25-05-2019 апдейт:

3. Discussion and analysis of jurisdictions studied. 3.7.12 Empowerment of INEDs - controlling shareholders

As already noted above, an important feature of CG in the UK is that a controlling shareholder is required to enter into a «relationship agreement» with the issuer - this contains undertakings given by the shareholder to the issuer concerning arms' length transactions and compliance with the listing rules. A central element of this regulation is that any independent director may disagree with the board's assessment of whether the undertakings have been complied with, and where they have not, then any subsequent transaction with the controlling shareholder (irrespective of size of transaction) will require independent shareholder approval. This sanction remains in place until the next annual report in which the board makes a compliance statement without any disagreement from any of the independent directors. This is a powerful tool given to independent directors. Coupled with the requirement that independent directors must have the support of independent shareholders as a result of dual voting, the relationship agreement brings a significant check and balance on the powers of controlling shareholders.

Conversely, it may be queried whether the relationship agreement would carry the same weight and effect if the appointment of the independent director was subject to the voting power of the controlling shareholders and its associates. Without it, the «relationship agreement» may represent little more than another tick-box requirement. That is not to suggest that INEDs in Hong Kong are not subject to fiduciary duties that may require them to raise a red flag where a breach of an agreement between the controlling shareholder and the issuer is suspected. That duty applies to all directors of the issuer.

All the jurisdictions under study impose, via listing requirements and/or codes that set CG standards, restrictions on connected party transactions. This is contained in Chapter 14A of the MBLR. In the United States, the Delaware courts have also imposed restrictions, albeit under the heading of fiduciary law, In Mainland China, the CG Code and the Exchanges' listing rules as well as the company law contain provisions on related party transactions, and in Singapore it is in the listing rules.

However, the UK is the only jurisdiction that has imposed a requirement for an undertaking to be entered into. Notwithstanding the duties of directors under the common law, and under Chapter 3 of the listing rules, it suggested that the question of whether a relationship agreement would bring any benefits to the Hong Kong market hinges on the outcome of the debate on whether or not INEDs should be appointed by independent shareholders. That debate is discussed in Section 3.6.4 «Appointment of independent directors», where it is concluded that, on balance, in the absence of a clear mandate, special voting arrangements for the appointment of independent directors is not warranted. Accordingly, the conclusion as regards the relationship agreement is that it would currently serve no real purpose.

One might alternatively seek to tackle this problem in reverse order - if there is sufficient justification for introducing a relationship agreement requirement, and achieving that depends on the independent appointment of INEDs, then special voting rights should be introduced to achieve that objective. While this is tempting to suggest as a means of addressing perceived shortcomings in the oversight (by shareholders and regulators) of connected party transactions, it is the tail wagging the dog; there are other means of addressing that problem (as set out in Section 3.7.3 «Enforcement agencies») that would not necessitate a public administrative law override of rights attaching to shares otherwise enjoyed in the private law context (for a discussion see Section 3.6.4 «Appointment of independent directors»).