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1、TOWARDS A NEW CORPORATE GOVERNANCE AFTER THE WORLD FINANCIAL CRISISProfessor Roman Tomasic, Durham Law SchoolAbstractTwo decades of corporate governance reforms have poorly equipped the financial services sector to deal adequately with the stresses created by the financial crisis. The very existence
2、 of many major banks and financial institutions has been challenged, with many well-known financial institutions disappearing. The collapse or near collapse of large and often complex financial institutions has been attributed to a number of causes. Amongst the more immediate of these causes has bee
3、n the weakness of internal risk management and poor governance structures within these financial institutions. The financial crisis has highlighted weakness in the edifice of corporate governance ideas that has been constructed in recent decades, largely by the private sector. Some of the structures
4、 that have been found wanting in this edifice have included bank boards; corporate gatekeepers; shareholders and other stakeholders, and a corporate culture or value system that seemed to focus on rewarding greed and short term profits. It is clear that the causes of the current crisis have gone bey
5、ond a mere failure of bank boards. A whole system of banking corporate governance has also been called into question.Until recently, achieving good corporate governance has largely been seen as primary the responsibility of industry rather than of government. As a result, industry organisations have
6、 led the way in many countries in devising new corporate governance structures and principles to create the illusion of adequate regulation. Over the last two decades, for example, a series of industry generated reports, such as by the UK Cadbury Committee, and reports by groups such as the Internat
7、ional Corporate Governance Network have led to the creation of a network of national and multilateral codes of practice or principles. From time to time, Western governments have also entered this field, but only in a very limited and hesitant way, largely leaving the fashioning of corporate governa
8、nce norms to industry itself. One major exception to this was the passage in 2002 of the Sarbanes-Oxley Act in the US after the scandals generated by the collapse of Enron, WorldCom and Global Crossing. But even this legislative intrusion was soon resented by many financial institutions as it was se
9、en as imposing too many constraints upon company accounting practices. Sometimes national or regionally developed codes have been given a global dimension through the intervention of multilateral bodies such as in the OECDs Principles of Corporate Governance. At the same time, stock exchange listing
10、 rules around the world have also often required listed companies to report on their compliance with codes such as the UK Combined Code, albeit with the very industry friendly “comply or explain” approach. Whilst formal compliance with the Combined Code has generally been at a high level in the UK,
11、this has been almost meaningless, given the wide range of company failures as a result of the financial crisis, suggesting that formal compliance is insufficient. What is clear from the current financial crisis that has so disastrously affected banks and other leading financial institutions is that
12、these corporate governance codes have been found wanting and have failed to place an adequate check upon unrestrained risk-taking and greed. A recent report prepared for the OECD Steering Group on Corporate Governance admitted that there was a need for the OECD “to re-examine the adequacy of its cor
13、porate governance principles” in key areas relating to risk management by company boards. This is because the capacity of board, as currently structured, to properly oversee senior management of banks and financial institutions has clearly been called into question. Reviewing the available research,
14、 this OECD report noted that little research has “so far dealt in much depth with the role and performance of the boards, the focus being on documenting risk management failures.” The report concluded that this was “an unfortunate omission since it is a prime responsibility of boards to ensure integ
15、rity of the corporations systems for risk management.” Similarly, the International Corporate Governance Network (ICGN) has found that poor corporate governance has been a significant cause of the current financial crisis as company boards “failed to understand and manage risk and tolerated perverse
16、 incentives.” What seems to be emerging from various official enquiries (such as the UK Treasury Committee hearings into the collapse of Northern Rock) is a realisation that boards as currently structured simply did not have the ability to properly understand and monitor the complex business of large banks and other financial institutions. In this regard, the complexity of many securitised products developed by these banks was such that, even the credit ratings agencies
