autres publications Gouvernance Normes d'encadrement
Comparer la gouvernance d’entreprise : étude de Martin Gelter
Ivan Tchotourian 4 août 2016
Martin Gelter (professeur à Fordham) nous offre un très bel article « Comparative Corporate Governance: Old and New » pour le compte de l’ECGI (Law Working Paper No. 321/2016). Si vous vous intéressez à la comparaison en matière de gouvernance d’entreprise, c’est un incontournable !
The most fundamental comparative corporate governance debates have often focused on two issues.
The first one concerns ownership structure: Why are large corporations in some corporate governance system owned by a multitude of disempowered shareholders, thus effectively giving management free rein? Why are corporations typically governed by a controlling shareholder or a coalition of controlling shareholders in other systems?
The second issue is the role of other ‘constituencies’ of the corporation besides shareholders, of which labor is most central to the debate. Some jurisdictions explicitly give labor an influential voice in corporate affairs, whereas in others its influence is developed through factual power or unintended consequences of legislation.
This chapter explores the interactions between firm ownership and labor, focusing on the United States on the one hand and Continental Europe, particularly Germany, on the other. It distinguishes between ‘old’ and ‘new’ comparative corporate governance, the former referring to the dichotomy studied by scholars of comparative corporate law up to the early 2000s. Recent changes, heralded by intermediated, but widespread share ownership are leading us to a new equilibrium whose contours have only begun to emerge.
Over the past decades, outside investors have gained power both in the United States and in Continental Europe. However, neither in the US nor in Continental Europe has the traditional corporate governance system been completely superseded by a new one. The US remains to a large extent manager-centric. Continental Europe retains powerful large shareholders, and labor as an independent force has remained more important than in the United States. Outside institutional investors – sometimes from the US – have become a player to be reckoned with, thus adding an additional layer of complexity to the system.
À la prochaine…
Ivan Tchotourian
autres publications Nouvelles diverses
Nouvel ouvrage : « Economics of corporate law »
Ivan Tchotourian 4 août 2016
Bonjour à toutes et à tous, je vous signale la parution de ce nouvel ouvrage liant droit des sociétés par actions et analyse économique : « Economics of Corporate Law – Economic Approaches to Law series » (Edward Elgar Publishing, 2016).
Scholarly analysis of corporate law in the United States has come to be dominated by an economic approach. Professor Hill and Professor McDonnell here draw together seminal articles which represent major milestones along the road that economics has traveled in coming to play this central role in corporate law scholarship. The focus is on the analysis of corporate law, drawing mainly upon legal scholarship and particularly on US scholarship, which is the originator of the application of modern economic analysis to corporate law and has had much influence in other countries.
À la prochaine…
Ivan Tchotourian
autres publications Gouvernance normes de droit Nouvelles diverses
Rapport 2016 de PWC sur le crime économique
Ivan Tchotourian 3 août 2016
Belle étude annuelle de Pwc consacrée à la criminalité économique : « Global Economic Crime Survey 2016 – Adjusting the Lens on Economic Crime: Preparation brings opportunity back into focus ».
Today more than ever before, a passive approach to detecting and preventing economic crime is a recipe for disaster. To underscore this fact, our survey uncovered a widespread lack of confidence in local law enforcement – a phenomenon that is not limited to regions or level of economic development. The message is clear: the burden of preventing, protecting and responding to economic crime rests firmly with organisations themselves. Our survey this year focuses on three key areas – Cybercrime, Ethics and compliance programmes and Anti-Money Laundering – and explores certain common themes, including managing the risks associated with the pervasion of technology; what it means to conduct business responsibly across a widening business landscape; and integrating ethical conduct into decision-making.
In addition to highlighting specific areas of economic crime worth focusing on, we emphasise the things you can do better to tackle them – implementing more sophisticated and effective measures that can not only reduce these risks, but also bring the benefits of a more threat-aware business, confident of its defences in a changing world.
À la prochaine…
Ivan Tchotourian
autres publications Gouvernance Normes d'encadrement
Une politique ambitieuse de Vigeo
Ivan Tchotourian 3 août 2016
Alors que le changement climatique est sur le devant de la scène et que les entreprises et les investisseurs ne peuvent l’ignorer, l’agence de notation extra-financière Vigeo a publié le 12 janvier 2016 une politique ambitieuse intitulé « Post COP21: How well companies & investors are positioned to respond to climate change » (Policy Briefing, Climate Change & Transition to a Low Carbon Economy). Ce document rappelle haut et fort que le changement climatique est une affaire d’entreprise et d’investisseur !
Investors have already played a key role in bringing about COP21, and in the post COP21 landscape, investors are vital to ensure meaningful results.
No doubt initiatives such as the Montreal Pledge, the RE100 investor initiative, investor campaigns on stranded assets, and the plethora of events both before and during COP21, demonstrated to governments investor will and thought-leadership here. The growing corporate-investor-government nexus whereby some companies are calling for a credible carbon price/tax is significant.
The importance of incentives for emissions reduction activities are recognised in the Agreement preamble, including domestic policies and carbon pricing.16 These calls to action will drive forward collective performance on climate change, in addition to the ongoing pressure investors can put on companies through the investment process.
Responsible investment plays a leading role in highlighting companies’ exposure to the risks of climate change and evaluating their capacity to mitigate them. Analyses from research intermediaries such as Vigeo Eiris can help investors to understand and better manage these mounting climate change risks.
At present, only a small proportion of companies are found to have an advanced response to climate change and energy transition. To drive forward performance, companies could be encouraged to tie Board-level remuneration to climate change targets. Corporate reporting could be improved, particularly through use of quantitative assessments, and companies should be encouraged to report on the impact of the whole product lifecycle on emissions. There is also room for much greater corporate acknowledgement of the policy context.
À la prochaine…
Ivan Tchotourian
autres publications engagement et activisme actionnarial Nouvelles diverses
Exit, Voice and Loyalty from the Perspective of Hedge Funds Activism in Corporate Governance
Ivan Tchotourian 3 août 2016
Bonjour à toutes et à tous, en voilà un bel article ! « Exit, Voice and Loyalty from the Perspective of Hedge Funds Activism in Corporate Governance » d’Alessio Pacces (Law Working Paper No. 320/2016) revient sur les thématiques de l’activisme des hedge funds, du court-termisme et des multiples classes d’actions.
This article discusses the policy response to hedge funds activism in corporate governance based on Hirschman’s classic: Exit, Voice and Loyalty. From that perspective, the article argues that hedge funds do not create the loyalty concerns underlying the usual short-termism critique of hedge funds activism, because the arbiters of such activism are typically indexed funds, which cannot choose short-term exit. Nevertheless, the voice activated by hedge funds can be excessive for a particular company.
Furthermore, this article claims that the short-termism debate cannot shed light on the desirability of hedge funds activism. Neither theory nor empirical evidence can tell whether hedge funds activism systematically leads to short-termism or whether its absence lead management to the opposite bias, namely long-termism. The real issue with activism is a conflict of entrepreneurship, namely a conflict between the opposing views of the activists and the incumbent management regarding in how long an individual company should be profitable. Leaving the choice between these views to institutional investors is not efficient for every company at every point in time.
Consequently, this article argues that regulation should enable individual companies to choose whether to encourage or to curb hedge funds activism depending on the efficient time-horizon given the firm’s lifecycle. The recent European experience reveals that loyalty shares enable such choice, even in the midstream, operating as dual-class shares in disguise. However, loyalty shares can often be introduced without institutional investors’ consent. This outcome could be improved by allowing dual-class recapitalizations, instead of loyalty shares, but only with a majority of minority vote. This solution would screen for the companies for which temporarily curbing activism is efficient, and induce these companies to negotiate sunset clauses with institutional investors.
À la prochaine…
Ivan Tchotourian
autres publications Nouvelles diverses
ESG Spotlight : A new era for data privacy? (billet de Julie Bernard)
Julie Bernard30 juillet 2016
Bonjour à toutes et à tous, l’agence de notation extrafinancière Sustanalytics vient tout juste de sortir un nouveau rapport dans le cadre de la série ESG Spotlight : « ESG Spotlight | A new era for data privacy? ».
En voici un résumé :
Sustainalytics’ new ESG Spotlight Series report, A New Era for Data Privacy?, considers the impacts of the new Privacy Shield agreement, which was approved by the EU member states last Friday, on US IT companies. Our research shows that US IT companies generally are poorly prepared to meet rising regulatory requirements from Privacy Shield and the General Data Protection Regulation (GDPR).
Bonne lecture !
Julie Bernard, MAP, Adm.A
Étudiante au doctorat (PhD) en sciences de l’administration (Management)
Faculté des sciences de l’administration
Université Laval
autres publications Nouvelles diverses
An Effective Compliance and Ethics Program is key
Ivan Tchotourian 30 juillet 2016
Intéressant document de la Securities and Exchange Commission en matière de criminalité économique : « 2014 GUIDELINES MANUAL – CHAPTER EIGHT – SENTENCING OF ORGANIZATIONS ».
These guidelines of the U.S. Sentencing Commission (Chapter 8) offer incentives to organizations to reduce and ultimately eliminate criminal conduct by providing a structural foundation from which an organization may self-police its own conduct through an effective compliance and ethics program. The prevention and detection of criminal conduct, as facilitated by an effective compliance and ethics program, will assist an organization in encouraging ethical conduct and in complying fully with all applicable laws.
In regard to ‘economic criminality’, however defined, it is equally crucial that regulators across the globe push and pull robustly and cooperatively for effective compliance and ethics programs within industries. Without regulatory/supervisory efforts (a situation that is a systemic risk by itself), ‘economic criminality’ will be nothing more than an academic subject of theoretical interest without any consumer protection values whatsoever. That may well be where the next financial crisis lies. Only the future will tell.
À la prochaine…
Ivan Tchotourian
