Gouvernance | Page 14

Bonjour à toutes et à tous, le Parlement devrait adopter d’ici à la fin du mois d’octobre la loi Sapin 2 qui impose notamment un vote contraignant des actionnaires des sociétés cotées en AG concernant la rémunération des dirigeants. Une démarche à risques estime Fabrice Rémon, Fondateur de Gouvernance en Actions.

Accéder ici à capsule-vidéo

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Ivan Tchotourian

The Investment Association de Grande-Bretagne vient de publier un rapport percutant : « Supporting UK Productivity with Long-Term Investment » (mars 2016). En le parcourant, c’est un nouveau paradigme qui se dessine pour les investisseurs institutionnels : faire une plus grande place au long-terme.

Petit extrait :

While the primary responsibility for promoting the success of a company rests with the Board and its oversight of management, investors play a crucial role in holding the Board to account for the fulfillment of its responsibilities. Shareholder stewardship should aim to promote the long-term success of companies in such a way that the ultimate providers of capital will also prosper. In this sense, there should be a natural alignment of interests: effective stewardship should benefit companies, investors and the economy as a whole.

Supporting long-term investment and productivity requires effective dialogue between investors and companies. By exercising stewardship responsibilities effectively, investors are well placed to ensure companies adopt a long-term approach. For example, through purposeful dialogue, shareholders can demonstrate support for expenditures that will boost productivity and challenge companies compromising it as a result of poor capital management.

Pour accéder à une synthèse de ce rapport : ici.

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Ivan Tchotourian

Excellent texte auquel je viens d’accéder rédigé par Yvon Allaire et François Dauphin daté du 11 août 2016 et intitulé : “Making Say-on-Pay Vote Binding: a Good Idea?” (IGOPP).

Petit extrait :

The challenge of reading and understanding the particulars of executive compensation has become far more daunting. Indeed, for the 50 largest (by market cap) companies on the TSX in 2015 that were also listed back in 2000, the median number of pages to describe their compensation went from 6 in 2000 to 34 pages in 2015, ranging all the way up to 66 pages. Investors with holdings in dozens or hundreds of stocks face a formidable task. The simplest way out is either to vote per the stock’s performance or, more likely, rely on the recommendation of proxy advisory firms (which also base their “advice” on relative stock market performance. (…)

Boards of directors, compensation committees and their consultants have come to realize that it is wiser and safer to toe the line and put forth pay packages that will pass muster with proxy advisory firms. The result has been a remarkable standardization of compensation, a sort of “copy and paste” across publicly listed companies. Thus, most CEO pay packages are linked to the same metrics, whether they operate in manufacturing, retailing, banking, mining, energy, pharmaceuticals or services. For the companies on the S&P/TSX 60 index, the so-called long term compensation for their CEO in 2015 was based on total shareholder return (TSR) or the earnings per share growth (EPS) in 85% of cases. The proxy advisory firm ISS has been promoting these measures as the best way to connect compensation to performance. (…)

At a more fundamental level, the setting of pay policies should be the preserve of the board, as Canadian corporate law clearly states. When egregious pay packages are given to executives, a say-on-pay vote, compulsory or not, binding or not, will always be much less effective than a majority of votes against the election of members of the compensation committee. But that calls upon large investment funds to show fortitude and cohesiveness in the few instances of unwarranted compensation which occur every year.

À la prochaine…

Ivan Tchotourian

La professeure Dionysia Katelouzou publie une très belle étude sur SSRN : « Reflections on the Nature of the Public Corporation in an Era of Shareholder Activism and Shareholder Stewardship ». L’auteure y revient sur le mythe que les actionnaires seraient passifs et que la lecture contractualiste de l’entreprise serait pertinente. Comme elle le souligne, il y a eu un changement de paradigme depuis l’émergence des investisseurs institutionnels consacrant un « investor paradigm for corporate law ».

For the greater part of the twentieth century the role of shareholders within the public corporation has been conceptualized within the contractarian framework influenced by the neo-liberal emphasis on market efficiency. For the supporters of the contractual nature of the corporation, shareholders have in general been viewed as the main beneficiaries of corporate activity. Contractarianism goes further, dispelling the notion of shareholder ‘ownership’, and thereby relying on the efficacy of individual contracting and the constraining forces of various markets to control managerial discretion and reduce monitoring costs. Within this contractarian framework shareholders do not wish to be involved in the corporation’s management, nor do they gain any benefits from an active engagement, mainly because of the market efficacy to control managerial discretion and a series of legal and extra-legal obstacles to shareholders’ active involvement. There is, therefore, no a priori reason why shareholders should exercise control over managerial decision-making and any legally imposed reform to empower the monitoring role of shareholders is viewed as unnecessary and counterproductive. Through most of the twentieth century, this contractarian orthodoxy of the rather passive role of shareholders also coincided with practice.

My paper argues that these contractarian assertions in relation to the role of shareholders within the internal functioning of the public corporation do not hold anymore in the face of the rise in the holdings and influence of institutional investors in recent years.

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Ivan Tchotourian

Au Japon, le Financial Services Agency a annoncé que le Financial System Counsel a publié le rapport intitulé « Working Group on Corporate Disclosure – report on Promoting Constructive Dialogue » (19 juillet 2016).

Petit extrait de ce document :

III. Enhancing disclosure of non-financial information

Non-financial information includes a wide array of information such as governance, social and environmental matters as well as business policies/strategies and MD&A. In recent years, there has been further growing interest in such non-financial information in response to the initiatives to bolster corporate governance and the increasing demand regarding social and environmental issues.

Companies are required to disclose in their Annual Securities Reports information that is necessary and appropriate for the public interest or protection of investors. Accordingly, for example, in cases where social or environmental issues have a material impact on the business or performance of the issuing companies, they are required to disclose such issues in the « MD&A » and « Risk Factors » of the Annual Securities Reports. Also, in recent years, in addition to the improvement of disclosure requirements of governance information in Corporate Governance Reports, a substantial number of companies have taken to disclosing diverse and technical non-financial information in the form of CSR reports and Environment Reports in order to satisfy the wide-ranging information needs of investors and other stakeholders.

To ensure that companies provide non-financial information which meets stakeholders’ needs through creativity and ingenuity, it could be one option to encourage companies to provide non-financial information through voluntary disclosure.

Also note that it might be necessary in the future to make some non-Financial information subject to mandatory disclosure requirements; therefore, it is important to make clear the approach to take for information whose disclosure should be obligatory. In view of the criminal punishments and other heavy sanctions applied to false statements in the Annual Securities Reports, and of the necessity to concisely disclose the information that is truly material for investment decisions, we believe that it would be appropriate to take into account the following elements holistically when considering whether certain non-financial information should expressly be made obligatory:

• Whether the information is truly necessary for investors in making investment decisions;
• Whether the information has become prevalent in the securities market, and has been provided to investors to keep them from being misled;
• Whether the cost borne across the market would be considerable, including, for example, the cost borne by disclosing companies as a
• consequence of making the information disclosure mandatory, and the cost borne by investors to acquire and evaluate the information;
• Whether the request to disclose non-financial information will adversely discourage companies from disclosing useful information, and as a result the overall quality and quantity of information disclosure will decline;
• Whether the disclosure of non-financial information is required by other laws.

Also, as mentioned under « Basic approach, » in order to improve accessibility to corporate information, there are the needs of those investors, especially overseas institutional investors, that companies compile the information that is released across multiple disclosure documents into a single document in an easy-to-understand fashion. In order to address investor needs of this kind, we believe that it is important for companies to consider the way of voluntary disclosure through creativity and ingenuity; some examples may be to unify the information contained in multiple disclosure documents into a single document, or to systematically include hyperlinks to multiple disclosure documents on a single web page.

(…)

3. Investment decisions made from a mid- to long-term perspective

In order to ensure that the corporate disclosure of information leads to sustainable growth and increased corporate value over the mid- to long term, it will be necessary to take further steps encouraging investors to use the information disclosed by companies to make investment decisions grounded in a mid- to long-term perspective.

Such steps may include the following:

• Discuss dialogue between institutional investors and the investee companies of investment, as well as the way in which voting rights are exercised at the Council of Experts Concerning the Follow-up of Japan’s Stewardship Code and Japan’s Corporate Governance Code, so as to make stewardship responsibility more effective in boosting corporate value over the mid- to long term and ensuring sustainable corporate growth.
• Individual investors are generally expected to have the mid- to long term in mind, with shareholders holding shares for over three years on average accounting for about 70%. In view also of the expansion of the defined-contribution pension system and NISA (Nippon Individual Savings Account: a system for the tax exemption of small investments), further intensify education toward mid- to long-term-oriented investing in the context of the initiatives undertaken by the Japan Securities Dealers Association and other organizations to improve the literacy of individual investors.

À la prochaine…

Ivan Tchotourian