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Corporategovernancemechanismshavethepurposeofmonitoring managementofcorporationssoastoresultinmore
effective
the
managementandto board,
its
enhanceshareholdervalue.Itisalsosaidtobeakey elementinimprovingeconomic efficiency andinvolvesasetofrelationshipsbetweenacompany’smanagement,its shareholders, and otherstakeholders
The successful implementation of corporate governance mechanisms enables a corporation to balance the need for managerial risk-taking and commercial abilities with procedures for monitoring and setting policy so that the actions of management match with the interests of shareholders and the community.
Large or controlling shareholders generally have substantial control and influence over company matters and have powerful incentives to use company resources since they bear only a fraction of the total cost. It has been suggested that without vigilant oversight, large shareholders are prone to exploit minority shareholders wealth (Faccio and Lang, 2002). It has also been documented that large concentrated shareholders extract private rents through special dividends (DeAngelo et al., 2000), while Claessens et al. (2000) note that large concentrated shareholders canexpropriate minority shareholderswealth through excessivecompensationschemes and related party transactions (RPTs).
The focus of this paper is to look at diverse ownership structures, especially thecontrolling shareholder system, and their impact on corporate governance. The paper will then go on to deliberate the agency problems in concentrated shareholder PLCs in general and Malaysian PLCs specifically. The paper will then conclude by suggesting solutions
to
overcomethese
agency
problemsinconcentrated
shareholding
public-listedcompanies.
It can be seen from recent research that minority shareholder protection is at different levels in developed and emerging markets and depending on whether it is dispersed or concentrated ownership of shares.
Coffee (2001) defined dispersed ownership and concentrated ownership as follows: A dispersed ownership system, characterized by strong securities markets,rigorous disclosure standards, and high market transparency, in which the market for corporate control constitutes the ultimate disciplinary mechanism;and
A concentrated ownership system, characterized by controlling block holders, weak
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securities markets, high private benefits of control, and low disclosure and market transparency standards, with only a modest role played by the market for corporate control, but with a possibly substitutionary monitoring role played by large banks.
In Berle and Means (1932), called attention to the prevalence of widely held corporations in the USA, in which ownership of capital was dispersed between small shareholders, yet control was concentrated in the hands of managers (Baumol, 1959; Penrose, 1959; Marris, 1964). However, in recent years, several studies have begun to question this theory. Shleifer and Vishny (1986) and Demsetz (1983) have shown that even in the largest American companies, there is a modest concentration of ownership. Thillainathan (1999) says that in developing economies like Malaysia, ownership is also heavily concentrated.
Claessens et al. (2002) in their research found that in Malaysia, the top ten families control about 25 percent of the total market capitalization. Zulkafli et al. (2005) found that total shareholding of the five largest shareholders in Bursa Malaysia at December 1998 was 58.84 percent, a figure which has decreased slightly in recent times. The study conducted in 2006 and reported in 2007 by Tam and Tan (2007) found theaverage concentration of the five largest shareholders in the top 150Malaysian-listed companies is 54.85 percent.
Asstatedearlier,Malaysiahasconcentratedshareholding.Therefore, thedeliberation in this paper will be on concentrated shareholding. When there is a majority shareholder who holds a large block of shares, the third party may choose to make an agreement with that majority shareholder before considering making an offer to the non-controlling shareholders. This would cause agency problems between the third party and the non-controlling shareholders because the controlling shareholders would be selling control of the company to the third party, allowing the third party to “benefit” from the company or who may choose not to recognize the rights of the minority shareholders (Hannsmann and Kraakman, 2004).
When a third party makes an offer to acquire a company that has a controlling shareholder, the minority shareholders and the management would not be able to practice its decision rights because the majority shareholder would decide whether to sell the company or not. In the event that a fair exit strategy is to be provided for all shareholders, more specialized rules would be required because company law does not encompass
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these matters, and the general company law does not make it compulsory for the majority shareholders toshare the decision rights when there is a sale of control with the non-sellingminority.Thelaw alsodoes not make it mandatory for controlling shareholders to buy out minority shareholdings at the same rate as offered by the third party (Hannsmann and Kraakman, 2004).
The large number of PLCs has institutional investors, fund managers, insurance companies, and other discretionary investors managing portfolios of shares on behalf of savers. The proposals on transparency and the controlling powers of shareholders are fundamentally dependent on the responsible, diligent, and active exercise of their powers bythese fiduciaryinvestors.New rules to strengthen the powers of institutional investors should be introduced.
Stronger link between managerial compensation to performance Problems arise because of lack of alignment of the interests of shareholders and management. To make theseinterests more congruent,a significant portion of managerial compensation should be linked to the value created by the management. Further, the rewards to the managers may be based on relative performance, rather than absolute performance.
In conclusion, I would like to restate that good corporate governance is essential to economic stability and growth in developed and developing economies: The essential point is that good corporate governance is an aid to effectiveness. It is notthere to shackle enterprise but to harness it in the achievement of its goals (AdrianCadbury).
Malaysia seems dedicated towards promoting the development of sound corporate governance systems and practices. Indeed, considerable progress already has been achieved. Yet, as seen, even in the most advanced economies, there have been signs that some developments in markets have outpaced the development of corporate governance systems andpractices.Inanever-changing world,this is nothing new, financial policy makers, supervisors, and regulators are always trying to catch up with the evolution of markets.
Malaysia’s corporate governance systems and practices should be constantly developed to keep up with the evolution of markets. The OECD paper in 1999 (Ad Hoc Task Force on Corporate Governance, 1999) aptly stated it this way:
If countries are to reap the full benefit of the global capital market, and if they are to attract long-term “patient” capital, corporate governance arrangements must be credible
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and well understood across borders. Even if corporations do not rely heavily on foreign sources of capital, adherence to good corporate governance practices will help improve the confidence of domestic investors, may reduce the cost of capital and ultimately induce more stable sources of financing.
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附录2
原文题目：《上市公司的股权结构与公司治理完善》 作者：Shanthy Rachagan
原文出处: Journal of Financial Crime Vol. 17 No.4, 2010pp. 430-440
上市公司的股权结构与公司治理完善
公司治理是经常被用来解释一个公司的管理，审议并追究其责任。公司治理 已成功地得到了市民的关注，因为这对企业和整个社会的经济健康是非常重要 的。比较1997/1998年亚洲金融危机和最近的全球金融危机，这可以观察到最近 企业和社会的利益已经得到明显的好转。
企业管治问题迈向更大改善依然依赖于全球资本市场的全球化。我们普遍 认为，全球移动通信公司将资金投入，这是有利于企业管理和促使股东权益最大 化，同时时公司治理最佳做法。此外，公司治理中，重要的是增强投资者的信心， 特别是在新兴经济体里。这必须通过适当的监测保证，才能将这个过程做到位。
在公司发展中，治理过应有较高信心，对未来有所期望，努力在上市公司的 投资界（PLC）公开自己发展，以确保企业行为适当。重点是更多地自我调节， 而不是制度。
公司治理机制的管理要有监督机构，以产生更有效的管理，并提高股东价值 的目的。它也是在提高经济效率的关键因素，涉及一间公司的管理层，董事会， 股东关系的集合，其他利益相关者。
公司治理机制的成功实施，需要公司以平衡管理的冒险性和商业能力来负责 监测和制定政策的程序，使管理的行动配合股东和社会的利益。
大股东或控股股东对公司业务具有一定控制力和影响对，并有强大的动力， 因为公司的资源使用他们只承担总成本的一小部分。有人说，如果不警惕监督， 大股东很容易利用少数股东财富（Faccio和Lang，2002）。曾经有大型集中的股 东通过特别分红中提取私人租金（DeAngelo等，2000），而Claessens等人（2000） 指出：大股东
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