Professional Documents
Culture Documents
Richard Rekhy
Chief Operating Officer and Head - Advisory
Neville Dumasia
Executive Director and Head - Governance, Risk and Compliance Services
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
Foreword
Corporate governance regulatory landscape in India
Recent events in India have put the spotlight on corporate governance practices of Indian companies. A key aspect that is being debated in the corridors of India Inc. is whether we need major regulatory changes to improve corporate governance, or whether improved standards of corporate governance could be achieved through adoption of principle-based standards of conduct. India Inc. has generally been proactive in promulgating corporate governance regulations. In doing so, a good balance has been achieved i.e. headway has been made, in terms of helping ensure that regulations are not stifling our entrepreneurial initiatives. From a purely regulatory standpoint, India compares favorably with most other developing and Asian economies as far as its corporate governance rules are concerned*.
Sammy Medora
Chairman Audit Committee Institute
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
Table of contents
Highlights of Poll Corporate governance in India regulatory landscape Corporate governance concerns Rethinking boards priorities and performance Improving and enforcing corporate governance Respondents 01 02 05 10 15 19
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
Highlights of Poll
Spirit and practice of governance regulations and practices needs to be intertwined
Majority of the respondents believe that while corporate governance should be practiced through principle-based standards and moderate regulations, there is a need for stronger regulatory review and exemplary enforcement.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
India Inc. believes that the spirit and practice of governance regulations and practices need to be intertwined
We asked respondents whether they see improvement in corporate governance following the introduction of clause 49. While 19 percent of the respondents feel there has been significant improvement, 68 percent of the respondents believe that significant scope for improvement exists. Change in corporate governance levels in India after introduction of clause 49
There is also the question on whether clause 49 can be strengthened and to what extent. This question evoked a mixed response from respondents. 46 percent noted that clause 49 may require a few changes and 44 percent noted that clause 49 could benefit from a significant revamp.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
In comparison with developed countries that impose stringent penal and criminal consequences for poor corporate governance, penalty levels in India are considered to be inadequate to enforce good governance. 71 percent of the respondents considered penalty levels to discipline poor and unethical governance to be low. 22 percent of the respondents were either undecided or did not know if the penalty levels are low. Are penalty levels in India to discipline poor and unethical governance low?
Will the new Companies Act have a positive impact on corporate governance?
The Ministry of Corporate Affairs has proposed the New Companies Bill 2008 which aims to improve corporate governance by vesting greater powers in shareholders. These have been balanced by greater emphasis on self-regulation, minimization of regulatory approvals and increased and more transparent disclosures. 53 percent of the respondents believe that the new Companies Act might have a limited or insignificant impact in addressing contemporary corporate governance issues in India. 28 percent of the respondents believe that its impact is likely to be positive. The remaining 19 percent were undecided.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
Principle-based approach is required for corporate Typically a principle-based approach means circulation of governance a cogent set of principles and Eighty percent of the respondents believe corporate governance should be practiced through a mix of principle-based standards and moderate regulations. preferred practices which companies are asked to adopt Should corporate governance standards be enforced through regulations or as they see most appropriate should they be principle-based? to their particular circumstance.
Jane Diplock AO - Chairman Securities Commission New Zealand & Executive Committee, IOSCO
Source: http://www.seccom.govt.nz/speeches/2003/jds031103.shtml December 2008
The existing (Clause 49) and ensuing (The Companies Bill, 2008) legislations do cover the fundamentals of effective corporate governance and India compares favorably with most other developing and Asian economies as far as the adequacy of corporate governance regulations are concerned. Improved corporate governance, however, does not solely rest on control through increased regulations. What is required is a principle-based approach developed on fundamentals, preventing moral fragility that is enforced through pragmatic levels of regulations.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
Many Indian companies operate in a family-owned culture. There has been an implicit assumption amongst boards that senior managers know their job and have the best interests of companies they manage at heart. This has sometimes resulted in boards refraining from asking the difficult questions to senior managers when the company has been performing well or until there is a crisis. The selection of independent directors who are known to promoter directors has further compounded the problem. From a governance standpoint, boards should address the following key areas specifically concerning independent directors: Adoption of a formal and transparent process for director appointments. The conflict of interest involved in managements appointing independent directors should be tackled through nomination committees (comprising independent directors) for identification of directorial candidates Alignment of needs of the company to the skills required in the boardroom Segregation of the roles of CEO and chairman of the board of directors. The concept of CEO and board chair separation is well accepted in Europe and is being steadily adopted in the US. The chairman of the board should be an independent director who plays a key role in setting the priorities of the board Planning for CEO and board succession in different scenarios Formal evaluation of the CEO and senior management teams performance at least annually. CEO performance evaluation process should be introduced when the company is performing well. Evaluation of CEO performance sends a clear message that the CEO is accountable to the board and introduces a healthy balance of power. Peer evalution of independent directors should be adopted. This would enable independent directors to openly discuss amongst their group how they are performing and take tangible steps to improve their individual and collective functioning. Independent directors should take steps to make themselves aware of their rights, responsibilities and liabilities.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
Corporate governance is about owners and the managers operating as the trustees on behalf of every shareholderlarge or small.
Narayana N. R. Murthy Chief Mentor Infosys Technologies Limited
Source: http://www.nfcgindia.org/aboutus.htm December 2008
Shareholder activism in India is at a nascent stage and comes to the fore only in instances where institutional investors holding a significant stake are in a position to question the quality of corporate governance. As minority shareholders may not have complete understanding of their rights or the avenues through which these rights could be exercised, increased activism from institutional shareholders and reinforcing the role of independent directors on the board is likely to take shape in the near future. In the context of meeting expectations of stakeholders beyond the minority shareholders (eg. employees, customers, vendors etc.) a number of initiatives need to be embraced such as: Informative Management Discussions and Analysis disclosures that focus on improving level of detail around operations and key risks Openness and transparency in dialogue with shareholders Objective and transparent whistle blower policies that are available to key stakeholders (employees, customers and vendors) and provide adequate safeguards against victimisation of whistle blowers Have minority shareholders representatives on boards as independent directors.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
Companies should address the challenges that their audit committees face and focus on enhancing skills in some of the most important areas listed below: Better understanding of risk, strategy and business models Understanding implications of the external environment on financial forecasts and performance Comprehend complex accounting policies and practices how their application impacts results Monitoring fraud risk especially relating to senior management override of internal controls Assessing IFRS readiness and transition plans Monitoring tone at the top in difficult times Effective oversight of internal and external auditors Ensuring that the boards strategic direction is in the best interest of all including minority shareholders Evaluation of audit committee and its members based on an established framework for its functioning.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
10
Independent directors need to spend significant time in understanding the various business operations, companys control environment, culture and the impact of these elements on the financial numbers The conduct of board meetings needs introspection in terms of frequency and duration, information needs, balance between presentation and discussion, interaction outside the boardroom and most importantly, consultation when in doubt Board chairs should actively monitor how individual directors are proactively identifying and fulfilling their knowledge and competency needs Independent directors need to conduct various exclusive sessions on a one-on-one basis with management, internal auditors and external auditors As part of its annual evaluation process, the board should review the quality of information it receives and consider how it can be improved.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
11
Corporate Social Responsibility - not yet top of mind for Indian corporates
Corporate Social Responsibility (CSR) is a concept through which organizations consider the interests of society by taking responsibility for the impact their activities have on customers, suppliers, employees, communities and the environment. This responsibility goes beyond compliance with regulations and is about organizations voluntarily taking further steps to improve the quality of life for employees as well as for the local community and society at large. 47 percent of the respondents believe that CSR is not high on the agenda of Indian companies. Thirty percent of the respondents were undecided on this aspect. Is CSR high on the agenda of Indian companies?
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
12
Do you believe that sustainability is an important canon of corporate governance and boards should be responsible for it?
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
13
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
14
Boards Boards should demand and obtain a holistic view of risks both on and off the balance sheet, their ownership and how they are mitigated Diversity of skills on the board is fundamental to effective risk management Boards should have a clear understanding with senior management regarding their risk appetite in various areas and help ensure that these are articulated and considered in design of controls, policies and procedures Boards should consider the risks inherent in strategic choices and whether these are acceptable Evaluate evolving risks what impact changes to strategy have on the suite of operational, financial and compliance risks and whether this is consistent with the companys risk appetite? Senior Management The standing of risk management in the organization should be elevated and should figure prominantly in business decision making. Risk management should not be viewed as a support function * Risk professionals should have appropriate authority in the organization and should have the powers to curb risk taking by business units* Risk management must be defined as being the role of senior management, usually the chief executive. The chief executive, as the "owner" of risk in the organization, must be seen to elevate the authority of risk management, and his or her focus on risk must filter through the organization* Senior management should set aside time to discuss potential economic scenarios and consider the impact of these outcomes on the business. Senior management should seek a range of views and perspectives in order to test its assumptions* Executive management should have complete visibility of the processes to identify risks, their severity, potential impact and procedures to address them. The board through its committees should be peridically monitoring the results. *
* Source: Managing risk in perilous times - Practical steps to accelerate recovery (A report from the Economist Intelligence Unit. Sponsored by ACE, KPMG, SAP and Towers Perrin)
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
15
Should remuneration of CEOs be significantly linked to company performance and involve a medium term lock in option?
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
16
Are integrity and ethical values given due importance by Indian companies?
Some of the improvement levers include: Striving to ensure that the code of conduct is understood and adhered to by all members of the organization The performance management system should recognize and reward ethical behavior Extensive background checks should be performed on the senior employees joining the organization Companies should screen third parties (customers, vendors, JV partners) with whom it does business for their commitment and adherence to ethical practices The scope of whistle blower policies should be extended to the wider stakeholder group Chairman of the audit committee should have direct oversight of whistle blower incidents Investors, lenders, analysts should pro-actively question/challenge management on areas pertaining to corporate governance comprising protecting minority interests, management compensation, government dealings, risk management practices, related party transactions, fraud risk management and CSR.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
17
Board to have a process of conducting exclusive sessions with its independent directors
Board members related to the promoter group to abstain from voting on appointment of a director related to the promoter group
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
18
Corporate governance is Monitoring effectiveness of corporate governance about "the whole set of legal, Monitoring the effectiveness of corporate governance practices is also a key cultural, and institutional concept emerging in India. We asked respondents who should monitor the arrangements that determine effectiveness of corporate governance practices. what public corporations can 47 percent of the respondents believe that effectiveness of corporate governance do, who controls them, how should be monitored by way of corporate governance audits carried out by that control is exercised, and corporate governance specialists. how the risks and return from 26 percent of the respondents believe that it should be monitored by the boards the activities they undertake themselves through self-assessment tools. are allocated. 15 percent of the respondents believe that the monitoring should be by way of
investors / minority shareholder groups having access to full information and
another 12 percent believed that the monitoring should be through rating agencies. Who should monitor effectiveness of corporate governance practices at companies?
Some of the aspects that may require regulatory change: Board and audit committee evaluations should be mandatory Current limits on independent directorships need to be revisited The CEO and board chair roles should be segregated Stricter penalties for non-compliance Transparent CEO evaluation process including disclosure of performance criteria Role of nomination committees to drive independent director selection process.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
19
Respondents
The poll involved over 90 respondents comprising CEOs, CFOs, independent directors and similar leaders.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved.
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Key Contacts
Richard Rekhy Chief Operating Officer and Head - Advisory Tel: +91 80 3980 6500 e-Mail: rrekhy@kpmg.com Neville M. Dumasia Executive Director and Head - Governance, Risk and Compliance Services Tel: +91 22 3983 6402 e-Mail: ndumasia@kpmg.com
The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.
2009 KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved. KPMG and the KPMG logo are registered trademarks of KPMG International, a Swiss cooperative. Printed in India.