This Chapter seeks to make three modest contributions by offering views of the corporate purpose cathedral that bear on the role of law in it. These views underscore the difference and the tension between an individual perspective and a societal/national legal perspective on the purpose of the corporation. First, it reviews a novel dataset on national legal shareholderism – namely, the degree to which national corporate laws endorse shareholder primacy – as an exercise in operationalizing legal constructs. Second, it anchors the two archetypal approaches of shareholderism and takeholderism in personal human values. It is this connection with the fundamental conceptions of the desirable which animates attitudes and choices in this context. The upshot is potentially subversive: Legal injunctions to directors on corporate purpose might be an exercise in futility. Third, this Chapter highlights the importance of acknowledging the tensions between the two levels of analysis by looking at the works of prominent writers. Adolf Berle, Victor Brudney, and Leo Strine have been careful to keep this distinction in mind, which has enabled them to hold multiple views of the cathedral without losing sight of it.
Intéressant article sur l’Harvard Law School Forum on Corporate Governance consacré au modèle partie prenante et à ses liens avec les critères ESG : « The Stakeholder Model and ESG » (Ira Kay, Chris Brindisi et Blaine Martin, 14 septembre 2020).
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Is your company ready to set or disclose ESG incentive goals?
ESG incentive metrics are like any other incentive metric: they should support and reinforce strategy rather than lead it. Companies considering ESG incentive metrics should align planning with the company’s social responsibility and environmental strategies, reporting, and goals. Another essential factor in determining readiness is the measurability/quantification of the specific ESG issue.
Companies will generally fall along a spectrum of readiness to consider adopting and disclosing ESG incentive metrics and goals:
Companies Ready to Set Quantitative ESG Goals: Companies with robust environmental, sustainability, and/or social responsibility strategies including quantifiable metrics and goals (e.g., carbon reduction goals, net zero carbon emissions commitments, Diversity and Inclusion metrics, employee and environmental safety metrics, customer satisfaction, etc.).
Companies Ready to Set Qualitative Goals: Companies with evolving formalized tracking and reporting but for which ESG matters have been identified as important factors to customers, employees, or other These companies likely already have plans or goals around ESG factors (e.g., LEED [Leadership in Energy and Environmental Design]-certified office space, Diversity and Inclusion initiatives, renewable power and emissions goals, etc.).
Companies Developing an ESG Strategy: Some companies are at an early stage of developing overall ESG/stakeholder strategies. These companies may be best served to focus on developing a strategy for environmental and social impact before considering linking incentive pay to these priorities.
We note it is critically important that these ESG/stakeholder metrics and goals be chosen and set with rigor in the same manner as financial metrics to ensure that the attainment of the ESG goals will enhance stakeholder value and not serve simply as “window dressing” or “greenwashing.” [9] Implementing ESG metrics is a company-specific design process. For example, some companies may choose to implement qualitative ESG incentive goals even if they have rigorous ESG factor data and reporting.
Will ESG metrics and goals contribute to the company’s value-creation?
The business case for using ESG incentive metrics is to provide line-of-sight for the management team to drive the implementation of initiatives that create significant differentiated value for the company or align with current or emerging stakeholder expectations. Companies must first assess which metrics or initiatives will most benefit the company’s business and for which stakeholders. They must also develop challenging goals for these metrics to increase the likelihood of overall value creation. For example:
Employees: Are employees and the competitive talent market driving the need for differentiated environmental or social initiatives? Will initiatives related to overall company sustainability (building sustainability, renewable energy use, net zero carbon emissions) contribute to the company being a “best in class” employer? Diversity and inclusion and pay equity initiatives have company and social benefits, such as ensuring fair and equitable opportunities to participate and thrive in the corporate system.
Customers: Are customer preferences driving the need to differentiate on sustainable supply chains, social justice initiatives, and/or the product/company’s environmental footprint?
Long-Term Sustainability: Are long-term macro environmental factors (carbon emissions, carbon intensity of product, etc.) critical to the Company’s ability to operate in the long term?
Brand Image: Does a company want to be viewed by all constituencies, including those with no direct economic linkage, as a positive social and economic contributor to society?
There is no one-size-fits-all approach to ESG metrics, and companies fall across a spectrum of needs and drivers that affect the type of ESG factors that are relevant to short- and long-term business value depending on scale, industry, and stakeholder drivers. Most companies have addressed, or will need to address, how to implement ESG/stakeholder considerations in their operating strategy.
Conceptual Design Parameters for Structuring Incentive Goals
For those companies moving to implement stakeholder/ESG incentive goals for the first time, the design parameters range widely, which is not different than the design process for implementing any incentive metric. For these companies, considering the following questions can help move the prospect of an ESG incentive metric from an idea to a tangible goal with the potential to create value for the company:
Quantitative goals versus qualitative milestones. The availability and quality of data from sustainability or social responsibility reports will generally determine whether a company can set a defined quantitative goal. For other companies, lack of available ESG data/goals or the company’s specific pay philosophy may mean ESG initiatives are best measured by setting annual milestones tailored to selected goals.
Selecting metrics aligned with value creation. Unlike financial metrics, for which robust statistical analyses can help guide the metric selection process (e.g., financial correlation analysis), the link between ESG metrics and company value creation is more nuanced and significantly impacted by industry, operating model, customer and employee perceptions and preferences, etc. Given this, companies should generally apply a principles-based approach to assess the most appropriate metrics for the company as a whole (e.g., assessing significance to the organization, measurability, achievability, etc.) Appendix 1 provides a list of common ESG metrics with illustrative mapping to typical stakeholder impact.
Determining employee participation. Generally, stakeholder/ESG-focused metrics would be implemented for officer/executive level roles, as this is the employee group that sets company-wide policy impacting the achievement of quantitative ESG goals or qualitative milestones. Alternatively, some companies may choose to implement firm-wide ESG incentive metrics to reinforce the positive employee engagement benefits of the company’s ESG strategy or to drive a whole-team approach to achieving goals.
Determining the range of metric weightings for stakeholder/ESG goals. Historically, US companies with existing environmental, employee safety, and customer service goals as well as other stakeholder metrics have been concentrated in the extractive, industrial, and utility industries; metric weightings on these goals have ranged from 5% to 20% of annual incentive scorecards. We expect that this weighting range would continue to apply, with the remaining 80%+ of annual incentive weighting focused on financial metrics. Further, we expect that proxy advisors and shareholders may react adversely to non-financial metrics weighted more than 10% to 20% of annual incentive scorecards.
Considering whether to implement stakeholder/ESG goals in annual versus long-term incentive plans. As noted above, most ESG incentive goals to date have been implemented as weighted metrics in balanced scorecard annual incentive plans for several reasons. However, we have observed increased discussion of whether some goals (particularly greenhouse gas emission goals) may be better suited to long-term incentives. [10] There is no right answer to this question—some milestone and quantitative goals are best set on an annual basis given emerging industry, technology, and company developments; other companies may have a robust long-term plan for which longer-term incentives are a better fit.
Considering how to operationalize ESG metrics into long-term plans. For companies determining that sustainability or social responsibility goals fit best into the framework of a long-term incentive, those companies will need to consider which vehicles are best to incentivize achievement of strategically important ESG goals. While companies may choose to dedicate a portion of a 3-year performance share unit plan to an ESG metric (e.g., weighting a plan 40% relative total shareholder return [TSR], 40% revenue growth, and 20% greenhouse gas reduction), there may be concerns for shareholders and/or participants in diluting the financial and shareholder-value focus of these incentives. As an alternative, companies could grant performance restricted stock units, vesting at the end of a period of time (e.g., 3 or 4 years) contingent upon achievement of a long-term, rigorous ESG performance milestone. This approach would not “dilute” the percentage of relative TSR and financial-based long-term incentives, which will remain important to shareholders and proxy advisors.
Conclusion
As priorities of stakeholders continue to evolve, and addressing these becomes a strategic imperative, companies may look to include some stakeholder metrics in their compensation programs to emphasize these priorities. As companies and Compensation Committees discuss stakeholder and ESG-focused incentive metrics, each organization must consider its unique industry environment, business model, and cultural context. We interpret the BRT’s updated statement of business purpose as a more nuanced perspective on how to create value for all stakeholders, inclusive of shareholders. While optimizing profits will remain the business purpose of corporations, the BRT’s statement provides support for prioritizing the needs of all stakeholders in driving long-term, sustainable success for the business. For some companies, implementing incentive metrics aligned with this broader context can be an important tool to drive these efforts in both the short and long term. That said, appropriate timing, design, and communication will be critical to ensure effective implementation.
Bel article de Vanessa Serret et Mohamed Khemissi dans The conversation (27 juillet 2020) : « Rémunération des dirigeants : la transparence ne fait pas tout ». Cet article revient sur le ratio d’équité : non seulement son utilité, mais encore son niveau (20 ? 100 ?…)
Le ratio d’équité apprécie l’écart entre la rémunération de chaque dirigeant et le salaire (moyen et médian) des salariés à temps plein de son entreprise. Il est prévu un suivi de l’évolution de ce ratio au cours des cinq derniers exercices et sa mise en perspective avec la performance financière de la société. Ces comparaisons renseignent sur la dynamique du partage de la création de valeur entre le dirigeant et les salariés.
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Un premier état des lieux
Sur la base des rémunérations versées en 2019 par les entreprises composant l’indice boursier du CAC 40, les patrons français ont perçu un salaire moyen de 5 millions d’euros, soit une baisse de 9,1 % par rapport à 2018.
Évolution du ratio d’équité par rapport à la rémunération moyenne (bleu) et médiane (orange) des salariés de 2015 à 2019. auteurs
Ce chiffre représente 53 fois la rémunération moyenne de leurs employés (72 fois la rémunération médiane) : un ratio acceptable, selon l’agence de conseil en vote Proxinvest. En effet, selon cette agence, et afin de garantir la cohésion sociale au sein de l’entreprise, le ratio d’équité ne doit pas dépasser 100 (par rapport à la rémunération moyenne des salariés).
Deux dirigeants s’attribuent néanmoins des rémunérations qui dépassent le maximum socialement tolérable à savoir Bernard Charlès, vice-président du conseil d’administration et directeur général de Dassault Systèmes et Paul Hudson, directeur général de Sanofi avec un ratio d’équité qui s’établit respectivement de 268 et de 107.
Notons également que pour les deux sociétés publiques appartenant à l’indice boursier du CAC 40, le ratio d’équité dépasse le plafond de 20 (35 pour Engie et 38 pour Orange) fixé par le décret n° 2012-915 du 26 juillet 2012, relatif au contrôle de l’État sur les rémunérations des dirigeants d’entreprises publiques.
Le 2 août 2020, Christiaan de Brauw a publié un intéressant billet sur l’Harvard Law School Forum on Corporate Governance sous le titre « The Dutch Stakeholder Experience ».
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Lessons learned
The Dutch experience shows that the following lessons are key to make the stakeholder-oriented governance model work in practice.
Embed a clear stakeholder mission in the fiduciary duties of the board
To have a real stakeholder model, the board must have a duty to act in the interests of the business and all the stakeholders, not only the shareholders. In shareholder models there may be some room to consider stakeholder interests. For example, in Delaware and various other US states, the interests of stakeholders other than shareholders may be considered in the context of achieving overall long-term shareholder value creation. In US states with constituency statutes, the board’s discretion is preserved: the interests of stakeholders other than shareholders can be, but do not have to be, taken into account. A meaningful stakeholder model requires the board to act in the interests of the business and all stakeholders. This is a “shall” duty, in the words of Leo Strine and Robert Eccles (see Purpose With Meaning: A Practical Way Forward, Robert G. Eccles, Leo E. Strine and Timothy Youmans, May 16, 2020). Rather than allowing for the possibility that all stakeholders’ interests will be taken into account; it should create a real duty to do so. Since 1971, boards of Dutch companies have had such a “shall” duty to follow a stakeholder mission, similar to that of a benefit corporation in, for example, Delaware.
The stakeholder duty must be clear and realistic for boards in the economic environment in which they operate. To define the contours of such a mission in a clear and practical way is not easy, as the journey of the Dutch stakeholder model shows. Today, the Netherlands has a meaningful and realistically defined fiduciary duty for boards. The primary duty is to promote the sustainable success of the business, focused on long-term value creation, while taking into account the interests of all stakeholders and ESG and similar sustainability perspectives. These principles are broadly similar to the corporate purpose and mission proposed by Martin Lipton and others (see On the Purpose of the Corporation, Martin Lipton, William Savitt and Karessa L. Cain, posted May 27, 2020).
Critics of the stakeholder model sometimes point to the ambiguity and lack of clarity of such a pluralistic model. The developments of the Dutch stakeholder model since its inception show that a pluralistic model can work in practice. By now, Dutch boards’ overriding task is adequately clear and aligned with what is typically expected of a company’s executives: pursuing the strategic direction that will most likely result in long-term and sustainable business success. The Dutch stakeholder model also has a workable roadmap to deal with stakeholders’ interests, particularly if they diverge or cannot all be protected fully at the same time, which necessarily results in trade-offs between stakeholders. A realistic approach to governance acknowledges that a stakeholder model does not mean that boards can or should seek to maximize value for all the stakeholders equally and at the same time. It is simply unrealistic to simultaneously pay (and progressively increase) dividends, increase wages and improve contract terms, while also promoting the success of the business. The Dutch interpretation of the stakeholder model, as developed through practice over decades, boils down to the focus on the sustainable success of the business and long-term value creation. As said above, stakeholders are protected by the board’s duty to prevent disproportionate or unnecessary harm to any class of stakeholders. Boards should avoid or mitigate such harm, for example, by agreeing “non-financial covenants” in a takeover. This makes sense as a way to protect stakeholder interests in a realistic manner, much more so than merely requiring boards—without any further guidance—to create value for all the stakeholders.
A stakeholder-oriented model should also be modern and flexible enough to address and incorporate important developments. The Dutch model is especially well positioned to embrace ESG and similar sustainability perspectives. For example, the Dutch company DSM has successfully illustrated this, while being profitable and attractive for investors. There is growing appreciation that being a frontrunner in ESG is required for sustainable business success. In addition to the fact that ESG is required for continuity of the business model and can often give a company a competitive edge, stakeholders increasingly require it. Simply “doing the right thing”, as an independent corporate goal, is more and more seen as important by (new millennial) employees, customers, institutional investors and other stakeholders.
There is no standard test to determine whether a business has achieved sustainable success. There will be different ways to achieve and measure success for different companies, depending on the respective circumstances. Therefore, the test will always have to be bespoke, implemented by the board and explained to stakeholders.
The Dutch stakeholder model has proven to work quite well in times of crisis, such as today’s Covid-19 crisis, as it bolsters the board’s focus on the survival and continuity of the business. The board must first assess whether there is a realistic chance of survival and continuity of the business. If not, and if insolvency becomes imminent, the board’s duties transform to focus on creditors’ interests, such as preventing wrongful trading and the winding down or restarting of the business in line with applicable insolvency/restructuring proceedings. Driven by the economic reality and the need to survive, in times of crisis, boards typically have more freedom to do what it takes to survive: from pursuing liquidity enhancing measures, implementing reorganizations, suspending dividends to shareholders and payments to creditors and so on. The success of the business remains the overriding aim, and in some cases harm to one or more classes of stakeholders may need to be accepted. In addition, in a true stakeholder model, in times of crisis there may not be sympathy for corporate raiders or activists (so-called “corona profiteers” in the current case) who want to buy listed companies on the cheap. A just say not now defense in addition to the just say no defense will readily be available for boards who are occupied with dealing with the crisis and revaluating the best strategic direction. This idea that during the Covid-crisis protection against activists and hostile bidders may be needed seems to be understood as well by, for example, ISS and Glass Lewis, evidenced by their willingness to accept new poison pills for a one year duration (see, for example, ISS and Glass Lewis Guidances on Poison Pills during COVID-19 Pandemic, Paul J. Shim, James E. Langston, and Charles W. Allen, posted on April 26, 2020).
Teeth to protect the stakeholder mission and appropriate checks and balances
The Netherlands has adopted a model in which matters of strategy are the prerogative of the executive directors under supervision of the non-executive directors or, in the still widely used two-tier system, of the management board under supervision of the supervisory board. Similar to the discretion afforded to directors under Delaware’s business judgment rule, a Dutch board has a lot of freedom to choose the strategic direction of the company. In a dispute, the amount of care taken by the board in the decision-making process will be scrutinized by courts, but normally objectively reasonable decisions will be respected. In the Dutch model the board is the captain of the ship; it is best equipped to determine the course for the business and take difficult decisions on how to serve the interests of stakeholders. Generally, the board has no obligation to consult with, or get the approval of, the shareholders in advance of a decision.
At the same time, in recognition of the significant power that boards have in the Dutch stakeholder model, there should be checks and balances to ensure the board’s powers are exercised in a careful manner, without conflicts of interest and without entrenchment. Non-executive/supervisory directors will need to exercise critical and hands-on oversight, particularly when there are potential conflicts of interest. Further, shareholders and other stakeholders are entitled to hold boards to account: boards need to be able to explain their strategic decisions. Shareholders can use their shareholder rights to express their opinions and preferences. Shareholders can also pursue the dismissal of failing and entrenched boards. Boards need regular renewed shareholder mandates through reappointments. The courts are the ultimate guardian of the stakeholder model. The Dutch Enterprise Chamber at the Amsterdam Court of Appeals, which operates in a comparable manner to the Delaware Chancery Court, is an efficient and expert referee of last resort.
The stakeholder model should not convert to a shareholder model in takeover scenarios. The board should focus on whether a takeover is the best strategic option and take into account the consequences for all the stakeholders. In most cases, the best strategic direction for the business will create the highest valuation of the business. But, and this is a real difference with shareholder models, it should be acknowledged that the stand-alone (or other best strategic) option can be different from the strategic option favored by a majority of the shareholders and the option that creates the most shareholder value. This principle was confirmed by the Dutch Enterprise Chamber in 2017 in the AkzoNobel case.
A meaningful stakeholder model requires teeth. The right governance structures need to be put in place to create and protect the long-term stakeholder mission in the face of short-term market pressure. The reality—in the Netherlands as well as in the US—is that shareholders are the most powerful constituency in the stakeholder universe, with the authority to replace the board. In Dutch practice, various countervailing measures can be used to protect the stakeholder mission. A commonly used instrument is the independent protection foundation, the Dutch poison pill. The independent foundation can exercise a call option and acquire and vote on preference shares. It can neutralize the newly acquired voting power of hostile bidders or activists and is effective against actions geared at replacing the board, including a proxy fight. Once the threat no longer exists, the preference shares are cancelled. These measures have been effective, for example, against hostile approaches of America Movil for KPN (2013) and Teva for Mylan (2015).
Foster a stakeholder mindset, governance and environment
Perhaps the most important prerequisite for a well-functioning stakeholder model is the actual mindset of executives and directors. This mindset drives how they will use their stakeholder powers. Fiduciary duties—also in a stakeholder model—are “open norms” and leave a lot of freedom to boards to pursue the strategic direction and to use their authority as they deem fit. The prevailing spirit and opinions about governance are important, as they influence how powers are interpreted and exercised. As an example, the Dutch requirement that boards need to act in the interest of the company and its business dates from 1971, but that did not prevent boards in the 2000s from seeing shareholders as the first among equals. Today, the body of ideas about governance in the developed world is tending to converge towards stakeholder-oriented governance. This seems to indicate a fundamental change in mindset, not merely a fashionable trend or lip service. Board members with a stakeholder conviction should not be afraid to follow their mission, even if it runs counter to past experience or faces shareholder opposition. Of course, the future will hold the ultimate test for the stakeholder model. Can it, in practice, deliver on its promise to create sustainable success and long-term value and provide better protection for stakeholders? If so, this will create a positive feedback loop in which more boards embrace it.
Stakeholder-based governance models remain works in progress. In order to succeed in the long term, models that grant boards the authority to determine the strategy need to stay viable and attractive for shareholders. Going forward, boards following a stakeholder-based model will likely need to focus more on accountability, for example by concretely substantiating their strategic plans and goals and, where possible, providing the relevant metrics to measure their achievements. In reality, stakeholder models are already attractive for foreign investors: about 90% of investors in Dutch listed companies are US or UK investors. In addition, developments in the definition of the corporate purpose will further refine the stakeholder model. In the Netherlands, there has been a call to action by 25 corporate law professors who argue that companies should act as responsible corporate citizens and should articulate a clear corporate purpose.
To make stakeholder governance work, ideally, all stakeholders are committed to the same mission. It is encouraging that key institutional investors are embracing long-term value creation and the consideration of other stakeholders’ interests, for instance by supporting the New Paradigm model of corporate governance and stewardship codes to that effect. However, the “proof of the pudding” is whether boards can continue to walk the stakeholder talk and pursue the long-term view in the face of short-term pressure, either through generally accepted goals and behavior or, if necessary, countervailing governance arrangements. Today, it is still far from certain whether institutional investors will reject pursuing a short-term takeover premium, even where they consider the offer to be undervalued or not supportive of long-term value creation. Annual bonuses of the deciding fund manager may depend on accepting that offer. Until the behavior of investors in such scenarios respects the principle of long-term value creation, appropriate governance protection is important to prevent a legal pathway for shareholders to impose their short-term goals. Therefore, even in jurisdictions where stakeholder-based approaches have been embraced, and are actually pursued by boards, governance arrangements might need to be changed to make the stakeholder mission work in practice. Clear guidance for boards is needed on what the stakeholder mission is and how to deal with stakeholders’ interests, as well as catering for adequate powers and protection for boards.
The Dutch model, which requires a company to be business success-driven, have a “shall duty” to stakeholders that applies even in a sale of the company, and that recognizes that corporations are dependent on stakeholders for success and have a corresponding responsibility to stakeholders, has been demonstrated to be consistent with a high-functioning economy. By highlighting the Dutch system, however, I do not mean to claim that it is unique. For policymakers who are considering the merits of a stakeholder-based governance model, the Dutch system should be seen as one example among many corporate governance systems in successful market economies (such as Germany) that embrace this form of stakeholder-based governance. There is likely no one-size-fits-all approach; each jurisdiction should find the tailor-made model that works best for it, like perhaps the introduction of the corporate purpose in the UK and France. In any event, there is a great benefit in exchanging ideas and learning from experiences in different jurisdictions to find common ground and best practices in order to increase the acceptance and appreciation of stakeholder-oriented governance models.
US governance practices have been, and are, influential around the world. In the 2000s the pendulum in developed countries, including to some extent in the Netherlands, clearly swung in the direction of shareholder-centric governance as championed in the US. In the current environment, if the US system’s focus on shareholders is not adjusted to protect stakeholder interests, it may over time perhaps become an outlier among many of the world’s leading market economies that in one way or the other have adopted a stakeholder approach. Adjustment towards stakeholder governance seems certainly possible in the US, for example through the emerging model of corporate governance, the Delaware Public Benefit Corporation. The benefit corporation seems to have many if not all of the key attributes of the Dutch system and could provide a promising path forward if American corporate governance is to change in a way that makes the US model truly focused on the long-term value for all stakeholders. The question for US advocates of stakeholder governance is whether they will embrace it, or adopt another effective governance change, and make their commitment to respect stakeholders rea
Beau rapport de Vitor Gaspar, Paulo Medas, John Ralyea, Les entreprises publiques à l’ère de la COVID-19 (Fonds Monétaire International, 7 mai 2020). Une belle manière de situer les entreprises publiques sur l’échiquier économique et de mieux comprendre pourquoi la gouvernance de l’entreprise doit être comprise avec l’entreprise publique !
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Dans le plus récent Moniteur des finances publiques, nous nous penchons sur ces entreprises publiques. Comment ont-elles évolué au cours des dernières décennies ? Comment les pays peuvent-ils en tirer le maximum ? Dans un scénario idéal, elles aident les pays à atteindre leurs objectifs économiques et sociaux. Dans le scénario du pire, elles doivent être secourues à grands frais par l’État et freinent la croissance économique. Tout dépend de la qualité de leur gouvernance et de leur responsabilisation.
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Les rapports entre les États et les entreprises publiques ne vont pas toujours de soi. Les États confient à ces entreprises des objectifs ou des mandats précis : distribuer l’eau potable ou l’électricité, ou construire des routes que le secteur privé ne jugerait pas rentables. Cependant, il arrive souvent que ces mandats ne soient pas suffisamment financés, ce qui a des conséquences pour la population. Les entreprises publiques ne sont pas à la hauteur dans de nombreux pays en développement où plus de 2 milliards de personnes n’ont pas accès à un approvisionnement en eau potable sûr et plus de 0,8 milliard de personnes, à une source fiable d’électricité.
Les banques publiques sont un autre exemple. Certains pays comme le Brésil, le Canada, l’Allemagne et l’Inde ont récemment demandé aux banques publiques de participer aux efforts déployés pour atténuer les retombées de la pandémie. Pourtant, les antécédents de nombreuses banques publiques au chapitre du développement économique (leur principal objectif) sont peu convaincants, car elles prennent parfois des risques excessifs, ce qui accroît la vulnérabilité des économies et des populations à d’éventuelles crises.
La surveillance des entreprises publiques est aussi problématique. Nombre de pays ne possèdent simplement pas la capacité requise. L’opacité des activités des banques et autres entreprises publiques demeure un obstacle à la responsabilisation et à la surveillance, et rend possibles l’accumulation et la dissimulation de dettes considérables que les États doivent ensuite éponger, à des coûts qui dépassent parfois 10 % du PIB.
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À une époque où les États doivent répondre à des besoins croissants tout en composant avec une dette élevée, le principe fondamental des entreprises publiques devrait être d’éviter le gaspillage de ressources publiques. Voici quatre recommandations à l’intention des pays soucieux d’améliorer les résultats de leurs entreprises publiques :
Il convient de réévaluer périodiquement la pertinence des entreprises publiques pour s’assurer que les contribuables en obtiennent pour leur argent. L’Allemagne, notamment, procède à des examens biennaux. La raison d’être des entreprises publiques dans les secteurs concurrentiels, comme le secteur manufacturier, est douteuse, car les entreprises privées sont en général plus efficientes lorsqu’il est question de fournir de produits et de services.
Les pays doivent encourager les gestionnaires à accroître leur rendement et inciter les organismes compétents à bien surveiller les entreprises publiques. La transparence totale de ces dernières est essentielle au renforcement de leur responsabilisation et à la réduction de la corruption. L’intégration de ces entreprises dans les objectifs relatifs au solde budgétaire et à la dette encouragerait davantage la discipline budgétaire. Certains pays, comme la Nouvelle-Zélande, ont déjà mis en place plusieurs éléments de ces pratiques.
Les États doivent aussi doter les entreprises publiques de moyens financiers suffisants pour s’acquitter de leur mandat économique et social, comme en Suède. Cet aspect est fondamental en situation de crise, car les banques publiques et les entreprises de services publics disposent alors des ressources nécessaires pour, entre autres, subventionner l’octroi de prêts et la distribution d’eau et d’électricité pendant une crise comme l’actuelle pandémie, et promouvoir des objectifs de développement.
La création de conditions de concurrence équitables entre les entreprises publiques et les entreprises privées aurait aussi des effets positifs, car elle favoriserait les gains de productivité et freinerait les velléités protectionnistes. Certains pays, notamment l’Australie et ceux de l’Union européenne, limitent déjà le traitement préférentiel accordé aux entreprises publiques. À l’échelle mondiale, il serait probablement possible de s’entendre sur des principes généraux qui encadreraient le comportement international des entreprises publiques.
Hier, le plus grand d’investissement au monde (BlackRock) a posté sur son site Internet son rapport sur son approche en matière de durabilité : « Our approach to sustainability ».
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This past January, BlackRock wrote to clients about how we are making sustainability central to the way we invest, manage risk, and execute our stewardship responsibilities……Our efforts around sustainability, as with all our investment stewardship activities, seek to promote governance practices that help create long-term shareholder value for our clients, the vast majority of whom are investing for long-term goals such as retirement. This reflects our approach to sustainability across BlackRock’s investment processes, in which we use Environmental, Social, and Governance factors in order to provide clients with better risk-adjusted returns, in keeping with both our fiduciary duty and the range of regulatory requirements around the world. As a result, we have a responsibility to our clients to make sure companies are adequately managing and disclosing sustainability-related risks, and to hold them accountable if they are not.
(…) While this report focuses on climate-related issues, our investment stewardship approach to sustainability is much broader. It encompasses other environmental issues, such as sustainable practices in agribusiness. Our stewardship also includes topics that have been central to many companies’ license to operate, particularly over the past few months, such as human capital management and diversity and inclusion. The COVID-19 crisis, and more recently the protests surrounding racial injustice in the United States and elsewhere, have underscored the importance of these issues and a company’s commitment to serving all of its stakeholders.
(…) In January, we asked companies to publish disclosure aligned with the Sustainability Accounting Standards Board (SASB) standards, which includes disclosing the racial and ethnic profile of their U.S. workforce. In the second half of 2020, as we assess the impact of companies’ response to COVID-19 and associated issues of racial equality, we will be refreshing our expectations for human capital management and how companies pursue sustainable business practices that support their license to operate more broadly. We also will continue to emphasize the importance of diversity in the board room and will consider race, ethnicity, and gender as we review a company’s directors.
Dans l’Harvard Law School Forum on Corporate Governance, un article intéressant – et court – apporte un bel éclairage sur la gestion des parties prenantes : « A Hierarchy of Stakeholder Needs » (de Sarah Keohane Williamson, FCLTGlobal, 22 juin 2020).
Extrait :
Amid the extraordinary circumstances and economic difficulties brought on by COVID-19, companies in 2020 are faced with decisions on how to best serve the many stakeholders that rely on them—customers, investors, suppliers, employees, and so on. Each group has its own distinct needs and contributions to the company’s overall success, and companies recognize that these groups build on each other to serve their purpose.
(…) Survival for the company itself represents the basic need of the hierarchy. A company’s first priority has to be ensuring it is resilient (and liquid) enough to outlast the crisis. If this need is not met, there are no employees, customers, or other stakeholders to serve. Hard decisions may have to be made to ensure the long-term survival of the enterprise that will affect other tiers of needs—closing stores, furloughing employees, or postponing dividends to investors. Once the basic need is met, however, and the company is a going concern, the company can reorient its focus.
Employees look to their employer for security in more ways than one—financial, to be sure, but also physical. Many companies addressed this area first in its response to COVID-19—89% of respondents to a recent FCLTGlobal survey indicated that employee health and safety was its top priority. (…)
Once the house is in order, customers’ needs can follow. Just as customers depend on a company’s products, the company relies on a consistent, repeatable client base to stay in operation. Like before, this tier is dependent on the one that precedes it—if there were no company, or no employees to keep it running, there would be no customers to serve.
(…) Once customers’ needs are met and business can continue, the supply chain must be maintained. COVID-19 has presented a real challenge in terms of supply for many companies, particularly when sourcing products from countries that are in strict lockdowns.
(…) Then, finally, the company is able to achieve long-term value for its shareholders. Meeting the preceding needs—viability through liquidity, employee wellbeing, extraordinary customer care, and supply chain continuity—may have resulted in near-term shortfalls for shareholders by way of lower earnings or a temporary pause in issuing dividends.
