In the light of various corporate scandals, regulatory bodies and corporate governance were placed under pressure by shareholders and stakeholders to form a tighter grip in governing corporation’s conduct. The obligations, roles and responsibilities of company’s stewards are under scrutiny of Corporations Act, listing rules, country’s code of corporate governance, ethics as well as social standards.
At the same time, advocates of market forces as a replacement to regulations and legislation continue to pursue for market deregulation and liberalisation based on the believe that government intervention will only distort resources allocation and hinder market growth.
The collapse of Australian company HIH Insurance Ltd (HIH) in 2001 was analysed in terms of its conduct and compliance to the Corporations Act, listing rules as well as code of corporate governance as released by the Australian Securities Exchange (ASX) Corporate Governance Council (CGC).
Reforms in regulations and the Corporate Governance Principles and Recommendations 2007 by ASX CGC were used to recommend best practices in corporate governance that should have taken place in HIH.
Lastly, the effect of globalization and challenges to good corporate governance resulting from globalization were discussed from the perspective of national government, regulatory bodies as well as the corporation itself.
Justice Neville Owen, The Royal Commissioner in the HIH Royal Commission Report described corporate governance as the framework of rules, relationships, systems and processes within and by which authority is exercised and controlled in corporations, and the Australian Securities Exchange (ASX) Corporate Governance Council added that corporate governance relates to and influences how the objectives of the company are set and achieved, how risk is monitored and assessed, and how performance is optimized (The HIH Royal Commission, 2003; ASX Corporate Governance Council, 2007).
The meaning of corporate governance has evolved over time but, in the strictest sense, is linked to the legislation that allows its existence. The law sets forth a company’s rights and responsibilities but this can differ from country to country. However, it is generally accepted that corporate governance extends beyond the law to include a consideration of best practices and business ethics (Birt, Chalmers, Beal, Brooks, Byrne, & Oliver, 2008).
The structure of corporate governance as put forth by Farrar (2005) and represented in the figure below illustrates the relationship within the corporate governance structure: Figure: The structure of corporate governance (Farrar, 2005). The issues surrounding the rights and responsibilities of corporations are complex and ever changing as financial markets become more global, corporations become larger and more powerful, and society’s perception of the corporate role changes.
A school of thoughts advocates for market forces to be the regulator of the financial market. The neo? liberals assume that factor markets work efficiently without government intervention if property rights and competition are guaranteed. They considered government interventions as less efficient than market? based solutions and stresses that government interventions hamper private sector development and that government should concentrate on improving the enabling of business environment through deregulation (Emeseh, Ako, Okonmah, Obokoh, & Ogechukwu, 2010).
Neo-liberalism challenges the conventional structuralist orthodoxy of government intervention by highlighting the negative effects of “financial repression” on economic growth and development. They refer financial repression to be the set of government legal restrictions preventing financial intermediaries in the economy from functioning at their full capacity. The distortion of domestic financial markets through rules and legislation is claimed to have negative impact on economic growth. In essence, corporations should be relied on in the main to self? regulate in the critical aspect of business activities.
Neo-liberalism has prompted many countries to implement liberalisation and deregulation of their financial markets on the recommendations of the World Bank and IMF (Emeseh, Ako, Okonmah, Obokoh, & Ogechukwu, 2010). The significant role of market forces in contributing to good corporate governance and strong corporate performance has for some time been emphasised in economic literature on the corporation and corporate law. In fact, advocates consider the influence of market forces to be an effective substitute for formal legal regulation (duPlessis, McConvill, & Bagaric, 2005).
However, through-out the last two decades, legislation reforms and corporate governance has also grown rapidly, particularly since the collapse of Enron Corporation in 2001 and the subsequent financial problems of other companies in various countries. As financial scandals continue to emerge, there will be continued attention placed on corporate governance issues, especially relating to transparency and disclosure, control and accountability, and the most appropriate form of board structure that may be capable of preventing such scandals occurring in future (Mallin, 2007).
In pursuance of good corporate governance, an area of interest would be how directors’ conduct and decisions should be in the best interest of the company, its shareholders and other relevant stakeholders. In this context, the agency theory is a very suitable framework that can describe the problems associated with the principal-agent relationship caused by separation of ownership and control between shareholders (the principal) and directors (the agent) in corporations.
Information asymmetry, moral hazard, difference in attitude towards risk and difference in interest between shareholders versus directors are common agency problems that would usually be at the expense of shareholders (Mallin, 2007; Rahman, & Salim, 2010). For example, directors may have a wider range of economic and social needs (such as to maximize compensation, security, status and to boost their own reputation), while shareholders are interested only in maximizing return on investments.
Furthermore, as directors are usually contracted to the company on short term basis, they may be eager for short-run payoffs within their contract term, whereas shareholders’ interest would be based on long-term success. Australian companies have a unitary board structure and the regulatory framework for corporate governance and directors’ duties is governed by (i) Statute (notably the Corporations Act), (ii) Common law rules (for example, cases relating to directors’ duties), (iii) The company’s constitution, and (iv) Guidelines issued by the Australian Securities and Investments Commission (ASIC) (Dibbs Barker Gosling Lawyers, 2003).
ASIC plays a vital role in enforcing and regulating company and financial services laws to protect Australian consumers, investors and creditors. It acts as Australia’s corporate regulator and administers various legislations including the Corporations Act 2001, Australian Securities and Investments Commission Act 2001, etc. (Australian Securities ; Investments Commission, 2010a).
By the Corporations Act, general duties imposed on directors and officers of companies are stated as (i) the duty to exercise their powers and duties with the care and diligence that a reasonable person would have which includes taking steps to ensure they are properly informed about the financial position of the company and ensuring the company doesn’t trade if it is insolvent, (ii) the duty to exercise their powers and duties in good faith in the best interests of the company and for a proper purpose, (iii) the duty not to improperly use their position to gain an advantage for themselves or someone else, or to cause detriment to the company, and (iv) the duty not to improperly use information obtained through their position to gain an advantage for themselves or someone else, or to cause detriment to the company (Australian Securities ; Investments Commission, 2010b). Beyond their legal duties and obligations, directors are also expected to meet commercial expectations in the interest of stakeholders, which include, but are not limited to, shareholders. These commercial expectations essentially require directors to drive the bottom line and provide appropriate shareholder returns.
Taking it a step further, many directors of today are challenged to embrace triple bottom line reporting and consider the economic, social and environmental ramifications of their corporate activities (Lucy, 2006). While the scope and laws governing the conduct of directors are wide and many, intentional and unintentional breach has shocked the financial market and public numerously. Till today, HIH Insurance Ltd (HIH) that went into liquidation in early 2001 is well remembered by almost every Australian as a collapse caused by mismanagement of the company, and various board members were brought to court on charges including giving misleading information with the intention of deceiving other board members and the company’s auditor.
As one of Australia’s largest insurers, the company ran into debts of over AUD$5 billion and subsequent to the collapse, the government carried out an expensive exercise to underwrite many of the failed policies (Mallin, 2007). According to the HIH Royal Commission Report on the failure of HIH, it was concluded that investigators did not find fraud or embezzlement to be behind the collapse. The failure was more the result of attempts to paper over the cracks caused by over-priced acquisitions (notably FAI Insurance Ltd) and too much corporate extravagance based on a misconception that the ‘money’ was there in the business. The primary reason for the huge loses was that adequate provision had not been made for insurance claims and past claims on policies had not been properly priced.
HIH was mismanaged in the area of its core business activity (Bailey, 2003). In chorus, the HIH Royal Commission report fundamentally states that the main reasons for the failure of HIH was poor management and greed characterised by (i) a lack of attention to detail and skills, (ii) a lack of accountability for performance, and (iii) a lack of integrity in the company’s internal processes and systems (Nicholson, 2008). Justice Neville Owen further commented in the report on what was the essence of good corporate governance: “The governance of a public company should be about stewardship. Those in control have a duty to act in the best interests of the company.
They must use the company’s resources productively. They must understand that those resources are not personal property. The last years of HIH were marked by poor leadership and inept management. Indeed, an attitude of apparent indifference to, or deliberate disregard of, the company’s underlying problems pervades the affairs of the group. ” (The HIH Royal Commission, 2003). The above comment can be loosely translated to say that the directors of HIH have failed their duties. Notably, in April 2005, Mr Ray Williams, the former Chief Executive Officer (CEO) of HIH, was sentenced to four-and-a-half years’ jail with a non-parole period of two years and nine months.
Mr William’s sentencing follows ASIC’s successful civil penalty proceedings on the three criminal charges which Mr. William pleaded guilty to. The three criminal charges were (i) that he was reckless and failed to properly exercise his powers and discharge his duties for a proper purpose as a director of HIH Insurance Limited when, on 19 October 2000, he signed a letter that was misleading, (ii) that he authorised the issue of a prospectus by HIH on 26 October 1998 that contained a material omission, and (iii) that he made or authorised a statement in the 1998-99 Annual Report, which he knew to be misleading, that overstated the operating profit before abnormal items and income tax by $92. 4 million (Australian Securities & Investments Commission, 2005a).
ASIC’s HIH investigation also led to criminal prosecutions of 9 other former senior executives, including directors of FAI, HIH and associated entities on 31 Corporations and Crimes Act charges. Of high public interest was Mr Rodney Adler, a former director of HIH and the majority owner of FAI was sentenced to four-and-a-half years’ jail, with a non-parole period of two-and-a-half years, on four charges arising from his conduct as a director of the HIH group of companies in 2000. ASIC’s chairman, Mr Jeffrey Lucy, in his public statement said, “Mr Adler was in a position of trust as a director of HIH but he put his own financial interests before the interests of HIH shareholders” (Australian Securities & Investments Commission, 2005b).
Mr Adler was sentenced after pleading guilty to four criminal charges: (i) two counts of disseminating information on 19 and 20 June respectively, knowing it was false in a material particular and which was likely to induce the purchase by other persons of shares in HIH contrary to s999 Corporations Act 2001, (ii) one count of obtaining money by false or misleading statements, contrary to s178BB Crimes Act 1900 (NSW), and (iii) one count of being intentionally dishonest and failing to discharge his duties as a director of HIH in good faith and in the best interests of that company contrary to s184(1)(b) Corporations Act 2001 (Australian Securities & Investments Commission, 2005b). HIH’s disastrous business ventures in U. K. , U. S. , acquisition of FAI Insurance Ltd. nd the Allianz joint venture were identified as what ultimately brought HIH down. These instances of poor decision-making were caused by and reflect a poor corporate governance culture. Corporate governance issues identified included (i) an over-dominant CEO whose decisions were never questioned, (ii) an ineffective chairman who failed his responsibility to oversee the functioning of the board, (iii) an ineffective board who failed to grasp the concept of conflicts of interest, and was unable to monitor and does not question management performance, (iv) inappropriate conduct in remuneration setting and performance measurement (mostly made by Mr.
Williams who, although not a member of the committee, attended all meetings by invitation), (v) an ineffective audit committee who showed no concern with risk management and internal control, and (vi) compromised auditor independence (the auditing company was Arthur Andersen and HIH’s board had three former Andersens partners – one of them was the chair of the board yet continued receiving fees under a consultancy agreement. Andersens also derived significant fees from non-audit work which gave rise to a conflict of interest with their audit obligations) (Lipton, 2003). Subsequent to HIH’s collapse, The Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (commonly known as ‘CLERP 9’) came into force on 1 July 2004. CLERP 9 incorporated a number of recommendations made in the HIH Royal Commission Report. Reforms were made relating to (i) disclosure of directors’ remuneration, (ii) financial reporting, (iii) auditors independence, (iv) continuous disclosure, and (v) enhanced penalty provisions.
CLERP 9 also deals with accounting standards, expensing of options, compliance controls, and encouragement of greater shareholder participation at meeting – all of which represents a significant development in the corporate law framework (Deloitte Touche Tohmatsu, 2005; Alcoc, & Bicego, 2003). Prior to CLERP 9 coming into force, advocates of corporate governance were delighted with Australian Stock Exchange Limited (ASX) release of the “ASX Corporate Governance Council’s (CGC) Principles of Good Corporate Governance and Best Practice Recommendations” in March 2003. ASX CGC adopted the same ‘principles based’ approach as taken in the UK Combined Code which governs entities listed on the London Stock Exchange. ASX listed entities are at liberty not to comply with the recommendations, but if they do not, they must explain why not. The Guidelines were built on the belief that one size does not fit all companies.
The Guidelines contained 10 ‘essential’ Corporate Governance Principles (Principles) and 28 Best Practice Recommendations (Recommendations) which was later revised in August 2007 as “Corporate Governance Principles and Recommendations” (Guidelines) comprising of 8 Principles and 26 Recommendations (Farrell, Harding, ; Spilsbury, 2003). The Guidelines also reflect ASX CGC’s emphasis in continuous disclosure by listed companies. Each Principle has a ‘Guide to reporting’ about the Recommendations at the end of the ‘chapter’ discussing what should be disclosed and where. Under ASX Listing Rule 4. 10. 3, companies are required to provide a statement in their annual report, disclosing the extent to which they have followed the Recommendations in the reporting period.
Where companies have not followed all the Recommendations, they must identify the Recommendations that have not been followed and give reasons for not following them – the “if not, why not” approach (ASX Corporate Governance Council, 2007). In relation to HIH’s case, a number of the Guidelines’ Principles provide fairly extensive coverage of corporate governance issues identified in HIH earlier. Principle 1 highlights the need for companies to establish and disclose the respective roles and responsibilities of the board and management. In the 2007 edition, the Guidelines added the Recommendation 1. 2 for companies to disclose the process for evaluating the performance of senior executives (ASX Corporate Governance Council, 2007). This Principle serves to provide disclosure in relation to HIH’s situation of an over-dominant CEO and ineffective chairman and board.
Where HIH was highlighted to have a board that was ineffective and failed its duties, Principle 2 states that companies need to structure the board to add value with an effective composition, size and commitment to adequately discharge its responsibilities and duties. Recommendations in the principle placed importance in having a majority of the board and the chairman being independent directors to ensure independence in board decisions and prevent conflict of interest. Recommendation 2. 4 suggests that companies should establish a nomination committee to ensure appropriate selection and appointment practices in the company. This Recommendation also provides resolution in relation to HIH’s case whereby the board was mostly made up of directors hired by Mr.
William, including the former Andersen partners. In the 2007 edition, the Guidelines added the Recommendation 2. 5 for companies to disclose the process for evaluating the performance of the board, its committees and individual directors (previously this was part of Principle 8 in the 2003 edition, titled “encourage enhance performance”). This Recommendation helps to ensure directors are given access to continuing education to update and enhance their skills and knowledge that are necessary in performing their duties (ASX Corporate Governance Council, 2007). Principle 3 discusses how companies should promote ethical and responsible decision-making.
Beyond legal obligations, directors are expected to make decisions that satisfy not only the company’s shareholders but other stakeholders as well (this principal includes amalgamation from Principle 10 of the 2003 edition Guidelines which was to “recognize the legitimate interests of stakeholders”). To achieve this, Recommendation 3. 1 encourages companies to establish and disclose their code of conduct pertaining to integrity practices, legal practices and handling of unethical practices. Aligned with this, Recommendation 3. 2 promotes the establishment and disclosure of company’s policy concerning trading in company securities by directors, senior executives and employees (ASX Corporate Governance Council, 2007). Relating to Principle 3 and Principle 7 titled “recognize and manage risk”,
HIH has been considerably questioned of its various business decisions, mostly of which contributed to huge loses and ultimately the company’s insolvency. Criticized decisions made by the company are many, and on top of the list include (i) the acquisition of FAI Insurance (majority-owned by Mr. Adler who later became a member of HIH’s board of directors) for A$300 million which FAI was later estimated to be worth just A$100 million, (ii) re-entering the California market in 1998 and failure to take the difficult decision to exit the market when it proved unprofitable, and (iii) the decision to enter a sector (insurance and re-insurance of film-financing) that has proved problematic for many market participants in London (Cagan, 2001).
The lack of risk management within HIH was apparent and Mr. Adler’s unethical conduct was evident with his imprisonment. In view of the importance of risk management, Recommendation 7. 1 urges companies to establish policies for the over sight and management of material business risks (that is financial risks and non-financial risks) and disclose a summary of those policies while Recommendation 7. 2 call for the board to require management to design and implement risk management and internal control system to manage the company’s material business risks and report to it on whether those risks are being managed effectively.
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