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Discuss the arguments for and against the introduction of statutory controls on corporate governance.

      

Discuss the arguments for and against the introduction of statutory controls on corporate governance.

  

Answers


Kavungya
(1) there already exist a raft of statutory controls on corporate governance, mainly in the Companies
Act. For example companies must appoint auditors, directors can be removed according to standard
procedures, and directors may not generally receive loans from their companies. What we are arguing
here is whether the present statutory controls should be extended. It is fair to say that the existing
controls have rather developed on a piecemeal basis, prohibiting specific acts when they have been
observed in practice; thus the statute has lagged behind the reality. It would be more satisfactory if
statutory controls could be developed at the same pace as developments in practice, though this ideal
situation is impractical.

(2) the board of directors is supposed to act in the best interests of shareholders. However there may be
situations where the interests of shareholders diverge from the managers own interests; this
conflict can be so strong that statutory controls are required to ensure that companies are run in the best
interests of the shareholders. An example is directors remuneration and service contracts. Directors might want large remuneration and contracts offering large compensation if they are sacked. The
Companies Act requires total remuneration paid to directors to be disclosed.

(3) a further conflict arises where auditors are appointed by the directors, and the directors fix their
remuneration, yet they report to the shareholders. There is a temptation for auditors to which to please the directors who have appointed them, rather than to act objectively in the shareholders best interests. The independence of mind of auditors is guaranteed by their
professionalism required by the Companies Act.

(4) the best way of ensuring good governance is likely to be the threat of further statutory controls.
When directors see that a government is sincere in wishing to encourage good governance, the
worst practices will be stopped for fear of attracting new legislation.
Arguments against the introduction of new statutory controls on corporate governance include the
following:
(1) one cannot legislate against evil. If a bad man is determined to carry out a fraud, whether or not
controls are enshrined in statute will be irrelevant.
(2) statutory controls may stifle individual entrepreneurship. Many companies have flourished in recent
years because of the existence of one strong individual business person combining the roles of
chairman and chief executive and pushing through their will, eg. Hanson in the UK. If the Cadbury
recommendation to split the role of chairman and chief executive wherever possible had been
enshrined in statute, such companies may not have enjoyed the success that they did.
(3) putting rules into statute encourages companies to obey the letter of the law rather than the spirit.
The whole experience of the Securities and Investments Board in implementing the Financial
Services Act regulations has proved that detailed rule books are an ineffective means of regulation.
Statute should contain broad rules, backed up by self-regulatory practice notes and points of
interpretation. It is this latter approach that has been adopted by the Accounting Standards Board in
drawing up its new accounting standards, an approach that has proved successful to date. The
Cadbury recommendations should follow this same successful course of action.
Kavungya answered the question on April 22, 2021 at 06:13


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