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.

Скачать полную версию оригинала.

Четверг, 09 мая 2019

3. Discussion and analysis of jurisdictions studied. 3.1.7 Effectiveness

Distinctions between principle and practice render measuring and identifying CG effectiveness problematic. Infrastructure (such as laws, regulations and voluntary corporate requirements) designed to secure desired CG objectives does not, for a variety of reasons, always result in effective implementation in practice. Effectiveness is, in some ways, a retroactive measure of the disjunct between a right-minded principle, the practice that in fact subsequently evolves in response, and the outcome that eventuates.

Improving effectiveness can be approached from a principles-based or empirical-based approach. The former seeks to establish means of closing the disjunct by driving the infrastructure toward identified problem areas. The latter seeks to identify perceived problem areas. In this sense the two approaches are symbiotic: principles-based approaches should strive to understand the empirical dynamics and seek appropriate developments in light thereof. The utility of a development can subsequently be assessed by later empirical studies and/or through argument by analogy taking specific companies or jurisdictions that have already adopted requirements or practices that equate to the developments.

A key hurdle in understanding CG effectiveness is what might be called the «black-box problem». The actual operations of a governance team (the board, its committees and other functionalities that report to the board) are to outsiders largely a black-box into which only partial glimpses are available. Those glimpses are in general provided by two primary mechanisms: where disclosure of black-box events or black-box knowledge are mandated by a law or regulation or are undertaken voluntarily; and where disclosure emerges as evidence in proceedings before a court, tribunal or regulatory body. Both mechanisms suffer from data issues. The former is more abundant than the latter but there is a risk that data quality is impaired as a result of the disclosure being partial, limited, tailored, or falsified to respond to the relevant law or regulation or other objective sought. The latter, while providing a higher degree of certainty of being complete and accurate, by its nature is biased to malfunctioning corporate situations that might give a misleading picture of the entire corporate landscape - forming views on effectiveness based on this data might suggest developments that amount to overВ¬regulation of healthy companies that may be unjustifiable on a cost-benefit basis. Survey-based evidence and anecdotal evidence is available as a means of seeking to bridge between the former and the latter, although such evidence, particularly anecdotal evidence, is subject to limitations.

The effectiveness of rules can also be counterproductive where they operate as a distraction from the objective sought to be achieved. This may occur as a result of directing attention to ensuring all the boxes are ticked rather than addressing the substantive matter. The rule can in effect become a false validator of the behaviour undertaken. Accordingly, effectiveness should also take into account whether the objectives of a law or regulation (or one that is proposed) is able to be effectively monitored and enforced - where this is absent, there is a clear risk that compliance with the requirement gives a sense that something is being done to achieve a public objective when the objective is not necessarily being achieved. In this sense, such rules may work to remove or lessen sense of personal/corporate culpability.

The comparative approach to understanding the effectiveness of Hong Kong's CG regime, as undertaken in this study, is primarily driven by evidence from other jurisdictions in view of the themes and trends and other matters discussed above.

 

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

Юридический перевод с английского и немецкого языка.

Москва.

Перевод с английского и немецкого языка: 400 руб./стр.

Стоимость перевода новых редакций ранее переведенных документов: 200 руб./стр.

Перевод законов: индивидуально (пишите).

Подробнее о стоимости и услугах переводчика.

Image

translate@en-cn.ru

Copyright © 2014-2020. Переводчик с английского и немецкого. Москва.