Responsabilité sociale des entreprises | Page 5

Le 7 mars 2019, ecoDa a pris position sur le devoir de loyauté des administrateurs : « ecoDa’s position paper on Directors Duties »

Extrait :

ecoDa supports the fundamental concept of Corporate purpose. However the European Commission should propose policy principles and refrains from trying to standardize directors’ duties among Member States and sectors. ecoDa believes that soft law through Corporate Governance codes is more suitable to adapt to an evolving context.

Acknowledging that shareholders define the company’s purpose does not mean neither that the interests of other stakeholders should not be taken into account by the directors when fulfilling their duties towards the company. On the contrary, there is no doubt that boards are taking such interests into account to an extent deemed consistent with the company’s purpose. Basically, there is a sound business case for more social and environmental involvement. Understanding consumers’ expectations and employees’ aspiration is becoming a prerequisite to become more innovative, to attract the right talents and to ensure sustainability in the long run. It is obvious that companies cannot be run in a sustainable manner if boards ignore the context in which they operate.

Therefore, the European Commission should refrain from trying to harmonize the fundamental concept of corporate interest and directors’ duties due to the very important legal differences across Europe and the different contexts across sectors. No law should hold directors accountable to several “principals”, arguably with often mutually contradictory interests. The board can solely be accountable to the company for the discharge of its duty to promote the purpose of the company. If the criteria for liability are not clearly defined, the boards will be liable to nobody for nothing or to everybody for anything. “Being liable to everybody means being liable to nobody”. Legal certainty is the basis of a competitive economic environment.

À la prochaine…

Dans un article du Financial Post de janvier 2019, Terence Corcoran revient sur les thèses de Milton Friedman pour les appuyer au travers d’arguments intéressants. Je vous invite à lire son analyse dans l’article suivant : « Milton Friedman is right, profit is a company’s only purpose » (Financial Post, 19 janvier 2019)

Petit extrait :

There is nothing in the redefine-capitalism movement that was not identified almost 50 years ago by Friedman as a danger to markets and economic freedom. The concepts and principles reviewed in his 1970 essay, ignored by Mayer and all the reformers, are as relevant today as they were then.

Generally, Friedman would have no problem with corporations that engage in virtue signalling. For example, Gillette’s “toxic masculinity” ad is an obvious attempt to sell products by piggybacking on a controversial social issue. Gillette is acting out of self-interest.

Friedman declined to denounce such corporate attempts to “generate goodwill” and draw attention to their products, although he warned that the strategic pursuit of social approval and conflict amounted to “hypocritical window-dressing.”

It is utterly false to portray corporations as manufacturers of profits at the expense of society. Today’s corporations, from Microsoft Corp. to GM to Amazon.com Inc., survive by producing goods and services that feed, clothe, transport, entertain and otherwise provide benefits to billions of people.

The corporate adoption of social purposes would take focus away from these core business purposes. Worse, expanding the number of corporate purposes places an undesirable undemocratic framework on corporate executives. As Friedman saw it in 1970, giving social and political responsibilities to business leaders installs unelected corporate managers in positions of unelected power

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En voilà une belle question : la RSE paie-t-elle ? C’est à cette question que je vous renvoie ce midi autour de l’article suivant : « Et si la performance sociétale améliorait la performance financière ? » (par Caroline Ménard, revue gestion, 4 février 2019).

Quel bilan pour l’auteure ?

La bonne nouvelle ? Les entreprises qui se sont engagées de façon précoce dans le développement durable se sont avérées plus profitables que leurs concurrentes. Un investissement de 1$ en 1993 générait en 2010 un revenu cumulé de 15,80$ comparativement à 9,30$ pour les autres. Par « engagement », nous entendons la mise en place et la publication d’indicateurs très concrets qui tiennent compte des intérêts des différentes parties prenantes : les clients, les fournisseurs, les employés. Un peu plus de la moitié d’entre elles (53%) ont même lié la rémunération de leurs dirigeants à des indicateurs d’impacts environnementaux ou de performance sociale. Une pratique d’autant plus audacieuse que nous parlons d’engagements qui remontent à 1993. C’était il y a 25 ans !

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Bonjour à toutes et à tous, je vous invite à lire l’article suivant publié sur l’Harvard Law School Forum on Corporate Governance and Financial Regulation : « Everything Old is New Again—Reconsidering the Social Purpose of the Corporation » (par Gregory J. Holly, 12 mars 2019).

Petit extrait :

At a time when trust in US business is at an all-time low, according to the Edelman Trust Barometer, the idea that the corporation should be run solely for the benefi of the shareholders is being questioned, including by large institutional shareholders

While the social interests that a corporation serves and the interests of shareholders are often viewed as being in tension, when viewed outside of a short-term perspective, social interests and shareholder interests are often aligned. After all, corporations do not succeed by consistently neglecting the expectations of employees, customers, suppliers, creditors and local communities, but neither do corporations attract necessary capital from equity markets if they fail to meet shareholder expectations of a competitive return. Increased focus by investors on the broader societal impacts of their portfolio companies may help assuage underlying concerns about the responsible use of significant economic power by corporations—and large institutional investors—but a common set of appropriate metrics that look beyond shareholder return have not yet developed. Until they do, shareholder value will remain the primary polestar for assessing boards and managers and holding them accountable. At the same time, it is clearly in the common interest of investors and corporations to address societal expectations, reduce tensions and build trust in our important economic institutions. Institutional investors can play a key role in helping corporations navigate this difficult terrain by emphasising in specific terms the key environmental and social factors that are meaningful to their investment decisions.

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Dans le Financial Times, Andrew Edgecliffe-Johnson propose un article ô combien enrichissant montrant que les choses commencent à changer en matière de gouvernance d’entreprise : « For 50 years, companies have been told to put shareholders first. Now even their largest investors are challenging that consensus ». L,article est intitulé « Beyond the bottom line: should business put purpose before profit? » (4 janvier 2019) et je vous le recommande chaudement.

In sum, the purpose-first  movement is still far from ubiquitous and lacking in reliable data, but is the pursuit of something beyond profit worse than Friedman’s singular focus on shareholder returns? Encouraging companies to have a clear mission, consider their communities and steer their innovative impulses to good ends may not add up to systemic change, but it is surely better than the alternative.Critics such as Giridharadas would rather society concentrate on restoring politics as the forum through which we address its challenges. But for as long as politicians are viewed with more suspicion than chief executives and investors, the purposeful capitalists may be our best hope.Consumers, employees and campaigners are already learning how effective they can be in pushing companies to balance other stakeholders’ concerns with their returns to shareholders. Companies, in turn, have discovered that doing so can improve their reputations, persuade investors that they have a sustainable strategy and, ultimately, benefit their bottom line.When corporate America is paying chief executives 168 times as much as the median employee, steering the windfall from a historic tax cut to options-boosting buybacks and consolidating into ever larger groups, executives claiming to be solving society’s ills can expect pushback.The pursuit of purpose will not end the questions over how much chief executives should earn, what wages and taxes companies should pay or how much corporate power society will tolerate. Nor will investors stop judging chief executives by their share prices. But 50 years of putting shareholders first left corporations little trusted by non-shareholders and many are ready to try something different.As companies’ self-interest converges with the interests of other stakeholders, those who would improve the world have a chance to get some of the world’s most powerful instruments for change onside. They should grasp the opportunity business’s moral money moment has given them.

À la prochaine…

Ivan

« We must rethink the purpose of the corporation » : c’est sous ce titre d’un article paru au Financial Times que Martin Wolf propose une analyse de l’entrepris rarement entendu en s’appuyant sur la publication de deux ouvrages. L’objectif de la société par actions devraient être repensé, tel est le message de l’auteur !

Morceaux choisis :

Yet, as Colin Mayer of Oxford university’s Saïd Business School argues in a remarkable and radical new book, Prosperity, all is not well with the corporation. The public at large increasingly views corporations as sociopathic and so as indifferent to everything, other than the share price, and corporate leaders as indifferent to everything, other than personal rewards. Judged by real wages and productivity, their recent economic performance has been mediocre.

The first is most important. Profit is not itself a business purpose. Profit is a condition for — and result of — achieving a purpose. The purpose might be making cars, delivering products, disseminating information, or many other things. If a business substitutes making money for purpose, it will fail at both.

Second, when legislators allowed incorporation of limited liability companies, they were not thinking of profits, but of the economic possibilities afforded by huge agglomerations of capital, effort and natural resources.

Crucially, contrary to economic wisdom, shareholders are not, in the actual world, the bearers of the residual risks in the business (other than relative to bondholders). The incompleteness of markets ensures that employees, suppliers and locations also bear substantial risk. Moreover, stock markets allow shareholders to diversify their risks across the world, something employees, for example, cannot hope to do with respect to their company-specific capital stock of knowledge and personal relationships. Moreover, everybody else is at risk from shareholders’ opportunistic behaviour. This has to weaken the commitment of everybody else.

These books suggest that capitalism is substantially broken. Reluctantly, I have come to a similar conclusion. This is not to argue for the abandonment of the market economy, but for better companies and more competition. The implication of Prof Mayer’s book is that the canonical Anglo-American model of corporate governance, with equality among shareholders, widely distributed share-ownership, shareholder value maximisation and the market in control is just one of many possible ways of structuring corporations. There is no reason to believe it is always the best. In some cases, it works. In others, such as highly-leveraged banking, it really does not. We should be explicitly encouraging a thousand different flowers of governance and control to bloom. Let us see what works.

À la prochaine…

Ivan

Bonjour à toutes et à tous, la sénatrice Élisabeth Warren vient d’introduire un projet de loi très ambitieux (!) : le S.3348 – Accountable Capitalism Act.

Plusieurs points saillants ressortent de ce projet :

• La création d’un Office of United States Corporations.
• La possibilité de s’enregistrer auprès de cet organisme fédéral (alors que jusqu’à maintenant, rappelons-le, l’enregistrement se faisait auprès des États et notamment celui du Delaware).
• Les salariés représenteraient 40 % du CA.
• L’entreprise devrait poursuivre une mission sociétale.
• La redéfintion des devoirs des administrateurs et hauts-dirigeants.

Pour en savoir plus, lire cet article ici du The Guardian.

Extrait du projet de loi

SEC. 5. Responsibilities of United States corporations.

(a) Definitions.—In this section:

(1) GENERAL PUBLIC BENEFIT.—The term “general public benefit” means a material positive impact on society resulting from the business and operations of a United States corporation, when taken as a whole. (…)

(1) IN GENERAL.—The charter of a large entity that is filed with the Office shall state that the entity is a United States corporation.

(2) CORPORATE PURPOSES.—A United States corporation shall have the purpose of creating a general public benefit, which shall be—

(A) identified in the charter of the United States corporation; and

(B) in addition to the purpose of the United States corporation under the articles of incorporation in the State in which the United States corporation is incorporated, if applicable.

(c) Standard of conduct for directors and officers.—

(c) Standard of conduct for directors and officers.—

(1) CONSIDERATION OF INTERESTS.—In discharging the duties of their respective positions, and in considering the best interests of a United States corporation, the board of directors, committees of the board of directors, and individual directors of a United States corporation—

(A) shall manage or direct the business and affairs of the United States corporation in a manner that—

(i) seeks to create a general public benefit; and

(ii) balances the pecuniary interests of the shareholders of the United States corporation with the best interests of persons that are materially affected by the conduct of the United States corporation; and

(B) in carrying out subparagraph (A)—

(i) shall consider the effects of any action or inaction on—

(I) the shareholders of the United States corporation;

(II) the employees and workforce of—

(aa) the United States corporation;

(bb) the subsidiaries of the United States corporation; and

(cc) the suppliers of the United States corporation;

(III) the interests of customers and subsidiaries of the United States corporation as beneficiaries of the general public benefit purpose of the United States corporation;

(IV) community and societal factors, including those of each community in which offices or facilities of the United States corporation, subsidiaries of the United States corporation, or suppliers of the United States corporation are located;

(V) the local and global environment;

(VI) the short-term and long-term interests of the United States corporation, including—

(aa) benefits that may accrue to the United States corporation from the long-term plans of the United States corporation; and

(bb) the possibility that those interests may be best served by the continued independence of the United States corporation; and

(VII) the ability of the United States corporation to accomplish the general public benefit purpose of the United States corporation;

(ii) may consider—

(I) other pertinent factors; or

(II) the interests of any other group that are identified in the articles of incorporation in the State in which the United States corporation is incorporated, if applicable; and

(iii) shall not be required to give priority to a particular interest or factor described in clause (i) or (ii) over any other interest or factor.

(2) STANDARD OF CONDUCT FOR OFFICERS.—Each officer of a United States corporation shall balance and consider the interests and factors described in paragraph (1)(B)(i) in the manner described in paragraph (1)(B)(iii) if—

(A) the officer has discretion to act with respect to a matter; and

(B) it reasonably appears to the officer that the matter may have a material effect on the creation by the United States corporation of a general public benefit identified in the charter of the United States corporation.

(3) EXONERATION FROM PERSONAL LIABILITY.—Except as provided in the charter of a United States corporation, neither a director nor an officer of a United States corporation may be held personally liable for monetary damages for—

(A) any action or inaction in the course of performing the duties of a director under paragraph (1) or an officer under paragraph (2), as applicable, if the director or officer was not interested with respect to the action or inaction; or

(B) the failure of the United States corporation to pursue or create a general public benefit. (…)

(d) Right of action.—

(1) LIMITATION ON LIABILITY OF CORPORATION.—A United States corporation shall not be liable for monetary damages under this section for any failure of the United States corporation to pursue or create a general public benefit.

À la prochaine…

Ivan Tchotourian