Very often it’s exactly the concentrated ownership (concentrated control) in different forms which is indicated as the major economic mechanism of the corporate control; it provides the basis for the investors’ real influence, which by itself strengthens the legal protection and allows to minimize the need for seeking solutions through courts. The majority of the transition economies were oriented towards the concentrated ownership model; with different degree of success; legislatively or ideologically; through the application of mandatory schemes or spontaneously. At the hypothetical level it was presumed that the corporate relationship model based on a more concentrated structure of ownership and insignificant role of insiders (both employees and managers) would also stimulate the financial progress and economic efficiency. This hypothesis established the link between the corporate governance (control) model, efficiency of such governance and efficiency of the enterprise itself.
As the practice demonstrated16 the results of this ideology implementation were extremely controversial and the preliminary assessments can’t be true at the generalization level.
On the one hand the existing data of the Leontieff Center (St.Petersburg) allow us to speak about higher level of efficiency of the privatized enterprises in the Russian industry (Table 4 of the Addendum). The following traits can be identified on the basis of the data: (1) “deeply-privatized enterprises” are more efficient than “medium-privatized” and both groups of privatized enterprises are more efficient than the public ones; (2) the efficiency indicators of the enterprises privatized in 1993 are higher than those of the enterprises which underwent this change in 1994-1995. If we presume that the degree of concentration of the stock ownership is higher at the enterprises which became involved in the privatization process earlier (which is general corresponds to the trend observed all over Russia), then, with a certain degree of presumption, we can maintain that the enterprises with the concentrated ownership are more efficient.
Another indirect confirmation of the fact that the enterprises with the highly-concentrated ownership are more efficient can be found in the comparative figures supplied by a number of researchers representing the operation of enterprises with different types of predominant owners in 1995-1997. In many cases the best economic performance was demonstrated by those small and medium enterprises where the ownership was concentrated in the hands of managers and by large enterprises with the ownership in the hands of certain types of outsiders, although, there are the figures showing the opposite situation (See Aukutsionek, Kapeliushnikov, Zhukov, 1998; Këåïà÷, Êóçíåöîâ, Êðþ÷êîâà, 1996; Earl, Estrin, Leshchenko, 1995).
The numerous facts when the majority shareholders (both managers and outsiders) acted against the interests of their corporations development are also well-known. There is an almost standard set of accusations which can be equally used against the owners in other transition countries: desire to control only the financial flows and export transactions; unjustified splitting of an enterprise, selling off or leasing out the assets to the detriment of shareholders and the enterprise itself; free rider’s attitude during the search for strategic solutions; treatment of their stake as an object of speculation or using it as a collateral against the loans etc. It was especially relevant in case of the financial institutions which became the stockholders in the course of and after privatization.
Among the explanations of this situation, at least in respect of Russia, the following considerations may be mentioned. If the “amorphous” system of corporate control (that is, the absence of any visible signs of control even if there is an informal one) is preserved that may bring about the loss of objectives as regards the medium-term development and the lack of investors. The problem is that with the amorphous system (even if the real control is concentrated in someone’s hands) both the responsibility for the current situation in the corporation and the control on the part of shareholders over those who bear this responsibility simply disappear. At the same time there are no external mechanisms of control as well (legal and market) in order to provide for such a responsibility. The well-known mechanisms of the investors’ rights protection, which are so important in order to attract investment, are also non-existent.
Correspondingly, as regards the further institutional changes the problem of the “efficient (responsible) owner” who during the last years became one of the mythological figures of many official programs and concepts needs to be resolved.
In general the problem of an “efficient owner” to a large degree is connected with the macroeconomic conditions, taxation, effective system of implementation of contractual obligations etc. It’s paradoxical that in a number of the transition economies including Russia a dualistic attitude towards the notion of “efficient owner” has developed.
The most primitive interpretation (which is typical, for example, to the official ideology of governmental departments) is to identify “efficient owner” with the “owner (private) of a large or controlling interest in a company”. Hence, a clear and simple bureaucratic task: to “mechanically construct” new responsible owners. At a certain stage of this construction it turns out that the “efficient owner” (whether the owner of a certain interest or the manager who retained his position of control) is not efficient from the standpoint of the formal governmental logic: he doesn’t pay wages to the employees, doesn’t pay taxes, is not interested in the enterprise’s development, establishes subsidiaries in order to “pump out” the assets while leaving only the legal shell of the company, etc.
At the same time the very same owner (holder of the controlling function) is efficient as the specific economic agent in the specific environment where he has to operate (exorbitant and very complicated taxes, barter, cash settlements, criminal environment, desire of the potential “outside shareholders” to seize control only for the purpose of controlling the financial flows of the company, etc.). In this case he is efficient because he maximizes the profits acting as the owner (holder of the controlling function) under the specific conditions imposed on him and protecting the company from the external destabilizing factors.
Of course the picture won’t be full without taking into account the personal financial ambitions of the subject who retained or established control over the company. The degree of criminalization of his behavior depends upon many economic, legal as well as social and psychological factors. The range of different types of behavior is extremely wide: from the setting up the” profit centers” outside of the company but for the purpose of its development and up to the different schemes of pumping out the corporation’s fund for their subsequent transfer to his personal accounts abroad. In this context it becomes clear that in order to implement in real life the official governmental ideology of “efficient owners” the adequate measures on the part of the state are needed touching upon practically every aspect of the economic reform.
In connection with the problem under review it would be also interesting to know the results of the comparison between the legal systems of 49 countries from the standpoint of the investors’ rights protection conducted in Harvard (La Porta, Lopez-de-Silanes, Skleifer, Vishny, 1997, pp. 32-35, 40-43). The authors came to the conclusion that the concentration of ownership was at the same time reaction (or adaptation) to the weak legal protection of investors within the framework of the national model of corporate governance. High accounting standards, legal mechanisms of investors’ protection and the level of the legislation enforcement have a very negative correlation with the concentration of ownership.17 At the same time the high level of concentration signifies the weak operation of the capital market. The conducted analysis linked this to the fact that the weak legal protection of investors denies to the companies the opportunity to mobilize the necessary capital.
This conclusion is also valid for the Russian situation. Bearing this in mind we may presume that the problem of attracting investment to the privatized enterprises won’t be resolved even when the struggle for control in the new corporations is over. The concentration of ownership typical for the process of struggle for control may be regarded as the method of the new owner’s adaptation but it doesn’t offer any guarantees to the new potential investors under the conditions of weak legal regulation.
Another crucial conclusion is that the attempts to have accelerated development of the corporate segment of the securities market in Russia and other transition economies (as well as development of its infrastructure) wouldn’t be very effective until they are based on the on-going improvement of the investors’ protection mechanisms and the system of law enforcement.
3. Major external mechanisms of the corporate governance and their specific features in Russia
3.1. The general legislative situation
Upon the results achieved during the first half of 1990s, the progress of Russia in the field of the new legislation and legal institutes was estimated to be relatively insignificant: “there was some progress in legislation and insufficient in institutes” (the third group of countries which, according to the World Bank>
By the end of 1990’s the situation has changed rather seriously (EBRD, 1998). Russia, as regards the coverage of the commercial laws has actually joined the group of leaders (the expert mark “4--“, while for Bulgaria, Czech Republic, Hungary, Poland, Romania, Lithuania and Croatia it’s “4” and for the industrially developed countries it’s (4+”). There is still more of a lag as regards the “efficiency” of commercial laws (the expert mark “2” while the leaders have “3-4)). As a result, according to this>
Of course, not a single transition country has the legislation on corporate governance (in the broad sense, encompassing all the related regulatory documents) which can be evaluated as the highly developed. This legislation “doesn’t so much reflect what already is but what should be or, in the best possible case, what is emerging…” (Àêöèîíåðíîå îáùåñòâî…, 1995, c. VIII-IX).
Adoption of the federal law “On joint-stock companies” in 1995 and entry into force on January 1, 1996 became the landmark in the field of the corporate legislation in Russia. In principle it can be evaluated as quite progressive (at the moment of its adoption) because it at least includes the generally excepted set of the traditional provisions on corporate governance (Table 5 of the Addendum). Nevertheless, its adoption brought about a lot of discussion.
On the one hand, according to a number of expert estimates, this law is clearly oriented towards the managers of enterprises. In this respect it can be regarded as the further development of the traditions of Decision No 601 and Decree No 721. Other researchers apparently oriented towards the prohibitive traditions of the continental corporate law point out that “the law is intended to provide protection to the large owners” interests to the detriment of small shareholders and companies’ employees” (Òèõîìèðîâ, ðåä., 1998, c. 4-5).
On the other hand, the fact that not less than 15 new provisions of the law envisage different mechanisms for the shareholders’ rights protection and responsibility of the managers demonstrates that this law in general potentially provides for a reasonable balance of interests. Taking into account the new provisions about the shareholders’ rights protection the supporters of the procedural (self-sufficient) approach believe that one of the advantages of this law is that it allows to create opposition to the insiders and “to use the interests of the considerable number of minority shareholders in order to provide for the substantive protection of interests of the minority shareholders “(Áëýê, Êðýêìàí, Òàðàñîâà, 1997).
Some jurists believe, in line with the corporate traditions of Delaware, that the Russian open joint-stock company in its present form (its legal model) is mostly suited to the small and medium-size businesses on the scale of continental Europe. At the same time the Russian corporations which, because of their size, should be included into the international>
The law has one uncontestable advantage because it’s very detailed which allows to reduce to a minimum references to other documents (regulations). Nevertheless the present day legal basis in the field of the corporate legislation can be characterized as being at the formative stage and demanding further elaboration which can be achieved either through the improvement of the already adopted regulatory documents or by enacting the new ones.
The existing legal framework in the field of the corporate governance consists of the following elements:
- the RF Civil Code, effective since January 1, 1995, which in particular regulates joint-stock companies as one of the legal forms of the commercial organizations and securities as the objects of the civil rights;
- federal laws (“On joint-stock companies” and “On securities market”);
- decrees of the President of the Russian Federation (Decree “On measures for the protection of rights of depositors and shareholders” of November 18, 1995, No 1157; The Comprehensive Program of ensuring the rights of depositors and shareholders approved by the Presidential Decree No 408 of March 21, 1996; Concept of the securities market development in the RF; approved by the Presidential Decree No 1008 of July 1, 1996, etc.);
- decisions of the Government of the Russian Federation (The State Program of the protection of the rights of investors, approved by the RF Government Decision No 785 of July 17, 1998 “On the State program for the protection of the rights of investors for 1998-1999”and others);
- regulations issued by the FCSM of Russia which include special acts concerning the control over the securities market and protection of the investors’ rights;
- regulations issued by other departments (Ministry of Finance, Ministry for the Anti-Monopoly Policy, etc.).