Report on Improving Corporate Governance in Hong Kong

Оригинал на английском языке.
Гонконгский институт лицензированных публичных бухгалтеров
Hong Kong Institute of Certified Public Accountants
Авторы: Syren Johnstone и Say H Goo
Обзор текущего состояния (дата издания отчета 15.12.2017) корпоративного права Гонконга, основанного на Ординансе "О компаниях" 2014 года (Hong Kong Companies Ordinance) и Ординансе "О ценных бумагах и фьючерсах" 2003 года (Hong Kong Securities and Futures Ordinance). Исследование недостатков действующего режима и предложения о направлениях развития.

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Суббота, 04 мая 2019 апдейт:

2. Methodology. 2.1.2 CG Geographic reach

While the resources of any study are not unlimited, a number of jurisdictions were considered for inclusion in the study.

As mentioned in Section 1, in addition to Hong Kong this study brings within its consideration the CG conditions in the United Kingdom (UK), the United States, Mainland China and Singapore. These jurisdictions have been selected for the following reasons:

UK - Hong Kong's legal and regulatory system is based on the UK's and there are many similarities in the approach sought to be taken to address CG standards in both markets, albeit that there have been important structural changes in the UK that have not been adopted in Hong Kong. The UK can also be regarded as playing an important role in thought leadership in relation to CG globally.

United States - the largest, and in that sense arguably the most successful, listed marketplace in the world, the United States has adopted fundamentally different approaches to regulating CG albeit based around a common law system.

Mainland China - Mainland businesses and business interests account for a significant proportion of new listings on, and total market capitalization of, The Stock Exchange of Hong Kong Limited (SEHK), a proportional representation that has been increasing markedly over the past one to two decades that is expected to continue to increase. Mainland related issuers also represent the single largest source of non-Hong Kong incorporated companies that are listed on the Exchange.

Singapore - although a much smaller market than Hong Kong, Singapore has traditionally been regarded as Hong Kong's natural competitor in the Asian time zone. Moreover, while the CG system in Singapore is similar to Hong Kong insofar as both are derived from the UK and its legal and regulatory systems, divergences of approach (from both Hong Kong and the UK) have opened up over the past decade or so that makes Singapore an interesting comparator.

Other jurisdictions that were considered for inclusion in the study were the following: Australia and South Africa (owing to their progressive approach, however, both are relatively small, primarily domestic markets); Germany (as it is a leading member of the European Union with a legal system on which Mainland China's is largely derived, however, its legal system is very different from Hong Kong's, its stock market is not notably an international one and there appears to be very little persuasive thought leadership on CG). Some consideration was also given to examining the Cayman Islands, as this is the most common offshore jurisdiction in which SEHK-listed issuers are incorporated. However, its laws are largely similar to those in the UK by virtue of being a British Colony, there is little local jurisprudence with English legal decisions being almost always followed, its stock exchange is young and traditionally focussed on product listings rather than the equity of operating businesses, and the territory does provide any leadership in CG. Although many Mainland enterprises are incorporated in the Cayman Islands, the prevailing cultural attitude of their directors and controlling shareholders are, unsurprisingly, aligned to those in Mainland China not the Cayman Islands. A similar set of arguments can be made out in relation to the second most popular offshore incorporation venue for SEHK-listed issuers, namely, the British Virgin Islands.

 

Содержание отчета

Executive summary
Executive Summary I Key Findings
Executive Summary II Summary of Recommendations
Executive Summary III Approach to the Study
Executive Summary IV Abridged Text of the Analysis

1 Introduction to the study and its purposes
Introduction
1.1 Purpose of this Report
1.2 The development of CG in Hong Kong
1.2.1 Domestic drivers
1.2.2 Global drivers
1.3 Structure of this Report
1.3 Structure of this Report
1.3.1 Methodology
1.3.2 Analysis
1.3.3 Recommendations
1.4 Scope and limitations of this Report
1.5 Next steps

2 Methodology
Introduction
2.1 Scope
2.1.1 CG concepts
2.1.2 CG Geographic reach
2.1.3 CG mechanisms
2.2 Work process
2.2.1 Data collection
2.2.2 Initial data organization
2.2.3 Oral evidence
2.2.4 Parity check
2.2.5 Analysis
2.2.6 recommendations

3 Discussion and analysis of jurisdictions studied
Introduction
3.1 Overarching considerations
3.1.1 Thematic topics
3.1.2 Trends in regulating CG standards
3.1.3 The role of culture
3.1.4 The methodology of assessment
3.1.5 Cost-benefit considerations
3.1.6 Maintaining competitiveness
3.1.7 Effectiveness
3.2 Non-locally incorporated companies
3.2.1 Application of local laws and regulations
3.2.2 Cross border enforcement and cooperation
3.3 Information
3.3.1 Legal status of CG disclosures
3.3.2 Disclosure of listing rule compliance
3.3.3 Board evaluation
3.3.4 Audit committee
3.4 Involvement
3.4.1 Shareholder stewardship
3.4.2 Shareholder votes
3.4.3 Remuneration
3.4.4 Changes of control
3.5 Equality
3.5.1 Voting rights generally
3.5.2 Weighted voting rights
3.6 Accountability
3.6.1 Information disclosures generally
3.6.2 Listing rules
3.6.3 Board refreshment
3.6.4 Appointment of independent directors
3.7 Effectiveness
Part A - CG system design
3.7.1 Impact of regulatory design
3.7.2 Policy development agencies
3.7.3 Enforcement agencies
3.7.4 Audits of public companies
3.7.5 Duties of directors
3.7.6 Role of fiduciary law
Part B - Specific actions
3.7.7 Differentiation of CG requirements
3.7.8 Listing regime standards upon entry
Part C - Independent directors
3.7.9 Determination of independence
3.7.10 Requirements relating to INED performance
3.7.12 Empowerment of INEDs - controlling shareholders
Part D - Other items
3.7.13 Whistle-blowing
3.8 Coda

4 Recommendations
Introduction and approach to the recommendations
Part A - The board
4.1 Processes
4.2 Independent directors
4.3 CG standards
Part B - Enforcement
4.4 Shareholders
4.5 CG disclosures
4.6 Regulators
4.7 Ex ante mechanisms
Part C - Architecture and policy
4.8 Architecture
4.9 Policy
4.10 Summary tables

5 Concluding remarks
5.1 The Recommendations
5.2 The Hong Kong market

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