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, Shleifer, 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.12 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.
With reference to Russia, nevertheless, the situation has a dual character. The process of ownership concentration is closely connected to activity of managers (or large shareholders becoming insiders). Accordingly, the process of ownership concentration becomes by no means the tool for adaptation to the weakness of external mechanisms of corporate governance. On the contrary, just the ownership concentration becomes the tool of violation of the rights of other shareholders (investors).
In this context another crucial conclusion is that the attempts to create the favorable investment climate ( including development of the corporate segment of the securities market) in Russia and other transition economies wouldn’t be very effective until they are based on the on-going improvement of the external investors’ protection mechanisms and the system of law enforcement.
3. Major mechanisms of the corporate governance and their specific features in Russia
The theory of corporate governance describes a number of mechanisms ensuring realization of the shareholders rights and forming the system of relations between the shareholders, managers, employees, creditors and other participants of firm operations concerning the order by assets disposition and distribution of the incomes.13
The various aspects of operation of these mechanisms are studied by an economic theory, jurisprudence, sociology, psychology and other sciences. The researchers mark the tendency to shaping in theory of corporate governance of the interdisciplinary approach (see. Prentice, Holland, 1993).
The mechanisms of corporate governance are traditionally differentiated on internal and external: accordingly internal procedural mechanisms of governance within corporation and the influence of an external environment (external mechanisms of governance). To external mechanisms they usually concern:
- The corporate legislation (codes, special company laws, conjugate laws, departmental acts, rules and instructions) and, what is more important, it the executive infrastructure (enforcement);
- Control from the side the financial market, i.e. mass "dumping" of securities of ineffective corporation in the liquid financial market (accordingly the managers meet an intractable problem of search of new resources in conditions of a falling of interest of the financial investors to corporate securities);
- Threat of bankruptcy of corporation as the result of invalid policy of the managers (in the most rigid variant - transition of control to the creditors);
- The market of corporate control (threat of a hostile take-over and changes of the managers).
3.1. Internal mechanisms
In some countries a role each from these mechanisms can essentially differ. At the same time - with all differences in existing structures of corporate governance - in each from developed countries checks and balances were generated in order to ensure interests of the investors and to provide sufficient independence and initiative of the managers.
In countries with transitional economy the rather weak development of "external" mechanisms of corporate governance objectively stipulates the special significance of the "internal" mechanisms (table 4).
In all countries the two-tiers (chambers) system (i.e. executive board and supervisory council/ board of directors as controlling organ) of governance is provided. More often availability of board of directors is bound to a size of company (Russia, Latvia, Poland) or is transferred at the discretion of shareholders (Bulgaria, Romania), however in some countries two-tiers system is mandatory (Czech Republic, Hungary). The board of directors (supervisory council) is usually considered as the main internal (or direct) mechanism of control.
As for the executive management (board) of joint-stock company a primary problem in transitional economy is the destruction of philosophy of "principal", which is characteristic of the majority of managers. A corollary of such philosophy is fierce struggle for control (in "amorphous" or "insiders" models), or resistance to the new owners.
As a whole problem of loyalty of board (managers, executive directors) in relation to the joint-stock company and to its shareholders is rather acute in all countries. Most rigid (from known to the author) measures on maintenance of such loyalty are stipulated in the law on joint-stock company of Latvia. The members of the executive board are elected on general meeting, and during 1 month after election each member of managerial board should acquire the certain number of the shares of joint-stock company (usually 0,1-5 %, since 1996 - up to 25 %) without the right of sale. In the case of losses of joint-stock company caused by operations of this member of executive board, his shares are sold for cover of the losses. If it is not enough, the appropriate member of the executive board should answer by all property (!).
In this connection problems of representation of the external shareholders in the different organs of the joint-stock company acquire the important significance. In particular, in Russian joint-stock companies there is a significant stratum of the shareholders, which, participating in the capital, are not present in any organ of corporate governance or current management. To the greatest degree it concerns to the shareholders - employees and external shareholders - individuals, in least - to commercial banks and industrial enterprises (suppliers and buyers). The latter is not surprising, because both indicated groups to the greatest degree can insist to the rights of the shareholders, using financial and trade mechanisms of pressure.
3.2. 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 4).
As regards the major objectives of regulations, five main thrusts can be singled out, first of all as regards the protection of shareholders rights:
to fill in the legal gaps characteristic of the Russian corporate legislation (such as insiders transactions, affiliated persons and relationships, corporate reorganizations etc.);
more rigid regulation of relations between legally independent but economically connected companies (take for example the definition of a “group” according to the French law);
- procedural issues of the corporate relationships (authority and procedure of shareholders meetings, boards of directors, new securities issues, etc.);
- requirements concerning the issuers transparency (although at present the quantitative approach to the disclosure of information prevails the qualitative aspects requiring the reliability of the information are no less important);
- strengthening of the system of sanctions for the violation of the corporate law provisions;
- enhancing the authority of the governmental regulatory bodies.
- widening the scope of the judicial control over the companies ‘activity.
Moreover, at the present stage a new, systemic, approach to the development and updating legislation is needed as well as harmonization between the provisions belonging to the different branches of law (administrative, civil, civil procedural, criminal and criminal procedural) regulating the activity of corporations. Another crucial factor now is the general legal environment in which the companies function as well as systematization of the related regulatory documents: on the securities market, bankruptcy, rules of mergers and takeovers, protection of investors, investment institutions, banks, etc.
It’s important to point out that the process of developing regulations for this range of problems usually is stepped up when and where (in those transition countries) the reforms have reached a certain qualitative level. All the above-mentioned allows us to draw conclusion that at present time there is no real need for any radical changes in the corporate law. Under normal conditions the policy of gradual improvement and filling in the legal vacuum is probably the optimal solution.
The key problem today is that the efficient regulation of corporate relationships demands not only active (or even leading) legal regulation of the developments in this sphere but also creation of a system of regular control on the part of the state and enforcement which provides for the compliance with the existing legislation. “Self-enforcing” model of the internal protective mechanisms can’t be strengthened indefinitely or simply doesn’t work under the conditions of the continuing struggle for control in corporations. If such “external” mechanisms of protection and control as the liquid securities market and well-functioning mechanism of bankruptcy so far are weak the “internal” mechanisms of control as well as the law enforcement became much more important.