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Dr.

Ram Manohar
Lohiya National Law
University,
Lucknow
B.A. L.L.B. (Hons.), Semester V
(2015-2016)

Corporate
Law
Final Draft

Topic: Nominee Directors Vis--vis Corporate


Governance
Under
submitted by:
Dr. Manish Singh
Fatima
Professor, law
78,

the

guidance

of:
Nida
Roll No.
Section

Acknowledgement
I hereby take this opportunity to present my gratitude towards my professor of law Dr.
Manish Singh who gave us the opportunity to enhance our research skills by providing us
the required platform through this project and extending the valuable assistance needed
thereby. Im also very grateful towards the ever helpful staff of the library of Dr. Ram
Manohar Lohiya whose assistance led to the timely completion of my project. A token of
thanks is also extended to my supportive friends and family whose judicious advice led to
the improvement of this project.

Index

Nominee
Directors...4-6
Corporate
Governance...
...7-8
Expert Committee Reports.....
8-13
Cadbury
Committee
Report.
8-9
CIIs Report on Corporate Governance of India
9-11
Kumar
Mangalam
Birla
Committee
Report....
.11-12
Narayan
Murthy
Committee
Recommendations....
.12-13
International
Scenario..
13-15
England..1314
Australia.
.14

New
Zealand15
Insider
Trading.
15-16
Conclusion...
16-19
Bibliography
19-20

NOMINEE DIRECTORS
Nominee directors as a concept exists worldwide, Institutional investors put them on the
board of a company where they have put in substantial amount of their money thereby
assuring themselves that there is somebody in the board who will take care of their
interest and see that their money is being invested in places where it ought to be.
Thus, before talking about Nominee Directors, the project will first attempt to examine
the role of Institutional Investors. There are two views with regard to the role that an
Institutional investor should play in the corporate governance system of a company one
primarily saying that institutional investors should interfere and the other view stating to
the contrary.
The reasoning given for noninterference of institutional investors is that the institutional
investors have the primary fiduciary responsibility of taking care of those people who
have invested in their institutions thus their involvement in the board/ management of a
company will lead to a conflict of interest. Another reason advanced for non-interference
of institutional investors is that they are not competent enough to interfere in the
companies management.
Those who believe that institutional investors should take an active part in the
management of a company strongly believe that it is ideal for an effective corporate
governance system in a company the institutional investors should take part in the
management of the company. The Cadbury committee (1992), for example, states that

because of their collective stake, we look to the institutions in particular, with the
backing of the Institutional Shareholders Committee, to use their influence as owners to
ensure that the companies, in which they have invested, comply with the code. In India
the Kumaramanglam Birla committee report with regard to the role of investors, it
similarly emphasizes their role in the management of the company.
Institutional investors usually invest in companies who follow good governance standards
as it is usually found that companies with a good governance record usually have
recorded better financial performance standards than those who have got poor
governance records. It has been seen that the value of the stock returns of companies who
have corporate mal-governance is lower than those companies who have good
governance practices. The reason that can be attributed for the fall in the value of the
companies who havent maintained good governance standards can be two fold.
The fall of value of the company can firstly be attributed to information irregularity
caused by corporate mal-governance. It results in information getting lop sided thereby
bringing down the value of the capital assets issued by the company. The other reason
that is attributed to the lowering of value of a company because of poor governance
standards is that it increases the agency cost. Thus institutional investors invest in only
those companies who maintain proper governance standards thereby insuring that the
value of their portfolio doesnt get reduced.
Now, moving on to what Nominee Directors are, they have been defined as '... persons
who, independently of the method of their appointment, but in relation to their office, are
expected to act in accordance with some understanding or arrangement which creates an
obligation or mutual expectation of loyalty to some person or persons other than the
company as a whole.
Nominee director could be representative of a major shareholder, a class of shareholders
or debenture holders, a major creditor or an employee group. This situation of mutual
expectation of loyalty to some persons or group of persons happens when the
government, foreign collaborators, holding companies, financial institutions or other
lenders etc., nominate a director to represent their interest in the board.
The right to nominate directors on the Boards of the financed companies is usually
contained in the contract itself. However, the special legislation governing certain public
financial institutions and State financial corporations envisage the appointment of certain
directors on the Boards of the financed companies and such a provision has an overriding
applicability in spite of the normal regulatory provision of the companies act, the
Memorandum of Association and the Articles of Association.
Except where a statute provides for nomination of directors on the Board of a company,

nominee directors can be appointed only if a provision to that effect exists in the
Memorandum of Association or Articles of Association. It is to be noted that in case of
statutes governing certain statutory financial institution they are empowered to appoint
nominee directors.
The Guidelines for appointment of Nominee Directors in companies were issued by the
Ministry of Finance, Department of Economic Affairs vide its circular in March 1994. As
per this circular, IDBI, IFCI, ICICI and IRBI were required to create a separate
department/cell whos exclusive and whole time function would be to represent the
institutions on the Board of Companies. The circumstances under which nominee
directors can be appointed are:
(i) Where the institutional holding is more than 26%
(ii) Where the institutional stake by way of loans/investments exceeds Rs. 5 crore
(iii) Where a unit is running into problems and is likely to become sick.
A problem with regards to appointment of Nominee Directors is that the person who is
elected to be a nominee director of a company is usually an employee or from a panel of
professionals from various disciplines maintained by them. What is needed is a person
with professional attitude and capability of taking commercial decisions. Nominee
directorship should not be a post retirement benefit to retired executives or bureaucrats.
The nominee director depending upon his status and ranking in the financial institution he
represents makes a lot of difference in the response he gets from the management.
One of the senior and experienced officers of a financial institution was nominated as
director on a leading and prosperous chemical company belonging to a larger house in
India. In the mid-70s the company wanted to diversify in to shipping and a proposal was
made to acquire a ship. The nominee director was of the opinion that shipping industry
was a cyclical industry and prone to wide fluctuations and in the foreseeable future such a
proposal was not in the companys interest. However he could not counter persuasive
arguments of a leading tax luminary on board as also the charming personality of the
chairman. Ultimately, the venture resulted in a loss and the company gave up shipping
industry.
Nominee directors tend to reveal two opposite tendencies at Board meetings. Either they
tend to play safe or fiddle around to make their presence felt by including in a long
monologue. If a company is passing through lean times they tend to be cynical of the
management and their attitude seem to be fault finding rather than fact finding. They tend
to show questioning attitude rather than an enquiring mind.

CORPORATE GOVERNANCE
Corporate Governance as defined in the Cadbury Committee Report is the system by
which companies are directed and controlled. Board of directors are responsible for the
governance of their companies. The shareholders role in governance is to appoint the
directors and auditors and to satisfy themselves that an appropriate corporate governance
structure is in place. The responsibility of the board includes setting up the companys
strategic aims, providing the leadership to put them into effect, supervising the
management of the business and reporting to shareholders on their stewardship. The
Boards actions are subject to law, regulations, and shareholders in general meeting.
In the report of Confederation of Indian industry, the need for corporate governance in
India was stated. It is thus summarized: Firstly, there is a unique structure of Corporate
Governance in the developed world. The corporate governance code of each country has
to be designed keeping in view the peculiarities of the country. Secondly, Indian
companies, banks and financial institutions can no longer afford to ignore better corporate
practice. With integration of India into the world market, companies will be required to
give greater disclosure, more transparent explanation for major decisions and better
corporate vale. And thirdly, corporate governance extends beyond corporate law. The
quantity, quality and frequency of financial management disclosure, the extent to which
the Board of directors exercise their fiduciary responsibilities towards shareholders, the
quality of information which the management share with their boards, and the
commitment to run transparent companies that maximize long term shareholder value
evolve due to catalytic role played by the more progressive elements within the corporate
sector and enhance company law.
Thus the CII code states that corporate governance refers to an economic, legal and
institutional environment that allows the companies to diversify, grow, restructure and
exit, and do everything necessary to maximize shareholder value. Corporate governance
is an interplay between companies, shareholders, creditors, capital market, financial
sector institutions and company law. Hence, a code of corporate governance must address
all these issues.
Thus corporate governance means the total functioning of the company and the conduct
of business internally and externally and embraces the complete accountability of the
management and the Board of Directors to the shareholders and the wider public.
Corporate Governance deals with laws, procedures, practices, and implicit rules that
determine a Companys ability to make managerial decisions vis--vis its claimants in
particular, its shareholders, creditors, the State and the employees. Successful corporate
governance lies in balancing the various conflicting interests and interest groups i.e.

investors, creditors, employees, government and society at large.

EXPERT COMMITTEE REPORT


CADBURY COMMITTEE REPORT
In the late 1980s the corporate sector in UK was inundated with a number of problems.
While companies had grown in size, it was not matched by corresponding growth in
accounting controls. These involved creative accounting, spectacular business failures,
and the limited role of auditors, the weak link between executive compensation and
company performance and several others. Also the growth in size of the corporate was
not matched by change in the pattern of Board which had become smaller. It was under
these circumstances that the Cadbury committee was setup by the Financial Reporting
Council, London Stock Exchange and the accountancy profession to address particularly
the financial aspects of corporate governance.
The Cadbury committee report laid great stress on the role of institutional investors in
maintaining the corporate governance standards of the company. The reasoning given by
the committee is that they take care of those people who have invested their money in
their institutions and whose money has been loaned to the company to support their
finances.
The Cadbury Committee gave three points which would insure a smooth relationship
between the company and there owners.
1. Institutional investors should encourage regular, systematic contact at senior executive
level to exchange views and information regarding strategy, performance, Board
membership and quality of management.
2. Institutional investors should make positive use of their voting rights, unless they have
good reason for doing otherwise. They should register their votes wherever possible on a
regular basis.
3. Institutional Investors should take a positive interest in the composition of Board of
directors, with particular reference to concentration of decision making power not
formally constrained by appropriate checks and balances and to the appointment of a core
non-executive director of the necessary caliber, experience and independence.
Thus we see through the above given three points that the Cadbury Committee is very
much in favor to the presence of the institutional investor in the board of a company.
They want that the institutional investor with all the power they hold should place a
nominee director on the Board of the company or be in regular contact with the company

management so as to insure that the company stays on course and to insure the
continuous upliftment of the corporate governance standards.

CIIS REPORT ON CORPORATE GOVERNANCE IN INDIA


Unlike South-East and East Asia, the corporate governance initiative in India was not
triggered by any serious nationwide financial, banking and economic collapse also,
unlike most OECD countries, the initiative in India was initially driven by an industry
association, the Confederation of Indian Industry (CII) this was Indias first foray into
corporate governance.
In December 1995, CII set up a task force to design a voluntary code of corporate
governance. The final draft of this code was widely circulated in 1997.In April 1998, the
code was released and was called the Desirable Corporate Governance: A Code.
Between 1998 and 2000, over 25 leading companies voluntarily followed the code: Bajaj
Auto, Hindalco, Infosys, Dr. Reddys Laboratories, Nicholas Piramal, Bharat Forge,
BSES, HDFC, ICICI and many others.
The CII committee report analyzed the concept of nominee director in detail. The
committee has drawn a parallel of the working of nominee director as it exists in India
and countries like Germany, Japan and Korea and stated that even though in effect they
have the same combined debt cum equity positions so common to German, Japanese and
Korean forms of corporate governance. But these informed insiders in India do not seem
to behave like their German counterparts; corporate governance and careful monitoring
do not seem to happen as they are supposed to when a stakeholder is both creditor and
owner of equity, as in Germany.
The Committee has in its report outlined the major sore points which has led to the
apparent failure of Government controlled FIs to monitor companies in there dual
capacities as major creditors and shareholders. The committee says that the problem lies
in the anti-incentive structure. The problems outlined are thus:
1. Major decisions by public sector financial institutions are eventually decided by the
Ministry of Finance, and not by their board of directors. De jure, this cannot be cause for
complaint after all the Government of India is the major shareholder and, hence, has the
right to call the shots. However, at issue is the manner in which the government calls the
shots, and whether its decisions enhance shareholder value for the FIs.
2. Nominee directors of FIs have no personal incentive to monitor their companies. They
are neither rewarded for good monitoring nor punished for non-performance.
3. There is a tradition of FIs to supporting existing management except in the direst of
circumstances. Stability of existing management is not necessarily a virtue by itself,

unless it translates to greater transparency and higher shareholder value.


4. Compared to the number of companies where they are represented on the board, the
FIs simply do not have enough senior-level personnel who can properly discharge their
obligations as good corporate governors.
Concluding there observations the committee stated that it is because of these faults that
these nominee directors who ought to have been more powerful than the disinterested
non- executive directors are in fact at par. The committee looking for a solution says that
the solution requires questioning the very basis of majority government ownership of
FIs and thereby questioning as to whether its time that the government should become a
minority shareholder in the in all its financial sector institutions.
The committee gave the following recommendation with regard to Nominee Directors:
Recommendation No. 17
Reduction in the number of companies where there are nominee directors. It has been
argued by FIs that there are too many companies where they are on the board, and too
few competent officers to do the task properly. So, in the first instance, FIs should take a
policy decision to withdraw from boards of companies where their individual
shareholding is 5 percent or less, or total FI holding is under 10 percent.
It is felt that the CII committee on corporate governance has confused between the
functioning of the institutional investors as it takes place in countries like Germany, Japan
and so on and the functioning of institutional investors in our country. In India usually the
Financial Institutions are creditors of the company and not shareholders. Money is lent to
the company and a contract is signed wherein the posting of a nominee of the FIs on the
board of the company is also agreed to. Whereas in countries like England, Australia,
New Zealand, the Institutional Investors have an investment portfolio and an equity
portfolio wherein when they loan money to a company they also usually take shares of
the company in return thereby becoming shareholders of the company in which they have
invested their money. This does not happen in India, and the investors here occupy the
position of creditors and not shareholders.

KUMARMANGALAM BIRLA COMMITTEE REPORT


The report of Kumarmanglam Birla Committee on corporate governance with regard to
nominee directors stated there is another category of directors in Indian companies who
are the nominees of the financial or investment institution who are present in the board to
safeguard the institutions interest. The nominees of the institution are often chosen from
among the present or retired employees of the institution or from outside. In the context

of corporate governance there should be arguments both for and against the continuation
of this practice.
Those who favor this practice argue that nominee directors are needed to protect the
interest of the institutions who are custodians of the public funds and who have high
exposures in the projects of the companies both in the form of equity and loans. On the
other hand there is an inherent conflict when institutions through their nominees
participate in board decisions and in their role as shareholders demand accountability
from the board.
The committee taking into consideration arguments both for and against nominee
directors thus recommended
1. When companies are well managed and performing well, the need for protection of
institutional interest is much less than when companies are badly managed or
underperforming. The committee therefore, recommended that the institutional investors
should appoint there nominee directors on a selective basis wherein such right is pursuant
to a right under a loan agreement or where such appointments is considered necessary to
protect the interest of the institution.
2. When a nominee of the institution is appointed as a director of the company, he should
have the same responsibility, be subject to the same responsibility as any director of the
company. They committee also gave the concept of the Chinese Wall that is if the
nominee reports to any department of the institution on the affairs of the company, the
institution should ensure that there exists a Chinese Wall between such department and
other departments which may be dealing in the shares of the company.

NARAYAN MURTHI COMMITTEE RECOMMENDATIONS


There is some uncertainty with regard to the status of nominee directors in light of the
latest committee on corporate governance. The Naryan Murthi committee on corporate
governance with regard to nominee directors has stated, The Committee felt that the
institution of nominee directors creates a conflict of interest that should be avoided. Such
directors often claim that they are answerable only to the institutions they represent and
take no responsibility for the companys management or fiduciary responsibility to other
shareholders. It is necessary that all directors, whether representing institutions or
otherwise, should have the same responsibilities and liabilities.
The report further stated that If the institution, whether as a lending institution or as
investing institution, wishes to appoint its nominee on the Board, such appointment
should be made through the normal process of election by the shareholders. The

Committee noted a dissenting view that FI nominees should not be granted any Board
representation rights. Management should treat them on par with other investors and
disseminate the same information that other shareholders would obtain. By virtue of their
Board seat, FIs are placed in an advantageous position over the other shareholders, in
terms of company price-sensitive information.
Thus the committee made the following mandatory recommendation:
There shall be no nominee directors.
Where an institution wishes to appoint a director on the Board, such appointment should
be made by the shareholders.
An institutional director, so appointed, shall have the same responsibilities and shall be
subject to the same liabilities as any other director.
Nominee of the Government on public sector companies shall be similarly elected and
shall be subject to the same responsibilities and liabilities as other directors.

INTERNATIONAL SCENARIO
ENGLAND
A perfect starting point can be the decision of the House of Lords in Scottish Cooperative
Wholesale Society Ltd v Meyer .
In the present case Lord Denning talked about the concept of nominee director at length
and said that So long as the interests of all concerned were in harmony, there was no
difficulty. The nominee directors could do their duty to both the companies without
embarrassment, but as soon as the interests of the two companies were in conflict, the
nominee directors were placed in an impossible position. It is plain that, in the
circumstances, these three gentlemen could not do their duty to both the companies, and
they did not do so. They put their duty to the co-operative society above their duty to the
textile company in this sense, at least, that they did nothing to defend the interests of the
textile company against the conduct of the co-operative society. They probably thought
that as nominees of the co-operative society their first duty was to the co-operative
society. In this they were wrong. By subordinating the interests of the textile company to
those of the co- operative society, they conducted the affairs of the textile company in a
manner oppressive to the other shareholders.
The decision thus contains a very clear statement that nominee directors duties were
owed to the company in whose Board they had been placed and not the party they were
representating and that their powers and discretions were to be exercised in the interests

of that company in preference to the interests of their representatives.

AUSTRALIA
In Australia there seems to be a more relaxed standard regarding the doctrine of
undivided loyalty. An appropriate stating point could be the case of Levin v Clark here
Justice Jacobs took a wider view and accepted the existence of sectional interests on the
corporate board. He said: It may be in the interests of the company that there be upon its
board of directors one who will represent these other interests and who will be acting
solely in the interest of such a third party and who may in that way be properly regarded
as acting in the interests of the company as a whole the fiduciary duties of directors
spring from the general principles, developed in courts of equity, governing the duties of
all fiduciaries agents, trustees, directors, liquidators and others and it must be always
borne in mind that in such situations the extent and degree of the fiduciary duty depends
not only on the particular relationship but also on the particular circumstances.
Here the circumstance were that the Articles of Association named two directors as
governing directors whose powers would only arise when the plaintiff defaulted on the
mortgage. This was inserted to protect the mortgagees interest when default arose.
Justice Jacobs reduced the concept of undivided loyalty further in the case of Re
Broadcasting Station 2GB Pty Ltd He found that the nominee directors were likely to
follow their appointer's wishes but considered this acceptable so long as they do not
knowingly sacrifice company's interest for those of their appointer. This has added
questions as to whether these nominee directors can be held as constructive trustees when
faced with the knowledge of their appointers. Justice Jacobs also relaxed the duty to
avoid a conflict of interest situation. He said: I do not think it sufficient for relief that
they have put themselves in a position where their interest and the duty which they have
taken directly upon themselves may conflict.

NEW ZEALAND
In New Zealand, the case of Berlei Hestia (NZ) Ltd v Fernyhough can be taken as a
starting point. In this case the judgment was delivered by Mahon J he said: As a matter
of legal theory, as opposed to judicial precedent, it seems not unreasonable for all the
corporations to be able to agree upon an adjusted form of fiduciary liability, limited to
circumstances where the rights of third parties vis--vis the company will not be
prejudiced.
Thus we see that situation here with regard to loyalty and conflict of interest is relaxed.
The situation being that if the company adjusted the standard of fiduciary duties then

directors need not be liable if they have divided loyalty.

INSIDER TRADING
Insider Trading means the buying or selling of a security by someone who has access to
material, nonpublic information about the security.
Nominee directors may bring to the board table prestige, expertise and knowledge, which
can benefit the company. Yet their dual or multiple fiduciary responsibilities to their other
companies may inevitably lead to conflicts of interests. These problems are likely to
increase as businesses become bigger and more international. Large multinationals
already hold commanding positions across a variety of markets and industries. Multinational companies have an impact on many foreign governments and the international
economy. The director who is a nominee of a substantial shareholder is between the devil
and the deep blue sea. The doctrine of undivided loyalty and conflict of interest are two
burdens on him. A nominee director of a particular institution is always faced with the
problem of whom to serve.
Lets take an example wherein a board meeting has just been concluded and in the
meeting discussions were going on as to what will be the next project of the company.
The project that the company is planning to undertake is very risky in nature and could
lead to major devaluation of shares of the company in the share market and could also
lead to the company incurring losses. What should the nominee director do here? The
information that he has received because of his being a director in the company is price
sensitive and passing on this information to the institution which is a third party to the
entire process can lead to him being charged under the Insider Trading regulations .
If we look into sec 2(e) of the enactment that defines an insider we see that it says that
insider means any person who is or had been connected with the company and had access
to unpublished price sensitive information. Thus the act of a nominee director of leaking
an unpublished price sensitive information of the company which had been passed on to
him as a trustee of the company can land him in trouble under Sec 3(ii) of the
Regulations wherein passing of such kind of information is strictly prohibited. But if he
follows all this and doesnt alert the institutional investor of the risky decision that the
company is planning to start the whole purpose of a nominee being sent to the Board to
look after the institutions interest are nothing but a waste of time.

CONCLUSION
Nominee directors as a concept exists worldwide, Institutional investors put them on the
board of a company where they have put in substantial amount of their money thereby
assuring themselves that there is somebody in the board who will take care of their
interest and see that their money is being invested in places where it ought to be. As the
nominee director is a member of the board he is required to act as per the duty laid down
for a director, but herein we find that they are in dual capacity with a responsibility to
secure both organizations interest. Sometimes there may be a conflict of the two interests
consequentially questioning the loyalty of a nominee director. Thus the question before us
is whether there is any need for nominee directors in the present world.
When an investor invests money in a corporation, he expects the board and the
management to act as trustees and ensure the safety of the capital and also earn a rate of
return that is higher than the cost of capital. In this regard, investors expect management
to act in their best interests at all times and adopt good corporate governance practices.
Nominee directors are appointed by these financial institutions because they feel
reassured that there is someone on the Board of the company which has taken the loan,
who will secure their interest. But what actually happens is that half the time the nominee
is caught in a wrap of loyalty and conflicting interest. For him on the one side there is the
company to whom he is a trustee and on the other side is the organization who has
nominated him to be the director in the company to safeguard their interest. Caught in
this wrap, the nominee director may find himself in a catch situation and as a result may
end up being a mute spectator.
Nominee Directors are appointed to safeguard the interest of the investors. The
committee report of CII laid down the corporate governance principles and stressed on
the point of long term shareholders interest and of the investors. Now in the light of SEBI
notification, they have been abolished from Public listed companies. It lead to situation
where all companies which are listed, and have investments from various leading FIs
would be able to work at their whims and fancy, without the concern of the world and
may even take steps which in ordinary course of business would be very dicey. In such a
situation, although the company is just having a strategic movement, the investors, whose
money is involved in the company cannot do anything to safeguard their interests.
In an article published in the Hindu Business Line says Let Nominee Director Stay. The
reason given in Narayan Murthy committee report for abolishing Nominee directors are
not sufficient. It speaks of a feeling among the members that such an arrangement creates
a conflict of interest which, it goes on to add, should be avoided. Implicit in this is the

belief that the principle of a conflict of interest is so apparent and by extension


indefensible as to need any reiteration. But that is far from the case. The recommendation
that SEBI direct listed companies not to have such nominees (as part of listing
conditions) is not practical as financial institutions are mandated by governmental
directives to have such nominees on boards of large industrial undertakings to which they
have lent money or have investment exposure in. Unless these institutions are privatized,
they would continue to be dictated by such directives and incorporate nominee
directorship clause in the financial arrangements that they enter into with listed
companies.
Another reason is that Nominee Directors lead to insider trading. Insider trading is often
equated with market manipulation, yet the two phenomena are completely different.
Manipulation is intrinsically about making market prices move away from their fair
values; manipulators reduce market efficiency. Insider trading brings prices closer to their
fair values; insiders enhance market efficiency.
Insider trading appears unfair, especially to speculators outside a company who face
difficult competition in the form of inside traders. Individual speculators and fund
managers alike face inferior returns when markets are more efficient owing to the actions
of inside traders. This does not, in itself, imply that insider trading is harmful. Insider
trading clearly hurts individual and institutional speculators, but the interests of the
economy and the interests of these professional traders are not congruent. Indeed, inside
traders competing with professional traders is not unlike foreign goods competing on the
domestic market the economy at large benefits even though one class of economic
agents suffers.
Even if restrictions on insider trading were considered desirable, their sound
implementation is extremely expensive. A wide variety of individuals can be classed as
insiders by virtue of possessing information material to securities prices top
management, upstream and downstream producers, regulatory and enforcement
authorities, professional advisors, etc. Further, the universe of associates through whom
insiders could route their trades is very large family, friends, business associates who are
"paid" in information, etc. Enforcement of restrictions upon insider trading runs the risk
of either being ineffective or being a witch-hunt. Even if there are pockets of high quality
enforcement, they would not appear fair in an environment where insider trading is
otherwise rampant.
What the Narayan Murthy committee reports states is that the investors should become
shareholders and then as they no more would be a third party, they could appoint
institutional director. As they are now part of the company, they would have equal right to

information. Thus prima faci, it solves the problem of insider trading (if there is any) and
any other problems with the functioning of Nominee Directors, but practically it just
legalizes the entire concept of Nominee Directors again. Meaning for example, if the
investor holds a large chunk of shareholding and then a director is appointed by the
shareholders, it would also lead to the same position as that of a nominee director. After
all, such institutional director would also work for the benefit of the shareholders and
majority of whom, in the present instance are investors. It thus is a new and refined word
for nominee directors, but will almost have the same type of working as nominee
directors.
As eminent columnist Sucheta Dalal rightly says we in India can forgot about legally
mandated board reform. Our regulators are too timid to force such drastic change on
Indian companies.

Bibliography
Primary sources
Books:

Saharay H.K., Company Law HYPERLINK "https://books.google.co.in/books?


id=DLDER3JiopwC&pg=PA209&dq=guidelines+for+appointment+of+nominee+
directors+by+ministry+of+finance&hl=en&sa=X&ved=0CDAQ6AEwAmoVCh
MI4-60n6vdyAIVwxmUCh3Fagyh" (5th Edn),209
Subhash Chandra Das, Corporate Governance: Codes, Systems, Standards and
Practices (PHI learning pvt. Ltd., New Delhi, 2009) 140

Jounals:

The Journal of Finance, Vol. 57, No. 1

Journal of accounting and public policy ,2003

Journal of Banking & Finance, Volume 32, Issue 12, December 2008

Columbia Law Review, volume 108, issue 8, December 2008

Secondary Sources

Websites:

http://www.sebi.gov.in/commreport/corpgov.html
https://www.academia.edu/8373320/Nominee_Directors_and_Corporate_Governa
nce
http://financialservices.gov.in/ncapp/notificationindex.aspx
http://www.cii.in/PublicationDetail.aspx?
enc=XIzbtZwbsursJ+u0IwC24h9n+6JSqZP+BH0fA9nR4wY
http://www.nfcgindia.org/desirable_corporate_governance_cii.pdf
http://www.bakermckenzie.co.jp/e/material/dl/seminar/emi/2-3.pdf
www.jstor.org/