Chinese Business Review
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Chine se
Busine ss Revie w
Volume 12, Number 8, August 2013 (Serial Number 122)
Contents
Economics
Board Independence and Internal Committees in the BRICs
521
Daniela M. Salvioni, Luisa Bosetti, Alex Almici
Entrenched Board in New Public Firms: An Empirical Study of Chinese IPOs
540
Fitriya Fauzi, Abdul Basyith, Nirosha Hewa-Wellalage, Gaoxiang Wang
Management
Effects of Team Structure on Innovation Performance: An Empirical Study
554
Miha Prebil, Mateja Drnovšek
Merit and Evaluation Models for Managers in the National Health System:
An Empirical Study
572
Elena Candelo, Cecilia Casalegno
Strategic Partnership Between Private Organizations and Universities: The Search for Regional
Development Through Solutions for Hospital Management
Jamerson Viegas Queiroz, Abner Vicente Braga, Fernanda Cristina Barbosa Pereira Queiroz,
Jéssica Monyk Tiburcio de Souza, Renata de Oliveira Mota
583
D
Chinese Business Review, ISSN 1537-1506
August 2013, Vol. 12, No. 8, 521-539
DAVID
PUBLISHING
Board Independence and Internal Committees in the BRICs
Daniela M. Salvioni, Luisa Bosetti, Alex Almici
University of Brescia, Brescia, Italy
To be successful in global markets, companies from the emerging countries need the approval of foreign investors
and other stakeholders. In this regard, Brazil, Russia, India, and China (BRIC) have progressively strengthened
their corporate governance rules to help their companies overcome the competitors from the old industrialized
countries. Directors’ non-executive qualification, independence, and professional expertise represent basic
requirements for effective corporate governance, so they should be carefully considered to guarantee a proper board
composition and an adequate establishment of internal committees in listed companies. The paper intends to
compare the legislative and regulatory frameworks adopted by the four countries; then it aims at answering to the
following research questions by means of an empirical investigation: Have BRIC companies appointed
non-executive and independent board members? What do BRIC companies do in order to assure an effective
participation of non-executive and independent board members to corporate governance activities? Have BRIC
companies established internal committees? The research examines the appointment of non-executive directors and
independent directors to the boards of 100 BRIC leading firms, as well as their involvement in internal committees
focused on matters requiring motivated and impartial opinions. Although the laws and recommendations seem to
favor a general convergence of corporate governance principles among the four BRIC and towards the international
best practices, some differences and peculiarities emerge from a firm-level perspective. Indeed, the Indian and the
Chinese companies analyzed appear more inclined than the Brazilian and the Russian ones to reassure their
international stakeholders about board independence and effective committees.
Keywords: corporate governance, globalization, convergence, BRICs, independence, board committees
Introduction
Globalization is significantly modifying the ways companies compete in international markets. Nowadays
competition is also played in relation to corporate governance, especially for firms of emerging countries,
which need foreign investors and other stakeholders’ trust to build and develop successful long-term
relationships (Salvioni, 2005).
Brazil, Russia, India, and China—also known as the BRICs—have progressively strengthened their
national laws and regulations on corporate governance, by adopting principles and rules that have characterized
the old industrialized countries for nearly two decades.
Daniela M. Salvioni, Full Professor of Business Administration, Department of Economics and Management, University of
Brescia.
Luisa Bosetti, Ph.D., Assistant Professor of Business Administration, Department of Economics and Management, University
of Brescia.
Alex Almici, Ph.D. in Business Administration, Department of Economics and Management, University of Brescia.
Correspondence concerning this article should be addressed to Luisa Bosetti, Department of Economics and Management,
University of Brescia, Contrada Santa Chiara 50, 25122, Brescia, Italy. E-mail:
[email protected].
522
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
This paper investigates the existence and role of non-executive directors and independent directors in the
boards of a sample of BRIC listed companies. In particular, the paper is focused on the supporting and
controlling functions such directors should carry out as members of the board and its internal committees.
Firms operating in emerging economies can benefit from the appointment of non-executive and
independent directors to the board. Indeed, these members can effectively monitor both the decision-making
process and the behavior of managing directors, who frequently represent and act in the interest of majority
shareholders of large family holdings and state-owned companies dominating the BRIC economic scenario.
Due to their personal condition marked by neutrality, objectivity, and professional expertise,
non-executive and independent directors are also often selected to form board committees entrusted with
instituting the board’s proceedings, making suggestions and supervising the company’s activities.
Since the presence of non-executive and independent directors should increase the protection of outside
investors and other stakeholders, including the foreign ones, it can prove valuable to consensus generation in
global markets.
This research aims at exploring the topic from both theoretical and empirical perspectives and the paper is
organized as follows. The second section presents the scientific background, summarizing the literature on
independent board members and internal committees. The third section introduces the legislative and regulatory
framework on independence and committees in BRIC. The fourth section describes the methodology and
discusses the results of an empirical investigation based on 100 BRIC companies. The fifth section contains
some concluding remarks, limitations of the study, and future research direction.
Literature Review
Independent Board Members
Companies usually appoint non-executive and, among them, independent directors considering the
contribution they can offer to the improvement of the board’s activities. A number of studies have underlined
that the board has two main functions, the development of which can take advantage from the presence of
non-executive and independent directors. Such functions consist in monitoring tasks and service or advisory
tasks (Zahra & Pearce, 1989; Forbes & Milliken, 1999; Zattoni & Cuomo, 2010).
According to the agency theory (Fama, 1980; Fama & Jensen, 1983), companies are characterized by a
principal-agent problem between shareholders and managers (García-Ramos & Olalla, 2012), which determines
the risk that managers might decide and operate for their own interests, instead of maximizing corporate value
for shareholders. For that reason, the agency theory attributes control tasks to the board of directors: in this
view, the board is understood as a group of independent directors who must monitor and supervise the
managers in order to protect the shareholders’ expectations (Fama & Jensen, 1983; McNulty & Pettigrew, 1999;
Golden & Zajac, 2001).
In this regard, Luan and Tang (2007) underlined the mixed composition of the board, which often includes
two types of members: the inside directors or executive directors, who work as company officers, and the
outside directors or non-executive directors, who do not develop any managerial functions (Peng, 2004). Due to
their different involvement in corporate affairs, the interests of the former are aligned with those of the
management, while the role of the latter should consist in controlling the management and counterbalancing the
weight of inside directors in decision-making, to guarantee an adequate representation of all shareholders’
interests (Luan & Tang, 2007).
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
523
Alongside with monitoring tasks, the board also has a service function towards the management, as stated
in the resource dependence theory (Pfeffer & Salancik, 1978). According to this perspective, the board has the
duty to advise the management and support them in strategic decision-making process; in this sense, the board
members provide their experience and expertise to the managers (Helland & Sykuta, 2004; Hillman & Dalziel,
2003). Moreover, the board intervention should help the company in obtaining external legitimacy and
developing networking relations (Daily & Dalton, 1994; Stiles & Taylor, 2001; Huse, 2005; Luan & Tang,
2007). In particular, this function is considered as a typical task of non-executive directors, whose appointment
usually helps the firm enter a networking structure based on the linkages between each outside director and
other companies. As obvious, belonging to a networking structure can facilitate the raising of funds and other
resources.
The literature also comprises a number of studies considering the definition of independent director.
According to a “Note” published in the Harvard Law Review (2006), definitions of independent director may
fall into three categories: the “disinterested outsider”, the “objective monitor”, and the “unaffiliated
professional director”.
In the disinterested outsider model, directors are independent when they are not involved in company’s
management and they have no financial interest in a particular transaction, or an excessive financial interest in
the firm’s business more generally, which should help the directors fulfill their fiduciary duties to the
shareholders. This definition of independence is usually adopted by policy makers and regulators, such as stock
exchanges and securities and exchange commissions, which have also introduced quantitative parameters
representing the maximum financial interest permitted.
The definition of independent director as an objective monitor of corporate decision-making stresses the
loyalty of such a board member towards the company’s shareholders. Indeed, independent directors control
executives and managers from inside the board, acting as substitutes for shareholders, on behalf of these latter.
In the unaffiliated professional director model, independent directors are defined as experts whose
knowledge and skills support the advisory function and supervision they develop over the board, providing a
different point of view from the executives (Roberts, McNulty, & Stiles, 2005) and improving the quality of
decisions (Carter & Lorsch, 2004). According to such considerations, some studies have also suggested that
independent directors should be full-time experts paid by investors to serve on more boards (Gilson &
Kraakman, 1991), assisted by their own staff particularly in the activity of collecting and evaluating corporate
information (Brudney, 1982).
Other definitions of independence have been proposed in the literature (Zattoni & Cuomo, 2010), as well
as in laws, regulations, and self-discipline all over the world. In particular, independent board members should
be free of financial, employment and family ties with the company’s owners, executive directors, and officers,
because such relationships may provoke a conflict of interest with the firm (Brudney, 1982; Borowski, 1984;
Dalton, Daily, Ellstrand, & Johnson, 1998).
Finally, previous researches have investigated the role of outside independent directors for effective
corporate governance. Most studies have considered the link between board independence (i.e., the presence
and portion of independent directors within the board) and firm performance. However, the results are far from
conclusive: for example, some scholars state a positive relationship (Chen & Jaggi, 2000; Anderson & Reeb,
2004; Chen & Hsu, 2009; Hutchinson & Gull, 2004), while others have discovered a negative link (Agrawal &
Knoeber, 1996; Lawrence & Stapledon, 1999; Mishra, Randoy, & Jenssen, 2001) or even a non-significant one
524
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
(Hermalin & Weisbach, 1991; Villalonga & Amit, 2006; Prabowo & Simpson, 2011).
Board Committees
A number of papers are focused on internal committees set up by the board to perform specific tasks.
According to Spira and Bender (2004) “the establishment of board sub-committees has been strongly
recommended as a suitable mechanism for improving corporate governance, by delegating specific tasks from
the main board to a smaller group and harnessing the contribution of non-executive directors”.
Scholars have particularly analyzed the audit committee, the remuneration committee, and the nomination
committee, which are subject of laws, regulations or recommendations all over the world.
The audit committee has been widely investigated with reference to its composition comprising
accounting financial experts (Krishnan & Lee, 2009) and its contribution to implement and monitor corporate
governance best practices (Agarwal, 2006; Puri, Trehan, & Kakkar, 2010). Other researchers have considered
the role of the audit committee in preventing earnings management and improving financial reporting quality,
even if with non-conclusive results (Dechow, Sloan, & Sweeney, 1996; Beasley, Carcello, Hermanson, &
Lapides, 2000; Jeon, Choi, & Park, 2004; Piot & Janin, 2007; Baxter & Cotter, 2009).
Some studies have discovered a positive relationship between firm size and the number of audit
committee’s meetings (Sharma, Naiker, & Lee, 2009), between audit committee independence, meetings and
attendance and firm performance (Saibaba & Ansari, 2011), and between auditor independence and audit
committee meetings (Sori, Mohamad, & Saad, 2008).
As concerns the remuneration committee, this has been described as a mechanism for minimizing the risk
of managers determining their own payment, which can be effective if the committee includes non-executive
directors (Carson, 2002). Some studies have investigated the relationship between remuneration committee
quality (measured in terms of independence) and compensation practices adopted by firms (Anderson & Bizjak,
2003), while others have discovered the effect of remuneration committee quality on the relation between CEO
payment and firm performance (Vafeas, 2003). Moreover, Sun and Cahan (2009) found that the remuneration
committee quality varies depending on the committee size and other characteristics, such as the presence of
CEO, senior directors, and CEO-appointed directors within the committee.
Finally, the nomination committee is considered as an institutional mechanism for improving director
appointment (Ruigrok, Peck, Tacheva, Greve, & Hu, 2006) by suggesting board candidates or defining their
profiles (Eminet & Guedri, 2010).
According to empirical evidence, both the establishment of a nomination committee and its independence
are inversely related to the firm’s level of inside ownership; moreover, the nomination committee can influence
the independence of outside directors, but not their number (Vafeas, 1999).
The literature has stressed the role of the nomination committee in corporate governance. Recent studies
indicate that the nomination committee composition is a pre-requisite for gender (Grosvold, 2011) and
nationality diversity, and that the presence of the CEO on the committee reduces board cohesiveness
(Kaczmarek, Kimino, & Pye, 2012). Furthermore, companies with a nomination committee dominated by
non-executive directors or which excludes the CEO usually select candidates to the board who have strong
reputation as supervisors over management (Eminet & Guedri, 2010).
Corporate Governance in the BRICs
Some studies have already investigated the corporate governance systems implemented in the BRICs, but
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
525
their attention is mainly focused on a specific national environment (Yan-Leung, Jiang, Limpaphayon, & Lu,
2010; Székely-Doby, 2011; Braga-Alves & Shastri, 2011; Black, Gledson de Carvalho, & Sampaio, 2012), or
particular topics (e.g., the relation between corporate governance and company’s value, and the effectiveness of
corporate governance in emerging markets with reference to the CEO turnover) (Gibson, 2002; Belikov, 2004;
Singh & Gaur, 2009; Ararat & Dallas, 2011).
Other studies have also analyzed the corporate governance of emerging markets according to the different
ownership patterns across the countries (Aguilera, Kabbach-Castro, Ho Lee, & You, 2012); besides, some
scholars have investigated how better corporate governance frameworks benefit firms through greater access to
financing, lower cost of capital, better performance, and more favorable treatment for all stakeholders
(Claessens & Yurtoglu, 2013).
However, the existing literature seems to be lacking in detailed comparisons among all four countries as
regards independence of board members and internal committees; hence, the paper is expected to contribute by
presenting a comparative analysis of laws, regulations, and recommendations on these subjects in all the BRICs,
supplemented by an empirical verification.
Legislative and Regulatory Framework
The BRICs have similarly improved their corporate governance systems in recent past. In all four
countries, the national corporate governance framework is based on the companies’ law, supplemented or
specified through regulations and recommendations issued by stock exchanges, securities and exchange
commissions or other institutions. For the purposes of this research, the corporate governance frameworks of
BRIC are summarized in Table 1.
Table 1
Corporate Governance Framework
Country
Brazil
Russia
India
China
Provision
Corporation law (Law No. 6404 of December 15, 1976) (LAW)*
Recommendations on corporate governance (2002), issued by the Securities and Exchange Commission of Brazil (SECB)*
Code of best practice of corporate governance (2009), issued by the Brazilian Institute of Corporate Governance (CODE)*
Companies law (Federal Law of the Russia Federation No. 208—FZ of December 26, 1995) (LAW)*
Corporate governance code (2002), issued by the Federal Commission for the Securities Market (CODE)*
Companies act (1956), as amended (LAW)*
Clause 49 of the listing agreement, introduced by the Securities and Exchange Board of India in 2000 and repeatedly
revised until 2008 (CLAUSE 49)*
Corporate governance voluntary guidelines (2009), issued by the Ministry of Corporate Affairs (GUIDELINES)*
Companies Law of the People’s Republic of China (in force since 1 January, 2006) (LAW)*
Code of corporate governance for listed companies in China, issued by the China Securities Regulatory Commission
(CSRC) and the State Economic and Trade Commission, 2001 (in force since 2002) (CODE)*
Establishment of independent director system by listed companies guiding opinion, issued by the CSRC, 2001 (CSRC)*
Code on corporate governance practices, Appendix 14 of the Hong Kong Stock Exchange’s Listing Rules (HKEX)*
Note. In the next tables, each provision will be mentioned through the abbreviated form marked with *.
In this section the research is focused on the main rules concerning independence and internal committees
in the four countries, in order to emphasize similarities and distinctiveness.
Independent Board Members
Since the beginning of this century the BRICs have updated their legislative and regulatory framework by
adopting rules on independence of board members. All the BRICs have introduced the concept of independence
526
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
and listed either the requirements directors have to satisfy in order to be considered independent or the posts
that are incompatible with this kind of position (see Table 2).
Table 2
Board Independence
Brazil
Russia
India
China
Independence definition and criteria
CODE:
no family ties with the firm’s
controlling owner, officers or
managers
no economic ties with the
firm or previous relationships
as employee or officer
no commercial relationships
with the firm
LAW:
CLAUSE 49:
also in one preceding year:
no pecuniary or other
no executive or management relationships or transactions
positions in the firm
with the company, its
no family relationships with promoters, directors, senior
executives or managers of the management or holding
firms
company, subsidiaries and
no affiliates or directors of the associates, as well as no
supply relationships with
firm
the firm that may affect
CODE:
independence
no
membership
of
the no position as executive of
managerial board
the company in the
independence
from
the preceding three years
company, its officers and their also in the preceding three
affiliated persons and from years, no positions as
major business partners of the partner or executive in the
statutory audit firm or the
company
over the last three years, no internal audit firm of the
position of officer or employee company, and in legal and
of the company, or of the consulting firms with a
managing organization of the material association with
company
the company
no position of officer in other maximum
shareholding:
firms where any of the officers 2% of the block of voting
of the company is a member of shares in the company
the
nomination
and
remuneration committee
no contractual relationships with
the company that produces value
in excess of 10% of the person’s
aggregate annual income, other
than
through
normal
remuneration for operating as a
board member
no major business partner of the
company (i.e., with an annual
value of transactions with the
company in excess of 10% of
the asset value of the company)
no government representative
CODE and CSRC:
no positions in the firm
apart from the one of
independent director
no relationships with the
company
and
major
shareholders that could
hinder
objective
judgments
CSRC:
also in the previous year:
- no family relationships
with the firm or its
subsidiaries
- no persons holding 1% or
more of the shares of the
company or ranking in the
top-10
company’s
shareholders
- no
persons
holding
positions in entities that
directly or indirectly hold
5% or more of the
company or ranking in the
top-5
company’s
shareholders
- no relatives of the persons
listed in the preceding two
categories
no financial, legal or
consultancy relationships
with the company or its
subsidiaries
Independent board members
SECB:
as many as possible
CODE:
CLAUSE 49:
at least 1/4 of the board, which 1/2 of the board, if the
should have at least three chairman is executive
CODE:
independent directors
1/3, if the chairman is
all external and independent
non-executive
directors
1/2, if the non-executive
chairman is a promoter (or
related to a promoter)
CSRC:
at least 1/3 of the board
(including at least one
professional accountant)
HKEX:
at least three independent
members
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
527
(Table 2 continued)
Brazil
Russia
India
China
Independent board members’ term of office
-
-
CLAUSE 49:
CSRC:
up to nine years, in the aggregate no more than three
(non-mandatory requirement)
tenures as independent
director
GUIDELINES:
six years, followed by a period
of three years before obtaining
any further position in the
company
no more than three tenures as
independent director
Limits to simultaneous positions
CODE:
no
more
than
five
simultaneous positions in
boards and committees (with
shareholder
meeting’s
approval)
GUIDELINES:
limit for managing directors:
seven
positions
of
non-executive or independent
director in other companies
limit for all directors: seven
positions of independent board
member
CSRC:
no more than five positions
of independent director in
listed companies
Executive sessions of independent directors
CODE:
regular
-
-
HKEX:
at least one annual meeting
of the chairman with all
non-executive directors
Remuneration
CLAUSE 49:
all non-executive directors’ fees
shall be fixed by the board and
approved by the shareholder
meeting that shall also specify the
maximum number of stock
options
-
-
GUIDELINES:
option to pay only fixed
contractual remuneration to
non-executive directors, or also
a percentage of the net profits:
fixed component should not
exceed 1/3 of the total package;
variable component should be
based on meeting attendance
(sitting fees) and chairperson
positions in the board or
committees. Stock options can
be granted to non-executive
directors
compensation of independent
directors depending on net
worth and turnover; stock
options
or
profit-based
commissions cannot be granted
to independent directors
528
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
Even if independence’s criteria or incompatibilities have different degree of detail in the four countries’
legislation and regulation, they can be summarized as follows:
Controlling shareholders appointed as directors are not independent; to be independent, a director should
not hold company’s shares exceeding a fixed, very low percentage threshold;
Independent directors should not have any managerial, business, contractual or consultancy relations with
the company, or work as employees of the company;
Independent directors should not have any family relationships with executive directors, officers, and
controlling owners of the company;
To be independent, a director should comply with the above-mentioned requirements not only in respect to
the company where they hold such a position, but also in respect to controlling and controlled firms and their
executive directors, officers, and owners;
Some requirements (e.g., not being a company’s executive director or employee) should also be checked
in respect to one or more previous years.
On the whole, complying with the summarized criteria should guarantee that the directors formulate
unbiased judgment and assessment as concerns the resolutions proposed or taken by the executive directors and
the non-executive but non-independent ones.
In all the BRICs there are rules issued by the stock exchanges or recommendations contained in the
corporate governance codes that require the presence of independent members within the board. While
Brazilian companies are requested to appoint as many independent board members as possible, even the totality,
the other BRICs provide rules on the board composition as regards the minimum portion of independent
members, from at least one fourth in Russia to one half in India when the chairperson is an executive director or
a non-executive promoter of the company. In such a situation independent directors are expected to
counterbalance and control the executive chairperson in the development of their functions.
India and China have also limited the independent board members’ term of office and defined the
maximum number of tenures, with the purpose of promoting a real separation of the independent directors from
the company’s management and owners.
In order to assure that independent directors spend reasonable time in supporting decision-making and
monitoring the company’s activities properly and objectively, all the BRICs except Russia have introduced
restrictions to the number of posts they can simultaneously hold in other firms.
Moreover, regular meetings reserved to non-executive and independent directors are required to Brazilian
and Chinese listed firms: indeed, the absence of executive members and officers should favor impartial debate
and neutral judgment in the interest of the company’s minority shareholders and other stakeholders.
To preserve independent directors’ neutrality in expressing judgment on the company’s strategies,
policies and performance, the international best practices usually consist in paying them a fixed contractual
remuneration, which takes into consideration chairperson positions in the board as well as internal
committees’ membership. In addition, independent directors are usually entitled to sitting fees linked to their
meeting attendance. On the contrary, the international best practices tend to exclude variable compensation
for independent board members, due to the risk that a performance-based remuneration system could
stimulate them to be involved in operational activities, so compromising their objectivity in assessment and
control. As concerns the BRICs, strangely enough the Indian recommendations on corporate governance
permit assigning compensation to the independent directors depending on the company’s net worth and
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
529
turnover.
Internal Committees
According to the corporate governance system adopted in each country analyzed, specialized committees
can be set up within the board of directors (in the Indian one-tier model), the supervisory board (in the Brazilian
and the Russian two-tier model), or both of them (in the Chinese two-board horizontal model) (Salvioni, Almici,
& Bosetti, 2012).
The nomination committee is recommended by only India and China, while Russia and Brazil provide no
regulation about this body (see Table 3). With reference to the composition, both India and China require a
majority of independent directors, including the chairperson, while Brazil and Russia do not regulate this aspect.
Furthermore, only China explains the committee’s roles and powers, such as the recruitment of board
candidates and the formulation of election procedures. None of the BRICs consider the quality of non-executive
director.
Table 3
Nomination Committee
Brazil
Russia
India
China
Establishment
-
-
GUIDELINES:
CODE:
the company may have a nomination the board of directors may establish a
committee
nomination committee
-
GUIDELINES:
majority of independent directors
independent chairperson
Composition
-
CODE:
only directors, in majority independent
independent chairperson
Powers
-
-
-
CODE:
to formulate standards, procedures and
recommendation for the election of
directors
to extensively seek, review and
recommend qualified candidates for
directorship and management
The establishment of the remuneration committee (called human resources committee in Brazil) is
recommended in all the BRICs (and also prescribed by Clause 49 of the Indian Listing Agreement); however,
only India and China regulate the composition of the body (see Table 4). In particular, China requires a
majority of independent directors, including the chairperson, while India regulates the composition less strictly
than China, by requiring at least three directors, all non-executive and comprising an independent chairperson,
according to Clause 49. With reference to the committee’s role, all the BRICs underline the following main
powers:
to study and review the remuneration policies and make recommendations;
to develop the company’s remuneration policies;
to manage and solve problems relating to succession, compensation and people development;
to define the appraisal standard for directors.
530
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
Table 4
Remuneration Committee
Brazil
Russia
India
China
Establishment
CODE:
CODE:
the board may set up a human the board may set up a human
resources committee
resources
and
remuneration
committee
CLAUSE 49:
the board may set up a
remuneration
committee
(non-mandatory
requirement)
GUIDELINES:
the board should have a
remuneration committee
CODE:
the board of directors may
establish a remuneration and
appraisal committee
Composition
-
CLAUSE 49:
CODE:
at least three directors, all only directors, in majority
non-executive
independent
independent chairperson independent chairperson
(non-mandatory
requirement)
GUIDELINES:
at least three directors, in
majority non-executive,
with
at
least
one
independent
-
Powers
CODE:
CODE:
to instruct proceedings relating to
develop
the
to succession, compensation remuneration policy
and people development
CLAUSE
49
and CODE:
company’s GUIDELINES:
to study the appraisal
to determine the company’s standard for directors and
policy
on
specific management personnel, to
remuneration packages for conduct appraisal and to
executive directors and make recommendations
senior
management, to study and review the
including pension rights and remuneration policies and
any compensation payment, schemes for directors and
such as retirement benefits senior management personnel,
or stock options
and make recommendations
(non-mandatory
requirement)
All the BRICs require the establishment of the audit committee, according to the law (in India), the code
of best practices (in Russia), or the Securities and Exchange Commission’s regulations (in China and Brazil)
(see Table 5). However, only Brazil and Russia prescribe the presence of solely independent directors, while
China and India admit also non-independent members (but no more than one half and one third, respectively).
The committee’s role is specified by all the BRICs, which identify the main powers in overseeing the
company’s financial reporting, ensuring that the management develop reliable internal controls and comply
with both the law and the code of best practices, and developing recommendations for the selection of
independent auditors.
Alongside with the nomination, remuneration, and audit committees, listed firms may introduce further
specialized committees for the resolution of specific matters requiring neutral judgment, such as ethics issues,
risk management, strategy, and external or internal disputes (see Table 6). Such committees should prepare
proposals on their specific subjects and submit them for discussion and vote by the board.
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
531
Table 5
Audit Committee
Brazil
Russia
India
China
Establishment
SECB:
an audit committee should
supervise the relationship with
the auditor
CODE:
the board of directors should
create an audit committee
that provides for control over
the financial and business
operations
LAW:
CODE:
Public company having paid-up The board of directors may
capital of not less than five crores establish an audit committee
of rupees (50 million rupees)
shall
constitute
an
audit
committee
CLAUSE 49:
A qualified and independent
audit committee shall be set up
Composition
SECB:
only directors, with one
member representing minority
shareholders.
CODE:
only
directors,
independent
CODE:
only independent directors; if
this is impossible, the audit
committee should be headed
by an independent director
and its members should be
and
preferably independent
non-executive directors
CLAUSE 49:
at least three directors; two
thirds shall be independent
independent chairperson
all financially literate members
at least one member with
accounting
or
financial
expertise
GUIDELINES:
at least three directors, in
majority independent
independent chairperson
all members with knowledge
of financial management, audit
or account
CODE:
only directors, in majority
independent
independent chairperson
at least one independent
member with accounting
expertise
Powers
CODE:
to review the financial
statements
to supervise and promote
financial area accountability
to ensure that management
develop reliable internal
controls
to ensure compliance with
the firm’s code of conduct
CODE:
CLAUSE 49, LAW, and
to make recommendations GUIDELINES:
for the selection of an to investigate and seek
independent audit firm
information from employees
to oversee the company’s
financial reporting and to
review the financial statements
to
recommend
the
appointment, replacement or
removal and the remuneration
of the statutory auditor and the
chief internal auditor
to review the performance of
statutory and internal auditors
and the adequacy of all internal
controls
to review the findings of
internal audit activities and
investigation, and follow up
there on
to review the management
discussion and analysis, the
statement of related party
transactions and the reports on
internal control weaknesses
CODE:
to
recommend
the
engagement or replacement
of the external auditors
to review the internal audit
system
to oversee the interaction
between internal and external
auditors
to
inspect
financial
information and disclosure
to monitor the internal
control system
532
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
Table 6
Other Specialized Committees
Brazil
Russia
SECB:
related party transactions
CODE:
CLAUSE 49:
ethics
shareholder/investor
risk management
grievance
strategic planning
corporate conflicts resolution
CODE:
finance
governance
India
China
CODE:
corporate strategy
These committees are voluntary, or sometimes recommended by the stock exchange’s regulations and the
corporate governance codes.
Among the BRICs, Russia has the most complete and severe self-discipline with reference to voluntary
internal committees. Indeed, the Russian corporate governance code suggests the establishment of:
An ethics committee, entrusted with ensuring the company’s compliance with ethical standards and
contributing to the creation of an atmosphere of trust within the company;
A risk management committee, in charge of analyzing, discussing, improving, and monitoring the
efficiency and effectiveness of the internal risk management policies adopted by the executive directors and
officers;
A strategic planning committee, which should advise the board on strategic goals, investments, and
priority areas of operation, evaluate long-term productivity and market position, and develop recommendations
on the company’s dividend payment policy;
A corporate conflicts resolution committee, responsible for preventing or, if necessary, effectively solving
the disputes arising between the company and the shareholders or inside the company.
Due to the importance of the motivated, reasonable, and impartial opinions the above-mentioned
committees are expected to express, they should be composed of at least a portion of independent members,
even if their presence is plainly requested only to the corporate conflicts resolution committee.
Indian listed companies are invited to set up a shareholder/investor grievance committee, which should
specifically handle the complaints of shareholders and investors concerning transfer of shares, non-receipt of
balance sheet, non-receipt of declared dividends, etc.. This Indian committee is similar to the Russian corporate
resolution committee and, in compliance with the national stock exchange’s regulations, it should have a
non-executive chairperson. However, the nature of its activity may justify the presence of independent
members, even if they are not recommended by the regulators.
As regards China, the corporate governance code suggests introducing a corporate strategy committee
responsible for conducting research and making proposals on long-term strategic development plans and major
investment decisions. The code does not specify rules on the committee’s composition, but the involvement of
non-executive and independent directors should be useful to ensure the objectivity of resolutions.
In Brazil, self-discipline only considers the opportunity to adopt a finance committee, a governance
committee, and a related party transactions committee, without describing their composition and tasks.
Nevertheless, according to the international best practices, a finance committee should constantly monitor and
review the company’s budget and expenditure, checking their consistency with the long-term plans. In this
regard, a finance committee is comparable to a strategic committee, so it should comprise one or more
independent directors to balance the presence of executive members. In the same way, the board should select
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
533
independent members to form its governance committee and related party transactions committee: indeed, the
former should guarantee equality and effectiveness of decision-making affecting the rights and expectations of
different categories of shareholders (e.g., controlling shareholders and minority shareholders), and the latter
should impartially face the matters involving the interests of insiders or connected parties (for example, when
the board has to decide about signing a commercial agreement in which the CEO is the counterparty).
Empirical Research
Purposes and Methodology
Based on the provisions summarized in the previous section, an empirical research has been developed in
order to verify the actual corporate governance choices of a selected sample of companies from BRIC, in
relation to board independence and internal committees. In this regard, the research questions were the
following:
Have BRIC companies appointed non-executive and independent board members?
What do BRIC companies do in order to assure an effective participation of non-executive and
independent board members to corporate governance activities?
Have BRIC companies established internal committees? Which ones? What are their characteristics?
The investigation considered 100 companies, more exactly the top-25 firms from BRIC that were included
in Forbes Global 2000 list of April 2011, a well-known list containing the most important firms worldwide,
ordered through an index combining sales, profits, assets, and market value. All the 100 companies extracted
from Forbes list resulted to be traded on one or more stock exchanges, so being required to adhere to specific
governance rules.
The investigation consisted in a content analysis (Weber, 1990; Neuendorf, 2002; Krippendorff, 2004) of
the most recent disclosure on corporate governance divulged by the companies through their websites within
April 2012.
Items to be checked were identified in accordance with the above described legislative and regulatory
framework and referred to:
presence of non-executive and independent board members and their meetings;
establishment of board committees and their composition, meetings, attendance rate, functions, and
activities carried out in actual fact.
Information was collected from corporate governance and investor relations pages of the firms’ websites
and the documents attached therein, such as the latest annual report on corporate governance (referred to 2011
or 2010/11 financial year), the board and committees’ charters and the company’s statute. To facilitate
data-processing, all significant findings were registered in an Excel database.
Results
This section contains the results of the empirical investigation. The data contained in Tables 7-11
summarize how many companies from each country divulged information on the items investigated.
Data refer to 94 firms: one Chinese and five Brazilian companies were excluded, because they did not have
either a website or its English translation at the time of the investigation, or had not updated information for
long.
534
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
Despite the existence of national provisions requiring or recommending the appointment of independent
members to the supervisory board of Brazilian and Russian listed companies and to the board of directors of
Indian and Chinese ones, it was sometimes difficult to check the compliance with such rules. While all the
Indian firms analyzed (25) and almost all the Chinese ones (23 out of 24) detailed the presence of independent
members within the board of directors in their web-based disclosure, only 13 Brazilian and five Russian
companies disseminated this type of information with reference to the supervisory board (see Table 7).
Table 7
Non-executive/Independent Members
Brazil-SB
Independent members
13
Executive sessions of non-executive or independent
0
members
Russia-SB
India-BoDs
China-BoDs
5
25
23
0
4
1
Note. SB: supervisory board; BoDs: board of directors.
The higher care of the Indian and the Chinese firms for independence was confirmed by the clear
classification they gave for each board member as executive, non-executive (but not independent) or
independent. That permitted determining the average composition of the boards analyzed: in China, within a
board formed by 13.5 members on average, 37.8% of the members were independent, 33.3% were
non-executive, and 28.9% were executive; the results for India showed an average dimension of the board
equal to 13 members, 48.8% of whom were independent, 22.3% were non-executive, and 28.8% were
executive.
On the other hand, scarce transparency used to characterize the communication of the whole sample of
firms in respect to non-executive and independent members’ executive sessions: information about their
meetings in the absence of managing directors and officers was divulged by only four Indian companies and a
Chinese one, but by none of the Brazilian and Russian firms investigated.
Focusing on the Indian context, the research also revealed a significant adoption of incentive-based
remuneration systems for non-executive directors, including the independent ones: 11 firms of the sample
emphasized the payment of commissions to their non-executive directors, i.e., variable compensation usually
not higher than 1% of the net profits, in addition or in alternative to sitting fees.
None of the Brazilian companies analyzed had a nomination committee; conversely, this body existed in
some Russian, Indian, and Chinese firms (see Table 8). The committee was usually composed of independent
directors in India and China, while no detail—except for the number of members—was disseminated by the
Russian companies. Disclosure on the committee’s role, activities, frequency of meetings, and attendance rate
was more complete for the Indian and the Chinese committees than for the Russian ones.
The remuneration committee had been mainly established in the Indian, the Chinese, and the Russian
companies, while it existed in only 16% of the Brazilian firms analyzed (see Table 9). With reference to the
composition, the committee was totally independent in only seven companies (three Chinese, three Indian, and
one Russian). Little disclosure was given by the Brazilian and the Russian firms relating to the attendance rate,
while in the Indian and the Chinese ones such a rate was often 100%. The Brazilian firms’ communication was
the least transparent about the committee’s role and activities carried out.
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
535
Table 8
Nomination Committee
Establishment of the committee
Composition
Number or frequency of meetings
Attendance rate
Powers and functions
Activities carried out in actual fact
Brazil-SB
Russia-SB
India-BoDs
0
-
11
8
1
1
7
4
13
13
12
10
11
2
Brazil-SB
Russia-SB
India-BoDs
4
2
0
0
3
1
19
17
5
3
14
11
23
23
22
19
18
2
China
BoDs
SB
20
6
17
2
16
1
14
0
16
2
13
1
Table 9
Remuneration Committee
Establishment of the committee
Composition
Number or frequency of meetings
Attendance rate
Powers and functions
Activities carried out in actual fact
China
BoDs
SB
23
2
19
0
19
0
15
0
17
0
16
0
The audit committee had been set up in the most part of the companies investigated (64% in Brazil, 96%
in Russia, 100% in India, and 92% in China) and it often comprised a majority of independent directors (see
Table 10). Transparency on the meetings held by the committee was greater in the Indian and the Chinese firms,
while the disclosure on powers and functions was good in almost all the BRICs.
Table 10
Audit Committee
Establishment of the committee
Composition
Number or frequency of meetings
Attendance rate
Powers and functions
Activities carried out in actual fact
Brazil-SB
16
12
0
0
15
4
Russia-SB
24
24
8
3
23
12
India-BoDs
25
25
25
24
24
5
China-BoDs
23
19
19
16
16
19
The research also verified the existence of other specialized committees (see Table 11), first of all
considering the ones recommended by the national corporate governance codes and stock exchange’s
regulations. However, the content analysis revealed that a number of companies had voluntarily established
further committees, even if they were neither requested nor recommended in their countries.
Before 2011 none of the Brazilian companies investigated had introduced the committees suggested by
their national frameworks, such as the related party transactions committee, the finance committee, and the
governance committee. In Russia, 13 firms had complied with the recommendation of having a strategic
committee, but only one had set up a corporate conflicts resolution committee, while none had neither set up an
ethics committee nor a risk management committee. In India, all the 25 companies had established a
536
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
shareholder/investor grievance committee, as required by the stock exchange’s regulations. In China, 18 out of
23 firms had introduced the recommended corporate strategy committee.
Table 11
Other Committees
Brazil-SB
Ethics—CSR
Environmental issues
Risk management
Related party transactions
Strategy
Shareholder/investor grievance
Corporate conflicts resolution
Shareholder relations
Supervision
Performance and due diligence
Others
1
2
3
0
4
0
0
4
10
Russia-SB
India-BoDs
0
1
0
1
13
0
1
0
9
9
5
10
0
0
25
0
0
17
BoDs
1
3
13
8
18
0
0
0
4
China
SB
8
4
-
Generally speaking, the Indian and the Chinese firms resulted the most inclined to introduce
voluntary-based internal committees. Risk management committees had been set up by 10 Indian companies
and 13 Chinese ones, but also by three Brazilian firms. Social matters and environmental issues were covered
in India by nine and five specialized committees respectively, while eight committees had been formed in
China to handle related party transactions. In Brazil, four committees were responsible for shareholder
relations.
Finally, some Chinese firms had established specialized committees not only within the board of directors,
but also the supervisory board, in particular, eight supervisory board’s committees were in charge of
monitoring the activity of the entire body, while four were responsible for performance evaluation and due
diligence.
Conclusions, Limitations, and Future Research Directions
The review of the BRICs’ legislative and regulatory framework on independence and board committees
demonstrates the existence of comprehensive institutional convergence among the four countries, as well as
towards the international best practices of corporate governance. Indeed, all the BRICs have adopted criteria of
independence according to which the condition of independent director is incompatible with family, business,
consultancy, and ownership relationships with the company that could jeopardize objectivity of judgment.
As stated by the agency theory, the appointment of independent board members is a commonly accepted
solution for protecting minority shareholders who do not take part in firm’s decision-making and operations,
and consequently need neutral supervision on management. This situation, which is typical of all listed
companies where large inside ownership coexists with small outside shareholding, is growing in importance in
the BRICs, the companies of which represent interesting targets for foreign investors.
As concerns internal committees, all the BRICs require or recommend the establishment of a remuneration
committee and an audit committee, similarly to the international best practices. Differences exist among the
four countries in relation to the composition, even if laws and recommendations usually provide for the
BOARD INDEPENDENCE AND INTERNAL COMMITTEES IN THE BRICS
537
presence of independent members.
In line with what happens in other countries marked by high concentration of ownership, also in the
BRICs the nomination committee seems to be less important than the audit and the remuneration ones. On the
other hand, further committees are required or suggested in order to help the board handle specific issues (such
as risk management, ethics, strategic planning, finance, and corporate conflicts) with professional competence
and skills. Hence, the selection of non-executive and independent directors to compose at least a part of such
committees can be interpreted in the light of the resource dependence theory, given the expertise such directors
can offer to the board.
The study has also produced evidence from a firm-level perspective, although the shortage of transparency
in corporate governance disclosure hampered the development of conclusive remarks. However, the Indian and
the Chinese companies investigated seemed to be more inclined than the Russian and the Brazilian ones to
divulge information on the board independence and the role of internal committees with reference to topics
requiring impartial judgment.
The empirical findings obviously suffer of the innate limitation of all content analyses that is to be based
only on external communication. To overcome this limitation, the research could be repeated by contacting the
companies to obtain the missing information. This solution could also permit supplementing the study by
investigating further aspects, for example, the impact of independence on firm performance.
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