© 2007 KPMG Phoomchai Business Advisory Ltd., a Thai limited liability company and a member firm of...

1 © 2007 KPMG Phoomchai Business Advisory Ltd., a Thai limited liability company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved. Printed in Thailand.

Corporate Governance Insights :Corporate Governance Insights :““The Global Scene and What Works Best”The Global Scene and What Works Best”

A KPMG Presentation A KPMG Presentation by I G Chandran and Narisara Phatanaphibulby I G Chandran and Narisara Phatanaphibul

2121stst November 2007 November 2007

© 2007 KPMG Phoomchai Business Advisory Ltd., a Thai limited liability company and a member firm of the KPMG network of independent member firms affiliated with KPMG International, a Swiss cooperative. All rights reserved. Printed in Thailand.


Agenda

CG : International Reform – Issues and Insights US & US Case studies – What went wrong? The Thai Story on CG – Is it working? The CG Healthcheck : “How do you stack up?"


CG : International Reform

Issues and Insights


Definition of corporate governance?


One definition…

“A set of structure and process of relationships between a company’s management, its board and its shareholders to enhance its competitiveness towards business prosperity and long term shareholders to enhance its competitiveness towards business prosperity and long term shareholder value by taking into consideration the interests of others.”

Corporate Governance Guidelines 2006, the Stock Exchange of Thailand


“Process and structure used to direct and manage the business and affairs of the company towards enhancing business prosperity and corporate accountability with the ultimate objective of realising long term shareholder value, whilst taking into account the interests of other stakeholders.”

Chapter 4, Report on Corporate Governance by the Finance Committee on Corporate Governance (February 1999)Malaysia

…… and more definitions



“If management is about running business, governance is about seeing that it runs properly”

Professor Bob Tricker, 1984



In essence, corporate governance is the “system by which companies are directed and controlled”

Sir Adrian Cadbury,Cadbury Report, 1992


What is “bad governance”?

“The business community now looks at things in terms of what they can get away with, not what is right”

Arthur Levitt - former SEC Chairman


United Kingdom 1992 - Cadbury Report

1995 - Greenbury Report

1998 - Hampel Report 1998 - The Combined Code 1999 - Turnbull Report : Internal Controls

Guidance for Directors

2003 - Higgs and Smith Reports

2003 – Revised Combined Code 2005 – Proposed FSA Corporate Governance

Listing Rules

Australia 1991 - Bosch Report

2003 - ASX Corporate Governance Guidelines

United States 1987 - Treadway Report: Report of the National

Committee on Fraudulent Financial Reporting 1992 - COSO Report: Internal Control -

Integrated Approach

1999 - Blue Ribbon Committee

2002 - Sarbanes-Oxley Act (SOX) 2003 - New NYSE and NASDAQ Corporate

Governance Listing Standards

Developments in Thailand

International governance reforms


A Comparison of Selected Governance Practices

Source : Internal Auditor

Practice United States United Kingdom(Combined

Code)

Japan(JCGC)

Thailand

Basic Mix of mandated and voluntary.

Comply or explain.

Voluntary. Voluntary.

Separation of Chairman & CEO

Traditionally not separated – trend towards separation or lead director.

Separated. Traditionally not separated.

Separated.

Independent Board Majority

Listing standards require an independent majority.

At least half the board, excluding the chairman, should comprise non-executive directors.

Recognizes that a majority should be independent.

Number of independent directors should be equivalent to at last one-third of Board size, but not less than 3.





Code)

Japan(JCGC)

Thailand

Required Board Committees

Audit committees required by law. Nominating and compensation committees required by NYSE listing requirements, but not by NASD.

There should be a nomination, remuneration, and audit committee.

The board should establish audit, nomination, and compensation committees. The board may establish litigation or other committees for a specific purpose.

Audit committees required by the SET listing rules. There are two recommended committees namely the remuneration and nomination committees.





Code)

Japan(JCGC)

Thailand

Board Access to Independent Advisors

Audit committee authorised by law to retain public accountant and advisors. NYSE Listing standards indicate that nominating and compensation committee charters should give committees sole authority to retain search firms and compensation consultants, respectively.

Non executive directors have access to independent professional advice at the company’s expense where they judge it necessary.

None other than the outside auditor specified.

Not covered.




Practice United States United Kingdom

(Combined Code)

Japan(JCGC)

Thailand

Auditor Independence

Mandatory audit partner rotation. All audit and non-audit services of registered accountants approved by audit committee. Non audit services restricted.

The audit committee reviews and monitors auditor independence and non audit services supplied by the outside auditor.

Not covered. The audit committee reviews and monitors auditor independence and non audit services supplied by the outside auditor.


Operating Units

Board & Sub-Committees

Corporate FunctionsRisk

Control

Governance

Stra

tegy

& A

ppro

ach

Stra

tegy

& A

ppro

ach

Reporting

Reporting

Governance, risk and control - An integrated model

Risk

Governance

ControlAn appropriate enterprise risk management framework is in place:

● which is aligned with business strategy and organisational risk appetite and able to assess the critical risks

● Development of appropriate reporting structures and procedures for risk.

● Improving management and

employee attitudes to risk and risk taking to improve decision making.

Improving the effectiveness board operations and performance through:

● Compliance with governance codes and applicable laws and regulations

● Effectiveness and accountability of board of directors

● Performance reviews and remuneration structures

Assurance over risk management and internal control systems:

● The three lines of defence against the risks are internal audit; oversight functions; and business operations

● Checks and balances aligned with acceptable internal control model such as COSO framework


Assessing risk & control environment

Overseeing financial reporting Evaluating the audit process

Control environmentRisk assessmentControl activities

Information & communication Monitoring

Earnings releasesFinancial statementsCommittee diligence

Committee assessment

Internal audit roleExternal audit roleIndependent audit

expectationsCollaboration & communication

Understanding results & conclusion

Shareholder interest

CG and responsibilities of the Audit Committee


In today’s world, CSR, defined as “all aspects of business behaviour and impact on society”, is on every corporate

agenda. It embraces business practices, including environmental management systems, human resources policy and strategic investment for a sustainable future.

Behaving responsibility towards all stakeholders is likely to engender trust, loyalty and motivation. This in turn,

creates value through, for example, improved productivity and improved customer retention, reduced risk of litigation

and a stronger overall license to operate.

CG and Corporate social responsibility (CSR) reporting


British Petroleum Business policies statement covering areas of ethical conduct, employees, relationships, health, safety and environmental performance and control and finance.

BP Sustainability Report, 2003

Royal Dutch/ Shell Publication of the Shell Report, 2003 issued on a yearly basis on contributions made to sustainable development

Location Reports on sustainability issues in individual countries Statement of General Business Principles covering areas including business

integrity, political activities, health, safety and the environment and the community

Exxon Mobil Reporting on environmental performance in the annual Corporate Citizenship Report, 2003

Standards of Business Conduct addressing amongst others ethical, environmental, health and safety and customer relations and product quality policies

What other companies are doing as responsible corporate citizens?


What other companies are doing as responsible corporate citizens?

The Bangchak Petroleum Public Company Limited (“BP”)

Business policies statement covering areas of code of conduct, employees, safety and environmental performance and control, training, education and finance.

PTT Exploration and Production Public Company Limited (“PTTEP”)

Reporting on the Annual Report for year 2006 Business Conduct addressing amongst business integrity, quality, safety,

environment accomplishment and environmental responsibility in support sustainable development.

The Siam Cement Public Company Limited (“SCG”)

Reporting on Principles of Good Corporate Governance covering areas of Ethical management, Roles and Responsibilities of Stakeholders and Board of Management, in the annual Report, 2006

Social Responsibilities covering areas of environment, health & safety, public welfare and community developments, addressing on Sustainable Report 2006


Triple bottom line reporting in CSR


Changing market focus

Risk management

Performance improvement

New regulations


Process trans-

formation

Integrated riskmanagement

Improved processes

Sustainable value and confidence

Risk management

Performance improvementComplianc

e

Sustainable value andconfidence

Improvedcontrols


Enterprise governance: Getting the balance right

Enterprise governance

Conformance Processes Performance Processes

Chairman/ CEO Non Executive Directors Audit Committee Remuneration Committee Risk Management Internal Audit

Strategic Planning and Alignment

Strategic Decision Making Strategic Risk Management Scorecards Strategic Enterprise

Systems Continuous Improvement

AccountabilityAssurance

Value CreationResource Utilisation


The case studies focused on: What went wrong in failure and success, in the analysis of :

Enterprise governance: 27 international case studies from 10 countries

CORPORATE GOVERNANCE STRATEGY

The principal 4 findings for CG:

Culture and tone at the top; The chief executive; The board of directors; Internal controls. (No single issue dominated)

The principal 4 findings of strategy:

Choice and clarity of strategy; Strategy execution; Ability to respond to abrupt changes; Ability to undertake successful M&A. (Unsuccessful M&A most significant issue)

CONCLUSIONStrategic oversight for which key priority areas are: ERM Acquisition process Board performance

Source : International Federation of Accountants


US & UK Case Studies

What went wrong?


Enron didn’t fail just because of improper accounting or alleged corruption at the top. It also failed because of its entrepreneurial culture…The unrelenting emphasis on earnings growth and individual initiative, coupled with a shocking absence of the usual corporate checks and

balances, tipped the culture from one that rewarded aggressive strategy to one that increasingly relied on unethical corner-cutting.

In order to hit the 2000 year-end profit target, reserves were used to cover line charges. The establishment of these reserves had been questionable at best, and the use of reserves to

cover current expenses was in clear violation of accounting rules. When mid-level accounting personnel raised objections to this strategy , the CFO assured them that this was

a one- time event that would help WorldCom over a rough place in the road.

In 2002, frustrated by ExxonMobil's lack of disclosure on the risks and new business opportunities associated with climate change, shareholders representing over $55 billion in ExxonMobil stock (20.3 percent of those voting) supported a resolution seeking greater

disclosure of the company's plans for renewable energy.

UK case studies- what went wrong?


In the case of Marconi in the UK, the “ biggest failure was shareholders, non-executive directors and the wider analytical community, including the press, failing to act as an effective check and balance on managements that were under pressure to address

exceptionally difficult strategic problems”.

The board of Marks and Spencer in the UK was well aware that it needed to split the roles of chairman and Chief Executive as recommended by UK corporate governance best

practice. However, there was no obvious candidate for the post of chief executive. At this point, the board failed to ensure that appropriate steps were taken to groom an internal executive or to search outside the company. The failure to act created boardroom coup

became inevitable.

Cable & Wireless duly sold its local access firms and invested the proceeds in long-haul data capacity and related services for large companies. It bought an American network, built a European one and beefed up its undersea cable network. The problem was that

many other firms were doing exactly the same thing, resulting in a capacity glut and tumbling prices.

UK case studies- what went wrong?


Lessons learnt from the Enron….

Independence of board & committee members Conflicts of interest Board & management relationship Executive & non-executive remuneration Auditor independence

“The abrupt and dramatic transformation from a well-respected and award winning company to a disgraced and bankrupt enterprise in less than three months.”

The Permanent Subcommittee on Investigations, 2002


However, corporate governance failures continues

Nature of offence Facts of the case

Accounting irregularities Overstatement of oil and gas reserves by Shell. The company further announced that the overstated reserves had exaggerated its profit by $276 million and that this had been known by top executives for at least two years. Shell has since overhaul its reserves practices and review its corporate governance standards. Formal investigation has been launched by the SEC on the irregularities (2004). Brystol-Myers Squibb was fined $150 million by the SEC for inflating sales by encouraging wholesalers to overstock its products and recognizing $ 1.5 billion of revenue at the point of shipment (August 2004)Former Chairman of Vivendi Universal was placed under formal investigation for suspected financial wrongdoings. Allegations include insider trading, share price manipulation, publication of misleading information and misusing company’s funds (2004).

Executive compensation Shareholder lawsuit was taken against the Board of Disney for the severance package of $140 million paid to its former president Michael Ovitz, who was ousted from Disney after just 14 months with the company (2004).


Economist Intelligence Unit (EIU) survey of top 10 companies in UK, US, Germany, France and Japan (August 2003) revealed:

76% included a separate section on corporate governance in 2003 Vs 68% in 2002 annual report;

With the exception of Japan most companies now provide clear information on committees and supervisory boards responsible for auditing and executive pay;

Good information on accounting policies and risks; and

US corporates in particular appear to have taken significant steps to become more transparent

How is business responding?


How much of a priority is corporate governance?

One of the top three priorities 32%

Among our top ten priorities 37%

Important but not a management priority 18%%

Top Priority 8%

Not important 5%

How is business responding? (cont.)

From: EIU August 2003


Company Ethics/Culture/Tone at the top

Chief Executive Officer

Board of Directors

Internal Control/Compliance/ Risk Management

Aggressive Earnings Management

Ahold (Netherlands)

Enron (US)

WorldCom (US)

Xerox (US)

Vivendi (France)

Cable & Wireless (UK)

D Tripcovich (Italy)

France Telecom (France)

= issue had relatively minor significance in the case study

= issue was of moderate significance

= issue was of major significance

Source : International Federation of Accountants,2003

Summary of analysis on case studies: What went wrong?


The Thai Story on CG

Is it working?


Development of Corporate Governance in Thailand

1994

2003

2001

2002

2006

SEC established committee for developing good corporate governance PM’s Office released rules for good domestic affairs administration

SET’s 40 principles of corporate governance released

Named “Year of Good Corporate Governance” SET’s 15 principles of corporate governance released National Corporate Governance Committee and website established

Principles for good domestic affairs administration Decree

SEC’s Best Practice for Code of Conduct for Listed Companies released and The Principles of Good Corporate Governance for Listed Companies


Principles of Corporate Governance - Thailand

THE PRINCIPLES STRUCTURE

Category I

Rights of Shareholders

Category II

Equitable Treatment of Shareholders

Category IV

Disclosure and Transparency

Category III

Role of Stakeholders

Category V

Responsibilities of the Board

The Principles of Good Corporate Governance for Listed Companies, are divided into two parts, the principles and the recommended best practices. The principles cover all important issues concerning good

corporate governance whilst the content in the recommended best practices offers supplementary descriptions or means to enable

companies to implement the principles.


Principles of Corporate Governance – Thailand (Cont.)


Category I

Rights of Shareholders

The corporate governance framework should protect and facilitate the exercise of shareholders’ rights.




Category II

Equitable Treatment of Shareholders

The corporate governance framework should ensure the equitable treatment of all shareholders, including minority and foreign shareholders. All shareholders should have the opportunity to obtain effective redress for violation of their rights.




Category III

Role of Stakeholders

The corporate governance framework should recognise the rights of stakeholders established by law or through mutual agreements and encourage active cooperations and stakeholders creating wealth, jobs, and the sustainability of financially sound enterprises.




Category IV

Disclosure and

Transparency

The corporate governance framework should ensure that timely and accurate disclosure is made on all material matters regarding the corporation, including the financial situation, performance, ownership, and governance of the company.




Category V

Responsibilities of the Board

The corporate governance framework should ensure the strategic guidance of the company, the effective monitoring of management by the board, and the board’s accountability to the company and the shareholders.



Part VResponsibilities of the Board

2. Committees

5 .Board Self Assessment

6. Remuneration

1. Board Structure

3. Roles and Responsibilities of the Board

4. Board Meetings

7. Board and Management Training



1. review and approve key business matters

2. set and approve a written corporate governance policy 3. ensure that a written

code of business conduct be in place

4. consider any conflict of interests thoroughly 5. ensure that internal control

system is in place, including financial, compliance, and policy control, and review the system at least annually

6. establish a risk management policy to cover all activities of the company


Scoring Criteria for Corporate Governance Report

Thai listed companies are evaluated according to 123 criteria in the following five categories derived from the OECD principles of corporate governance:

The Rights of Shareholders Equitable Treatment of Shareholders The Role of Stakeholders in Corporate Governance Disclosure and Transparency Responsibilities of the Board


Scoring Criteria for Corporate Governance Report (Cont.)

Information Sources:

Company annual report Annual information filing (Form 56-1) Notice and minutes of companies’ shareholders meeting Company website Information on SET/SEC database Other publicly available information



CGR Excellent

BANPU

BBL

BCPKBANK

KTBPTT

PTTEP

RATCH

SCB


The CG Healthcheck

How do you stack up?


Performance reviews

Training for directors

Communicating with shareholders

Corporate Disclosure

Key messages – going forward…


Selected Corporate Governance Best Practices

How does your company stack up against these selected best practices?A “No” denotes additional risk for the CAE to consider.

Yes No

1 Is a significant majority of the board composed of persons who are independent of management and controlling shareholders?

2 Is the chairman or lead director of the board an independent outside director?

3 Is the board both functionally and technically balanced?

4 Is the size of the board appropriate for the size of the business and not unduly large?

5 Are auditing, compensation, and nomination/governance the province of independent directors, functioning under their own charters? Do the independent directors regularly engage in self-evaluation?

6 Do the board and supporting committees have access to their own advisers and counsel as needed?

7 Are controls over financial reporting documented with the entire senior management team certifying the financial results for individual businesses or divisions?

8 Do the directors, managers, and employees attest annually to a code of conduct? Are there regular efforts to provide related training and to gauge the effectiveness of communications regarding corporate values?

9 Are there mechanisms for employees or vendors to report serious policy infractions or fraud independent from management? Do whistleblower protections exist for those who avail themselves of these mechanisms?

10 Is the chief audit executive retained through, evaluated, and compensated by the audit committee of the board of directors?

Source : February 2005 Internal Auditor


Red Flags of Weak Corporate Governance

There is no independent leader of the board, whether that leader has the title of chairman, lead director, or presiding director.

There is a lack of open dialogue at board meetings. The board does not retain its own outside experts for counsel on important

issues such as compensation, risk management, and governance. Meeting materials are not sent to directors sufficiently ahead of time to

assimilate. Non executive directors are overly reliant on management for setting

meeting agendas. The size of the board is overly large, retarding effective communication

among directors and independent consensus building. Non executive director contact with line managers is not encouraged. There are excessive anti-takeover provisions in place that disadvantage

active shareholders and unfairly protect management.


Red Flags of Weak Corporate Governance (Cont.) The board does not consider shareholder proxy requests. A significant number of directors are company executives, or persons

with business or personal relationships with the CEO or the company, who could be expected to follow the lead of the CEO.

The board is dependent on management to identify and nominate new directors.

There is little correlation between corporate performance and incentive compensation.

The CEO and CFO promote a culture of aggressive growth and give lip service to the importance of “tone at the top” such that aggressive accounting policies and lack of accounting transparency is tolerated or encouraged.

Mechanisms for reporting serious breaches of policy independent of management and for protecting whistleblowers are not developed or communicated effectively.

Source : February 2005 Internal Auditor


Shareholder Value

Shareholders Communication

Impact Upon Performance

Performance linkedCorporate Governance Mechanisms

Accountability / Transparency

The linkage between corporate governance and shareholders value

Knowledgea

ble

Investo

rsEthical

Awareness

Effective Regulatory Regime


Some questions to ponder

Is the board making a strategic impact on the Group?



Does the board have a good handle on the Group risks?

Are Group values and ethical standards effectively guiding business decisions and behaviors?



Does the board’s stewardship provide for transparency, accountability and responsiveness to the Group stakeholder concerns?


Does corporate governance matter? The way forward

Most investors said that a well governed company would earn a premium on their share price of between 11-38% (Malaysia: 22%)


The last word on CG……

“ For me, the key to good corporate governance lies in substance, not form. It is about the way the directors of

a company create and develop a model to fit the circumstances of that company and then test it

periodically for its practical effectiveness”

“One thing is clear though. Whatever the model, the public must know about it and how it is operating in

practice. Disclosure should be a central feature of any corporate governance regime”

Justice Owen, HIH Royal Commission


Presenter’s contact details

I G ChandranPartner in Charge, Advisory

KPMG Phoomchai Business Advisory Ltd.

Tel : +66 2677 2713Fax : +66 2677 2222

[email protected]

Narisara PhatanaphibulPartner, Advisory

KPMG Phoomchai Business Advisory Ltd.

Tel : +66 2677 2786Fax : +66 2677 [email protected]

The information contained herein presentation is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

© 2007 KPMG Phoomchai Business Advisory Ltd., a Thai limited liability company and a member firm of...

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Transcript of © 2007 KPMG Phoomchai Business Advisory Ltd., a Thai limited liability company and a member firm of...