Evaluation of the quality of corporate governance. What can be done to improve the quality of corporate governance of Russian public companies

In what direction will corporate legislation move in the near future? What regulators think about the current system in Russia corporate governance? What are the challenges faced by companies that directly comply with the requirements of legal novels? These and other questions were asked by the participants of the discussion held within the framework of the St. Petersburg International Legal Forum, among which were a representative of the regulator, and investors, and the companies themselves.

The roadmap “Improvement of Corporate Legislation” (approved by Decree of the Government of the Russian Federation of June 25, 2016 No. 1315-r) was developed to increase the place of the Russian Federation in the World Bank’s Doing Business rating. And in general, this document copes with its task. As Ekaterina Salugina-Sorokovaya, Director of the Department of Financial and Banking Activities of Investment Development of the Ministry of Economic Development, noted, over the past three years the Russian Federation achieved significant results, rising from 100th place to 51st. The speaker singled out the following projects as significant results of the three-year work.

What has been done by the regulator to develop corporate governance

First, on July 3, 2016, Federal Law No. 343-FZ “On Amendments to the Federal Laws “On Joint-Stock Companies” and “On Companies with limited liability“ in terms of regulation big deals and transactions in which there is an interest.

Also, a draft federal law “On Amendments to the Federal Law “On Joint Stock Companies” was developed and submitted to the government in terms of providing a member of the board of directors joint-stock company access to documents and information of the company and legal entities controlled by the company.

And finally, one of the key bills that the Ministry of Economic Development is currently working on jointly with the Bank of Russia is the draft federal law “On Amendments to the Federal Law “On Joint Stock Companies”” (hereinafter referred to as the draft “On Amendments to the Law on JSC ”), which provides for the need to form an audit committee of the board of directors of the company and the obligation to create a risk management system, internal control and internal audit in public society.

At the same time, the regulator is aware that increasing the place in the Doing Business rating is certainly an important matter, but a certain balance must be maintained here, because compliance with the World Bank requirements does not always have the right effect on business in Russia.

There are bills that were included in the roadmap despite the fact that they had quite a lot of negative feedback from the professional community. These include, in addition to the draft “On Amendments to the Law on Joint-Stock Companies”, also amendments to the Civil Code of the Russian Federation in terms of establishing the liability of controlling persons for losses caused through their fault to controlled economic society, as well as changes aimed at lowering the threshold for joint ownership of shares from 25% to 10% for access to accounting documents.

But it should be noted that the Ministry of Economic Development seeks to reverse the negative attitude towards the process of legislative regulation of corporations. So, on the basis of the instructions of the government, the department is working on the formation of a unified action plan, in fact, this is an analogue of a road map. In this regard, the regulator intends to soften the rules that are “inconvenient” for business and outline work on those bills that will have a positive impact on business.

Successful Practices Face Legislative Barriers

The view of the state on corporate processes, but no longer as a representative of the regulator, but rather as a representative of the methodologist represented by the Central Bank of the Russian Federation, was presented by Elena Kuritsyna, Director of the Corporate Relations Department of the Central Bank of the Russian Federation. She noted that if we talk about corporate governance as a system of legal relations, then methodological work, explanatory work has no less, and perhaps even more important role than introducing changes to legislation, than issuing new regulatory and normative documents. On the basis of the Corporate Governance Code, the Central Bank of the Russian Federation has prepared a number of model documents for joint-stock companies, exemplary Regulations on committees and the board of directors, recommendations on the disclosure of remuneration.

The bank's immediate plans include clarification of issues related to the formation of the board of directors, bearing in mind certain principles for assessing the effectiveness of the Board of Directors in general: recommendations for such an assessment, what to look for, what is key in terms of competence, in terms of the role of directors, in terms of their responsibility, etc.

The speaker acknowledged that some corporate governance practices that are correct from the point of view of the Central Bank have certain legislative barriers to implementation. For example, in accordance with the gold standard of corporate governance, it seems correct to form executive bodies through the board of directors, but there are certain barriers to this practice in the JSC Law. Therefore, with a positive attitude of the Bank of Russia to the elements and instruments of soft regulation, it intends to carry out legislative work in one way or another. Moreover, in addition to removing barriers, there is a need for legislative regulation of certain relations that cannot be changed by any educational, propaganda measures.

What foreign investors see in Russia

Irina Bocharova, Managing Director of New York Mellon Bank, as a representative of professional foreign investors and an investment consultant in Russia, told how the Russian Federation’s attempts to improve corporate legislation look from the outside, does it play at least some role when investors decide to invest in our country.

Indeed, corporate governance is a topic that is very sensitive for foreign investors. Until some time, corporate governance was considered one of the main, if not the main, reason for the shortfall in profits for minority shareholders, in particular Western ones. But since 2008, everything began to change. In the West, the news about the introduction of the institution of the central depository was enthusiastically received; this simplified and made the scheme for storing securities settlements much more transparent. Institutions of nominee holding, accounts of depository programs were introduced, there was a clear division between those who actually own assets and those who are their nominal holders.

Now the introduction of new systems, corporate actions, electronic voting, that is, the transfer of corporate governance to an electronic platform, is also very welcome by foreign investors. The corporate governance code has also been warmly received: investors clearly distinguish between companies that look at it formally and companies that actually work with it.

Corporate governance from the point of view of a foreign investor is divided into two parts. This is the basic, or regulatory, component and, in fact, the behavior of issuers. Investors, of course, are pleased with all the changes that are taking place in the market and with those initiatives in which regulators are involved, but they want more from the issuers themselves.

Today, a hot and popular topic is ESG (Environmental Protection, Social Responsibility and Corporate Governance). Many corporations in Russia treat this topic with some irony: they say, it's just a fashion, they came, talked about how wonderful it is to protect the environment, and dispersed. But in fact, for investors, this is not a matter of humanitarian love for environment and to the people living on this earth. For them, compliance with ESG is a very important economic moment. Last year New York Mellon conducted a massive survey of 800 international investors and wealth managers. Here is what they considered mandatory for companies in which they are ready to come with investments:

82% of respondents consider ESG issues in their investment decisions. For some, these issues are integrated into portfolio management offices, for some, there are separate divisions that take into account ESG;

of those issues related to corporate governance, one of the most key as a result of this study was the issue of the existence and observance of Codes of Ethics (not to be confused with the Corporate Governance Code);

It is mandatory to have an Anti-Corruption Code. And this is not only the presence of the Code itself, it is the reporting and responsibility of the company for its observance;

the presence of policies to control the remuneration of management (and management means not only the management and owners of the company, but also boards of directors).

Russian investor is picky

And what about Russian investors? What do they need to get more investment in public companies? Elena Sapozhnikova, partner at UCP Investment Group, does not see much difference between the requirements of foreign and domestic investors.

The Russian investor needs the same from the company as any foreign investor. First of all, it is the quality of corporate governance. And noting the significant role of the regulator in improving the culture of corporate governance, the Russian investor, like his foreign "brother", is closely watching how the norms adopted by the state actually take root in specific companies.

And here are some observations shared by the speaker. The criterion of "corporate governance" is included in a huge number of international indices, reports, roadmap systems. But if we talk about companies not from the first quotation list, not from state participation, we will not always see the behavior of the issuer, corresponding to what is written in corporate documents. In many ways, internal norms are declarative. We have, says E. Sapozhnikova, today there is a very strange moment when an equal sign is put between the protection of the rights of minority shareholders and corporate governance. That is, it is believed that if a certain high standard is enshrined in the company's corporate documents, then minority shareholders are largely protected. But in reality this is far from the case. Let's remember the theory, remember where corporate governance came from. It came to us from the Anglo-Saxon system of law, and there, in principle, the presence of a controlling shareholder is rather a rarity than a rule, in contrast to the continental system of law. The Russian shareholder traditionally seeks to accumulate control over the company.

In our case, especially given the latest innovations in the JSC Law on the reduction of information rights of shareholders and the absence of any clear rules regarding the information rights of members of the board of directors in relation to subsidiaries within the group, minority shareholders have virtually no opportunity to receive information about the company's activities and must, in fact, completely and completely trust its management. And of course, minority shareholders feel quite uncomfortable.

The quality of corporate governance and company management

Improving the quality of corporate governance is inextricably linked with improving the quality of human material. Namely, the management of the company, that is, those people who create or at least should create additional value for the company. At the same time, management in our situation does not remain without control - there is a gradual increase in the responsibility of the top management of organizations.

In fact, the trend towards increasing liability is expressed both in an increase in the number of cases and in the expansion of the grounds for liability. Irina Shitkina, Professor of the Department of Entrepreneurial Law of the Lomonosov Moscow State University, told the audience about this. M.V. Lomonosov. While the need to take into account normal business risk, the rules of a business decision and the exclusivity of cases of removal of corporate covers is absolutely unambiguously declared both in legislation and in law enforcement practice, in reality everything happens exactly the opposite. Although the Constitutional Court of the Russian Federation also says that the court should not interfere with the economic feasibility of the decision - this is freedom of entrepreneurial activity (see Resolution of the Constitutional Court of the Russian Federation of February 24, 2004 No. 3-P). That is, with declarations, everything is at a high level. What actually happens? Now it is absolutely not exotic, for example, to hold accountable for inaction. If earlier we only theoretically pondered whether it is possible to hold a member of the board of directors responsible for inaction who did not convene the Board of Directors, now we are already seeing these cases. We also see the prosecution of members of the board of directors who did not oppose the general meeting in violation of legal requirements. That is, inaction is now not an exotic condition for bringing to responsibility. What should the corporate sphere do, how to solve the problem?

According to I. Shitkina, with all due respect to law enforcement practice, mechanisms for limiting liability should be developed at the legislative level, especially since it is possible to conclude an agreement on the non-application of liability in non-public companies, if unreasonable. Not dishonesty, but unreasonableness. This is article 53.1 Civil Code. But there are many questions here. There is a very thin line between bad faith and unreasonableness, and the mechanism for concluding an agreement is not spelled out in the legislation at all. Therefore, companies today are increasingly resorting to liability insurance for members of the Board of Directors.

In addition, at the legislative level, it is possible to provide for the possibility of waiving a subsequent claim if the director's accounts have been properly approved.

It is necessary to develop the institution of liability insurance for members of governing bodies. Fear of responsibility should not prevail over management so much that it ceases to make normal entrepreneurial decisions that are adequate for business. Entrepreneurial activity- this is a risky activity, it is impossible to carry out this activity without the possibility of having protection against weighted risks.

Also, of course, it is necessary to develop civil society and respect for business.

Key trends in corporate law and regulation

The position of the legal community on round table expressed by Arkady Krasnikhin, partner of the EPAM law office. He noted that the topic around which the discussion unfolded is completely inexhaustible. And this is due to the fact that the corporation is essentially the focus of a large number of conflicting interests. Here is the conflict between the majority shareholder and the minority shareholder, and the confrontation between management and shareholders, between society and employees, between society and creditors. This series can go on and on. And in this sense, there is not and cannot be a legal solution that would satisfy everyone. Probably, the quality of regulation, the quality of the decisions that legislators and law enforcement officers are implementing in this area should be tested by very specific economic indicators. In this sense, the topic of discussion is set very correctly. How many IPOs were made per unit of time, how many SPOs were made per unit of time, how the capitalization of the company grew per unit of time - these are the parameters, those peculiar KPIs that test and answer the question of whether the corporate governance system is built correctly or incorrectly in a particular company, in economy or society as a whole. A. Krasnikhin shared his observations on the trends that prevail in our corporate law today.

He was also the first to mention the trend aimed at ripping off the corporate veil: “I didn’t come up with such a romantic term, it came to us from Western law enforcement, but they usually talk about piercing the corporate veil, I think we are about to rip it off. The trend here was set by the norm of Art. 53.1 of the Civil Code of the Russian Federation, and the latest changes in bankruptcy legislation, the summer and subsequent December clarifications of the Plenum of the Armed Forces of the Russian Federation sounded like such a powerful chord. Is it bad or good? How to see! The visible results of this reform, which is quite significant, we will be able to fix after some time, when the statistics will be accumulated. Why? Because, if you look at these changes from the point of view of a creditor who has a broken trough, who, in fact, was deceived by shareholders and management and removed assets, acting in bad faith before bankruptcy, this is one story. And if we look at this through the eyes of a potential buyer who sees a profitable asset that is in an unfavorable financial situation, in distress, as our foreign colleagues say, and thinks whether to buy it or not, then perhaps he for the latest innovations will not buy. Because he understands that if he made a mistake in his calculations and the asset still falls into bankruptcy, this will end up with the fact that this same buyer may be the person who will be held accountable by offended creditors. And in this sense, this story may end with the fact that the asset will be sold under the hammer, the business will be divided into parts and implemented. Let's see if the balance is right here. And probably, law enforcement practice will play a key role here.”

The next trend that the speaker noted is focusing on the responsibility of management and members of the board of directors: “In my opinion, no new regulation is needed here, these norms have existed for many years, they have been slightly refined, but globally this is a matter of law enforcement practice. I think that this trend deserves all the support with one "but". It does not keep pace with the development of the insurance institution. We want management to make risky decisions in good faith, without conflict of interest, informed and thoughtful, but risky decisions, they are put there for this. We want rockets to return here, like Elon Musk did, so that unmanned vehicles drive here, which have already covered millions of kilometers in California. And for this, we cannot afford to let the management simply be afraid to take a step to the left - a step to the right. It would be simply disastrous for the economy as a whole and for entire sectors and industries.”

The third trend can be conditionally called "the transition from the creation of legal norms to the creation of standards." The concept of a business purpose has appeared in the rules on the provision of information to minority shareholders. What does the legislator say? You are entitled to certain information if you have a business purpose. A similar approach applies, for example, in related party transactions. Please, says the legislator, make transactions with interest, there is no need to bear this burden - submit each transaction for approval by the relevant body, but only if this transaction is in the interests of society, if this transaction is not a transaction made to the detriment of these interests, because otherwise case, there are negative consequences. This is important, because life is always more diverse than even the legislator's fantasy. And when we try to create some kind of exhaustive list of limitations and exceptions, in many cases this is an attempt that is doomed to failure, because there will always be a loophole, there will always be some bottleneck, which renders the entire rule ineffective.

Critics of this approach say that we give too much to the law enforcer, who is not always stable, not always predictable. But, unfortunately, this process is inevitable, we need an enlightened law enforcement officer. Maybe we will still suffer with this instability and uncertainty, but the next generations should thank us, because we must educate this enlightened law enforcer who knows what a business goal is, who understands what a deal made to the detriment of the public interest is. And in this, according to the speaker, in the future, the path of development of corporate legislation, because all situations cannot be put in the Procrustean bed of legal norms.

Another trend, paradoxically, is expressed in the absence of a trend. Namely, in the indecision of the legislator in resolving individual, urgent and long overdue issues. Among these are the issues of voting with quasi-treasury shares (a classic case when the majority shareholder and management essentially strengthen their positions at the expense of the minority shareholder). All known legal orders prohibit such voting, and many prohibit both voting and ownership of these stakes. We have not resolved this issue, there is not even a relevant bill. It is clear that very serious interests clash here. different groups Perhaps this is the reason for such indecisiveness of the legislator, who cannot find the right balance here.

The second issue is the issue of the rules for the acquisition of large blocks of shares, the possibility of indirectly acquiring a significant block of shares, which is not a trigger for a mandatory offer. There seems to be no political/legal reason why indirect acquisition is regulated differently from direct acquisition. Nevertheless, the issue has not yet been resolved, although there is a draft law that has been considered by the State Duma for two years and has not yet been implemented in any way.

And the last question in this context is related to the regulation of holdings and groups. Indeed, many of our business entities are organized as a group, as a conglomerate of companies. A very easy way to get around the wonderful corporate governance rules that the legislator is introducing is to simply move this issue to the level of subsidiaries, or rather “grandchildren” companies. And then many of the mechanisms that work perfectly at the level of the parent holding company, where the minority shareholders actually are, stop working. And in this sense, of course, some kind of regulation is needed here. The speaker said that there is a bill that provides informational rights to minority shareholders of holding companies, but we need to go further, we need to provide these shareholders with the opportunity to challenge those transactions that violate their interests.

Many experts believe that the quantitative assessment of the economic efficiency of corporate governance is the market value added. share capital(MVA), that is, the increase in the market value of a corporation's shares over a certain period of time. In particular, with reference to well-known authors, it is noted that building a long-term business development model based on MVA will make it possible to identify key cost factors as control parameters and contribute to improving the efficiency of corporate governance. This can be used at the stage of making the strategic development of the corporation in the interests of shareholders. Despite the predominance of this approach in modern corporate governance practice, we note the factors that do not allow it to be used as the main criterion for balancing corporate interests. The paper presents five myths about the value of the company. Let us highlight the main provisions in our interpretation.
1. The value of a business can be objectively assessed. In fact, it is impossible to take into account a huge number of factors, both objective and subjective, that affect the market value of the company's shares. Rumors, market expectations, the possibility of market manipulation, reflexivity, the political situation, collusion of market participants, etc. are among the factors that are difficult and unformalizable. In addition, the company has a number of tools at its disposal that allow it to influence the market value of its shares: the buyback of its own shares, their splitting and consolidation, increasing the amount of assets through borrowed resources, the announcement of a merger or acquisition, etc. Consciously using these tools, the company can influence its own value within certain limits. Based on the foregoing, the value of a business is not an objective assessment of the company's activities.
2. Market value is the most accurate indicator of how much a company is worth. In this case, it is assumed that the market is informationally efficient, that is, when making decisions, investors have complete information about the company's activities. But even in developed markets, information has the property of asymmetry, that is, market entities have different information and are forced to trust information adapted by someone, which creates the prerequisites for an inadequate assessment of the value of the firm. Naturally, in emerging markets, the problem of valuation accuracy is only exacerbated.
3. Increase in business value should be main goal management. In practice, the goal of a manager, like any rational economic entity, is to maximize their own benefits. The value of a business expresses, first of all, the interests of the corporation's shareholders and is almost unrelated to the interests of managers. This creates a bias in the balance of corporate interests towards the owners and a situation of tension in corporate relations, which can ultimately lead to a corporate conflict. Under such conditions, it is not necessary to talk about achieving the best performance results that suit the majority of participants in corporate relations. Mechanisms that link the wealth of a manager to the market value of the company, for example, with the help of options, do not work. As a result, managers are not interested in increasing the value of the business. Thus, the value of the company can play the role of one of the key priorities of the activities of managers, but not the only one for them.
4. Owners are always interested in increasing the value of their business. Owners, like managers, seek their own benefits. For an owner concerned with current consumption, the benefits associated with the long-term prospects of the company may not be of any value. It may be more profitable for him to sell a share today for a hundred rubles than in three years for a thousand, and not only because he does not believe in the future. The opposite case is possible, when the owner will never agree to sell the business for, say, one hundred million, while its real value under no circumstances exceeds fifty. That is, the goals of the owner are very diverse, and this must be taken into account in assessing the activities of corporations. The value of the firm does not reflect this diversity and for this reason cannot express the interests of not only the company's managers, but even its owners.
5. The criterion of the firm's value can express not only corporate interests, but also the interests of the state. However, decisions that increase the cost of business may infringe on public interests. Thus, reducing tax payments increases the value of the company, but does not meet the needs of society. The bankruptcy of Yukos is a clear example of this. Opponents of bankruptcy motivated the termination of the prosecution of the company precisely by the fact that it had the largest capitalization in Russia at that time, and this answers public interest in the field of increasing the investment attractiveness of the country. At the same time, the high capitalization of the company was achieved, among other things, due to underpayment of tax payments. With this in mind, the state, which expresses the interests of society, considered it more important to collect underpaid taxes than to improve the investment image in the eyes of the world community.
All of the above allows us to conclude that MVA is not an exclusive generalizing criterion for corporate governance and the balance of corporate interests. Another meter is required.

More on the topic 2.1.3. Evaluation of the quality of corporate governance based on the criterion of market value added of capital:

1. VI. Development of corporate governance, risk management and internal control in credit institutions
2. Topic 13. PRINCIPLES OF MEASURING AND ASSESSING THE QUALITY OF INNOVATIVE PRODUCTS
3. CAPITAL AND FINANCIAL RESOURCES OF ENTERPRISES Structure and assessment of the cost of capital
4. FORMATION OF INDICATORS FOR ASSESSING THE QUALITY OF BUDGET PROCESS MANAGEMENT AT THE SUB-FEDERAL LEVEL
5. METHODS FOR ASSESSING THE QUALITY OF THE ORGANIZATION OF THE BUDGET PROCESS IN MUNICIPALITIES
6. 1.1. The corporate form of management is the basis of the modern market economy
7. 2.1.3. Evaluation of the quality of corporate governance based on the criterion of market value added of capital
8. 3.1. Assessment of the balance of corporate interests in companies of different industries
9. § 1. The concept of corporate governance and company management models

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A material on the most common violations of the rights of minority shareholders and the actions that can be taken and are being taken to combat them.

Old problems, new trends

The quality of corporate governance is one of the most significant factors determining the exchange rate dynamics of any issuer's shares. Even if the company manages to earn good profit, investors may be wary of its securities. The reason is very simple: all the achievements in the field of economic performance can be crossed out by poor corporate governance. As a result, the company earns funds for shareholders, but some of them (minority shareholders) do not receive any benefit from this.

We remembered this once again when summing up the results of our traditional annual survey of the level of corporate governance in Russian public companies. Born as a must component assessment of the investment attractiveness of shares, today this study, in addition to its applied value, has acquired an independent meaning. It helps to assess the overall picture of the quality of corporate governance of domestic business, as well as to trace the change in trends both in the context of individual companies and industries, and in terms of specific factors that determine the balance of interests of persons related to the company: majority and minority shareholders, executive management, employees , external counterparties. The main conclusions that we came to as a result of the work done:

• average level of corporate governance Russian companies stopped growing. Before the crisis, there was much more progress in this regard;
• the stratification between leaders and outsiders deepened. Top Companies striving to further improve corporate governance, while progress is not visible for outsiders;
• the most vulnerable group to violations of corporate governance are minority shareholders.

The trends have changed. The double registers, the blatant withdrawal of profits from the company through transfer pricing were replaced by other frequent violations caused not only by deliberate intent, but also often by a misunderstanding of the physical meaning of the norms of joint stock legislation. It is very unfortunate that today, in fact, there is not a single body that would undertake to eliminate the white spots of the law on joint-stock companies and determine the correct interpretation of many subtle points that are often not directly spelled out in the law. All this creates a “good ground” for violating the rights of minority shareholders. In this material, we want to highlight the most common violations in more detail and give them our assessment.

Conversion and offers: mechanisms of outright and sophisticated theft

One of the problems of domestic companies is the inability without violating the rights of minority shareholders to reorganize companies or make an offer at a fair price in the event of a forced buyout by the majority shareholder of their share. As a matter of fact we are talking about an attempted theft by a majority shareholder from a minority shareholder. Cases have become commonplace when, in a forced buyout, a company is valued below its book value or at two or three annual profits. It is clear that an “independent appraiser” (by the way, a kind of oxymoron: not only is his services paid by the customer, but the latter also sets a benchmark in advance where he would like to see the result of the assessment) did everything to discount the object of assessment. As a result, minority shareholders receive an unfair price for their shares with little or no chance of protesting the procedure itself: proving the inadequacy of an appraiser's report in court is an extremely thankless task. Taking into account the qualifications and partiality of the appraisers involved in the procedures for determining the price of a share in a forced buyout, the way out could be the creation of a special body under the financial mega-regulator, which conducts an examination of share prices. Such a body could at least stop cases of outright “stock banditry”, when a normally operating company is valued, for example, below its book value or at a couple of profits. In parallel, such a body could maintain a register of unscrupulous appraisers, who would be subject to restrictions in a certain part of the appraisal activity.

But if in the case of a forced buyout, the situation is usually quite obvious (it is often clear when they are trying to deceive you), then in the case of conversion rates, the seizure of property can be hidden.

Recall that, according to the law "On joint-stock companies", the reorganization of the company is accompanied by the purchase of ordinary and preferred shares from dissenting shareholders. If at the same time the redemption of ordinary and preferred shares is carried out according to different prices- this, in our opinion, is a gross violation of the rights of shareholders. As a consequence, the same violation is the practice when for preference shares during the merger of companies, conversion factors are set that differ from ordinary shares.

One of the grounds for establishing a single redemption price (and uniform conversion rates) is contained in paragraph 1 of Art. 75 of the Law "On Joint Stock Companies", which establishes that all owners of voting shares are equally entitled to demand redemption. For these purposes, a single list of persons who own voting shares and have the right to demand their redemption is compiled. Thus, the Law "On Joint Stock Companies" makes no difference when buying back shares from shareholders to owners of ordinary and preferred shares. One criterion is applied - voting shares, respectively, and the buyback price is assumed to be the same. At the same time, preferred shares are voting on a par with ordinary shares in matters of reorganization of the company in accordance with paragraph 4 of article 32 of the Law "On Joint Stock Companies".

For owners of shares with the same scope of rights regarding the reorganization of the company as a result of the buyout, the same legal consequences should occur in the form of the same share buyback price, which follows from paragraph 1 of Article 2 of the Law "On Joint Stock Companies", which establishes the principle of property equality of all shareholders of the company who have equal rights in relation to society.

Of course, everything could be attributed to appraisers who evaluate companies for the purpose of reorganization commissioned by the Boards of Directors. But if the appraiser does not understand the nature of the formation of prices for preferred shares (as practice shows, for him this is a kind of “substance given from above”, which can be justified by a variety of things: liquidity discount, the volume of the evaluated package, etc., that is anything except the company's charter, which clearly spells out the rights of shareholders, including dividends and liquidation value), then the Boards of Directors are simply obliged to correct such “blunders”. And yet, they “stamp” the conversion rates and redemption prices calculated by the appraiser. But the law "On Joint Stock Companies" clearly states that the appraiser's prices are not the ultimate truth and not even a guideline (since the price deviation is allowed ONLY in one direction, that is, they can ONLY be higher!). They are the lowest possible buyout prices, that is, prices below which even the most “independent” appraiser is not ready to sell his conscience and allow interested members of the Board of Directors to authorize the seizure of property from minority shareholders.

How to explain such decisions of the governing bodies of society? We have already noted above that one of the reasons is a misunderstanding of the physical meaning of the norms of joint-stock legislation. Often, some article is pulled out of the law, which supposedly serves as a justification for wrong decisions. Meanwhile, the law "On joint-stock companies" is translatable, that is, in fact, it contains the experience of developed countries, accumulated over decades. And if it seems to someone too simple and makes it possible to infringe on the rights of shareholders, this means only one thing: a wrong interpretation. The law itself is quite complicated; on almost all major painful issues, it is a complex system of imperative and dispositive norms aimed at protecting the rights of shareholders. There is no doubt that the long years of the existence of a joint-stock form of ownership in developed countries made it possible not only to identify the main problem areas of relations within a joint-stock company, but also to develop ways to solve them based on a system of legal norms and their interpretation based on common sense. In fact, we have in our hands a serious tool that just needs to be used correctly! But Russia manages to follow its own “special path” here as well, having “adapted” progressive law to “defend the interests” of majority shareholders at the expense of minority shareholders. How can one not recall an anecdote from Soviet times: “No matter how I tried to assemble a vacuum cleaner according to the drawings, I always got an automatic machine”? It's scary to think what would happen if the law "On Joint Stock Companies" fully written by our legislators; By the way, this can be judged by the so-called “anti-raider amendments”, which seem to have been created specifically in order to make it difficult for minority shareholders in every possible way to appeal against the actions of management bodies in judicial order. But this is a topic for a separate discussion, which we plan to start in our materials soon.

Boards of directors: "independent" and non-professional

Another very important reason for abuse is the ownership structure of the majority of Russian public companies: in almost every one of them, not only is there a pronounced majority shareholder, but, as a rule, his share allows him to make almost all company management decisions alone. It is generally accepted by many that this gives only rights, but does not impose any obligations. As a result, the management bodies of the company (first of all, the Board of Directors) begin to identify themselves completely and completely with one shareholder, forgetting that their task is to work in the interests of all shareholders of the company! And when minority shareholders complain about the quality of the decisions they make, the answer is: “And what about you? We have a shareholder, and we are working with him… In fact, the management bodies of the company are beginning to acquire a puppet character, churning out decisions at the will of the majority shareholder. We are no longer talking about any professionalism or following common sense; and, therefore, minority shareholders in such a company are doomed to infringement of their rights ...

Even the presence of so-called "independent directors" on the Board of Directors does not save the situation. By the way, another "oxymoron": a member of the Board of Directors, by definition, cannot be independent, since he can be elected ONLY with the support of shareholders. The fact that he meets certain formal criteria, alas, does not guarantee his competence in the field of corporate governance. So you often meet people from the world of science and art in the Boards of Directors, who are called upon to “decorate” the Board with their presence. But let's ask ourselves a question: who do we want to see on the Boards of Directors? Formally independent members, who almost always vote together with representatives of the majority shareholder? Or, perhaps, professionals who seek to understand the decisions being made and feel the nuances of corporate governance at their fingertips? In our opinion, the concept of an “independent director” in Russian realities has been reduced to a “tick” that a company needs to put down. Instead, it is necessary to educate professionals in the field of corporate governance, who, understanding the nuances of the work of a joint-stock company, will put their knowledge and experience at the service of companies. There is no doubt that the work of such shareholder representatives will bring great benefits to minority shareholders, and indeed to public companies themselves ...

One may also wish that the motivation of the work of members of the Board of Directors and persons included in the executive bodies of the company's management should be made dependent on the performance indicators of companies, such as net profit or capitalization growth. Otherwise, shareholders will have to support a significant number of highly paid managers in the absence of a visible effect for them. It is no secret that many public companies pay fixed rates for the work of members of management bodies, regardless of the quality of the decisions made and their impact on the performance of the company. We are convinced that it is necessary to form a close relationship here: people must understand that each vote within the Board of Directors or within the Management Board is by no means an abstraction: it directly affects the performance of the company, its capitalization, and, therefore, all shareholders. At the same time, if the terms of remuneration of members of the Board of Directors are generally disclosed by our issuers quite well, then it is practically impossible to find information about the principles of remuneration for members of the executive bodies of the company, as a rule, they are not publicly available.

There is one more point related to the issue of protecting the rights of minority shareholders from poor performance of boards of directors. We are all human beings and we can make mistakes when making decisions. In the event that the decisions of the management body of the company led to losses for the company or its shareholders, liability insurance for members of the Board of Directors could be a good way out. A number of Russian companies already practice such measures, but their number is still small. Considering the average level of professionalism of the members of the Board of Directors, one could think about introducing mandatory requirements to liability insurance for public companies or in combination with other criteria (number of shareholders, performance indicators). To some, this may seem exotic, but at one time the introduction of OSAGO seemed an unusual measure. However, with its help, it was possible to bring cases of settlement of disputes into a civilized framework. It seems that within the framework of the joint-stock field, such a measure would be in great demand in the future.

The Equity Management Model: A Many-Faced Outlandish Beast?

A large block of violations of corporate governance is associated with an inadequate model of equity capital management. Let's start with the fact that each joint-stock company, in our opinion, must be guided by the interests of shareholders, and in this regard, the model of equity capital management is an indispensable assistant. What is its essence?

Thus, the forms of manifestation of an inadequate model of equity capital management can be varied. When making decisions about the directions of using the company's funds, this is most often expressed in the fact that for a long time the market value of the company may be lower than the book value. In this case, the company must take appropriate measures aimed at bringing these two values ​​closer: increase efficiency, reduce equity by paying dividends or buying back own shares with their subsequent redemption, that is, something that can increase the ROE and the market price of the business. It should be noted that recently more and more domestic companies have begun to use the buyback of their own shares as a tool for distributing funds among shareholders. However, the potential of this tool is still far from being fully utilized. Therefore, in the Russian stock market, it is still not uncommon for stocks to trade below their balance for a long time. Moreover, a number of companies, having accumulated certain amounts, do not reinvest them in their core business and do not share them with their shareholders. They prefer to use them as part of the issuance of intra-group loans, as well as the basis for issuing guarantees for the obligations of the majority shareholder; use transfer pricing; as a last resort, withdraw money from the company through questionable transactions with related parties. Given the importance of competent equity management and its diverse forms of manifestation in practice, we decided to seriously tighten our approach to assessing the quality of equity capital management in Russian joint stock companies.

...and everything, everything, everything...

From the point of view of information transparency, the absence of mandatory requirements for the disclosure of the ultimate beneficiaries-owners of companies also looks rather strange. Often, even looking at the official documents of the company, it is impossible to understand who owns it and in what size: only offshore companies, nominal holders, etc. are visible. It seems that the introduction of such a requirement at the legislative level (which has long existed in developed countries) is undeniably overdue: investors should know who is in charge of making key decisions in a joint-stock company whose shares they own.

There are also smaller violations in corporate governance practices of companies. For example, the closing of the register of shareholders for making certain decisions retroactively or the absence of an independent auditor. As a rule, they are not critical, but cause investors some discomfort.

Who is to blame and what to do?

Summing up, one can note the obvious inconsistency of the authorities: on the one hand, having announced the task of building an international financial center, the state takes certain steps: creating a single depository, introducing mandatory IFRS reporting for a wide range of companies, clarifying the dividend policy of state-owned companies. On the other hand, at lower levels, investors have to deal with more than just policy sabotage; often everything is done to discourage national investors from investing in Russian economy. It is the insufficiently high level of corporate governance and the inability of investors to protect their rights that are a serious obstacle to achieving the set goal: creating a comfortable business environment and encouraging investment activity for further development economy. The most annoying thing is that while there is good legislation in Russia, there are no bodies that could properly interpret its provisions and monitor its implementation. We remind primitive man, who was given a machine gun to fight dinosaurs, but he continues to wield the butt, not using all the available options. Moreover, we manage to adapt the advanced law "On joint-stock companies" to justify violations of the rights of minority shareholders. Here we go our own way: in fact, we teach dinosaurs to shoot at people from a machine gun! But unlike in previous years, when the entire sphere of corporate governance was perceived as an abstraction that had nothing to do with practice, now the authorities seem to be beginning to understand that by violating the rights of investors, it is impossible to build a truly strong economy and radically improve the well-being of the country's citizens. This gives hope for a revival of the trend towards better corporate governance in Russian companies. But for this, the authorities, issuers and investors will have to make significant efforts in improving corporate law and understanding the physical meaning of the norms laid down in it.

Considering corporate governance as the basis for determining the goals of the company, the means to achieve these goals and ways to control the activities carried out, and also as one of key factors facilitating efficiency and development, strengthening the confidence of investors, which is necessary for successful functioning market economy, in 1998 the World Bank initiated a global program to improve the state of corporate governance practices. For this purpose, the 1999 “Principles of Corporate Governance” were developed and approved. Organization for Economic Cooperation and Development (hereinafter referred to as the OECD)” is a document containing specific recommendations for legislative and regulatory initiatives both in OECD and non-OECD countries (hereinafter referred to as the Principles).

The principles that form the basis that OECD countries consider necessary for the development of good governance practices are:

• · the corporate governance system should contribute to the development of transparent and efficient markets, not contradict the principle of legality and clearly define the division of responsibilities between various supervisory, regulatory and law enforcement agencies;
• · The system of corporate governance should ensure equality of conditions for all shareholders. All shareholders should be given the opportunity to obtain effective protection in case of violation of their rights;
• · the corporate governance system should create incentives for investment and ensure the functioning of the stock market in such a way that it contributes to improving the quality of corporate governance;
• · the corporate governance system should recognize the rights of stakeholders, established by law or by mutual agreement, and encourage active cooperation between corporations and stakeholders in creating wealth and jobs and maintaining the viability of financially sustainable enterprises;
• · the corporate governance system should ensure timely and reliable disclosure of information on all material issues relating to the corporation, including the financial position, performance, ownership and management of the company;
• · the corporate governance system should ensure strategic management of the company, effective control over the work of the board of directors, as well as the responsibility of the board of directors to the company and shareholders.

The OECD Corporate Governance Principles are non-binding and give countries (not just OECD members) the opportunity to analyze generally accepted rules when developing their own codes and corporate governance tools. It has been established that in most countries that are guided by corporate governance codes, the recommendations and rules contained in them are more or less close to the OECD Principles. ACCA and KPMG, in a joint study “Corporate Governance Principles and Harmonization of Compliance Mechanisms” (2014), define a corporate governance code as a tool designed to cover most of the key corporate governance requirements in a given country. As a rule, it is introduced by the government or the administrator of the country's stock exchange; the code applies to companies whose securities are listed on stock exchanges. Compliance can be voluntary, “comply or explain the reason for non-compliance” (principles-based approach) or mandatory (rules-based approach) in accordance with legislation, for example, in the field of information disclosure, or compliance with the code is included in the package mandatory conditions for listing on the stock exchange. Currently, most developed countries have corporate governance codes developed at the initiative of non-governmental professional associations and widely accepted in the business community on a voluntary basis.

Thus, the OECD corporate governance framework is built on four key pillars:

• · transparency;
• · accountability;
• · justice;
• · responsibility.

The degree of compliance with the recommendations of the Principles, national codes, the effectiveness of the implementation of a set of corporate governance mechanisms determines its quality in the company. Quality of corporate governance traditionally assessed using corporate governance ratings compiled by rating agencies, investment companies and researchers. The rating is intended to reflect the level of development and effectiveness of the interaction of corporate governance mechanisms in companies.

1. Economic feasibility of introducing corporate governance standards

We have repeatedly mentioned earlier that proper corporate governance optimizes the entire range of business processes and, as a result, contributes to an increase in company profits. However, the question arises: what are the costs associated with the implementation of corporate governance standards and are all companies able to bear the corresponding costs?

For many medium and small companies, corporate governance standards are not an urgent need. Their primary objective in corporate governance is to improve compliance with applicable laws. It should be noted that the implementation of the standards prescribed in the Corporate Governance Code requires the establishment of a number of committees on the part of enterprises that ensure and control the work of the management bodies of the joint-stock company, the introduction of the position of a corporate secretary to facilitate the work of the Board of Directors and its committees, and the introduction of a member of the Board of Directors independent directors, etc.

Therefore, not all enterprises can afford to implement standards on the same scale as large companies. For small and medium-sized enterprises, such costs are not economically feasible, since the costs of servicing are not comparable with the income from the activities of those governing bodies that require the introduction of the Code.

Large corporations are more interested in implementing standards also because they are funded by securities placed on exchanges and attract external investors, while medium and small companies are looking for direct investors or bank loans. The specifics of corporate governance in such companies still exist, that is, the founders of the company participate in operational management and are interested in the concentration of ownership. And this situation is typical not only for Russia. The practice of corporate governance and the degree of its implementation in medium and small companies operating in developed countries market economy, shows the same difference.

Thus, we note that the economic feasibility of introducing corporate governance standards is present only in relatively large companies or companies developing their scale of activity. However, the development of the market mechanism, competition, the search for new investors are those external factors, which stimulate companies to internal growth, and therefore to adequate functioning in an environment of their peers.

However, the problems of standards implementation are overshadowed by the problems of compliance with already implemented corporate governance standards, and large corporations that have the status of state, interstate and transnational ones face a lot of difficulties in complying with the implemented standards in their daily practice. A kind of struggle for the development of good corporate governance practices is reflected in the ranking of the largest companies, both in terms of individual corporate governance criteria and in terms of the overall performance of the company.

2. Criteria for the effectiveness of corporate governance

It should be noted that the criteria for corporate governance are very diverse. We have identified the most general criteria that can be specified if it is necessary to base a detailed analysis of the company's activities on them or when compiling an assessment of the effectiveness of corporate governance.

The general criteria for the effectiveness of corporate governance include:

1. Access to the capital market. Well-managed companies are perceived as friendly to investors because they inspire more confidence in their ability to generate returns for shareholders. Among investors, there is a tendency to include corporate governance practices in the list of key criteria used in the process of making investment decisions. The better the structure and practice of corporate governance, the more likely it is that assets are being used for the benefit of shareholders, rather than stolen by managers or otherwise misused.

2. Reducing the cost of capital and increasing the value of the company's assets. Companies that fully comply with corporate governance standards can achieve a reduction in the cost of external financial resources. Studies conducted at the cross-country level indicate that the cost of borrowed capital in Russia is much higher than in many other countries. The fact is perfectly justified; that investing money in an unstable economic environment is equivalent to venture capital investment and the higher the bank interest rate. At the same time, there is a directly proportional relationship between corporate governance practices and company valuation. As a rule, the introduction of corporate governance standards significantly increases the value of the company's shares in the market.

3. The clarity of the company's management system. As a result of better management, accountability is becoming clearer, oversight of managers' work is improving, and the reward system is more linked to performance. In addition, decision-making is improved through access to complete and timely information and increased financial transparency. Conditions are created for planning the succession of managers, which contributes to the success of the company in long term. The economic effect in this case is achieved indirectly, through a reduction in the amount of capital investments required to acquire top managers or their services during the crisis periods of the company's operation. This also reduces the risk of fraud, the pursuit of their own goals, at odds with the interests of shareholders. Good corporate governance is embodied in the fact that, in general, the transparency of the company for investors increases and they get an opportunity to penetrate into the essence of the company's operations. Even if the information is negative, increased transparency reduces the risk of uncertainty. Thus, incentives are formed for the Board of Directors to conduct a systematic analysis and risk assessment.

The listed criteria provide a number of benefits from effective corporate governance:

1) Improving strategic decision making.

2) Attraction of financial resources.

3) Improving the interaction of companies with government agencies.

4) Improving the interaction of managers with shareholders.

5) Prevention of corporate conflicts.

3. Methods for evaluating the effectiveness of corporate governance

Among existing methods corporate governance assessments in companies highlight corporate governance ratings and a corporate governance monitoring system for a particular company.

Despite the fact that the first ratings for the quality of corporate governance appeared in Russia back in 1999, and in terms of the number of these ratings we rightfully occupy leading positions in the world, investors are still not completely satisfied with them. As a rule, the ratings cover from ten to three, maximum four dozen companies, which is clearly not enough for investors working with shares of the second tier. Namely, these investors primarily need information support. In addition, many ratings are focused either on a narrow aspect of corporate governance or they contain an ideal model that is still little applicable in Russian conditions.

A consortium of the Russian Institute of Directors (RID) and the Expert RA rating agency, under the auspices of the National Council for Corporate Governance, attempted to create a national rating. The methodology was compiled on the basis of domestic legislation, the recommendations of the Code of Corporate Conduct and taking into account the best examples of business practice. And already at the first stage, 137 joint-stock companies were represented in the rating, that is, the absolute majority of companies whose shares are traded on the stock market.

I. Rights of shareholders (realization of the right of ownership, to participate in the management of the company, to receive a share in profits, the level of risks of violation of rights, the presence of additional obligations of the company to protect the rights of shareholders).

II. Activities of management and control bodies (composition and activities of the Board of Directors and executive bodies, the system of control over financial and economic activities, interaction between management and control bodies).

III. Information disclosure (the level of disclosure of non-financial and financial information, general discipline of information disclosure, equal accessibility of information).

IV. Compliance with the interests of other stakeholders and corporate social responsibility (policy of social responsibility and taking into account the interests of other interested groups, labor conflicts, social projects for staff and the local population, environmental friendliness).

Depending on the quality of corporate governance, companies participating in the rating can be assigned to one of the following rating classes:

class A.

Class A includes companies with a high level of corporate governance that comply with the requirements of Russian legislation, and also largely follow the recommendations of the Code of Corporate Conduct in their practice. At the time of the rating assessment, these companies have no risks of violation of the rights of shareholders, dishonest activities of the company's executive bodies and the provision of low-quality information. Joint-stock companies take into account the interests of "other stakeholders" and pursue an active policy in the field of corporate social responsibility. The general level of corporate governance of Class A companies is sufficient to attract funds from conservative portfolio investors;

class B.

Class B includes companies with a satisfactory level of corporate governance that do not violate the basic requirements of the current Russian legislation and partially comply with the basic provisions of the Code of Corporate Conduct. The activities of class B companies are associated with certain risks of violation of the rights of shareholders, dishonest activities of the executive bodies of the company and the provision of low-quality information at the time of the rating. In their practice, joint-stock companies of this rating class partially take into account the interests of “other stakeholders”. At the same time, the cumulative corporate governance risks of class B companies are acceptable for investing funds of short-term oriented investors. And investing resources in the assets of class B ++ companies provides investors with the optimal ratio of "profitability - risk";

class C.

Class C unites companies with low level corporate governance, allowing in their activities in one way or another the violation of the current legislation and non-compliance with the basic provisions of the Code of Corporate Conduct. In the course of assigning ratings to class C companies, risks of violation of shareholders' rights, dishonest activities of the company's executive bodies, and facts of providing low-quality or incomplete information were identified. At the time the rating was assigned, joint-stock companies did not fully take into account the interests of "other stakeholders" and did not implement a policy in the field of corporate social responsibility. The combined risks of investing in companies with poor corporate governance are high;

class D.

The activities of companies belonging to class D are characterized by an unsatisfactory level of corporate governance. In the practice of these companies, violations of a number of basic requirements of the current legislation, the absence of the basic provisions of the Code of Corporate Conduct and the norms of "best practice" were revealed. The risks of investing in class D joint-stock companies are extremely high. Class D includes an additional subclass SD, which reflects the flagrant violation of corporate governance standards, including the rights of shareholders or other stakeholders.

§ official website of the joint-stock company;

§ quarterly reporting for the last two quarters preceding the moment of assigning a rating;

§ the company's annual report;

§ news feeds of information agencies that are authorized agencies of the FFMS of Russia;

§ other sources of information, including messages, texts of presentations by company representatives, etc.

The Corporate Governance Quality Rating is calculated on the basis of an original methodology developed by specialists from the Institute of Corporate Law and Governance together with a group of international experts from the Blue Ribbon Panel. The rating is assigned according to the CORE-rating scale: from CORE-100 (the highest rating) to CORE-0 (bankrupt enterprises, the lowest rating).

When calculating the rating, three groups of “similar data” are used: public (mandatory disclosure) information, voluntarily disclosed information and the results of a survey of analysts of the securities market. Evaluation of enterprises is carried out on such important aspects of corporate governance as disclosure of information; share capital structure; structure of corporate governance; declared rights of shareholders; lack of risks; corporate environment. Particular importance is attached to the assessment of the risks of investing in a particular company, including the assessment of "legal mines" in the statutory documents of the issuing company. Pilot ratings for four Russian companies were presented in November 2000.

The methodology is based on the following principles:

Independence. The Institute conducts an assessment on its own initiative, regardless of the desire or direct order of the company being assessed; companies do not pay for the preparation of the rating;

Use of information available to an ordinary minority shareholder. The Institute owns minimum stakes in all companies included in the rating, and uses for analysis only information available to an ordinary minority shareholder.

1. Information disclosed in without fail, other, additionally publicly disclosed by the company; information disclosed by regulatory authorities (FFMS of Russia). The shareholder, acting legally, has the ability to make decisions only on the basis of information publicly disclosed by the company or other publicly available materials (press, market analyst reviews, etc.). Based on this, when calculating the rating, information that is closed to investors is not used.

2. Company responses to written inquiries and phone calls on behalf of the Institute as a shareholder. Practice has shown that shareholders who own small blocks of shares, trying to obtain information about the company, face real problems, the solution of which is associated with temporary and material costs. In order to assess the real attitude that has developed in the company towards shareholders, the Institute, being a shareholder itself, sends various requests to the company and conducts appropriate monitoring. Companies are evaluated according to six parameters reflecting various aspects of corporate governance:

¾ disclosure of information (terms of disclosure and completeness of documents disclosed publicly and at the request of shareholders, etc.);

¾ share capital structure (controlling groups, clarity of ownership structure, etc.);

¾ structure of the Board of Directors and executive management bodies (affiliation, remuneration, minutes of meetings, etc.).

¾ basic rights of shareholders (the right to participate in the management of the company, the right to receive dividends, etc.);

¾ lack of risks (asset stripping, transfer prices, share capital dilution, etc.);

¾ history of corporate governance (facts of violations of shareholders' rights in the past, problems with regulatory authorities, financial reporting standards, audit reports, etc.).

The Institute's methodology allows you to see the real state of affairs in the field of corporate governance in the company, as well as identify problems that investors may encounter.

The quality of corporate governance of companies is assessed on a quarterly basis; the companies included in the rating belong to the main sectors of the economy and cover more than 90% of the capitalization of the Russian market.

The rating methodology developed by PRIME-TASS analysts is based on the analysis of public information on rated companies. The availability of such information, according to PRIME-TASS, is one of the main criteria for assessing the openness of a company, and, consequently, the level of corporate governance. The criteria selected for the rating evaluate the main corporate governance risks, including a high concentration of ownership, an opaque share capital structure, existing system motivation of management and directors of companies, as well as other risks that determine the level of corporate governance.

This rating differs from the existing ratings in three circumstances: enterprises for rating assignment are grouped according to the industry principle, ratings are assigned on the basis of PRIME-TASS's own methodology and based on open sources of information. Participation in the rating is not a voluntary affair of industrial groups and enterprises, their selection is carried out by decision expert council agencies.

Intra-industry corporate governance risk analysis is of particular interest to investors considering an industry to invest in. The criteria selected for the rating assessed such risks as high concentration of ownership, which can lead to conflicts of interest between shareholders and politically motivated decisions, if a significant share of the company's share capital is owned by the state. As well as the non-transparent structure of the share capital, which may carry the risk of interested party transactions, the existing system of motivation for management and directors of companies, and many other criteria that determine the level of corporate governance.

In general, corporate governance risks are grouped into five categories, each of which, in turn, consists of several subcategories. For each subcategory, the company is assigned a rating on a five-point scale, the average value is set in each category. The final rating is the average of the ratings in the five categories.

The main criterion is the company's financial transparency and disclosure of information related to financial reporting companies. The second criterion of the PRIME-TASS corporate governance rating methodology affects the company's share capital structure and the company's share market. The third criterion of the methodology analyzes and evaluates the rights of shareholders and the risks of corporate governance in the company. The fourth criterion of the methodology evaluates the activities of the Board of Directors and the management of the company. The last criterion of the corporate governance rating methodology is information openness and corporate governance initiatives.

Among the most common foreign ratings is Standard & Poor's Corporate Governance Rating.

international company Standard & Poor's began developing a methodology for corporate governance ratings in early 1998. After testing the methodology during pilot projects, Standard & Poor's decided to create a specialized Corporate Governance Rating Service and, since 2000, began to provide rating services in the field of corporate management. Currently, Standard & Poor's presents the concept of assessing corporate governance both at the level of companies and at the level of individual countries. The approach used by Standard & Poor's involves considering the situation from the point of view of financially interested parties - shareholders and creditors.

The Standard & Poor's team of analysts conducts a kind of interview with the company, on the basis of which a detailed report is drawn up, which sets out the main elements of the analysis and contains an overall rating of corporate governance, as well as individual scores for each of the four components presented in the third section of the report.

The course of logical reasoning on which individual ratings (points) are based is set out by the analyst in the report on the assigned rating.

The report structure looks like this:

1. Summary of findings. It presents the overall corporate governance rating of the company with a brief justification, as well as a summary of the main provisions of the assessment of individual components; it also identifies the main strengths and weaknesses identified for each component.

2. Information about the company: basic information regarding production activities, financial position, management and ownership structure.

3. Methodological part: scores and analysis of the following components:

• ownership structure and external influence;

· the rights of shareholders, relations with financially interested parties;

transparency, disclosure and audit;

· the structure and efficiency of the Board of Directors.

CGS-10 or 9. A company with very strong corporate governance processes and practices. The CGS for these categories of companies indicates few weaknesses in some of the main areas of analysis.

CGS-8 or 7. The company has strong corporate governance processes and practices. Companies that receive CGS in these categories have some weaknesses in certain key areas of analysis.

CGS-6 or 5. Demonstrates average corporate governance processes and practices. Companies have some weaknesses in several key areas of analysis.

CGS-4 or 3. A company with weak corporate governance processes and practices has significant weaknesses in a number of areas of analysis.

CGS-2 or 1. Assigned to companies with very weak corporate governance processes and practices that have significant weaknesses in most major areas of analysis.

The methodology for compiling this rating involves dividing the various real and potential risks associated with corporate governance into eight categories and 20 subcategories. Each of them corresponds exactly certain coefficient risk and instructions for its use.

The rating level consists of penalty points awarded to companies. Therefore, the higher the rating of a company in terms of the total scores it has scored, the greater the degree of risk it represents. According to Brunswick UBS Warburg, the results of their model are largely consistent with the market's perception of corporate governance risks. Companies with more than 35 penalty points are considered extremely risky, while companies with a rating below 17 are considered relatively safe.

The following table presents the categories and subcategories of corporate governance risk factors with their respective maximum number of penalty points:

Penalty points indicated in the table may vary - go down to zero. The level of risk for a particular factor is assessed by an expert who analyzes the company.

Corporate Governance Monitoring System

The fundamental difference monitoring system of corporate governance is that monitoring is not intended to rank companies by the level of corporate governance and their public differentiation. Monitoring involves monitoring compliance with and implementation of the implemented corporate governance standards in each company.

Currently known monitoring systems are carried out by two bodies: the Guild of Investment and financial analysts(GIFA) and Russian Union industrialists and entrepreneurs (RSPP).

Both systems are based on the German Corporate Governance Scorecard methodology, which is widely used in Germany and other countries to analyze corporate governance in companies. However, the questionnaires for evaluating corporate governance practices are somewhat different.

The GIFA corporate governance monitoring system was developed by the GIFA expert group on the basis of the Code of Corporate Conduct using the German Scorecard methodology.

This system monitoring monitors the level of compliance by the company with corporate governance standards. It is based on a number of criteria, which correspond to a certain percentage of the specific gravity. The evaluation result is the sum of the individual criteria. Accordingly, the higher the maximum value of each criterion and the total amount, the more adequate corporate governance is to the declared standards. The full form of the monitoring questionnaire is presented by us in Appendix 1.

Another monitoring system is carried out by the RSPP Corporate Governance Committee.

This monitoring system allows you to determine the degree of compliance of corporate governance practices in the company both for each of the principles of the WEF / RSPP, and for the entire set as a whole. Based on the results of the monitoring, companies are divided into only two categories: those that comply with the WEF/RUIE principles and those that do not comply with the WEF/RUIE principles.

At the same time, based on monitoring purposes, the exact value of the degree of compliance of corporate governance in the company with the principles of WEF / RSPP is not published, but is used only for dialogue between the company itself and the RSPP committee on corporate governance.

The following information is publicly available:

§ a list of companies that have declared their commitment to WEF/RUIE corporate governance principles (the list is published on the RSPP website and the website of the RSPP Corporate Governance Committee);

§ a list of companies whose corporate governance practices comply with WEF/RSPP principles based on monitoring results;

§ a list of companies that have declared adherence to the WEF/RUIE principles and whose corporate governance has not been recognized as consistent with the WEF/RUIE principles within 12 months from the date of the first monitoring.

The questionnaire, compiled in accordance with the approved system of groups and criteria, is sent to companies or companies independently download the questionnaire from the Committee's website (see Appendix 2). Further, the questionnaires are filled in by the responsible person of the company. The completed questionnaires are processed by the coordinating center of the RSPP Committee on Corporate Governance, which publishes the received generalized results on the website of the RSPP Committee on Corporate Governance and on the website of the RSPP, and individual results for the company are sent to it directly.

Distinctive feature of this monitoring system is that it can be refined and improved at the initiative of companies. Changes in the monitoring system or the wording of the principles are considered by the RSPP Corporate Governance Committee and approved by the decision of the Bureau of the Board of the RSPP.