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Der Beitrag führt in das sozialpsychologische Phänomen des Gruppendenkens ein. Kennzeichen und Gegenstrategien werden anhand von Zeugenaussagen vor dem Wirecard-Untersuchungsausschuss am Beispiel des Aufsichtsrats illustriert. Normative Implikationen de lege ferenda schließen sich an. Sie betreffen unabhängige Mitglieder (auch auf der Arbeitnehmerbank), Direktinformationsrechte im Unternehmen (unter Einschluss von Hinweisgebern) und den Investorendialog (auch mit Leerverkäufern).
Under Solvency II, corporate governance requirements are a complementary, but nonetheless essential, element to build a sound regulatory framework for insurance undertakings, also to address risks not specifically mitigated by the sole solvency capital requirements. After recalling the provisions of the second pillar concerning the system of governance, the paper is devoted to highlight the emerging regulatory trends in the corporate governance of insurance firms. Among others, it signals the exceptional extension of the duties and responsibilities assigned to the Board of directors, far beyond the traditional role of both monitoring the chief executive officer, and assessing the overall direction and strategy of the business. However, a better risk governance is not necessarily built on narrow rule-based approaches to corporate governance.
Under Solvency II, corporate governance requirements are a complementary, but nonetheless essential, element to build a sound regulatory framework for insurance undertakings, also to address risks not specifically mitigated by the sole solvency capital requirements. After recalling the provisions of the Second Pillar concerning the system of governance, the paper highlights the emerging regulatory trends in the corporate governance of insurance firms. Among others things, it signals the exceptional extension of the duties and responsibilities assigned to the board of directors, far beyond the traditional role of both monitoring the chief executive officer, and assessing the overall direction and strategy of the business. However, a better risk governance is not necessarily built on narrow rule-based approaches to corporate governance.
Since August 2009, German legislation allows for voluntary Say on Pay Votes (SoPV) during Annual General Meetings (AGMs). We examine 1,169 AGMs of all German listed firms with more than 10,000 agenda items over the period 2010-2013 to identify (1) determinants and approval rates of voluntary SoPVs, (2) the effect of voluntary SoPVs on AGM participation, and (3) the effect of SoP on executive compensation. Our data reveals that in the first four years of the voluntary say on pay regime every second firm in our sample has opted for having a SoPV. The propensity for a SoPV increases with firm size, abnormal executive compensation and free float of shares. Indeed, smaller firms with concentrated ownership do not only have a lower propensity for a SoPV, but also show a higher propensity to opt for only limited disclosure of executive compensation. Approval rates of SoPVs are lower than the approval rate for the average AGM agenda item and this effect is stronger in (i) widely held firms as well as in (ii) firms with abnormal executive compensation. Additionally, SoPVs actually can increase AGM participation; however, this result is particularly evident for widely held firms. Finally, we find stronger pay for performance elements within total executive compensation, particularly when the effect of executive compensation is lagged over the years following the vote. Overall, our results are consistent with the view that firms use voluntary SoPV to gain legitimation for executive remuneration policies in firms with low ownership concentration. This is enforced, where (small) shareholders consider executive compensation a part of the agency problem of listed firms, and where (small) shareholders consider SoPVs as a possibility to actively influence corporate decisions, with these decisions leading to a higher degree of alignment between executive management boards and shareholders.
This paper contrasts the recent European initiatives on regulating corporate groups with alternative approaches to the phenomenon. In doing so it pays particular regard to the German codified law on corporate groups as the polar opposite to the piecemeal approach favored by E.U. legislation.
It finds that the European Commission’s proposal to submit (significant) related party transactions to enhanced transparency, outside fairness review, and ex ante shareholder approval is both flawed in its design and based on contestable assumptions on informed voting of institutional investors. In particular, the contemplated exemption for transactions with wholly owned subsidiaries allows controlling shareholders to circumvent the rule extensively. Moreover, vesting voting rights with (institutional) investors will not lead to the informed assessment that is hoped for, because these investors will rationally abstain from active monitoring and rely on proxy advisory firms instead whose competency to analyze non-routine significant related party transactions is questionable.
The paper further delineates that the proposed recognition of an overriding interest of the group requires strong counterbalances to adequately protect minority shareholders and creditors. Hence, if the Commission choses to go down this route it might end up with a comprehensive regulation that is akin to the unpopular Ninth Company Law Directive in spirit, though not in content. The latter prediction is corroborated by the pertinent parts of the proposal for a European Model Company Act.
Die Stellungnahme befasst sich mit einem wichtigen Aspekt der Offenlegung der Bezüge von Entscheidungsträgern im Bankensektor. Komplementär zu der Diskussion um die Veröffentlichung der Vergütung von Vorstandsmitgliedern börsennotierter Unternehmen ist auch auf Landeseben versucht worden, die Transparenz der Vergütung von Führungskräften kommunaler oder landeseigener Unternehmen zu erhöhen. Namentlich sind die Träger der Sparkassen durch den neuen § 19 Abs. 6 des Sparkassengesetzes von Nordrhein-Westfalen verpflichtet worden, darauf „hinzuwirken“, dass die „gewährten Bezüge jedes einzelnen Mitglieds des Vorstands, des Verwaltungsrates und ähnlicher Gremien unter Namensnennung“ veröffentlich werden. Diese Vorschrift ist jedoch weitgehend wirkungslos geblieben; nicht zuletzt weil das OLG Köln in einer einstweiligen Verfügung die Vorschrift mangels Gesetzgebungskompetenz des Landes als nichtig behandelt hat. In dieser Situation ist am 8. August 2013 der Vorschlag eines Gesetzes „zur Offenlegung der Bezüge von Sparkassenführungskräften im Internet“ durch die Fraktion der Piraten im Landtag Nordrhein-Westfalen eingebracht worden. Der Entwurf ist Gegenstand der Stellungnahme, die Helmut Siekmann für den Haushalts- und Finanzausschuss des Landtags Nordrhein-Westfalen erstellt hat. Sie stellt maßgebend darauf ab, dass die Sparkassen als Anstalten des öffentlichen Rechts einen öffentlichen Auftrag zu erfüllen haben und den Grundsätzen des Verwaltungsorganisationsrechts unterliegen. Als Teil der (leistenden) Verwaltung müssen sie Transparenz- und Kontrollansprüchen der Bürger und ihren Repräsentanten in den Parlamenten genügen.
We investigate the decisions of listed firms to go private once again. We start by revealing that while a significant number of firms which go public is VC-backed, an overproportional share of these VC-backed firms go private later on (they stay on the exchange for an average of 8.5 years). We interpret this very robust pattern such that IPOs of VC-backed firms are to a large extent a temporary rather than a permanent feature of the corporate governance of these firms. We investigate various potential hypotheses why VCs actually seem to be able to bring marginal firms to the exchange by relating the going-private decisions to various characteristics of the IPO market as well as to VC characteristics. We find strong support for the certification ability of VCs: more experienced and reputable VCs are more able to bring marginal firms to public exchanges via an IPOs. These marginal firms backed-by more reputable and experienced VCs are more likely to go private later on. Hence, our analysis suggests that IPOs backed by experienced VCs are most likely to be a temporary rather than the final stage in the life of the portfolio firm. We find no support that reputable VCs underprice their IPO-exits more implying that they have no need to leave more money on the table to take the marginal firms public.
We analyze the effect of committee formation on how corporate boards perform two main functions: setting CEO pay and overseeing the financial reporting process. The use of performance-based pay schemes induces the CEO to manipulate earnings, which leads to an increased need for board oversight. If the whole board is responsible for both functions, it is inclined to provide the CEO with a compensation scheme that is relatively insensitive to performance in order to reduce the burden of subsequent monitoring. When the functions are separated through the formation of committees, the compensation committee is willing to choose a higher pay-performance sensitivity as the increased cost of oversight is borne by the audit committee. Our model generates predictions relating the board committee structure to the pay-performance sensitivity of CEO compensation, the quality of board oversight, and the level of earnings management.
Stakeholderorientierung, Systemhaftigkeit und Stabilität der Corporate Governance in Deutschland
(2006)
Since the time of Germany’s belated industrialisation, corporate governance in Germany has been stakeholder oriented in the dual sense of attaching importance to the interests of stakeholders who are not at the same time shareholders, and of providing certain opportunities for these stakeholders to influence corporate decisions. Corporate governance is also systemic. It is a system of elements that are complementary to each other, and also consistent. In other word, it is composed of elements for which it is important that they fit together well, and in the German case these elements did fit together well until quite recently. Corporate governance as a system is itself an element of the German bank-based financial system at large and possibly even of the entire German business and economic system. Stakeholder orientation of governance is consistent with the general structure this system, and even represents one of its central elements. In retrospect, German corporate governance has also proved to be surprisingly stable. Its fundamental traits date back to the turn from the 19th to the 20th century. There are strong reasons to assume that the systemic features, that is, its complementarity and consistency, have greatly contributed to its past stability. Since about ten years now, there are growing tendencies to question the viability and stability of the German corporate governance system and even the financial system as a whole. One of the central topics in the new debate concerns the stakeholder orientation of the system, which some observers and critics consider as the main weakness of the “German model” under the increasing pressures of globalisation and European integration. As far as their development over time is concerned, systems of complementarity elements exhibit certain peculiarities: (1) They do not adjust easily to changing circumstances. (2) Changes concerning important individual elements, such as the stakeholder orientation of governance, tend to jeopardize the viability and the stability of the entire system. (3) While they appear to be stable, systems shaped by complementary may simply be rigid and tend to break under strong external pressure. “Breaking” means that a system undergoes a fundamental transformation. It seems plausible to assume that the German financial system is already in the middle of such a transformation. It is yet another consequence of its systemic character that this transformation is not likely to be a smooth and gradual process and that it will not lead to a “mixed model” but rather to the adoption of a capital market-based financial system as it prevails in the Anglo-Saxon countries. In such a system, corporate governance cannot be geared to catering to the interests of stakeholders, and an active role for them would not even make any economic sense.
The German corporate governance system has long been cited as the standard example of an insider-controlled and stakeholder-oriented system. We argue that despite important reforms and substantial changes of individual elements of the German corporate governance system the main characteristics of the traditional German system as a whole are still in place. However, in our opinion the changing role of the big universal banks in the governance undermines the stability of the corporate governance system in Germany. Therefore a breakdown of the traditional system leading to a control vacuum or a fundamental change to a capital market-based system could be in the offing.