Archive for February, 2013|Monthly archive page

Board Diversity

Board diversity, and in particular the presence of women in the boardroom, has seen a number of developments in recent months. There have, for example, been significant developments in the European Union (EU).

Back in March 2012, the European Commission (EC) publication “Women in economic decision-making in the EU: Progress report” http://ec.europa.eu/justice/newsroom/gender-equality/opinion/files/120528/women_on_board_progress_report_en.pdf
highlighted that, whilst progress had been made in increasing the number of women on corporate boards, nonetheless a quarter of the EU’s largest companies (25%) still had no women on their top-level board.

Subsequently, in November 2012, the EC adopted a law which sets a minimum objective of “40% of the under-represented sex in non-executive board-member positions in listed companies in Europe by 2020, or 2018 for listed public undertakings”, see IP/12/1205 http://europa.eu/rapid/press-release_IP-12-1205_en.htm and MEMO/12/860 http://europa.eu/rapid/press-release_MEMO-12-860_en.htm

The main elements of the draft law include that a company which does not have 40 per cent of women on its supervisory board will be required to introduce a new selection procedure for board members which gives priority to qualified female candidates (note the emphasis on qualification, i.e. no one would be appointed to the board just because they are female). It is worth noting that the law only applies to the supervisory boards or non-executive directors of publicly listed companies, due to their economic importance and high visibility (small and medium enterprises are excluded). However, alongside this, there is a provision for a “flexi quota” which is an obligation for companies listed on the stock exchange to set themselves individual, self-regulatory targets regarding the representation of both sexes among executive directors; this flexi quota to be met by 2020 (or 2018 in case of public undertakings), and with companies reporting annually on the progress made.

In order to become law, the Commission’s proposal needs to be adopted by the European Parliament and by the EU Member States in the Council. On 15 January 2013, the draft law successfully passed the Subsidiarity Check (this is where national parliaments give opinions about whether it is appropriate to tackle an issue at EU level or whether it is best left to the Member States).

On 25th January 2013, an EU Press release “Regulatory pressure gets the ball rolling: Share of women on company boards up to 15.8% in Europe” http://europa.eu/rapid/press-release_IP-13-51_en.htm showed an increase in the number of women on boards to 15.8%, up from 13.7% in January 2012. This comprised an average of 17% of non-executive board members and 10% of executive board members with an increase in the share of women on boards in all but three EU countries (Bulgaria, Poland and Ireland).

Countries with quota legislation are in the vanguard of these increases. For example, Italy recently adopted a quota law that requires listed and state-owned companies to appoint one third women to their management and supervisory boards by 2015; and France, which introduced a quota law in 2011, has become the first EU country to have more than one woman on the top-level board of all of its largest listed companies.

However Scheherazade Daneshkhu and James Boxell in their article ‘Evolution not revolution in French companies’ (FT, Jan 2013) point out that none of the CAC 40 (France’s largest companies) are currently headed by a woman. In Germany, the DAX 30 companies all operate voluntary schemes for promoting women but, as Tony Barber points out in his FT article ‘Germany shifts the debate about women on boards’ (January 2013), ‘the rising proportion of women on German supervisory boards – at 16 per cent, a bit above the EU average – obscures the fact that a majority are workers’ representatives, not career executives’.

It seems clear that there is increasing board diversity in various countries and that whilst the pace of change may be slower than some would like, nonetheless change is occurring. Furthermore, developments at both national and international levels should facilitate more board diversity in the future.

Chris Mallin 6th February 2013

Remuneration (Compensation) Committees and their Advisers

Background

Executive remuneration (compensation) is always a hot topic, and the remuneration committee is often focussed upon as the key corporate governance mechanism in setting executive director remuneration (although recently the ‘say on pay’ has seen a growth in shareholder influence over executive pay packages as discussed in this blog and elsewhere).
The UK Corporate Governance Code (2012) states that ‘The board should establish a remuneration committee of at least three, or in the case of smaller companies two, independent non-executive directors. In addition the company chairman may also be a member of, but not chair, the committee if he or she was considered independent on appointment as chairman. The remuneration committee should make available its terms of reference, explaining its role and the authority delegated to it by the board. Where remuneration consultants are appointed, they should be identified in the annual report and a statement made as to whether they have any other connection with the company (para D.2.1). http://www.frc.org.uk/Our-Work/Publications/Corporate-Governance/UK-Corporate-Governance-Code-September-2012.aspx

Remuneration consultants

Remuneration committees may draw on the advice of specialist remuneration consultants when constructing executive remuneration packages. The UK’s High Pay Centre (2012) publication ‘The New Closed Shop: Who’s Deciding on Pay?’ http://highpaycentre.org/files/hpc_dp_remco.pdf states that remuneration consultants are ‘normally hired by the remuneration committee. The voluntary guidelines for remuneration consultants state that if they are engaged by the remuneration committee they cannot also work for the executive, whose pay they are determining. The advice they provide varies, but typically includes designing new remuneration plans, and drawing up a comparator group against which the executive pay can be benchmarked’.

Remuneration Consultants Group (RCG) Voluntary Guidelines

The voluntary guidelines to which the High Pay Centre refers were published by the Remuneration Consultants Group (RCG) which was formed in 2009 and represents the vast majority of executive remuneration consultancy firms advising UK listed companies. In fact the RCG’s website states that ‘Any consulting firm, or individual acting as a sole trader, named in the relevant Directors’ Remuneration Reports of at least one FTSE350 company is eligible to become a registered member of the RCG. If a parent firm has separate legal entities acting as Remuneration Consultants then only one of the family of firms may be such a member of the RCG’.

The RCG published the Voluntary Code of Conduct in Relation to Executive Remuneration Consulting in the United Kingdom in 2009 and it is revised every two years , the most recent edition was published in 2011. The Code states that ‘Executive remuneration consultants, comparable with other business professionals, should comply with the fundamental principles of transparency, integrity, objectivity, competence, due care and confidentiality. They should also ensure that, whether or not part of a larger consulting group providing a wider range of services, their internal governance structures promote the provision of objective and independent advice. The full Code is available at: http://www.remunerationconsultantsgroup.com/assets/Docs/December%202011%20Code%20of%20Conduct.pdf
The effectiveness of the Code was reviewed in 2012, see http://www.remunerationconsultantsgroup.com/assets/Docs/Annual%20Review%20including%20Code%20Effectiveness%20Review%20December%202012.pdf In early 2013, following on from the 2012 review, the RCG urged remuneration committees to cite use of the Code to show external audiences that they have followed due process with regard to executive remuneration.

Pros and cons of remuneration consultants

The fourth edition of ‘Corporate Governance’ (Mallin, 2012), discusses the role of remuneration consultants, identifying academic literature in the area highlighting both potential benefits and downsides of remuneration consultants. Various studies are considered but to mention two here, Voulgaris et al. (2010), in a study of 500 UK firms from the FTSE 100, FTSE 250, and the Small Cap indices, find that compensation consultants may have a positive effect on the structure of CEO pay as they encourage incentive-based compensation. On the other hand, Murphy and Sandino (2010) examine the potential conflicts of interest that remuneration consultants face, which may lead to higher recommended levels of CEO pay. They find ‘evidence in both the US and Canada that CEO pay is higher in companies where the consultant provides other services, and that pay is higher in Canadian firms when the fees paid to consultants for other services are large relative to the fees for executive-compensation services.’

US developments

In the US, the Stock Exchange Commission has approved new corporate governance listing standards for the New York Stock Exchange (NYSE) and the NASDAQ. The standards generally apply to any company with listed equity securities.

The provisions include that, from 1st July 2013, compensation committees have to conduct an independence assessment of advisers including compensation consultants and legal counsel from whom they wish to seek advice. A non-independent adviser may still be used but the independence assessment must still be carried out. There are also new, stricter independence criteria for compensation committee members.
Weil, Gotshal & Manges LLP give a useful summary of the new standards in their Alert ‘New NYSE and Nasdaq Listing Standards on Independence of Compensation Committees and Their Advisers: It’s Time to Prepare’ (January 28, 2013, Weil Alert) http://www.weil.com/news/pubdetail.aspx?pub=11491

Concluding thoughts

The role of remuneration consultants and their potential influence on executive remuneration packages has become the focus of more attention in recent years. The new US standards relating to the independence of compensation committees and their advisers go much further than in many countries, including the UK. Time will tell whether other countries follow suit and introduce tougher recommendations and guidelines.

Chris Mallin
1st February 2013