code, on the assessment and reporting of the ‘going concern’ basis of accounting, taking solvency and liquidity risks into account (3E, p194 onwards).

Bob Tricker, January 2016

Corporate governance in China

Recent developments in corporate governance policies and practices

Since the third edition of Tricker – Corporate Governance: Principles, Policies, and Practices published in February 2015, the subject has continued to evolve in regulation, policy, and practice. Some of the more significant developments include:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   Corporate governance in China

I lived in Hong Kong (now a special administrative region of China) for 14 years and have been visiting regularly since 1982. Over that time, China has changed from an essentially agrarian economy, through massive labour-intensive, low-tech manufacturing, to become the world’s second largest economy, second only to the United States. A substantial car and property owning middle class are now moving the economy from an industrial towards a consumer and service orientated society. Nevertheless, China remains a key manufacturer, increasingly in high-tech fields, backed by R&D. The double-digit economic growth seen in recent years was clearly not sustainable indefinitely, but the economic slow-down has produced some interesting corporate governance issues.

The two Chinese stock markets, in Shenzen (just across the border from Hong Kong) and Shanghai, are predominantly retail markets – institutional investors such as pension funds are relatively new. The markets are also relatively small compared with stock markets in Europe and North America. Seeing dramatic increases in share values and believing government assurances, many individuals borrowed to fund their investments. When the market began to fall, reflecting a slowing economy, and crashed in July 2015 with many shares suspended, the government panicked. In fact, the market had only fallen back to the levels of a year earlier. Yet the government tried to slow the fall by ill-judged interference – prohibiting initial public offerings and providing funds to buy-back shares in an attempt to prop up the market. An unanticipated devaluation of the currency by 2% compounded the problem by triggering panic selling of the yuan around the world.

State-owned enterprises (SOEs) still play a fundamental role in China, even though some of them are partially privatised and quoted on the stock market (3E, p297). The government maintains a tight control over industries which it feels are strategically important, such as oil, steel, and communications. Control is exercised through enmeshed relationships between government and party officials at every level: from the approval of strategic developments, the appointment and remuneration of senior executives, and the oversight of finances at the state or province level, down to Communist party cells in each plant at the employee level.   Bureaucracy can hinder corporate development.

Private companies play an increasingly important role in China; for example, the e-business firm Alibaba, the vast conglomerate Dalian Holdings, and computer company Lenovo, (although Lenovo is a subsidiary of Legend Holdings, a conglomerate with SOE characteristics). In such firms, the founding entrepreneurs and top executives, working with shareholders, play the dominant role in setting strategic direction, the appointment of top management, and financial oversight. Private firms have more freedom than SOEs to innovate, respond to market opportunities, and stimulate change. Nevertheless, relationships with the state and party (the often mentioned guanxi) remain essential if a private firm is to prosper.

A recent IMF report in August 2015 calls for a transition in China from slower to better growth. It notes growth slowing as vulnerabilities, particularly credit growth, are reined in, and calls for policies calibrated to ensure orderly slowdown, and structural reforms to create new sources of growth (www.imf.org/external/pubs/ft/survey/so/2015/CAR081415B.htm).

Bob Tricker, January 2016

 

How the phrase ‘corporate governance’ arose

My experiences during a decade as Director of the Oxford Management Centre in the 1970s made me realize that there was an underlying contradiction in the way that the Centre was run. Oxford colleges are run by their Fellows and the Head of the House (by whatever name the Head is known – Master, Warden, Principal) reflecting the governance of the monastic institutions from which the colleges derived.

The Management Centre, on the other hand, was run like a company, which it was. But the academic standards set for the Fellows were those of an Oxford college, as Sir Norman Chester, Warden of Nuffield College and Chairman of the Management Centre’s board of directors (its Council), was frequently at pains to point out. Power over the Centre’s strategy lay with the Chairman and that Council, not with the Centre’s Director or the Fellows. The Chairman and his Council wielded power over the finances, and the hiring and firing of academic staff.

The Council was made up of senior Oxford academics and influential businessmen, and had more members than the teaching staff. The problem was that the Chairman and the other board members, both the businessmen and the Oxford academics alike, had no experience of management education. They did not know the subject, they were unaware of the market, and ignorant of the competition: whereas the Director and Fellows, who did know, were subject to the whims of that governing body. Moreover, I came to realize that members of the Council often acted personally and politically in Council meetings, sometimes with prejudice and personal passion. This was not the analytical and rational management decision making we were teaching at the Management Centre.

Eventually, Chester was replaced as Chairman by a businessman, who had also been the benefactor of the Centre. He did not agree with my strategy of focusing the Centre’s work on top management and fired me. ‘Every man has his price,’ he said. Mine was a five year research fellowship at Nuffield College to research whatever I wanted, with a tiny teaching commitment and no administration – an opportunity seldom available at the professorial level.

Governance is not management – the Corporate Policy Group

It occurred to me that the experience of board level activities at the Management Centre was probably the case at the top in many organizations. What went on in boardrooms was not management. It involved the exercise of power. It was a personal and political process. This activity, which could be called governance, was different from management. Governance involved formulating strategy, setting policy, supervising management, and being accountable overall. Management runs the enterprise, but the governing body ensures that it is being run well and in the right direction. This awareness was reinforced by a study[1] on audit committees for British boards that I had already done for accountancy firm Deloitte, Haskins and Sells.

My Research Fellowship provided the perfect opportunity to explore board level processes in depth. I formed a trust, called the Corporate Policy Group, as a focus for the project. In retrospect, I should have called it the Corporate Governance Group, but the phrase ‘corporate governance’ was not then in use and the concept was not understood. When I contributed the management topics to Alan Bullock’s Dictionary of Modern Thought in 1977, there was an entry for ‘corporate strategy’ but not for ‘corporate governance.’ It would be different today.

The Corporate Policy Group was based at Nuffield College and ran for the five years of my Research Fellowship from 1979 to 1983. In the explanatory literature of the Corporate Policy Group I suggested that ‘Many ideas are currently being discussed around the world – improving strategic decision-making, alternative board structures and committees, new roles for outside non-executive directors, audit committees, supervisory boards, regulation, accountability, industrial democracy, wider disclosure, accounting standards, and so on. Yet we know remarkably little about the reality of board level behaviour. There is no generally agreed frame of reference, little except anecdotal evidence, a paucity of serious analysis and thought, inadequate development and training for board membership; concern but few answers on improving board level performance. Companies today can be complex, concentrated, and large, their operations multi-product and international. Inevitably they are enmeshed with governments. They exist in a world of changed expectations – of managers, employees and their unions, consumers and throughout society. Yet we continue with essentially nineteenth century assumptions, based on entrepreneurial capitalism and the (supposed) power of shareholders in annual meeting. There is a variety of ideas but a paucity of thought. There is discussion without data, decisions without grasping the totality of matters involved. The Corporate Policy Group has been created to provide rigorous analysis, careful discussion, thoughtful review, and dissemination of the results.’

 High-flying aims, but remember it was written in 1979.

The Group had no researchers, other than me, but quickly became a network of scholars, company chairmen, CEOs and directors, auditors, lawyers, and others interested in the field. The main focus of our interest was on board structures and processes, the roles of executive and non-executive directors, the reality of strategy formulation, as well as corporate regulation and accountability. Such matters are commonplace today, but then corporate governance codes, compliance reports, and the other paraphernalia of modern corporate governance did not exist.

The initial approach I adopted involved the exploration of the frontiers of knowledge on the topics, discussions with board chairmen and other directors, round-table discussions with directors from different companies, and seminars and conferences. We invited Harold Williams, the Chairman of the Securities and Exchange Commission from Washington, who gave an American perspective on corporate regulation. Another conference, run with the Anglo-German Foundation, looked at the control of the corporation from the perspective of various stakeholders, outlining the German experience of supervisory boards and worker directors.

As the project progressed, I developed two research exercises about the structure and style of boards, and about management and governance relationships between subsidiary and holding companies, which provided the basis for a book – Corporate Governance – the first to use that title. The main findings were, firstly, that there were many opportunities to improve performance and effectiveness. Secondly, the way many business entities operate in society no longer reflected the underlying nineteenth-century legal model of the corporation, and consequently there was a need to rethink the underlying conceptual framework.

The Trustees of the Corporate Policy Group suggested that the findings published in Corporate Governance should be developed into another book of practical insights for directors. Unfortunately, one of my findings had been that practicing directors had little time for reading books, so the material formed the basis of short courses for the Institute of Directors in London and other programmes I ran in Australia, Singapore, and Malaysia.

On the phrase ‘corporate governance’

One evening at dinner at Nuffield high table, a guest sitting opposite asked what I did. I said I had just written a book. Silly really, because so had everyone else at that table.

‘Really, what is it about?’ he asked politely.

‘Corporate governance,’ I said.

‘You mean corporate government?’

‘No, I checked the meaning – it’s about corporate governance.’

‘Good Lord,’ he responded, ‘that word hasn’t been used since the time of Chaucer.’

Turned out he was a visiting Professor of English. Although he was not entirely correct: Harold Wilson, British Prime Minister (1916–1995) had written a book in 1977 with the title ‘The Governance of Britain’ [2]. But that was about the governance of a country, not a company: corporate governance was new. The visiting professor was right about Chaucer, however. Turns out Chaucer did coin the word governance, although he couldn’t quite decide how to spell it (gouernance, or governaunce).

 

This note has been adapted from the recently published book Oxford Circus – the story of Oxford University and Management Education, Bob Tricker (2015) available from Amazon or through www.BobTricker.com

 

[1] Tricker, R. I (1978), The Independent Director, London: Tolley

[2] Wilson, Harold (1977), The Governance of Britain, New York: Harper Collins

 

Bob Tricker, December 2015

The UK’s Financial Reporting Council (FRC) review of 2014

The UK’s Financial Reporting Council (FRC) review of 2014

  • on compliance with the UK Corporate Governance Code
  • a call for better commitment to the Stewardship Code
  • and focusing on corporate culture and board level behaviour

On 15th January 2015, in its annual review of developments in corporate governance and stewardship for 2014, the FRC reported that levels of compliance with the UK Corporate Governance Code had continued to increase. Reporting had become more transparent and informative, with audit committee reports much improved. Overall, levels of compliance with the UK Corporate Governance Code continued to improve, with full compliance by the FTSE 350 now at 61.2%, whilst 93.5% complied with all but 1 or 2 provisions. Reporting on board-diversity had also made good progress with a clear policy on diversity reported by 85% of FTSE 100 companies; although FTSE 250 companies have more to do, showing an improvement from only 20% to just 56%. The UK is on course, the FRC believes, to reach the Davies Report target of 25% female directors in FTSE 100 companies in 2015, with 22.8% of such directorships now held by women.

However, although the signatories to the UK Stewardship Code had increased to almost 300, with investment managers more engaged with large companies, the FRC felt that more needed to be done to ensure that action was taken on their commitment to the principles of the Code. Increasing levels of concern had also been expressed by companies and investors about the role of proxy advisors. In some cases a box-ticking approach seemed to be adopted by them and some investors, with a perceived lack of actual engagement with companies.

The report also highlighted the importance of appreciating the significance of culture and risk management in organisations, as the third edition of Corporate Governance – principles, policies and practices also emphasizes. The recent FRC guidance on risk management highlighted the need for boards to think hard about whether the culture practised within the company is the same as that which they espouse, particularly under pressure.

Commenting on board culture, FRC Chairman Sir Win Bischoff said:

‘The governance of individual companies depends crucially on the culture that is in place. The UK’s strong governance culture encourages companies to list in London and provides assurance to investors. Unfortunately, we still see examples of governance failings in this area. Boards have responsibility for shaping the culture, both within the boardroom and across the organisation as a whole.’

During 2015, the FRC plan to assess how effective boards are at establishing company culture and practices and embedding good corporate behaviour, and will consider whether there is a need for promoting best practice. The FRC will also be focusing on the application of the Stewardship Code and the role of proxy advisors.

Bob Tricker

20 January 2015

Share Ownership in the UK

Increasing ownership by ‘rest of the world’

At the end of 2012, the UK stock market was valued at £1,756.3 billion. The ownership of UK shares has changed dramatically over a 40 year period. The Office of National Statistics (ONS) surveys indicate that the ownership of UK shares by individuals has fallen from 54% in 1963 to under 11% in 2012. On the other hand, the ‘rest of the world’, which held just 7% of UK shares in 1963, now own over 53% of UK quoted shares. This decrease in individual share ownership and increase in the ‘rest of the world’ ownership is perhaps the most notable change in the overall share ownership figures reported by the ONS in its publication ‘Ownership of UK Quoted Shares, 2012’ which is available at:

http://www.ons.gov.uk/ons/rel/pnfc1/share-ownership—share-register-survey-report/2012/stb-share-ownership-2012.html

The ONS analysis of the ‘rest of the world’ shareholding of 53% of UK quoted shares finds that some 48% of this is owned by investors in North America, just under 26% by European investors and around 10% by investors in Asia. The balance is made up of investors from various regions including Africa and the Middle East.

Corporate governance activism

One of the possible implications of the increase in ‘rest of the world’ ownership, and particularly ownership by investors in North America, is in relation to corporate governance activism. Such investors may tend to be more pro-active than many UK institutional investors have traditionally been and may engage more in their investee companies especially where these are underperforming or where there are corporate governance issues. The California Public Employees’ Retirement System (CalPERS) is a well-known example of a US pension fund which actively engages with underperforming companies and/or with those where there are corporate governance issues. In years gone by its strategy was to ‘name and shame’ with its focus lists but these days it concentrates more on a particular issue, for example, executive remuneration, and engages privately with the company to try to bring about improvements before then progressing to any more public approach.

Improved Investor Engagement

Nonetheless the UK’s ‘vanguard’ institutional investors including Hermes, Aviva, and Standard Life all have a high corporate governance profile and actively engage with their investee companies. Moreover the Investment Management Association (IMA) reported increased levels of monitoring and engagement in June 2013 in their survey of ‘Adherence to the FRC’s Stewardship Code, At 30 September 2012’, available at:

http://www.investmentuk.org/research/stewardship-survey/

The report indicated that more institutional investors monitor all their investee companies; that more resources are being put into the stewardship role and that there is ongoing integration of stewardship into the wider investment process. Investors are also prioritising engagement on key issues. Furthermore there has been an increase in voting level with the decision of how to vote the shares being made independently of proxy agencies.

Concluding comments

The UK’s Stewardship Code set the standard in terms of providing a framework for institutional shareholders to monitor, and engage with, their investee companies. There have been a number of encouraging signs that shareholder engagement is on the increase in a number of countries. In her article, ‘Shareholder campaigns more than double in three years’ (FT, Page 20, 11th November 2013), Sam Jones points out that ‘the past 12 months have seen more than 415 instances of corporate activism across the world, up from 172 in 2010’. This trend is expected to continue as institutional investors, with sensitivities highlighted in the aftermath of the financial crisis, increasingly seek to ensure that their investee companies both have appropriate standards of corporate governance and sustainable returns.

Chris Mallin 5th December 2013

Is auditing a profession or a business?

 

The use of independent, outside auditors is a cornerstone in every model of corporate governance.  Yet auditing world-wide is dominated by just four firms – PwC, Deloitte, KPMG, and Ernst and Young.  This colossal four used to be the ‘Big Five, until the collapse of Enron brought down its auditor, Arthur Andersen.

 

These four accounting firms are vast, international, and concentrated.  They are major businesses, with products, market shares, business solutions, and profit performance as watchwords.  Partners are judged by fee generation and growth.  Client income from non-audit work sometimes exceeds the audit fee. 

 

Companies seldom change their auditor: some major listed companies have used the same auditor for generations.  Close relationships inevitably grow between the audit staff, particularly the audit manager, and the client’s finance department.  Moreover, in some companies the finance director and other finance staff have graduated from the company’s auditor. 

 

Such closeness between auditor and client has raised questions about auditor independence.   Some have called for the audit manager to be changed regularly, to avoid undue familiarity. The big audit firms responded that the loss of efficiency, with new staff having to form new relationships and learn about the business, would be considerable. Over the years, suggestions have also been made that the stranglehold of the big four should be forced open by imposing a mandatory limit to the number of years that an auditor can audit a large company’s accounts.  The audit firms argued that the loss of efficiency and cost would be even greater. 

 

So the recent decision by Britain’s Competition Commission not to impose such a limit is significant and reinforces the hold of the big four firms. Instead the Commission decided to require large companies to put their audits out to tender periodically.  Their hope is that such enforced tendering for audits will force open the market.  However, it could have the opposite effect, reinforcing the position of the incumbent auditor as the firm is re-elected.

 

Why I resigned from my membership of the accountancy profession

I became a chartered accountant in 1955.  In 2002, I resigned that membership of the Institute of Chartered Accountants in England and Wales, feeling that auditing had ceased to be a profession and had become a business. What follows is the explanation I gave at the time for my resignation  A version was published in the June 2002 edition of Accountancy.

 

‘When I was 16 the headmaster of my grammar school told my father “this lad has school certificate and higher school certificate; you want him to be a chartered accountant; so don’t waste his time going to university, get him articled straight away.”  Typical of those times, my opinion was not thought necessary.

 

So I was articled to a chartered accountant in Coventry, Phil Mead, whom I now realise, was a remarkable man.  A director of Coventry City Football Club, he was also a partner in Daffern and Co., a five partner firm of Chartered Accountants.  In retrospect, I learned more from him of real value than I subsequently learned at Oxford University or Harvard Business School. 

 

Preparation for the examinations of the Institute of Chartered Accountants, in those days, was by correspondence course and practical experience.  Phil Mead was a great principal to his articled clerks: he personally supervised our work and our development.  He continually gave us just a little more responsibility that we were ready for, but watched over the results closely.  At eighteen I was preparing and explaining the accounts to a workingmen’s club; at 19 was responsible for auditing the subsidiary of a public company, and the year I qualified at 21, I presented the accounts to the directors of a listed company, albeit a small one.  

 

Now, so many years later, I contrast that early experience with the state of auditing today.  Post Enron, some believe that auditors should not undertake non-audit work for clients, others argue that auditors should be changed regularly, or that the lead audit partner should rotate every few years.  I suspect the issues go deeper.  The real question is whether auditing is a profession or a business.

 

In the 1950s ours was a professional practice.  It provided service for a fee.  The number of partners was limited. Globalisation was for the future, though we did have one client with a subsidiary in Australia.  The phrase ‘corporate governance# had yet to be coined.  In those days the accounting profession consisted mainly of relatively small firms.  Of course, our partners were keen to be successful.  They did not want to lose clients to other firms. In their community they were respected and well to do; but they were not rich.  Neither would they compromise their principles.  They would not sign an audit report, stating that the client’s account’s showed a true and fair view, unless the partner was personally convinced that they did.  Better to lose a client than your integrity.  This was a profession, after all.  The audit process demanded absolute objectivity of thought and total independence from the client.

 

When I began my accounting career, the Institute of Chartered Accountants was at the head of a self-regulating profession.   Today, as the world-wide Anderson saga showed, the market place regulates, not the profession.  Indeed, auditing has ceased to be a profession: it has become a business.

 

Of course the business world has changed too.  Nostalgia has no place in strategic thinking.  There is no going back to the profession of half a century ago.  But I suspect that, unless auditing rediscovers what it means to be a profession and returns to its roots, state regulation of the audit process will be imposed to protect creditors, investors and the wider community.’

 

Bob Tricker,  24 July 2013

Corporate Governance and CSR

 

Corporate governance has gained a much higher profile in the last two decades in the wake of various corporate scandals and collapses. Corporate social responsibility (CSR) is now becoming much more a part of mainstream corporate governance as there is a recognition that a company cannot – in the long-term – operate in isolation from the wider society in which it operates. This view is encapsulated by Sir Adrian Cadbury: ‘The broadest way of defining social responsibility is to say that the continued existence of companies is based on an implied agreement between business and society’ and that ‘the essence of the contract between society and business is that companies shall not pursue their immediate profit objectives at the expense of the longer-term interests of the community’ (Sir Adrian Cadbury, 2002).

 

Directors, Shareholders and other Stakeholders

 

In the UK, directors are accountable to shareholders but should consider the views of other stakeholders. The Companies Act (2006) expects directors to disclose more information relating to the risks affecting the company, an analysis of the performance of the company over the year, and consideration of shareholder and stakeholder interests. Stakeholders, including employees, customers, suppliers, local community, interest groups, government, etc. may lobby directors, shareholders, governments, etc.

 

In terms of what investors might be looking to avoid when they invest overseas, the Organisation for Economic Co-Operation and Development stated: ‘In the global economy, sensitivity to the many societies in which an individual corporation may operate can pose a challenge.  Increasingly, however, investors in international capital markets expect corporations to forego certain activities – such as use of child or prison labour, bribery, support of oppressive regimes, and environmental disruption – even when those activities may not be expressly prohibited in a particular jurisdiction in which the corporation operates.’ (OECD, 1998).

 

Institutional shareholders in the UK are guided in their relationship with investee companies by the Stewardship Code (2012) ‘instances when institutional investors may want to intervene include, but are not limited to, when they have concerns about the company’s strategy, performance, governance, remuneration or approach to             risks, including those that may arise from social and environmental matters’ (Guidance to Principle 4).

 

CSR and corporate philanthropy

 

Both CSR and corporate philanthropy can help define a company’s reputation and image and create goodwill with its stakeholders. However CSR is generally more about the core business functions of a company. Shareholders will often be more understanding about a company spending money on CSR related to the core activities, rather than on peripheral activities. The wider stakeholder community is also making increasing demands that companies be held accountable for the social and environmental impacts of their operations.

 

Philanthropic giving is often in the form of donations to favourite charities or causes, sometimes via a foundation established by the company. Whilst philanthropic giving may involve a select group within the company, e.g. the directors, a company’s CSR is more company-wide and therefore effective implementation of CSR often requires a much higher level of commitment and engagement beyond that which is required for corporate giving programs.

 

A darker side?

 

Companies often genuinely engage in CSR, for example, Ben and Jerry’s uses hormone-free milk and cage-free eggs in its ice-cream; Puma places a lot of emphasis on its environmental impact and produces an environmental profit and loss account. However sometimes companies may use CSR more as a public relations exercise, or there may be something of a mismatch between what companies say and do, hence CSR may have a darker side.

Shell’s Sustainability Report 2012: ‘As we work to help meet the world’s growing energy needs, we aim to reduce the environmental impact of our operations.’   However Shell has polluted the Niger Delta and seems to fight against taking responsibility for oil spills. Monsanto’s CSR/Sustainability Report 2011 states it ‘is working for a better tomorrow by putting the right tools in the hands of farmers today. By equipping growers with better seeds, we can help protect our natural resources, fight hunger, improve nutrition and provide economic benefits to everyone involved in an improved system of agriculture.’

However their products have included Agent Orange, dioxin, recombinant bovine growth hormone (rBGH), and genetically modified seeds.

 

CEOs and corporate giving

 

There is mixed evidence regarding CEOs’ approach to CSR/corporate philanthropy, as the following two recent studies indicate.  Shapira (2012) finds that whilst cash donations can signal the company’s financial strength, corporate philanthropy can decrease firm value when corporate governance        mechanisms are co-opted (neutralised or over-ridden), eg. when companies donate to charitable causes affiliated with independent directors. Recently Masulis and Reza ( 2013) found that the choice and level of corporate giving is positively associated with CEO personal ties to charities and negatively associated with the strength of corporate governance; donations may be used to support CEOs’ preferred charities or those of independent directors (thereby strengthening social ties with them). It is perhaps not surprising then that they also find a negative price reaction to charity donation disclosures where executives/directors have personal ties.

 

 

Concluding thoughts

 

Corporate governance and corporate responsibility are intertwined. There is increasing influence from shareholders, other stakeholders, and also government/international legislation. Nonetheless it is worthwhile to note Devinney (2009), who astutely observed ‘The notion of a socially responsible corporation is potentially an oxymoron because of the naturally conflicted nature of the corporation.’

 

References

 

Cadbury Sir Adrian (2002) Corporate Governance and Chairmanship: A Personal View, Oxford University Press, Oxford.

 

Devinney Timothy (2009) Is the Socially Responsible Corporation a Myth? The Good, the Bad, and the Ugly of Corporate Social Responsibility, Academy of Management Perspectives, May 2009, Vol. 44. Available at SSRN: http://ssrn.com/abstract=1369709

 

Financial Reporting Council (2012) UK Stewardship Code, FRC, London.

 

Masulis, Ronald W. and Reza, Syed Walid, (2013) Agency Problems of Corporate Philanthropy, Available at SSRN: http://ssrn.com/abstract=2234221 or http://dx.doi.org/10.2139/ssrn.2234221

 

OECD (1998) Corporate Governance: Improving Competitiveness and Access to Capital in Global Markets. Report to the OECD by the Business Sector Advisory Group on Corporate Governance, OECD, Paris.

 

Shapira, Roy, Corporate Philanthropy as Signaling and Co-Optation (2012), Fordham Law Review, Vol. 80, No. 5, 2012. Available at SSRN: http://ssrn.com/abstract=2061080

 

 

 

 

Chris Mallin 6th June 2013

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