Principles of contemporary corporate governance / Jean Jacques du Plessis, Anil Hargovan, Mirko Bagaric ; contributors Vivienne Bath, Christine Jubb, Luke Nottage.

Includes bibliographical references and index.

Contents
Table of cases
Table of statutes
Preface
1 The concept 'corporate governance' and essential corporate governance principles
The meaning of corporate governance
Generally
Origins of the corporate governance debate and the stakeholder debate
Comparative Study of Corporate Governance Codes Relevant to the European Union and its Members (January 2002)
King Report (South Africa), Executive Summary of the King Report - King Report on Corporate Governance (March 2002)
Australian Stock Exchange (ASX): Corporate Governance Council Principles of Good Corporate Governance and Best Practice Recommendations
(March 2003)
Report of the HIH Royal Commission (Owen Report) (April 2004)
OECD Principles of Corporate Governance (April 2004)
Definition of 'corporate governance'
Essential corporate governance principles
Generally
The King Report (2002)
Characteristic 1: Discipline
Characteristic 2: Transparency
Characteristic 3: Independence
Characteristic 4: Accountability
Characteristic 5: Responsibility
Characteristic 6: Fairness
Characteristic 7: Social responsibility
The Australian Stock Exchange (ASX): Corporate Governance Council Best Principles of Good Corporate Governance and Best Practice Recommendations
Principle 1: Lay solid foundations for management oversight
Principle 2: Structure the board to add value
Principle 3: Promote ethical and responsible decision-making
Principle 4: Safeguard integrity in financial reporting
Principle 5: Make timely and balanced disclosure
Principle 6: Respect the rights of shareholders
Principle 7: Recognise and manage risk
Principle 8: Encourage enhanced performance
Principle 9: Remunerate fairly and responsibly
Principle 10: Recognise the legitimate interests of shareholders
Is 'good corporate governance' important and does it add value?
Concluding remarks
2 Stakeholders in corporate governance
1 Introduction
2 Stakeholders in the corporation: an overview
(a) What is a stakeholder?
(b) Discussion of different stakeholders
Shareholders
Employees
Creditors
Customers
The community
The environment
Government
3 Stakeholders' interests and the corporation: the rule of law
(a) The Australian position
(b) Analysis - the appropriate boundaries of corporate governance regulation
(c) Overseas position: a snapshot
OECD
European Union
United States
South Africa
United Kingdom
4 Stakeholder interests, good governance and the interests of the corporation: a mutual relationship
(a) General analysis
(b) Case study on James Hardie's asbestos compensation settlement
5 Concluding remarks: a case for shareholder primacy
3 Board functions and board structures
The organs of governance
Board functions
Board structures
The 'unitary' and 'two-tier' structures compared
Board structures in the broader context of a good corporate governance model
Overview
Effective support mechanisms to assist the board in fulfilling its functions properly
Effective statutory provisions
Effective regulators
Charters, policies and codes of best practice and conduct
4 Types of company directors and officers
Definition of 'director'
De jure and de factor directors covered
Shadow director
Definition of officer
Statutory definition
Senior employees and senior executives as 'officers'
Middle-management as 'officers'?
Types of company officers
Executive and non-executive directors
Independent non-executive directors
Lead independent directors or senior independent directors
The manager director or chief executive officer (CEO)
Chairperson
Alternate director
Secretary
Training and induction of directors
Training
Induction of new directors
Ethical behaviour by directors
5 Corporate Governance in Australia - background and business initiatives
Background to the corporate governance debate in Australia
The Bosch Report
Background
Bosch Report (1991)
Later refinement and expansions
The Bosch Report (1993)
The Bosch Report (1995)
Divergence from UK practice: 1995 till early 2003
The Hilmer Report
Background
The Hilmer Report (1993)
The Hilmer Report (1998)
The virtues of good corporate governance in Australia between 1991 and 1998
The IFSA Blue Book
Concluding remarks
6 Regulation of corporate governance
Overview of chapter
Regulation generally
3 Objectives in regulating corporate governance
4 Sources of regulation in Australia
(a) 'Hard law
(i) Statutory regulation - corporate law
(ii) Statutory regulation - other than corporate law
(iii) 'Corporate govenance and the judges': the place of judge-made law
(b) 'Hybrids'
(i) ASX listing rules
(ii) Accounting standards
(c) 'Soft law'
The role of market forces
5 Towards an effective corporate governance framework in Australia - analysis and reform proposal
(a) OECD's guidelines for achieving an effective governance framework
(b) Proposed MOU on corporate governance between ASX and ASIC
6 Conclusion
7 The role of the regulators: ASX and ASIC
The Australian Stock Exchange Ltd (ASX)
Slow to get out of the blocks
Rapid change in attitude since the end of 2002
ASX Corporate Governance Council's Principles of Good Corporate Governance and Best Practice Recommendations
Parts and layout
Recommendations
A few concluding remarks
The Australian Securities and Investments Commission (ASIC)
History
Constitution and some statutory powers
Initial steps by ASIC after the HIH collapse
Actions instituted by ASIC against directors after the HIH collapse
Actions by ASIC
Court orders
Some considerations regarding the period of disqualification
Criminal prosecutions
Aim with high profile prosecutions
ASIC enforcement patterns
The role of ASIC in corporate governance
Limits of ASIC's powers and responsibilities?
Concluding remarks
8 CLERP 9 reforms to the Corporations Act
1 Overview
2 The Corporate Law Economic Reform Program
3 Impetus for CLERP 9: responding to corporate collapses
4 Explanation of key CLERP 9 reforms
(a) Audit reform
(b) Corporate disclosure
(i) Remuneration of directors and executives
(ii) Financial reporting
(iii) Continuous disclosure
(iv) Shareholder participation
(v) Whistleblowers
(vi) Disclosure rules
(c) Miscellaneous
Managing conflict by financial services licensees
Register of relevant interests
Officers, senior managers and employees
Enforcement
Proportionate liability
5 Corporate law reform post-CLERP 9
6 Concluding remarks
9 Implementation of the ASX Best Practice Recommendations: charters, policies and codes
1 Implementing the ASX Principles of Good Corporate Governance and Best Practice Recommendations
2 Best Practice Recommendations requiring charters and policies
3 Practice examples of implementing ASX Best Practice Recommendations
(a) Charters
(b) Company policies and codes
Code of conduct
Trading policy
Disclosure policy
Shareholder communication policy
Risk management policy
Remuneration policy
4 Concluding remarks
10 Auditors and audits
10.1 Introduction: the audit role and where it fits into corporate governance
10.1.1 Overview of the audit role
10.1.2 The link between the audit role and corporate governance
10.2 Wholesale recent changes to audit role
10.3 Auditor independence
10.3.1 Overview of rationale behind independence requirement
10.3.2 General requirement for auditor independence
10.3.3 Meaning of 'conflict of interest situation'
10.3.4 Disclosing and resolving conflicts
10.3.5 Specific independence requirements - minimising conflict of interest through employment and financial restrictions
10.3.6 Auditor rotation
10.3.7 Disclosure of non-audit services
10.4 Auditors and the AGM
10.5 Auditors' duties
10.6 Reducing the legal exposure of auditors
10.6.1 Overview of auditors' liability
10.6.2 Registration of audit companies
10.6.3 Proportionate liability
10.7 Qualification of auditors
10.8 Uniform auditing standards
10.9 Audit oversight
10.10 Concluding remarks
11 Directors' duties and liability
Introduction
Part 9.4b - civil penalty provisions or pecuniary penalty provisions
Overview
The civil penalty provisions in particular
s 180: duty of care and diligence - civil obligation
s 181: duty of good faith - civil obligation
s 182 and 183: duty not to use position or information to gain personally or cause detriment to the corporation
Part 2E: duty relating to related party transactions
Part 2H: duty relating to share capital transactions
Part 2M.2 and 2M.3: duty relating to requirements for financial reports
Part 5.7B: duty to prevent insolvent trading
Part 5C: duties relating to managed investment schemes
Chapter 6A: duty relating to continuous disclosure
Part 710: duty not to be involved in market misconduct and other prohibited conduct relating to financial products and financial services
Market manipulation
False trading and marker rigging
Dissemination of information about illegal transactions
Insider trading
Subclause 29(6) of Schedule 4: duty relating to disclosure for proposed demutualisation
Case study regarding civil penalty provisions or pecuniary penalty provisions: ASIC v Adler
Overview
Summary of the facts
Contravention of civil penalty provisions
Related party transactions (Chapter 2E)
Financial assistance (Part 2J.3)
Duty of care and diligence (s 180)
Duty of good faith (s 181)
Use of position to gain advantage for oneself or another or to cause detriment to the corporation (s 182)
Improper use of information (s 183)

Court orders
Enforcement of directors' duties
Overview
The statutory derivative action: Part 2F.1A
The case to introduce a statuory derivative action
Eligible applicant
Cause of action
Leave of court required to institute the statutory derivative action
Oppressive conduct of affairs: Part 2F.1
Type of conduct covered by Part 2F.1
Who may apply for relief under Part 2F.1?
Introduction
Members
Nature of relief available under Part 2F.1
Section 1324 injunctions
Introduction
Section 1324(1)
Court's discretion
Remedies in particular
Injunctions
Damages
Criminal liability of directors
The importance of criminal sanction in the corporations law
Selected criminal offences directors and other officers can commit under the Corporations Act
General
Specific offences for breaches of duties
Primary duties of directors
Some other primary offences that directors can commit
Conclusion
12 Corporate governance in selected jurisdictions and the OECD principles of corporate governance
United States
Background to the corporate governance debate in the US
The American Law Institute's (ALI) involvement in the corporatate governance debate
Basic aims of the project
Impact and importance of the project
Some of key aspects addressed
Topics
The objectives and conduct of the corporation
Structure of the corporation
General
s 3.01: management of the corporation's business
s 3.02: functions and powers of the board of directors
The Sarbanes Oxley Act of 2002 - the US response to collapses like Enron and WorldCom
Backdrop
Aims and objectives
NYSE: sections 303 and 303A - corporate governance rules
Background
Summary of the most important NYSE corporate governance rules
United Kingdom
Background to the corporate governance debate in the UK
The Cadbury Report of the unfolding of the concept of 'corporate governance' in the UK
Context of Cadbury Report
Code of best practice
Further developments
The Greenbury Report (1995), the Hampel Report (1998), the Smith Report (2003) and the Higgs Report (2003)
The UK combined code
Germany
Background to the corporate governance debate in Germany
The German corporate governance code
Background to its adoption
Parts, layout and explanatory nature of the German code
Employee participation at supervisory board level or codetermination
The German board structure
OECD principles of corporate governance
Background to OECD principles of corporate governance
Broad aims and application
Parts and layout
Ensuring the basis for an effective corporate governance framework
Disclosure and transparency
13 The case for enhanced shareholder participation in corporate decision-making
13.1 Introduction
13.1.1 Overview of recommendations in this chapter
13.1.2 Outline of independence thesis
13.1.3 Outline of multiple shakeholder theseis
13.1.4 What is an independent director?
13.2 The primacy of shareholder interests: arguments in favour of greater shareholder participation in management
13.2.1 Shareholders own the company
13.2.2 Shareholder interests are most closely aligned with those of the company
13.3 The independence thesis
13.3.1 Diverse ownership naturally leads to the exclusio of owners in decision-making
13.3.2 Does independence lead to better decision-making and higher profitability?
13.4 Multiple stakeholder thesis
13.4.1 The managerial quality argument
13.4.2 Independent directors care more about fringe players
13.5 Law reform in a climate where relevant empirical evidence is lacking
13.6 Where to now?
13.6.1 Non-independent directors
13.6.2 Shareholder committees
Composition
Functions
Powers
General
13.7 Concluding remarks
14 The ethical obligations of corporations
1 Introduction
2 The threshold issue: is there a role for ethical considerations in business?
2.1 A short look at the short history of business ethics
2.2 The disunity between business and ethics arguments
2.3 Morality applies to business because moral judgements are universalisable
2.4 Exception to universalistion - activities with internal settled rules?
2.5 Are moral norms too vague to apply to business?
2.6 Promise to shareholders to maximise profits as basis for rejecting application of moral principles to business?
2.7 Summary of the general link between business and ethics
3 Application of moral principle to business setting
3.1 Types of duties imposed on corporation - proscriptions against causing harm, lying and environmental damage already legally enforced
3.2 Additional duties imposed on corporations - a duty of benevolence?
3.2.1 Acts and omissions doctrine serves to minimise obligations on corporations
3.2.2 Principal duty is for corporations to comply with law - business is morally neutral
3.2.3 A more elaborate duty - extreme wealth and maxim of positive duty
3.2.4 Requirement to pay social dividend
3.3 Extreme wealth and duty not to frustrate access to justice
4 Summary
15 Reflections on contemporary corporate governance and its future direction
1 Introduction
2 Regulatory pyramid and the cycles of regulation: a perspective on contemporary corporate governance regulation
3 Interaction of cycles of regulation and 'law and norms' discourse
(a) The significance of norms
(b) Norms, corporate governance and the utility of behavioural analysis
4 Concluding remarks: corporate governance regulation going forward
Index