Vous trouverez, ci-dessous, un excellent article de John C. Wilcox*, président de Sodali, paru dans The Conference Board Governance Center Blog, sur la problématique de l’engagement des administrateurs avec leur actionnaires. Un sujet hautement d’actualité …

L’auteur affirme que la transparence est la clé de voute d’une bonne relation entre la direction et les actionnaires activistes. Selon lui, l’engagement est une mesure plutôt réactive parce ce que ce processus de communication avec les actionnaires n’établit pas une base solide à long terme ayant pour effet de prévenir l’activisme.

L’auteur propose plusieurs moyens très utiles pour rendre une organisation plus transparente et plus proactive dans ses communications avec ses actionnaires et avec les parties prenantes.

Une approche misant sur la valeur de la transparence est nécessaire pour assurer une bonne gouvernance. L’article évoque plusieurs moyens concrets pour y arriver en commençant par la clarification des rôles des administrateurs et l’établissement de la nette distinction à faire entre les tâches du CA et celles du management.

Voici les tâches qui relèvent de la responsabilité du conseil d’administration :

« Long-term strategy, company values, culture and “tone at the top”;
Oversight of management and long-term performance;
Accounting principles and the audit process;
Policies relating to ESG and sustainability;
Director nomination, selection and competence;
CEO succession planning;
Board evaluation;
Executive and board compensation;
Risk oversight;
Ethics, conflicts of interest and related-party transactions;
Non-financial performance goals and metrics;
Engagement and communication with shareholders and other constituents »

En fait, le CA doit avoir une voix clairement indépendante de la direction … et se doter des moyens pour l’exprimer.

Je vous invite à lire l’extrait ci-dessous qui résume bien la problématique abordée et à prendre connaissance de l’article qui suggère des moyens concrets pour accroître la transparence.

Directors Should Communicate With Shareholders

To demonstrate their effectiveness, corporate boards should increase transparency, provide an annual report of boardroom activities and take charge of their relations with shareholders.

With shareholders continuing to press for ever-deepening levels of engagement, companies must find a way to answer the most basic question of corporate governance: “How effective is the board of directors?” It is a question that can only be answered by the board itself, but it presents directors with a challenge as well as an opportunity. The challenge is to overcome the mindset, habits and perceived risks that have long kept boardroom activities under wraps. The opportunity, on the other hand, is to define governance and strategic issues from the board’s perspective, manage shareholder expectations, take the engagement initiative away from shareholders and reduce the likelihood of activism. Directors should give careful consideration to this opportunity. Over the long term, it will be far better for companies to control the process by which board transparency is achieved rather than waiting for yet again another set of governance reforms that could further erode the board’s authority.

Despite widespread support for board primacy and the board-centric governance model, boardroom transparency and director-shareholder relations are not a priority at most companies. A recent DealBook column in the New York Times described the situation as follows:

“What if lawmakers never spoke to their constituents? Oddly enough, that’s exactly how corporate America operates. Shareholders vote for directors, but the directors rarely, if ever, communicate with them.”

The problem is not limited to corporate America. Opaque boardrooms are a global phenomenon, particularly common in markets where companies are dominated by founding families, control groups, or the state.

The column concludes:

“…[S]ome form of engagement with shareholders – rather than directors simply taking their cues from management – would go a long way toward helping boards work on behalf of all shareholders…”
[Andrew Ross Sorkin, The New York Times, July 21, 2014]

Cues from management are not the only concern. In many global markets the board’s role is broadly defined, requiring directors to balance the competing demands of insiders, resolve conflicts of interest, deal with related-party transactions and juggle competing business and public policy goals in addition to their basic oversight duties. In these markets the need for transparency is even more compelling than in highly regulated markets, such as the UK, the European Union and the USA, where comprehensive legal, disclosure and accounting standards are well established.

Boards are under pressure…
Pressure for greater board transparency and more open communication continues to come from the usual suspects: activist investment funds, hedge funds with a range of long and short-term investment strategies, governance reform professionals, NGOs, shareholder advocacy groups, trade unions, individual shareholder activists, special interest proponents and other adversaries. Proxy advisory firms compound the pressure by providing a global audience for these disputes. When issues of policy are involved, the media and politicians often step in to further amplify the pressure on companies.

Companies have fought defensive rearguard actions against activism, occasionally prevailing in specific campaigns, but ultimately they have had to concede defeat on most policy disputes relating to governance and board accountability. The decade-long evolution of the say-on-pay vote exemplifies this pattern of opposition and retreat.

Despite the chain of losses, the high-volume debate between companies and shareholders about the merits of governance reform continues today: Are corporate governance standards good or bad for companies? Does shareholder activism produce value or destroy value? Should shareholders have more power or less? Are directors sufficiently independent or not? Should corporate governance be director-centric or shareholder-centric? Is chronic short-termism the fault of greedy shareholders, or greedy CEOs, or weak boards, or does it represent the inevitable decline of free-market capitalism, or all of the above? The list of questions goes on and on. The debate has not lessened in intensity, but it has not resolved the questions either. The few answers that have been provided remain largely determined by research methodologies, policy perspectives or the merits of individual cases. The real answer to most of the big questions seems inevitably to be “It depends…”

As 2015 approaches, it remains unclear how much the debate really matters or whether answers to these questions would be helpful to businesses and investors. For individual companies, the answer would seem to be No.

…but institutional investors are under pressure, too.
Today’s governance and regulatory environment is changing rapidly for shareholders and the investment community as well as for companies. In the extended wake of the financial crisis, institutional investors remain under the regulatory microscope. They can no longer claim privileged status or remain exempt from the governance and accountability standards they impose on portfolio companies.

Stewardship codes and new laws in several major markets now require institutional investors to intensify their oversight of portfolio companies and disclose publicly their governance policies, voting practices and engagement activities. These requirements have further led to the development of new means of collective institutional engagement through organizations such as the UK Investors Forum.

Proxy advisory firms, themselves under regulatory and industry pressure to provide less standardized governance reviews as well as more information about the integrity of their research and vote recommendations, are relying much less on their traditional check lists of governance externalities. In response to client demand, they are digging for more detailed information about board effectiveness at individual companies.

The financial crisis awakened the investment community and the general public to the failures that resulted from overreliance on quantitative analysis to evaluate companies’ performance and risk. In response to new rules, institutional investors are now beginning to include intangibles and non-financial performance metrics in their analytical models. This wider lens embraces corporate governance, environmental practices, social policies, ethics, culture, reputation and other non-quantitative elements that are predictive of long-term performance. The terms “ESG” (Environmental, Social, Governance) and “sustainability” have become a form of shorthand for defining this new way of looking holistically at business enterprises. A recently issued Directive on disclosure of non-financial and diversity information by the EU Council puts the legal imprimatur on this broader set of data.

The enlarged analytical framework has important implications for companies — and specifically for boards of directors. Responsibility for ESG and sustainability falls squarely on the board. The directors, rather than management, are deemed by shareholders to be answerable for ESG and sustainability.

Investor focus on non-financial criteria is producing some interesting results. In the U.S., the Council of Institutional Investors and its members have taken an approach that involves a carrot rather than a stick. CII has begun publishing periodic reports, based on member surveys and feedback, identifying companies whose disclosure practices exemplify best practice. A February 2014 CII report named six U.S. companies — Coca-Cola, GE, Pfizer, Prudential Financial, Microsoft and Walt Disney — as examples of excellence in disclosure of director qualifications and skills. In September 2014 CII published an additional report on board evaluation practices, citing GE (USA), Potash, Agrium (both Canadian companies), BHP Billiton (Australia), Dunelm (UK) and Randstad Holdings (Netherlands) as examples of excellence. According to deputy director Amy Borrus, CII plans to continue publishing reports on issues deemed important for its members to evaluate board effectiveness.

……

CONCLUSION
Although global corporate governance standards continue to uphold the director-centric model, information about board effectiveness remains fragmentary and inconsistent. Both companies and shareholders would benefit from an annual board narrative and a structured program for directors to communicate and engage with shareholders.

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*John C. Wilcox is Chairman of Sodali Ltd, a global consultancy providing companies and boards with services relating to corporate governance, shareholder relations, corporate actions and the capital markets. From 2005 to 2008 he served as Senior Vice President and Head of Corporate Governance at TIAA-CREF, one of the world’s largest private pension systems. Prior to joining TIAA-CREF he was chairman of Georgeson & Company, the U.S. proxy and investor relations.