Corporate Governance in Japan & our talks with the FSA & JPX on changes for 2017

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2017 Report

In our report of August 2015 it was made clear that “NO corporate governance code is perfect.” However, the emphasis was that corporates needed to focus on the quality of independent directors rather than submit to a quantitative box ticking exercise when it came to complying with the new corporate governance code (The Code). While the Tokyo Stock Exchange (JPX) can be rightfully pleased with the progress of compliance by listed entities, when looking through the data, there appears a concerted effort by corporates to employ independent directors with a bent on not upsetting the status quo. That would appear at odds with the spirit of The Code.

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We made clear that the introduction of the Sarbanes Oxley Act (SOX) and other corporate governance codes – which pushed for more independence on boards to ensure fiduciary duty to shareholders – did not prevent investor losses hitting all-time records. Good corporate governance is about building a culture of trust (both inside and outside the boardroom). We have been fortunate to spend ample time with the Financial Services Agency (FSA) and JPX discussing the potential revisions to The Code. We have put forward three suggestions to increase transparency and achieve the slated goals of the document:

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One, we have always suggested that the quality of independent directors is imperative. Forget SOX as a prerequisite. A well-managed company should never feel threatened by the number of independent directors challenging consensus in the boardroom. Good governance is being open to constructive criticism. If a company has lacked strategic direction for years, a fresh perspective from independent minds is invaluable. Our greatest criticism gleaned from the published data is the high concentration of the three A’s (attorneys, accountants and academics) as independent directors which is more acute the smaller the company. Diversity (of opinion) on boards is imperative but the figures suggest a group think mentality (Kintaro-ame) approach skewed to such a narrow field of professions limits innovation as no two companies are alike. How do authorities change it?

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Simply, secondly, and more importantly we think that companies need to introduce proper incentive structures for executives. Our studies show that companies tend to perform better when board members (insiders) have a higher proportion of their remuneration linked to stock performance. Stock incentives, especially in larger corporations, are often a minuscule part of total compensation for leaders. So much so that there is little incentive to focus on chasing real returns through more aggressive strategy. Fix this and independent director selection will be more serious.

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Third and finally, we think that the authorities should encourage corporates to adopt English language financial materials. A growing number are but the pace is slow. By doing so would invite more eyes from investors in markets where shareholder returns are prioritised. This would create an environment that would encourage Japanese corporates to unlock shareholder value. The JPX would accrue large upside. Not only would it gain more status as a proper global exchange, it would invite higher activity which would improve liquidity which is a virtuous circle for a financial exchange.

In short, Japan remains by and large a masterclass in risk avoidance. Until company executives have performance linked remuneration structures we believe independent directors will do little to help drive shareholder returns. Kintaro-ame independent director selection is not the way forward. By prioritising the linkage of remuneration, driven by higher disclosure via English language we think the ultimate aims of The Code can be achieved and the soft corporate governance approaches we have seen to date with the failures of Toshiba, Sharp and Olympus can be consigned to history.

2017 Full report

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