The Impact of Corporate Governance on Closed‐end Funds

This study uses a large sample of UK‐listed closed‐end funds to examine whether governance has an impact on two indicators of fund performance: the level of fund‐management fees and the discount at which a fund trades. Fees are under the control of the directors, and we find that they are inversely related to fund returns, even after allowing for differences across investment sectors. Fees are, on average, higher if a fund has a large board, few directors from outside the fund‐family, many directors from within the fund‐family, and low ownership by the management company. Discounts for funds are wider if the management company or any blockholder has a significant long‐term stake, suggesting that investors are wary of entrenched management. The results suggest that boards are frequently compromised in their duty to shareholders by their dependence on fund‐management companies.     

A Fireside Chat with Raj Gupta: What It Takes to Create Long‐Term Value

The chairman of two public companies (and former chair and CEO of Rohm and Haas) draws on his experience as a director of five private and 15 public companies in discussing the challenges and opportunities facing today's corporate boards. Perhaps the most formidable challenge is the pace of technological change, which is making business models ‘in all industries and countries’ obsolete and forcing companies to adapt much more quickly than in the past. Along with the risk of obsolescence is the increase in ‘reputational risk’ associated with an ‘information age’ in which companies are forced to monitor the nearly continuous flow of fact, hearsay, and outright fabrication. The author recommends that public company boards adopt a new ‘partnership’ model. Besides ensuring an ‘ethical tone at the top,’ corporate directors should aim to become partners with the senior management team by playing more active roles in strategic planning, risk management, and the design of performance evaluation and incentive pay systems. In the most striking departure from current practice, the author urges directors to seize the opportunity created by the ‘reconcentration’ of ownership of U.S. public companies by actively engaging large institutional investors in a strategic dialogue about the companies' strengths and vulnerabilities. In so doing, proactive directors can help their management teams preempt shareholder activists and create long‐run value by creating a more effective two‐way channel of communication, one with the potential to give management more confidence when undertaking large strategic investments with longer‐run payoffs.     

董事责任保险的法律考察

董事责任保险是为公司董事或高级管理人员职业责任提供的一种补偿性保险。对我国上市公司而言,董事责任保险既是对董事及高管人员利益的保障,也可帮助股东监督经营者的行为,对完善上市公司治理结构亦具有积极意义。然而,根据我国目前的董事民事责任制度、证券民事赔偿制度以及诉讼费用制度,董事责任保险并无大多发展空间。为充分发挥董事责任保险的价值,我国在引入董事责任保险制度时,有必要同步完善证券民事诉讼机制,合理设计董事责任承保范围,规定董事适度支付保险费用,并采取期内索赔式保险。     

Insolvent trading and voluntary administration in Australia: economic winners and losers?

Australian directors who incur debts while their companies are insolvent can be pursued by the corporate regulator for compensation when their companies fail. Under the Australian insolvent trading laws, directors no longer experience ‘true’ limited liability, and as expected, they adjust their behaviour as a result. Identifying director's rational behaviour in an insolvent trading world is difficult as there are no formal economic models of director decision-making under Australian current corporate law. In this paper, we develop such a model primarily for private companies. We incorporate the threat of insolvent trading as well as director's tactical use of voluntary administration to avoid insolvent trading litigation. We show that neither a combination of insolvent trading or voluntary administration can simultaneously ensure creditors-best outcomes, eliminate insolvent trading and reduce director underinvestment.     

The effect of board structure on firm value: A multiple identification strategies approach using Korean data

Outside directors and audit committees are widely considered to be central elements of good corporate governance. We use a 1999 Korean law as an exogenous shock to assess whether and how board structure affects firm market value. The law mandates 50% outside directors and an audit committee for large public firms, but not smaller firms. We study this shock using event study, difference-in-differences, and instrumental variable methods, within an overall regression discontinuity approach. The legal shock produces economically large share price increases for large firms, relative to mid-sized firms; their share prices jump in 1999 when the reforms are announced.     

Auswirkungen der Neuregelungen im Versicherungsaufsichtsrecht auf das Gesellschaftsrecht,insbesondere Geschäftsleiterhaftung und Managementvergütung

The article deals with the impact that recent legislation in German Insurance Supervision law concerning both directors’ liability and management remuneration exercises on the law of corporations applicable to insurance companies. In both areas the general rules of corporate law are presented first, followed by an examination of the specific new supervisory rules. Considering everything, three results may be named: (1) The principle that directors are bound to observe any relevant legal rule constitutes a link between the supervisory rules and the law of corporations; (2) the new legislation has lead to an increase of surveillance, and (3) in practice an efficient use of existing self-regulatory mechanisms within the corporation should make any intervention by supervisory authorities unnecessary.     

Derivatives Use, Corporate Governance, and Legislative Change: An Empirical Analysis of New Zealand Listed Companies

Abstract:   This paper examines if board composition has any systematic bearing on derivatives usage by New Zealand listed companies. We also test if derivative usage changed following the introduction of the new 1993 Companies Act. The Act raised expectations of directors' fiduciary responsibilities and the perceived risk of liability on outside directors for poor investment decisions. Using a dataset of listed New Zealand companies in 1994 and 1997, we find companies with higher growth opportunities and a greater proportion of outside directors were less likely to use financial derivatives following the introduction of the new Act. Our results supplement the US‐based literature on derivatives usage by illustrating that internal governance mechanisms can play a role in corporate derivatives policy, and that the legislative and regulatory environment may affect this role.     

Gender-diverse boards and audit fees: What difference does gender quota legislation make?

We investigate the effect of board (audit committee) gender diversity on audit fees in the French context. We also examine whether the relationship between the proportion of female directors and audit fees is moderated by the enactment of the gender quota law in 2011. We use the system GMM estimation approach on a matched sample of French firms listed in the SBF 120 index between 2002 and 2017. Consistent with the supply-side perspective, we contend that female independent directors and female audit committee members, by improving board monitoring effectiveness, affect the auditor's assessment of audit risk, resulting in lower audit fees. Our findings also document that, by breaking the glass ceiling, the effectiveness of the gender quota law lies not in increasing the proportion of female insider directors, but in boosting the appointment of female independent directors and female audit committee members. Using the difference-in-difference approach, our results reveal that female independent directors and female audit committee members are more willing to assert their monitoring skills after the quota law, leading to lower audit fees. Moving beyond tokenism, we show that, after the quota law, the negative impact on non-audit fees is strengthened only for female independent directors.     

The Effect of Family Control on Firm Value and Performance: Evidence from Continental Europe

We investigate the relation between ownership structure and firm performance in Continental Europe, using data from 675 publicly traded corporations in 11 countries. Although family‐controlled corporations exhibit larger separation between control and cash‐flow rights, our results do not support the hypothesis that family control hampers firm performance. Valuation and operating performance are significantly higher in founder‐controlled corporations and in corporations controlled by descendants who sit on the board as non‐executive directors. When a descendant takes the position of CEO, family‐controlled companies are not statistically distinguishable from non‐family firms in terms of valuation and performance.     

国外政府董事制度考察及其启示

政府董事即政府委派或推选至公司董事会中履行公务职责的董事,其功能在于实现政府的政策目标或其他经济目标.国外基于政府董事的公职身份或其承担的公务职责,对其考评、激励、监督及法律责任等均体现了强烈的公法性.我国的国有股权董事类似于国外的政府董事,但现行法律仅承认其董事的私法身份而否认其公法定位.这使得其在公司独立法人地位的保护下,与公司内部人形成了利益同盟,削弱了其作为政府董事的基本功能.我国可借鉴国外有益经验,将国有股权董事定位为承担公务职责的政府董事,以适应我国国企混合所有制改革的需要.     

Insolvency law reform in Australia and Singapore: Directors' liability for insolvent trading and wrongful trading

This article compares reforms to directors' liability for insolvent trading in Singapore and in Australia. We analyse the law in these two countries because they are important Asia‐Pacific trading partners and their laws were originally largely the same—Singapore's law on insolvent trading reflected the law in Australia from the 1960s. However, the law in the two countries has now diverged substantially. The comparison of these two countries therefore represents an interesting case study in how countries differ in their approaches to balancing the competing interests evident in laws that impose personal liability on company directors for insolvent trading. Reform of the prohibition against insolvent trading was a focus of Australia's insolvency law reforms in 2017, which led to the introduction of a safe harbour for directors from liability. Singapore's omnibus insolvency law reforms of 2018–19 include amendments to update Singapore's fraudulent and insolvent trading provisions by introducing a concept of “wrongful trading.” The article finds that there are some areas of convergence between these two jurisdictions when it comes to debates about such provisions but concludes that the different contemporary legislative histories in Australia and Singapore have affected their approaches to reform. Reformers in both jurisdictions have attempted to find an appropriate balance between protecting creditors, discouraging director misconduct, and encouraging entrepreneurship and innovation; however, this comparison suggests that the weight that reformers place on creditor protection compared with the concern that excessive personal liability can make directors unduly risk‐averse is influenced by their existing legislative framework and experience of those laws. Although Australia has shifted away from a strict focus on creditor protection, to give directors more opportunities to engage in restructuring, Singapore's amendments may provide a more creditor‐friendly regime.     

论产品召回保险的性质

产品召回的前提是产品存在系统性缺陷而不管该缺陷是否已经造成损害.产品召回风险是一种或有的法定义务风险,即在一定条件下才存在的法定义务.召回费用是厂商履行召回义务的费用,而非民事损害赔款.因此,产品召回不是厂商对私法责任的承担而是对公法义务的履行.产品召回保险是一种义务保险而非责任保险,其标的应为整批产品虽存在系统性缺陷...     

Intersections of law and accountancy: Unlimited auditor liability in the United Kingdom

In recent years, considerable pressure has grown within the British auditing industry for limitation of liability arising from negligent mis-statements in audit reports. Under British company law, auditors are forbidden from contracting with companies for their liability to be restricted. This legal provision was introduced in the Companies Act 1929 as a byproduct of legislation relating to directors' liability. The paper explores the background to this legal provision, observing that auditor liability cannot be viewed as a self-contained matter of interest only to a limited community. Attitudes to auditor liability have been shaped against a background of changes in the law of negligence, some, but by no means all, arising from cases involving auditors. Moreover, changing concepts of the position of the auditor within corporate governance structures have at different times encouraged and discouraged the assimilation of the legal treatments of auditors and directors. These concepts themselves reflect differing notions of what actually constitutes the “company”: a collectivity of shareholders or a separate entity controlled by directors. These notions emerged against a background of corporate failure and the need to allocate losses among various parties with different degrees of culpability for failure. However, legal developments do not account by themselves for changing attitudes within the auditing industry towards unlimited liability; acceptance of full responsibility for one's statements, adopted as a badge of professional status, has more recently been seen as inhibiting the commercial development of British auditing.     

United States and India: two nuclear states with legislation that truly holds responsible parties liable in case of a nuclear accident

Nuclear law tends to be an ‘exception’ to ordinary tort law in many ways. This is due to its early military roots and initial fears of catastrophe containment. Yet, this ‘exception’ is not justified anymore. Producing energy in nuclear power plants is business-as-usual nowadays and is insured by multinational corporations like Swiss Re, Generali, Münich Re, AXA, etc. In this article, a key exception provided by nuclear law will be explained: how suppliers and designers of defective reactors escape any responsibility in case of a nuclear accident. Two nuclear states have adopted laws that deviate from this exception: the USA and India. Indeed, in both the USA and India, suppliers and designers of defective reactors can be held liable in case of a nuclear accident. In this author’s opinion, the nuclear liability package provided for in the laws of the USA and India is a gateway to justice in case of a nuclear accident and should be an example for the rest of the world. Surprisingly, though, both countries are in disagreement on nuclear law issues. Explanations in this article will be given in simple terms, in an attempt to demystify legal issues surrounding nuclear energy. Nuclear energy should not be an exception, and Indian and US laws have understood that.     

Unnatural selection of outside directors: Consequences of Japanese corporate governance reforms

We examine how Japanese listed companies increase the number of outside directors to comply with corporate governance reforms. We find that, after the reforms, there has been an increase in the number of cases in which former company auditors (kansayaku) become outside directors in the same company. This trend is more pronounced for hitherto noncompliant firms with insufficient outside directors before the reforms. Moreover, the firms appointing company auditors as outside directors tend to change their corporate structures to maintain existing practices and minimize compliance costs. Our findings imply that Japanese reforms have increased the unnatural selection of outside directors.     

Die aktuelle Bedeutung und Gestaltung der Vertrauensschadenversicherung – zugleich eine rechtsvergleichende Betrachtung der Fidelity Insurance in den USA

The German fidelity insurance (Vertrauensschadenversicherung) protects companies from negative impacts of white-collar crime. More specifically, the fidelity insurance is aimed to prevent companies from negative financial impacts caused by intentional breach of duty by its own employees. In some industries, in particular in the IT-business, the fidelity insurance usually also covers damages caused by third parties. Further more, fidelity insurances cover computer abuse, data abuse, and betrayal of secrets. Apart from damages in the strict sense, the fidelity insurance covers costs for appropriate it-measures, damage investigation, fees and costs of legal proceedings, and public relation costs which are necessary after damages occurred. The fidelity insurance is not specifically mentioned in – or governed by the German Insurance Contract Act (VVG). Every insurance contract is therefore in large parts subject to the parties agreements. Limitations may arise from general provisions of the VVG or the German Civil Code (BGB). The German Insurance Association (GDV) does not issue general terms regarding the fidelity insurance, as they do for other types of insurances. This leads to a large variety of standard terms of various different insurance companies. Different terms of different companies vary with regard to some central topics such as the period of coverage. Consequently, comparing different offers is very difficult and changing the insurance company may in some cases lead to the loss of coverage for certain periods of time.While the fidelity insurance is not very common in Germany, it is already a key protection measure in the USA. All insurance companies in the USA use the some standard terms and conditions (also referred to as standard forms). Regarding the period of coverage, these standard terms and conditions rely on the principle of discovery of damages (Schadenentdeckungsprinzip). Costumers benefit from these standard terms and conditions in the USA by being able to compare costs and product details. Considering selected aspects of the standard terms used in the USA can improve the spread and the acceptation of the fidelity insurance in Germany.     

Auditor Reputation Under Different Negligence Regimes

Do auditor reputation effects evolve the same way under precise negligence as under vague negligence? Or are there differences? We assume that investors update their beliefs on unobservable auditor quality when an auditor discloses an inaccurate report. We call this a reputation effect. A necessary condition for reputation effects to occur is that, ex ante, investors expect ‘good’ auditors to take more care than ‘bad’ auditors such that ‘good’ auditors are less likely to issue an inaccurate report. Consistent with empirical evidence, we assume that wealthier (‘good’) auditors tend to take more care than less wealthy (‘bad’) auditors. We find that under vague negligence, reputation effects will occur, inducing both types of auditor to increase the level of care taken. A ‘good’ auditor is likely to exert excessive care. Then, even in the absence of auditor risk aversion, a (properly defined) liability cap is necessary to induce efficient incentives. A contractual liability cap is preferable to a legally fixed liability cap. Under precise negligence, a ‘good’ auditor will exert the standard of due care. However, a ‘bad’ auditor will also do so if sufficiently wealthy. Consequently, ex ante, investors do not expect different levels of care to be taken or reputation effects to occur. A liability cap is not desirable. This paper highlights the importance of non‐legal sanctions in auditor liability. Finally, it links the ‘reputation’ and ‘deep pocket’ hypotheses, both of which have attempted separately in the past to explain the positive correlation between auditor size and auditor quality.     

Officers’ fiduciary duties and acquisition outcomes

Using a Delaware case law that recognized officers’ distinct fiduciary duties for the first time in 2009, I examine the effect of officers' fiduciary duties (OFDs) on corporate acquisitions. I find that firms with entrenched officers prior to 2009 experienced increased announcement-period abnormal stock returns, mainly because their acquisitions created more synergies and reduced officers’ incentives to preserve control. These firms increased liability insurance premium expenditures, but reduced value-decreasing acquisition frequencies. Furthermore, the effect of OFDs is more pronounced in firms where officers are not directors, have wealth risk, face less product market competition, are insulated from the market for corporate control, or are able to avoid board monitoring. Overall, OFDs are a critical corporate governance mechanism that works in tandem with other disciplinary mechanisms.     

NINA/LILA debtors under the Portuguese Insolvency Act: A hidden problem in plain sight?

No income, no assets (NINA) and low income, low assets (LILA) debtors are a non‐negligible part of the increasingly ‘financialized’ market economy. Falling outside the financial market or accessing it through low quality financial products, NINA/LILA debtors appear to be under prioritized by both legal and judicial regimes and public policies. Focusing on the legal and judicial dimension, and taking as an illustration the Portuguese context, we discuss how preinsolvency and insolvency solutions still remain ill‐adjusted for such cases. In spite the existence of some legal provisions aiming at fostering access to law and courts regardless individuals' financial conditions, they do not perform very well with insolvent debtors lacking a regular income. Addicionally, there are non‐legal barriers that prevent those with less economic means to fight properly for their social and economic rights.     

Audit Standards and Auditor Liability: A Theoretical Model

The business of auditing is heavily regulated. Auditor regulation exists through licensing, professional standards and liability. The auditor's liability for losses to financial statement users from audit failure is subject to a test of negligence. What constitutes due audit care is, however, not generally well-specified. Furthermore, reviews of litigation against auditors conclude that compliance with professional audit standards does not always act as a complete defence to allegations of negligence. The current situation can be described as one where (ex ante)—from the point of view of the auditor—uncertainty exists about the ‘legal’ standard of due audit quality (as seen by the courts in the event of litigation). This uncertainty about legal standards fundamentally affects audit behaviour in ways that are not immediately intuitive. This paper draws on insights from the economics and law literature (e.g., Kolstad et al., 1990; Shavell, 1984a, 1984b and 1987; Calfee and Craswell, 1984 and 1986) and provides an analysis of the effects of uncertainty about auditor negligence on the produced level of audit quality and on audit fees. The auditor subject to a negligence rule will produce too low or too high an audit quality level, as compared to the socially optimal level. It is shown that uncertainty about the legal standard of ‘due audit quality’ is fundamental to understanding audit quality supplied. This uncertainty is the explicator of an insurance component in audit fees. A surprising insight is that a large uncertainty about the legal standard of care can reduce rather than increase the quality of audit work supplied and increase the insurance component. Relying on insurance premiums can be more effective than direct expenditure in reducing risk. The effect of the imposition of ex ante precise audit quality standards, in combination with an uncertain negligence rule, is discussed. Since the influence of ex ante standards is indirect through its effect on ex post liability, auditing standards cannot be analysed independently of ‘legal’ standards. If the legal standard of care were clear, there would be no role for audit standards. Audit standards only affect audit behaviour if legal standards of care are unclear, and they help to clarify the legal standard. An effective combination is for ex ante standards to be set below the ex post standards of care so that they provide a lower bound on acceptable work. Under a lowest common denominator approach set too far below legal standards, audit standards would be irrelevant as far as operational decisions were concerned. As the level of standards are raised, so costs are first imposed on the lowest quality providers.