A key role of the board is to assess the risk potential of the company
and to assure itself regularly that all identified risks are
appropriately managed, writes N. Balasubramanian in ‘ A Case Book on
Corporate Governance and Stewardship' (www.tatamcgrawhill.com). Adding
that the directors may ensure such an assessment is carried out by the
management with the help of external experts, the author rues that, in
the case of Union Carbide, there is no evidence that such a process
was in place. “It is strange that the board of a chemical company
dealing with hazardous material, posing risk not only to company
employees but also nearby communities, did not think it necessary to
institute precautionary processes. If, however, such processes were in
fact in place, and the directors were satisfied they were adequate,
subsequent events have proved them hopelessly wrong.”
Reiterating the accepted position in governance theory, that corporate
boards have three dimensions to their roles and responsibilities, viz.
contributing, counselling, and controlling, in their stewardship of
the companies, the author raises many questions. Such as, whether the
Union Carbide board had enough technical knowledge of the company's
businesses, and especially the hazardous nature of the operations in
Bhopal; and whether the directors were independent and objective
enough to resist safety deviations and technology shortfalls. He also
wonders why only one non-executive director, the Chairman of the
company, was picked out for prosecution and punishment: “If the board
as a whole had failed, would it not have been reasonable to prosecute
and punish all the other directors of the company as well?”
Conflicts of interest
The opening chapter in the book is titled ‘Hunting with the hounds and
running with the hares,' and it is about ‘board level conflicts of
interest in Larsen & Toubro.' The narrative traces how the L&T
executive management apparently fought hard to retain its professional
independence and maintain the company's status as an unaffiliated
behemoth and exemplar of managerial capitalism. “When it found that
the total company was in peril of being acquired, not in a hostile bid
or in a friendly takeover, but in more like a Trojan encounter with
the predators masquerading as benefactors, it quickly amputated the
vulnerable part to save the rest of the body…”
Good governance, no less than good law and personal ethics, dictates
certain standards of directorial behaviour and obligations, insists
Balasubramanian. The most important of these standards, he notes, is
that the directors act in the best interests of their company and its
shareholders.
Emphasising that when people accept directorships of companies, they
implicitly assume an obligation to protect the interests of the
company and its shareholders especially its absentee shareholders, the
author brings up the poser as to whose interests the directors would
protect when they have similar obligations to two sets of shareholders
in different companies, in contracts that place them on opposite sides
of the negotiating table. “This question assumes practical relevance
in the instant case. First, the Ambanis on the boards of L&T and
Reliance while increasing their stake in L&T; the Birlas on the boards
of L&T and Grasim who were pitched against each other in the takeover
process. The law of the land of course found no breach in the first,
while in the second there has been no specific ruling sought or
given…”
Educative collection of real-life situations, capturing slices of
excitement from the world of enterprise governance.
(This article was published in the Business Line print edition dated
October 10, 2011)
and to assure itself regularly that all identified risks are
appropriately managed, writes N. Balasubramanian in ‘ A Case Book on
Corporate Governance and Stewardship' (www.tatamcgrawhill.com). Adding
that the directors may ensure such an assessment is carried out by the
management with the help of external experts, the author rues that, in
the case of Union Carbide, there is no evidence that such a process
was in place. “It is strange that the board of a chemical company
dealing with hazardous material, posing risk not only to company
employees but also nearby communities, did not think it necessary to
institute precautionary processes. If, however, such processes were in
fact in place, and the directors were satisfied they were adequate,
subsequent events have proved them hopelessly wrong.”
Reiterating the accepted position in governance theory, that corporate
boards have three dimensions to their roles and responsibilities, viz.
contributing, counselling, and controlling, in their stewardship of
the companies, the author raises many questions. Such as, whether the
Union Carbide board had enough technical knowledge of the company's
businesses, and especially the hazardous nature of the operations in
Bhopal; and whether the directors were independent and objective
enough to resist safety deviations and technology shortfalls. He also
wonders why only one non-executive director, the Chairman of the
company, was picked out for prosecution and punishment: “If the board
as a whole had failed, would it not have been reasonable to prosecute
and punish all the other directors of the company as well?”
Conflicts of interest
The opening chapter in the book is titled ‘Hunting with the hounds and
running with the hares,' and it is about ‘board level conflicts of
interest in Larsen & Toubro.' The narrative traces how the L&T
executive management apparently fought hard to retain its professional
independence and maintain the company's status as an unaffiliated
behemoth and exemplar of managerial capitalism. “When it found that
the total company was in peril of being acquired, not in a hostile bid
or in a friendly takeover, but in more like a Trojan encounter with
the predators masquerading as benefactors, it quickly amputated the
vulnerable part to save the rest of the body…”
Good governance, no less than good law and personal ethics, dictates
certain standards of directorial behaviour and obligations, insists
Balasubramanian. The most important of these standards, he notes, is
that the directors act in the best interests of their company and its
shareholders.
Emphasising that when people accept directorships of companies, they
implicitly assume an obligation to protect the interests of the
company and its shareholders especially its absentee shareholders, the
author brings up the poser as to whose interests the directors would
protect when they have similar obligations to two sets of shareholders
in different companies, in contracts that place them on opposite sides
of the negotiating table. “This question assumes practical relevance
in the instant case. First, the Ambanis on the boards of L&T and
Reliance while increasing their stake in L&T; the Birlas on the boards
of L&T and Grasim who were pitched against each other in the takeover
process. The law of the land of course found no breach in the first,
while in the second there has been no specific ruling sought or
given…”
Educative collection of real-life situations, capturing slices of
excitement from the world of enterprise governance.
(This article was published in the Business Line print edition dated
October 10, 2011)
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