CORPORATE GOVERNANCE AND ETHICS

SUNIL KOHLIINDIAN DEFENCE ACCOUNTS SERVICEJoint Secretary And Financial AdviserNational Disaster Management Authority And National Disaster Response Force(NDRF),Ministry Of Home Affairs,IndiaDEFENCE FINANCE AND ACCOUNTS DEPARTMENT“ENSURING COMPLIANCE AND PROPELLING PERFORMANCE”2

INDIAN DEFENCE ACCOUNTS SERVICEDEFENCE FINANCIAL MANAGEMENT, AUDITING AND ACCOUNTING“ENSURING COMPLIANCE AND PROPELLING PERFORMANCE”3

PRESENTATION AT PANEL DISCUSSION ON THE “Corporate Governance and Ethics”ATBYSUNIL KOHLI, IDASJOINT SECRETARY & FINANCIAL ADVISERNATIONAL DISASTER MANAGEMENT AUTHORITY5

“PRESENTATION AT PANEL DISCUSSION ON THE “Corporate Governance and Ethics”bySunil KOHLI, IDAS ndc Indian Defence Accounts Service Joint Secretary and Financial Adviser,National Disaster Management Authority (NDMA) andNational Disaster Response Force (NDRF)6

“Corporate Governance and Ethics”Day 2: 10th June 20111345 Session Five – Panel DiscussionCorporate Governance and Ethics: Whose responsibility is it?Strengthening the structure of board of directors and stakeholders for appropriate management control structuresWorking in synergy with the top management to ensure compliance to all regulations within the different business entitiesTracking the compliance of the organization with various tools and making necessary amendments to organization structures7

“Corporate Governance and Ethics”Corporate Governance and Ethics: Whose responsibility is it?ModeratorUdayPhadkePresident Finance, Legal & Financial Services Sector, Member of Group Executive Board; Mahindra & MahindraPanelists:Sunil Kohli, IDAS ndcJoint Secretary & Financial Advisor, National Disaster Management Authority, Ministry of Home Affairs Anil ParasharCFO; Interglobe Enterprises8

PrecapContextCorporate GovernanceKey IssuesCORPORATE GOVERNANCE VOLUNTARY GUIDELINES 2009My Key FocusPanel QuestionsViews and Clarifications9

Context:The initial stimulus for corporate governance reforms came after the South-East and East Asian crisis of 1997-98.Governments, multilateral institutions, banks and companies recalled that the devil lay in the details — the nitty-gritty of transactions among companies, banks, financial institutions and capital markets; corporate laws, bankruptcy procedures and practices; the structure of ownership and crony capitalism; stock market practices; poor boards of directors with scant fiduciary responsibility; poor disclosures and transparency; and inadequate accounting and auditing standards10Corporate Governance

CONTEXT2003: IFAC Research:16 companies were classed as failures including Cable & Wireless (UK), Enron (USA), France Telecom (France), Marconi (UK), Marks & Spencer (UK), Nortel Networks (Canada), WorldCom (USA), Xerox (USA) etc.The most common problems:Poor ethical standards at the top; Aggressive targets and earnings management; Misaligned incentivesA CEO too dominant and charismatic; Weak board of directors (too cozy with CEO); Weak internal controls (e.g., poor resource management)A CFO too involved in aggressive merger and acquisitions (M&A) strategies; Poor choice of strategy and lack of clarityPoor execution (especially unsuccessful mergers and acquisitions)Failure to respond to change quickly enough11

CONTEXTEnron. Tyco. WorldCom. Vivendi. Satyam. Mention any one of them and the response you get is rolling eyes and shaking heads. So what happened? Excessive risk-taking driven by overly aggressive targets and accompanying incentives does seem to have opened the door for unethical behavior, info-manipulation, dishonest reporting, made even worse by ineffective governance and control mechanisms. Consequent legislated corporate and management accountability standards shouldn’t surprise anyone. 12

CEOs “cashed out” prior to economic crisis13CEOs at major US financial and real estate firms converted tens of millions of dollars of overvalued stock into cash prior to the eruption of the current financial crisis.Shocking Reality Check

Breed Culture of Macho Management and Self interest

Block Information and Transparency.Context:After the Enron debacle of 2001, came other scandals involving large US companies such as WorldCom, Qwest, Global Crossing, and the auditing lacunae that eventually led to the collapse of Andersen. These scandals triggered another phase of reforms in corporate governance, accounting practices and disclosures — this time more comprehensive than ever before. In July 2002, less than a year from the date when Enron filed for bankruptcy, the Sarbanes-Oxley Bill (popularly called SOX) was enacted. The Act brought with it fundamental changes in virtually every area of corporate governance — and particularly in auditor independence, conflicts of interest, corporate responsibility, enhanced financial disclosures, and severe penalties, both fines and imprisonment, for wilful default by managers and auditors. It is fair to predict that the SOX Act will do more to change the contours of board structure, auditing, financial reporting and corporate disclosure than any other previous law in US history.14Corporate Governance

Context:The Theory of Corporate Governance — The fundamental theoretical basis of corporate governance is agency costs. Shareholders are the owners and are the principals. By virtue of their ownership, the principals define the objectives of a company. The management, directly or indirectly selected by shareholders to pursue such objectives, are the agents. While the principals might wishfully assume that the agents will invariably do their bidding, it is often not so. In many instances, the objectives of managers are quite different from those of the shareholders. Such misalignment of objectives is called the agency problem; and the cost inflicted by such dissonance is the agency cost. The core of corporate governance is designing and putting in place disclosures, monitoring, oversight and corrective systems that can align the objectives of the two sets of players as closely as possible and, hence, minimise agency costs.15Corporate Governance

Good corporate governance practices are a sine qua non for sustainable business that aims at generating long term value to all its shareholders and other stakeholders.16Corporate Governance

“Citizens never support a weak company and birds do not build nests on a tree that does not bear fruits.”ChanakyaArthshastra17Corporate Governance

Corporate GovernanceGeneric IssueGood Corporate Governance practices essential to ensure inclusive growth, wherein every section of society enjoys the fruits of the corporate growth.18

Corporate GovernanceGood corporate governance is essential for the integrity of corporations, financial institutions and markets. Strong governance standards focusing on fairness, transparency, accountability and responsibility are vital not only for the healthy and vibrant corporate sector growth, as well as inclusive growth of the economy.19

Context Drivers :Four pillars of Good GovernanceAccountabilityTransparencyPredictabilityParticipation20

Corporations Need to Rebuild and Strengthen Stakeholder Trust21

Governance? Governance is the oversight role and the process by which companies manage and mitigate business risksGovernance manages the strategic directives a company wants to follow. Good Governance is the most effective measurement criteria for current and future stakeholders.Good governance can only be achieved through diligent risk and compliance management. 22

Key Focus“Organizations Reputation, Valuation and Profitability are directly linked to Good Governance, Effective and Real-time Risk Management and adhering to regulatory Compliance”23

My Key FocusWhat is the Focus of corporates on the issue of “CORPORATE GOVERNANCE”? What are the corporates policies about good governance?Governments are creatures of law and as such, they can do only what the law allows,(the things that it is authorized to do) and using the methods that are prescribed in contrast to organizations in the private sector that can do anything not prohibited by law24

My Key FocusGovernance is wider in scope than government. It includes non-governmental and informal organizations. It makes for crafting social institutions as a matter of substantive public concern. In the present globalization scenario, we are witnessing an increasing concern towards the issue of governance. The managerial orientation that is making way into the domain of public administration with thrust on economy, efficiency, and effectiveness is also emphasizing the pursuance of governance for development. 25

My Key FocusDeterminants of Good Governance relevant to the corporate sector includes Competitive environment injecting competition into service delivery; Organizational pluralism which demands convergence of State, Market Forces (represented by Corporate sector) and civil society organizations for governance; Probity in public life; Building social capacity; Performance partnership between government, NGOs and private agencies; Ethical approach to human concerns and E-governance. 26

My Key FocusOrganizations need to consider the ethical environment and the expectations of the society within which they operate.Optimizing profits for the shareholders at the same time as you are building a reputation as a ruthless operator that doesn’t care about the environment, your workers, or the community is not a recipe for long-term success27

My Key FocusWhile the reputation and respect for our country had been growing internationally, in early 2009 one word stood between our successful growth story and the credibility of our institutions. That word with which you are all too familiar is “SATYAM”. The story breaking in January, 2009 created ripples in global economies about the quality of corporate governance, efficacy of regulatory bodies and probity in corporates. 28

My Key FocusWhat this country cannot risk is the deficit of ‘ethics’ in its corporates. No business can be sustainable in the long run and have a consistent growth trajectory, unless it is based on an edifice of credibility and integrity. Deficit in governance is not applicable to government alone. It applies equally to the business community. 29

My Key FocusThe post reform period has witnessed a corporate culture of diluting or ignoring stringent ethical standards. It is often considered ethical as long as a corporate establishment, in its business practices, remains within legal confines to survive in business and beat the competition. This is misplaced corporate governance. Probity in business is as important a trait in an outstanding CEO as is to be articulate, positive, courageous, dynamic and professionally competent. You have to be a developer of talent and maintain cultural sensitivity. The culture to perform has to be deeply inculcated. Without meritocracy, you fall into the morass of nepotism and mediocrity.30

My Key FocusCorporate lifespan: Sustainability Issue. The East India Company, with which we are all familiar, was founded in the year 1600. It is often believed to be the forerunner of the modern multinational. Starting as a humble trader in Asian Spices, the company soon began to manage Britain’s Indian empire. Today, there is no sign, not even a plaque in any building or location in London announcing the existence of the world’s one time most powerful corporation. What brought about the demise of this powerful company in an era which was otherwise, promoting globalization? The company’s legacy provides compelling lessons on how to ensure accountability and probity of today’s global business. 31

My Key FocusThe most fundamental challenge that all Institutions face is to ensure that employees promote the collective rather than their individual self interest. Private trading by its managers became one of the cancers that gnawed at the company’s ethical fiber. Taking ‘presents’ to secure business became common place. These ‘presents’ influenced the quality and cost of the commodities traded. The cancer erupted into intrigue, corruption and speculation leading to its tragic decline and its non existence today. History has repeated itself with Barrings Bank, Bears Stearns, Lehman brothers, Fannie Mae and Freddie Mac personal greed versus corporate interest. You need to deliberate on this and ensure that such temptations do not befall you.32

My Key FocusThe immediate and defining challenge for all of us today in our professional endeavours is that it would be increasingly difficult for us to claim innocence for ourselves in private enterprise on account of the profits we make, if the effect of our acts threatens or undermines the larger public interest. In an interconnected and globalised world, it would simply not work as an excuse if our conduct and behavior are not fully informed of the larger implications of our acts on all our stake holders. 33

My Key FocusIf the most powerful dictators of the world are unable to stem the tide of protest from their people, it would be naïve to assume that the so called private enterprise would be able to shield itself from the consequences of its actions either on the strength of its bottom-line or the economic doctrine of free markets. This is what I would like to highlight as the requirement cast upon managers and entrepreneurs such as you in the time to come. So far, we have been used to the requirement of probity and accountability in public life. It is about time that the private enterprise too voluntarily embraces the values of probity and accountability to all their stakeholders.34

Key Issues: TOR of Naresh Chandra Committee: the heart of corporate governance.the statutory auditor-company relationship, so as to further strengthen the professional nature of this interface;the need, if any, for rotation of statutory audit firms or partners;the procedure for appointment of auditors and determination of audit fees; restrictions, if necessary, on non-audit fees; independence of auditing functions;measures required to ensure that the management and companies actually present ‘true and fair’ statement of the financial affairs of companies;the need to consider measures such as certification of accounts and financial statements by the management and directors; the necessity of having a transparent system of random scrutiny of audited accounts;adequacy of regulation of chartered accountants, company secretaries and other similar statutory oversight functionaries; advantages, if any, of setting up an independent regulator similar to the Public Company Accounting Oversight Board in the SOX Act, and if so, its constitution; andthe role of independent directors, and how their independence and effectiveness can be ensured.35Corporate Governance

Corporate GovernanceMinistry of Corporate AffairsCORPORATE GOVERNANCE VOLUNTARY GUIDELINES 2009Report of the Task Force of CII on corporate governance headed by ShriNaresh Chandra and The recommendations of the Institute of Company Secretaries of India for strengthening corporate governance framework.National Foundation for Corporate Governance (NFCG) was set up by the Ministry to provide a wide platform to deliberate on issues relating to good corporate governance and sensitize corporate leaders on the importance of good corporate practices.36

CORPORATE GOVERNANCE VOLUNTARY GUIDELINES 2009I. BOARD OF DIRECTORSA. APPOINTMENT OF DIRECTORSA.1 Appointments to the BoardIssue of formal letters of appointment to Non-Executive Directors (NEDs) and Independent specifying the fiduciary duties, along with accompanying liabilities & the Code of Business Ethics A.2 Separation of Offices of Chairman & Chief Executive OfficerTo prevent unfettered decision making power with a single individualThe roles and offices of Chairman and CEO should be separated, as far as possible, to promote balance of power.37

CORPORATE GOVERNANCE VOLUNTARY GUIDELINES 2009A. 3 Nomination Committee…..for searching, evaluating, and recommending appropriate Independent Directors and NEDs, based on an objective and transparent set of guidelinesA.4. Number of Companies in which an Individual may become a Director…For reckoning the maximum limit of directorships.B. INDEPENDENT DIRECTORSB.1 Attributes for Independent Directors…a policy for specifying positive attributes such as integrity, experience and expertise, foresight, managerial qualities and ability to read and understand financial statements. B.2 Tenure for Independent DirectorB.3 Independent Directors to have the Option and Freedom to meet Company Management periodically38

CORPORATE GOVERNANCE VOLUNTARY GUIDELINES 2009C. REMUNERATION OF DIRECTORSC.1 RemunerationC.1.1 Guiding Principles-Linking Corporate and Individual Performance….. level and composition of remuneration is reasonable and sufficient to attract, retain and motivate C.1.2 Remuneration of Non-Executive Directors (NEDs)C.1.3 Structure of Compensation to NEDs• Fixed component• Variable component: Additional variable payment(s)C.1.4. Remuneration of Independent Directors (IDs)C.2 Remuneration Committee39

CORPORATE GOVERNANCE VOLUNTARY GUIDELINES 2009II. Responsibilities of the Board.A. Training of Directors…inducted through a suitable familiarization process…..the ability to understand basic financial statements and information and related documents/papers…adopt suitable methods to enrich the skills of directors from time to time.B. Enabling Quality Decision makingC. Risk Management….put in place critical risk management framework across the companyD. Evaluation of Performance of Board of Directors, Committees thereof and of Individual Directors….a formal and rigorous annual evaluation40

CORPORATE GOVERNANCE VOLUNTARY GUIDELINES 2009E. Board to place Systems to ensure Compliance with LawsIn order to safeguard shareholders' investment and the company's assets…conduct a review of the effectiveness of the company's system of internal controlsThe review should cover all material controls, including financial, operational and compliance controls and risk management systems.The Directors' Responsibility Statement should also include a statement that proper systems are in place to ensure compliance of all laws applicable to the company. It should follow the “comply or explain” principle.41

CORPORATE GOVERNANCE VOLUNTARY GUIDELINES 2009III. Audit Committee of BoardA. Audit Committee – ConstitutionB. Audit Committee – Enabling Powers:To have independent back office support Have access to information Obtain professional advice from external sources.C. Audit Committee - Role and Responsibilities…monitor the integrity of the financial statements of the company;…review the company's internal financial controls, internal audit function and risk management systems42

CORPORATE GOVERNANCE VOLUNTARY GUIDELINES 2009IV. Auditors A. Appointment of Auditors…The Audit Committee of the Board should be the first point of reference regarding the appointment of auditors…should discuss the annual work programme and the depth and detailing of the audit plan to be undertaken by the auditor, with the auditor; examine and review the documentation and the certificate for proof of independence of the audit firmB. Certificate of IndependenceC. Rotation of Audit Partners and FirmsD. Need for clarity on information to be sought by auditor and/or provided by the company to him/itE. Appointment of Internal Auditor43

CORPORATE GOVERNANCE VOLUNTARY GUIDELINES 2009V. SECRETARIAL AUDIT.. Board processes and compliance mechanisms of the company are robustVI. INSTITUTION OF MECHANISM FOR WHISTLE BLOWINGinstitution of a mechanism for employees to report concerns about unethical behaviour, actual or suspected fraud, or violation of the company's code of conduct or ethics policy.The companies should also provide for adequate safeguards against victimization of employees who avail of the mechanism, and also allow direct access to the Chairperson of the Audit Committee in exceptional cases44

Evaluating the Tone at the TopPractical Suggestions for Audit Committees “The audit committee’s influence on management’s actions and the tone at the top cannot be understated. I have seen the positive impact that an engaged audit committee can have on maintaining and enhancing a strong corporate culture.” Steve Van Arsdell, chief executive officer, Deloitte & Touche LLP 45

Evaluating the Tone at the TopQuestions for Audit Committees to Consider  What processes does management have in place to evaluate the tone at the top?  Is the internal audit function assessing “soft controls,” those controls focused on the motivation of employees and management style that could be used to help the audit committee evaluate the tone at the top?  How do management’s and the audit committee’s processes for evaluating the tone at the top compare to those of other companies that are viewed as leaders in this area?  Does the audit committee use quantitative as well qualitative measures in evaluating tone at the top?  Are employees’ perceptions of the tone at the top trending up, trending down, or flat? How do they compare with those of employees at similar or leading companies?  Are there operating units or functions where employees’ perceptions of the tone at the top are much weaker than others? If so, why, and what remediation is management implementing? 46

CORPORATE GOVERNANCE AND ETHICS

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