Originally published in Chartered Secretary, May 2012
Guernsey's much discussed corporate governance code came into effect at the beginning of the year. Carol Goodwin highlights its key principles, asserting that good corporate governance is about board behaviour and not always about the rules.
Never has so much been demanded from boards, their directors and their company secretaries since the start of the turmoil in the global economy. Never have their skills, knowledge and experience been so highly challenged; and never, ever have robust procedures and systems of governance been so vital.
What have we learned from the recent global financial crisis? Robust systems of governance cannot be sidelined:
- Directors must commit appropriate time and resources to the job and have the capacity for independent thought.
- Managers must welcome the scrutiny of directors and keep them fully informed.
- Directors and managers must communicate and engage effectively with investors and shareholders.
- Regulators and legislators must take great care in handling issues that have been identified through the financial crisis. They must also act sensitively in implementing and enforcing corporate governance guidelines to ensure they remain proportionate to individual businesses.
- Ongoing training and development of directors is essential to ensure that boards continue to be fit for purpose.
It was within this context that I agreed to assist the Guernsey Financial Services Commission (GFSC) in developing a Code of Corporate Governance (the Code) for Guernsey's finance sector, and also because I believed two things:
- this was something that needed to be driven by practitioners rather than regulators, on the basis that it is the behaviour of practitioners it seeks to influence; and
- if we have the right people heading our financial services business in the right way and providing robust governance and oversight, then there should be less need for rigid and voluminous new regulation.
The GFSC's Code of Corporate Governance was issued on 30 September 2011 and came into effect on 1 January 2012. It comprises just eight key principles:
- The board: companies should be headed by an effective board of directors (the board), which is responsible for governance.
- Directors: directors should take collective responsibility for directing and supervising the affairs of the business.
- Business conduct and ethics: all directors should maintain good standards of business conduct, integrity and ethical behaviour and should operate with due care and diligence and at all times act honestly and openly.
- Accountability: the board should have formal and transparent arrangements in place for presenting a balanced and understandable assessment of the company's position and prospects and for considering how they apply financial reporting and internal control principles.
- Risk management: the board should provide suitable oversight of risk management and maintain a sound system of risk measurement and control.
- Disclosure and reporting: the board should ensure the timely and balanced disclosure to shareholders and/or to regulators of all material matters concerning the company.
- Remuneration: the board should ensure remuneration arrangements are structured fairly and responsibly and that remuneration policies are consistent with effective risk management.
- Shareholder relations: the board should ensure that satisfactory communication takes place with shareholders and is based on a mutual understanding of needs, objectives and concerns.
So, the code comprises these 8 principles and also 35 pieces of guidance on best practice. It is intended to provide board directors and company secretaries with a useful tool, which allows them to demonstrate internationally accepted, good corporate practice. It is not, however, intended to become overly burdensome – otherwise it will have missed its mark. Indeed, the last thing that the practitioner working party who helped draft the Code wanted, was for its introduction to make local industry less competitive with rival jurisdictions.
In addition, the Code also does not seek to duplicate work already carried out by exchange listed companies, and as such, those companies who report against the UK Corporate Governance Code or the Association of Investment Companies Code of Corporate Governance, are deemed to meet the GFSC Code.
In its first incarnation, over two years ago, the initial draft of the Code spanned some 23 pages, but was subsequently 'slimmed down', as a result of extensive consultation with Guernsey's finance industry. In fact, it has been arguably the most collaborative consultation process the GFSC has ever undertaken. The Code is now much more proportionate and takes better account of the nature, scale and complexity of companies, from small owner operated trust companies to large international banks.
The Code also recognises that 'one size does not fit all'; the final version is much less prescriptive and represents a more workable document, which better reflects the governance needs of Guernsey's finance industry. Corporate governance is about board behaviour, but is equally about company 'performance', not just 'conformance'
As a result of the global financial crisis, going forward, it is expected that there will continue to be a need for greater governance and oversight by boards and increased disclosure and transparency. There is likely to be a wider requirement for companies to declare and report in much more detail, and to more carefully consider such things as asset values, liquidity and credit risk, in addition to taking a closer look at business models. Annual business reviews and evaluations of 'going concern' status will also need to be taken more seriously than in the past.
However, ticking and checking against new rules will not produce better company performance. But, searching questions by directors about company activities and business models might. It is critical that boards have a full and proper understanding of the business being pursued by the companies they represent. It is also critical that directors and shareholders are not swamped with detailed information that is so voluminous they cannot see the wood for the trees.
For shareholders there is an obvious self-interest in good corporate governance. Empirical data has proved that it contributes to better company performance by helping the board discharge its duties in the best interests of shareholders; thereby delivering better shareholder value over the long term. But aren't these best interests also firmly aligned with the duties of every director?
In Guernsey we have a first-class pool of professional and experienced directors, who already take their fiduciary responsibilities very seriously. The introduction of the GFSC's Code of Corporate Governance will reinforce the message that we conduct ourselves in a highly professional manner in Guernsey, and show that we are in touch with what the market and investors want to see.
Indeed, it should give the Guernsey finance sector a demonstrable competitive advantage. At the end of the day, though, corporate governance is about getting the right people, with the right blend of skills, knowledge, experience and diversity (yes, including gender diversity!) doing the right things for the business.
Bottom line: It's about a director's behaviour – not about a set of rules.
Carol Goodwin is a Director of Investec Bank (Channel Islands) Limited and also acts as a Director for other subsidiary and associated Investec companies. In addition, she is Vice Chairman of another Guernsey bank and serves as a Nonexecutive Director for a number of other financial services entities. Goodwin was the primary draftsman of the GFSC Finance Sector Code of Corporate Governance and led the Practitioner Working Party in the development of the Code.
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