本文是商业Essay范例，题目是“Corporate Governance UK USA（公司管理英国美国）”，我的论文将着重于对英美两国公司治理实践的考察和比较。在这一特定部门进行的广泛改革导致人们对这两个国家所采用的公司治理制度的效力和信誉产生了许多怀疑。由于这个原因,对特定问题的研究被认为是非常有价值的，为世界各地的研究人员和管理人员提供了一个了解公司治理的各个方面的机会，并(在可能的情况下)将他们的商业战略与适用于每个特定市场的相关公司治理原则相结合英国和美国的例子)。此外，本研究可以帮助识别适用于英国和美国的公司治理政策的任何潜在的弱点，建议对相关规则进行适当的改革。
Introduction介绍
My dissertation will focus on the examination and the comparison of the corporate governance practices followed in UK and USA. The extensive reforms that have taken place in the particular sector have led to the development of many doubts regarding the effectiveness and the credibility of the corporate governance systems applied on these two countries. For this reason, the examination of the particular issue is considered to be really valuable offering to researchers and managers around the world the chance to understand the various aspects of corporate governance and align (where possible) their business strategies with the relevant corporate governance principles applied on each specific market (referring to the cases of UK and USA). Moreover, this study could help to the identification of any potential weaknesses of the corporate governance policies applied on UK and USA suggesting appropriate reforms on the relevant rules.
Background:背景:
Business activities around the world have often caused the interest of governments within the particular states. The reason is that all parts of these activities need to be appropriately regulated in order to offer adequate and effective protection to the stakeholders and the public in general (referring mostly to protection from severe financial losses that can threat the viability of the company but even the level of the development of the local economy – when the firm under examination is a well established one, eg Enron). However, because there are many differences in corporate structure internationally, it is necessary for legislators to each specific state to try to adapt the legal principles that are related with business activity with the social and cultural characteristics of each particular state; the size of the firm and its culture should be also taken into consideration. The particular issue was examined by Douglas et al. (1989, 440) who noticed that ‘differences in environmental conditions in different country markets, in terms, for example, of market size and growth, rate of technological change, or barriers to entry, may also lead to differences in strategy’. In other words, corporate activity is a complex network of actions and initiatives that need a careful review and close monitoring by the governmental authorities in order to ensure the safety of the transactions without influencing the development of the various corporate projects.
世界各地的商业活动常常引起特定国家政府的兴趣。原因是这些活动需要适当监管的所有部分为了提供适当和有效的保护利益相关者和公众(主要是防止严重的财务损失,甚至会威胁公司的生存能力但当地经济的发展水平当被调查的公司是一家有信誉的公司时(如安然公司)。然而，由于公司结构在国际上存在许多差异，各国立法者有必要尝试将与企业活动有关的法律原则与各国的社会和文化特点相适应;公司的规模和文化也应该考虑在内。道格拉斯等人(1989,440)研究了这一特定问题，他们注意到“不同国家市场的环境条件的差异，例如，市场规模和增长、技术变化速度或进入壁垒，也可能导致战略的差异”。换句话说，公司活动是一个复杂的行动和倡议网络，需要政府当局仔细审查和密切监测，以确保交易的安全，而不影响各种公司项目的发展。
As noticed above, the dissertation will focus on the examination of a specific aspect of corporate activity: the corporate governance. The latter can refer to a series of elements within a particular organisation starting from the principles that should be applied to the governance of a firm up to the relationships between the employer (board of directors) and the employees. On the other hand, globally two major corporate governance systems are recognised: the liberal form of corporate governance (UK and USA) in which the interests of shareholders are considered to be the major priority for legislators when developing laws related with business activities. In accordance with the coordinative model (accepted mostly by Europe and Japan) the interests of other participants (in the corporate activities) like employees, customers and suppliers are considered to have a crucial role in the formulation of the laws regulating business activities. This study will refer primarily to the corporate governance schemes applied in UK and USA. For this reason, the corporate governance system of these two countries will be analytically presented highlighting the potential differences and also the advantages of each one of them within the modern market.
如上所述，本论文将重点考察公司活动的一个具体方面:公司治理。后者可以指一个特定组织内的一系列元素，从应该应用于公司治理的原则到雇主(董事会)和雇员之间的关系。另一方面，全球公认的两大公司治理体系是:自由形式的公司治理(英国和美国)，立法者在制定与商业活动有关的法律时，将股东的利益视为主要优先事项。根据协调模式(大多数为欧洲和日本所接受)，员工、顾客和供应商等(在公司活动中)其他参与者的利益被认为在制定管理商业活动的法律方面具有关键作用。本研究将主要参考英国和美国的公司治理方案。出于这个原因，这两个国家的公司治理体系将被分析提出，突出潜在的差异，也各自在现代市场的优势。
From another point of view, the examination of the various aspects of corporate governance cannot be achieved without the analytical presentation of the characteristics of corporate governance through an appropriately customised definition. In this context, it is stated by Buck et al. (2005, 42) that ‘corporate governance and governance institutions in general terms are concerned with the means by which a firm’s stakeholders control the decisions of senior managers; these stakeholders can include shareholders, executive directors, employees who are not executives, customers, creditors, suppliers (including banks as suppliers of credit), competitors, and the State’. From another point of view, Pedersen (1999, 45) supported that ‘corporate governance – the mechanisms by which companies are controlled and directed – is a complex subject that consists of owner-manager relations, stakeholder relations, board structures and practices, management compensation, capital structure, company law, and other variables’. Both the above definitions present the particular aspects of corporate governance within the modern market; no differentiation in corporate structure seems to be made in accordance with the principles of the state of activity (or the state of origin). On the other hand, the study of Fort (2000, 829) led to the conclusion that ‘corporate governance can be described as the top management process that manages and mediates value creation for, and value transference among, various corporate claimants in a context that ensures accountability to these claimants’. In accordance with the above definition the development of the various aspects of corporate activities is decided by the firm’s managers; the intervention of the state is rather limited. Indeed, the increase of the power of top management in modern businesses around the world is also highlighted by the literature and the empirical research. In a relevant report it is noticed that ‘the principal weakness of corporate governance today is the excessive concentration of power in the hands of top management; rebalancing or equalising this power is a prerequisite for controlling management fraud and promoting accurate financial reporting’ (CPA Journal, 2008). The above described concentration of power can have severe consequences for both the stakeholders and the public in general. In the case of Enron the concentration of power in the firm’s top managers led to the unexpected collapse of the firm and the development of severe turbulences in American economy.
Literature Review
Corporate governance – general aspects公司管治-一般方面
Firms that operate within the modern market have to face a series of challenges related with both their internal and external environment. In this context, it is supported by Wooldridge et al. (2001, 17) that ‘the main challenge for companies in a global economy is to situate themselves in various centers of excellence and weave together different centers of excellence into a global production network’. From a different point of view, Gooderham et al. (1999, 507) noticed that ‘despite their very different assumptions, both rational and institutional explanations of organizational structure and management practices predict similarity among firms that operate in the same industry within the context of a simple country’. In other words, the regulation of business activities today can be effective only if it takes into consideration the various aspects of these activities as they are formulated within the modern market – taking always into consideration the changes in the needs of the firm’s shareholders but also in the needs of the stakeholders. On the other hand, it is clear that extensive differentiations can be observed in the methods of corporate governance applied to modern firms in accordance with the social and cultural characteristics of these firms but also the social and cultural context of the country in which the firms’ operations are based.
在现代市场中经营的企业必须面对一系列与内外部环境相关的挑战。在这种背景下，Wooldridge等人(2001,17)支持“全球经济中公司的主要挑战是将自己置于不同的卓越中心，并将不同的卓越中心编织成一个全球生产网络”。Gooderham等人(1999,507)从不同的角度注意到，“尽管他们的假设非常不同，但组织结构和管理实践的理性和制度解释都预测了在一个简单国家的背景下，在同一行业中运营的公司之间的相似性”。换句话说,今天的业务活动监管可以有效只有在考虑了这些活动制定的各个方面在现代市场——考虑到总需求的变化公司的股东在利益相关者的需要。另一方面,很明显,广泛的分化可以观察到在公司治理的方法应用于现代企业按照这些公司的社会和文化特征也是这个国家的社会和文化背景下的公司的操作。
The theoretical and empirical research has proved that significant differences can be observed in all aspects of business activities in accordance with the social and cultural characteristics of a specific region – where business activities are mainly developed. The differences mentioned above can refer to specific management issues or they can refer to all business context. In the case of British firms, Scullion (1994, 86) noticed that ‘very few British companies can claim to have a truly international top management team’. Other issues of corporate activity may be differentiated under the influence of the social and cultural trends applied on a specific country/ region.
In order to understand the importance of corporate governance for the development of the business activities, we should refer primarily to a clear description of the interests existed within any corporation: the stakeholders from one side and the shareholders from the other. Regarding this issue, it is noticed that ‘stakeholders, broadly defined as society as a whole, are interested in the collateral benefits derived from the success of the enterprise, such as the abundance of a product or a service, a clean environment, or a general rise in the standard of living; stockholders have a dual interest in the success of the enterprise: direct interest as a reward for their investment, and collateral benefit as stakeholders’ (CPA Journal, 2008). The conflict of interests of these two sides can lead to the development of severe turbulences within the organization. On the other hand, in firms that the interests of both these sides are protected it is very likely that there will be no severe problems in the communication and the cooperation between these parties towards the increase of the firm’s performance.
为了理解公司治理对企业经营活动发展的重要性，我们首先应该对任何公司内部存在的利益进行明确的描述:一方是利益相关者，另一方是股东。关于这个问题,它是注意到的利益相关者,一般定义为社会作为一个整体,感兴趣的担保利益来源于企业的成功,比如大量的产品或服务,干净的环境,或一般生活水平的上升;股东在企业的成功中有双重利益:作为投资回报的直接利益和作为利益相关者的附带利益(CPA Journal, 2008)。双方的利益冲突会导致组织内部出现严重的动荡。另一方面，在双方利益都得到保护的企业中，双方为提高企业绩效而进行的沟通和合作很可能不会出现严重问题。
It should be noticed that the principles of corporate governance are primarily stated by the governmental authorities (referring to the firms of a particular country). Apart from these orders, the international community can intervene in the business activities presenting a series of standards that should be met in the corporate activities worldwide. OECD is a well known international organization that provides appropriate solutions to a series of issues related with international business activities. The specific organization has set several rules regarding the various aspects of corporate governance. In accordance with these rules: ‘’all shareholders should be treated equally; insider trading and abusive-self dealing should be prohibited; capital structures and arrangements that enable certain shareholders to obtain a degree of control disproportionate to their equity ownership should be disclosed’ (OECD, 2004, 18-19). It is clear from the above rules that international organizations can set rules regarding business activities around the world; however these rules can be characterized rather as ‘principles’ of commerce being similar with the ethics held in corporate activities worldwide.
Corporate governance in Britain英国的公司治理
In the case of Britain, the regulation of business activities is realized through the application of a series of legislative texts and orders. The history of business activity in the particular country was examined by Pedersen (1999, 45) who noticed that ‘the industrial revolution took its beginning in the United Kingdom more than 250 years ago; therefore, the hypothesis of greater differentiation in the early industrialized nations than in later industrialized nations can be tested by examining the extent to which the corporate governance structures of U.K. firms are more or less similar to the governance structures of firms in other nations’. In other words, Britain is a country with a significant history in business activities. The importance of the latter in the economy should be considered as extremely high. For this reason the legislator pays a significant attention to the development of the appropriate legal framework for the regulation of the various aspects of corporate governance. The above assumption is in accordance with the view of Kay (1995, 84) who supported that ‘British statute law is virtually silent on how corporations are to be organised; since the corporation is regarded as a creation of private contract, obligations on companies are mainly there to prevent abuse of the privilege of limited liability, and concern formal matters such as registration and audit’. Because of the above phenomenon, additional legislative texts (as described below) have been introduced and applied in order to support the effective regulation of all corporate governance in British firms (foreign firms that operate in Britain may have the right to claim the application of the laws of their country of origin – it depends on the law applicable on each case taking into account the firm’s articles of association but also the legislation of the country of origin and the country of operations). However, it could be noticed that the British statute law recognizes to the firm’s leaders (board of directors) the right to decide on the firm’s corporate governance.
在英国，对商业活动的规制是通过运用一系列的立法文本和法令来实现的。Pedersen(1999, 45)研究了特定国家的商业活动历史，他注意到“工业革命在250多年前就在英国开始了;因此，早期工业化国家比后期工业化国家更大分化的假设可以通过检验英国公司的公司治理结构或多或少类似于其他国家公司的治理结构的程度来检验。换句话说，英国是一个在商业活动方面有着重要历史的国家。后者在经济中的重要性应该被认为是非常高的。因此，立法者非常重视制定适当的法律框架来规范公司治理的各个方面。上述假设与Kay(1995, 84)的观点一致，Kay支持“英国成文法对公司如何组织实际上是沉默的;由于公司被认为是一种私人合同的创造，公司的义务主要是为了防止有限责任特权的滥用，并涉及注册和审计等正式事项。由于上述现象，附加立法文本(如下所述)进行了介绍,并应用为了支持所有英国公司公司治理的有效的监管(在英国经营的外国公司可能有权索赔的应用法律的原产地——这取决于法律适用在每种情况下考虑到公司的章程，也考虑到原产国和经营国的立法)。然而，可以注意到，英国成文法承认公司领导人(董事会)决定公司的公司治理的权利。
The legal framework applied in UK regarding the corporate governance includes a variety of legislative texts:
‘Common law rules (e.g. directors’ fiduciary duties).
Statute (notably the Companies Act 1985).
A company’s constitutional documents (the memorandum and articles of association).
The Listing Rules, which apply to all companies that are listed on the Official List (or AIM Rules, as appropriate).
The Combined Code on Corporate Governance; the Code is supplemented by: the Turnbull Guidance (relating to the internal control requirements of the Code), the Smith Guidance (on audit committees and auditors) and suggestions of good practice from the Higgs Review.
Non-legal guidelines issued by bodies that represent institutional investors (such as the Association of British Insurers (ABI), the National Association of Pension Funds (NAPF) and the Pensions & Investment Research Consultants (PIRC).
In the context of takeovers of public companies, the City Code on Takeovers and Mergers and the rules of the Takeover Panel apply.
The Financial Services Authority’s Code of Market Conduct (relating to the disclosure and use of confidential and price sensitive information and the creation of a false market)’ (Metropolitan Corporate Cousel, 2008)
In other words, corporate governance in Britain is regulated by a series of legal texts the most important of which is the Combined Code on Corporate Governance as described above. The specific Code includes provisions that refer to all particular aspects of corporate governance of firms operating in Britain; however because in some cases additional provisions may be required (like in the case of a merger) it is possible that other legislative texts are used in order for the relevant issues to be appropriately addressed. In any case the common law rules and the Companies Act of 1985 are applied (the former are rules that can be applied in any dispute – whenever necessary – whether the latter can be applied in any issue related with the business activity – i.e. not only to the corporate governance).
Corporate governance in USA美国的公司管治
On the other hand, in USA there is no Code for the regulation specifically of the corporate governance issues; instead a series of laws and courts’ decisions can be used in order to resolve problems that are related with the corporate governance of firms operating across the country. There are certain issues that are regulated directly by the law but these are limited; in the high majority of the disputes appeared in the area of firms’ corporate governance various statutes and other legislative texts can be applied. In accordance with a report published recently in USA ‘corporate governance practices in the United States are not regulated by any one particular statute but instead are affected by the governing instruments, the corporate law and the court decisions of each issuer’s state of incorporation, and, in the case of many publicly-owned issuers, by the U.S. federal securities laws and requirements of the national securities markets (Security and Exchange Commission of Brazil, 2008). On the other hand, it should be noticed that corporate governance issues are likely to be regulated differently by each one of the 50 states of USA. In this context, the Sarbanes-Oxley law which was introduced in 2002 has been formulated in order to offer a valuable legislative base for the regulation of various issues referring to the corporate governance of firms across USA. The above is considered to have influenced also the UK legislation related with the corporate governance. Regarding the specific legislative text it is noticed by Tran (2004) that ‘Sarbanes-Oxley, which called for tighter internal company controls, caused a rethink of corporate governance laws in the UK as well, with the publication of the Higgs report, written by Derek Higgs, the former investment banker’. The effectiveness of Sarbanes-Oxley Act 2002 has been extensively criticized. In accordance with Atkins (commissioner in United States Securities and Exchange Commission, 2003) the specific legislative text ‘contains many advances for corporate governance and attempts to provide best practices to prevent the misdeeds that have led to the investor losses. Many of these ideas are not new, but have been floating around in one form or another for quite a number of years’ (Atkins, 2003). In other words, Sarbanes-Oxley Act has been introduced in order to resolve specific problems in corporate governance for firms operating in USA; in the long term the achievement of this target can be doubted and only the examination of the consequences of application of this Act in practice could lead to a ‘safe’ assumption regarding the particular issue. It is for this reason that the incorporation of the empirical research (questionnaire) in current study has been considered as necessary.
另一方面，美国还没有专门针对公司治理问题的法规;相反，一系列法律和法院的裁决可以用来解决与全国各地运营的公司治理相关的问题。有一些问题是由法律直接规定的，但这些问题是有限的;在绝大多数的公司治理纠纷中，各种法规和其他立法文本都可以适用。依照最近发表的一份报告在美国的公司治理实践在美国不受任何一个特定的法规而受到影响的管理工具,每个发行人的公司法律和法院判决的结合状态,,对于许多公有化发行者,根据美国联邦证券法和国家证券市场的要求(巴西证券交易委员会，2008年)。另一方面，应该注意的是，美国50个州对公司治理问题的规定可能各不相同。在此背景下，2002年出台的《萨班斯-奥克斯利法案》(Sarbanes-Oxley law)的制定，旨在为美国各地涉及公司治理的各种问题的监管提供有价值的立法基础。这也被认为影响了英国与公司治理相关的立法。关于具体的立法文本，Tran(2004)注意到，“萨班斯-奥克斯利法案案呼吁更严格的公司内部控制，随着前投资银行家德里克·希格斯(Derek Higgs)撰写的希格斯报告的发表，也引发了对英国公司治理法律的重新思考”。《2002年萨班斯-奥克斯利法案案》的有效性受到了广泛的批评。根据Atkins(美国证券交易委员会委员，2003年)的说法，具体的立法文本“包含了许多公司治理方面的进步，并试图提供最佳实践，以防止导致投资者损失的不当行为。”这些想法很多都不是新的，但已经以这样或那样的形式存在了很多年。也就是说，《萨班斯-奥克斯利法案》的出台是为了解决在美国经营的公司治理中的具体问题;从长远来看，这一目标的实现是值得怀疑的，只有对实际应用这一法案的后果进行审查，才能对具体问题作出“安全”的假设。正因如此，我们认为有必要在本研究中纳入实证研究(问卷调查)。
Research question and objectives研究问题与目标
In accordance with the issues developed above, current study will focus on the regulation of corporate governance in two specific countries: UK and USA. Because the particular issues can include a variety of aspects, it is necessary for the relevant research to be expanded to the following questions: a) which is the current trends in corporate governance around the world, b) which are the major differences between the corporate governance practices followed by the Anglo-American countries and the countries of continental Europe/ Japan, c) which are the benefits and the pitfalls of the statutes and the other legislative texts applied on UK and USA regarding the corporate governance d) which are the most common problems related with the corporate governance in these two countries.
根据以上提出的问题，目前的研究将集中在两个特定国家的公司治理监管:英国和美国。由于具体问题可以包含多方面的内容，因此有必要将相关研究扩展到以下几个问题:a)目前全球公司治理的趋势是什么? b)英美国家和欧洲大陆国家/日本在公司治理实践上的主要差异是什么?c)英国和美国在公司治理方面适用的法规和其他立法文本的好处和陷阱d)这两个国家最常见的与公司治理相关的问题。
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