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. 2.2.6 recommendations

The recommendations of this study were developed in view of the following considerations:

recommendations are made by reference to the scope and purposes of this study;

recommendations are derived from the analysis, which also provides the primary support for each recommendation;

recommendations seek to identify options for improving identified shortcomings in Hong Kong's CG condition or that may serve to improve the CG conditions in Hong Kong;

the relevant distinctions between legal and regulatory systems as well as market and cultural differences were taken into consideration;

developed proposals that had been made historically, recently or were currently underway in Hong Kong without further development or implementation were considered;

recommendations are not intended to be all encompassing, present total solutions or deal with all extant problems.

A recommendation is by its nature a proposal that it is suitable to the intended purposes. The process of identifying recommendations was affected by the consideration of not only the strength of support from and relevance of experiences in other jurisdictions but also what is involved in implementing a recommendation. This includes the relative ease or difficulty of realizing a proposal, for example, whether a change to primary law or regulatory architecture is required or if it is merely an adjustment to an existing non- statutory code or practice. The likelihood of a proposed change being contentious was also taken into consideration.

While these factors were weighed in the formulation of the study's final recommendations, it was not the case that recommendations were avoided simply because they were difficult and contentious. Nor were they advanced simply because of actions undertaken in another jurisdiction that was studied. Accordingly, the recommendations presented in this study are accompanied by a system of variables that reflect the above considerations together with a logical weighting of recommendations that range from «strongly recommend» to «consider».

As «practical», «useful» and «implementable» are key themes of this study that underlie the recommendations, a brief indication of what would be required to implement the recommendation has been provided together with an overview of the attendant matters that may need to be considered in connection with a decision to implement a recommendation.

On the other hand, this study considers certain proposals but has reached the conclusion that no recommendation can be made in respect of that proposal. These are also presented in this study on the basis that whereas the specific scope of this study finds insufficient grounds to support it, another study with a different orientation may find otherwise. In other words, these «no recommendation» proposals are not to be read as an outright rejection or assertion that such proposal is unsuitable for any CG-related purpose.

The recommendations are set out in Section 4.

 

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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