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How is the Corporate Governance Affected by Globalization Finance Essay Essay

Corporate governance appears to be a particularly important topic nowadays, when ownership rights and control over assets in corporations are separated, and the top management of corporations might not act in the interests of stakeholders. There are numerous corporations all over the world, and their effect on the world economy is quite substantial. Corporations as one of the most complicated structures of a firm appear to be also the most powerful regarding its influence on economic development and political decision-making process. Considering the importance of corporations to the national economies and shareholders’ concern over level of protection of their investments, it is particularly relevant to be well aware of the governance systems inside corporations, their policy of shareholders’ treatment and their level of subordination to the state.

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These paper aims to explore, how entering the international market affects the corporate governance of corporations. Our research question is “How is the corporate governance affected by globalization?”

The research that we conducted will be useful for exploration of globalization effect on the world economies, and it is as well relevant for those, who have interest in topics related to corporate governance and its dependence on exogenous conditions.

To answer our research question we will rely on the following institutional economics approaches: agency theory, transaction costs theory, business ethics theory. We opted these four institutional theories, as they are the most relevant to explain the current changes in corporate governance of German companies as they enter Ukrainian market. In our research, we focus on the effect of Ukrainian market conditions on the governance system of foreign corporations that enter the national market, in our case we analyze German corporations. Both of these countries are in the continental Europe, thus Germany adopted the European type of capitalism. However, it is rather hard to determine what kind of capitalism Ukraine adopted after the break- down of the Soviet Union. We will use real examples of corporations operating in these countries to evaluate the changes in the corporate governance brought by the differences of the background, and to show the consequences the globalization in these cases led to.

The paper contains six main chapters. Chapter 2 provides reasoning for the choice of the countries that are analyzed in the paper. Chapter 3 is a review of four institutional economics theories that we use to analyze the corporate governance in Ukraine and Germany in further chapters. In chapters 4 and 5 we describe and explain main changes in corporations and corporate governance in Ukraine and Germany correspondingly. In these chapters we also focus on the particularities of corporations operating in these countries from the perspective of state of economy, level of political stability, state intervention in private sector and social factors. Chapter 6 is a study case of few German corporations (METRO AG, Henkel etc.) operating in Ukrainian economy. This chapter is an empirical proof of the differences in corporate governance, corporate legislations and their effects in two chosen countries with our comments and advises on possible changes, relying on material provided in previous chapters.

2. Germany and Ukraine. Reasoning for the choice of the countries.

Germany and Ukraine are for the time period one of the most unique economies in the world. Both based on heavy industry those two countries are one of the wealthiest countries in Europe. The time during the Germany’s division and the occupation of Ukraine is a “black-spot” in economic history, regarding both those countries. However, in late 1980s and early 1990s, after the break of Soviet Union, many countries regained their independence thus allowing them to choose their own economic path.

Germany, was separated in year 1961, when the soviets built a wall, which divided Berlin into Eastern and Western parts, thus part of Germany as well, into two economic blocks; one of which was “Western” or capitalistic, and the other one “Eastern” or communistic.

On the other hand, Ukraine shared rather similar destiny in historical perspective. In 1922 Ukraine became a part of USSR (The Union of Soviet Socialist Republics), thus determining their fate for socialistic regime, under control of Soviet Russia.

Both, Ukraine and Eastern Germany, managed to escape the Soviet control in late 1980s (1989 for Germany and 1990- Ukraine), thus allowing them to be independent and choose their own paths and make their own decisions.

“The term corporate governance is used in two distinct ways. In Anglo-Saxon countries like the US and UK good corporate governance involves firms pursuing the interests of shareholders. In other countries like Japan, Germany and France it involves pursuing the interests of all stakeholders including employees and customers as well as shareholders” (Allen, F., & Gale, D. (2002). A comparative theory of corporate governance. Social Science Research Network, Http://papers.Ssrn.com/sol3/papers.Cfm).

The economic paths that Ukraine and Eastern Germany chose were rather different. The main differences were the corporate governance control. The united Germany adopted the continental European corporate governance model, whereas for Ukraine, a rather young and inexperienced country, they chose to adopt Anglo- Saxon corporate governance.

The main differences about those two corporate governance systems were noticed by WladimirAndreff :”In Continental Europe corporate governance, there is no domestic external market for executive talent and, thus, when a German (or any other continental European) CEO is appointed there is no negotiation (about salary, stock options, performance bonus, retirement provision and the like). The second difference is in wage negotiations between the enterprise union and managers. Anglo- Saxon firms behave in both cases as properly capitalist; continental Europe firms, by contrast, are more seen like communities. The latter employee- favoring firm opposes the former shareholder-favoring firm”(Andreff, W. (2002), Journal of international business studies, Vol. 33, No 1, pp.195- 197, accessed on 23/10/2010).

The industries both countries chose were similar. Germany and Ukraine are both famous for their heavy industries, such as machinery industry, and the IT business. However, the main exporting areas of the countries differ greatly. Ukraine still bases most of its economy on Russia. Not only it exports most of its goods there, but also imports the most of country’s energy (gas, oil, electricity) from Russia. Whereas, Germany, is internationally well known for its car industry and home technic. Therefore, the German corporate governance is in relationships with many other different countries, which have different institutional systems, thus making German governance system to adopt in its own way.

On the other hand, Ukraine, basing its main relationship with Russia, had to adopt other meanings of doing transactions. Corruption and government incompetence made the cooperation between western countries and Ukraine rather difficult. According to MSI (Management Systems International):”Ukraine can be categorized as a closed insider economy A¢”â‚¬ a country strongly influenced by elite cartels” (MSI, (February 10, 2006), Corruption Assessment: Ukraine).

In conclusion, both countries have their own similarities and differences. Ukraine and Germany share rather similar historic background until the 80-90s of XX century, however, after both countries escaped the influence of USSR, affected by globalization, they took different paths following different choices, as an example governance structure. Neither of their choices were wrong. Out of these reasons this paper will be analyzing the corporate governance particularly in these countries.

Institutional economics theories used in the analysis of the corporate governance (Agency, Transaction, Business Ethics).

There are many different approaches, which are possible analyzing countries. The theories this paper will be focusing on are: Transaction cost, Agency and business ethics. Those theories were chosen due to several reasons.

Firstly, transaction cost theory would be particularly interesting to apply to German corporate governance, as German corporations have transactions with different firms in different countries, as for Ukraine corporations, it mainly deals with Russia and other post Soviet countries, such as: Belorussia, Lithuania, Latvia, Kazakhstan.

Secondly, agency theory would show how different agents and principles manage the transactions. In Germany’s perspective, they have many branches of their companies around the world, thus making it rather hard to rule. More over, the difference in chosen corporate governance in Ukraine and Germany makes it interesting to analyze how are firm’s agents treated and rewarded in both these countries

Lastly, the business ethics part will mostly concern Ukraine, as the level of corruption in the country is rather high, thus making it rather difficult for international corporations to take part in Ukraine’s economic development. As for Germany, it will interesting to see how do the branches of corporations situated in different countries, where corruption level is higher/high, avoid the corrupt structures.

3.1. Transaction cost theory

The transaction cost is a cost incurred in making an economic exchange/ or participating in a market (Wikipedia.org, accessed on 23/10/2010). There are many different ways to calculate transaction costs. Also, the transaction cost mostly wants firms to cooperate, as lower the transaction costs lead to higher profit, thus making long-term contracts applicable and wanted. As Hanna Kuittinen argues, “The inter-A¬Arm cooperation is more efA¬Acient than the use of open markets or hierarchies when it minimizes the difference between the A¬Arm’s transaction and management costs (i.e. the governance costs) at the same time as the value of its dynamic governance beneA¬Ats is maximized”(Kuittinen, H., Jantunen, A., Kylahenko, K., Sandstrom, J. (13 September 2008) Cooperation governance mode: an extended transaction

cost approach , pp. 307). However, making contracts with other party, needs trust, therefore, the reputation and uncertainty part starts to play an important role in reducing the transaction costs. Especially when long term relationships are being on stake, the reputation determines, whether the contract will be made or not. Moreover, even if the contract is made, uncertainty still might determine the relationships between the firm, as Hanna Kuittinen reasons: “Uncertainty about future outcomes makes it difA¬Acult to specify contracts ex ante, and behavioural uncertainty complicates the coordination during the transaction and evaluation of the performance ex post “(Kuittinen, H., Jantunen, A., Kylahenko, K., Sandstrom, J. (13 September 2008) Cooperation governance mode: an extended transaction

cost approach , pp. 310)

3.2. Agency theory

Agency theory “treats the difficulties that arise under conditions of incomplete and asymmetric information” (Wikipedia.org, accessed on 23/10/2010). The most important part is the asymmetric and incomplete information in these days economy. Principle hiring a new agent for its company is never certain about the validity of his documents or experience. So how should principles determine the agency costs? If they would over evaluate the agent it might come out that the new employee does not sufficiently do his job as expected, however if the agent is under paid, he might start shirking and not try do his best. As Claudia Keser and Mark Willinger argue “low incentives can affect participants in a contradictory way because of a possible conA¬”šict between intrinsic motivation and A¬Anancial reward. Furthermore, it can be concluded from a vast survey of experiments that in some cases incentives improve performance, and in other cases they have no effect, or even worse, hurt performance. “(Keser, C., Willinger, M., (2 October 2006), Theories of behavior in principal-agent relationships with hidden action, pp. 1527).

3.3. Business Ethics

“Business ethics I can either be institutional or personal in scope. Institutional business ethics deals with broad, somewhat impersonal and abstract issues of the ethics of corporations as institutions. An example of this is corporate social responsibility”(Pattan, E., J. (1984), The Business of Ethics and the Ethics of Business, pp. 1). As stated by John E. Pattan, personal or institutional, in this paper we will try to concentrate on the institutional point of view. “We make ethical judgments every time we feel that our interests or opinions are promoted or attacked, our rights respected or violated, or ourselves catered to or threatened” (Pattan, E., J. (1984), The Business of Ethics and the Ethics of Business, pp. 3) The main purpose of business if not a secret, every businessman wants to maximize his profits. But what moral costs does it involve? In some cases it might involve corruption, stealing sometimes even taking lives of others. Therefore, it will be studied, how do institutions deal with each other and how are ethics implied to their decisions.

Corporate governance Ukraine

Introduction to the corporate governance in Ukraine.

In the given paper we regarded the period of the economic development of Ukraine, starting from 1990 year. That time was remarkable for the fall of the Berlin Wall and the collapse of the central planning and command structures that had been in forces for 70 years. The country started implementation of reform programs aimed at market economy and globalization (Holmstrom, & Smith, 2000).

The leading enterprises and companies in Ukraine realized the importance of effective corporate governance. The reason is that it is the key factor determining the microeconomic efficiency of the enterprise sector and the quality of investment climate of the country.

According to A. Kostyuk ‘ the German model is getting spread in the Ukraine from year to year (Board Practices; An International Review’2003). The main evidences are small quantity of independent directors on the board, rare meetings of the board, not big number of committees on the board, the management board affects the supervisory board. There are nearly 35 thousand joint stock companies in Ukraine that is comparatively more than in many developed countries. Every year the state commission on securities and stock exchanges states about over 12 thousand of cases of breaking the principles of corporate governance in the country. In this case, it is significantly to regard the role of ownership structure in corporate governance. It is important to know why owners purchase shares and what corporate mechanisms they use. (A Kostyuk 2002).

The cause of closing of board practices in Ukraine is the rise in concentration of ownership, which results in rise in corporate control, violation of minority shareholders’ rights, rise in number of disputes, conflicts of interests and decrease in transparency of the Ukrainian joint stock companies. A  A A 

‘Database provides annual financial statements in total for 14356 companies, in particular 2215A corporations in 1998, 8325 corporations in 2000 (out of 11850 registered), 7735 corporations in 2001A (out of 12039 registered) and 10213 corporations in 2002 (out of 12010 registered). For the empirical testing we use the dataset of 10313 observations on manufacturing open joint-A stock companies in total, in particular 4337 firms in 2000, 3385 in 2001 and 2591 in 2002. Thus theA sample covers around 37%, 28% and 21% of all open joint-stock companies in Ukraine in 2000, 2001A and 2002 respectively. The data is collected from publicly available information, in particular, fromA annual financial statements of Ukrainian joint-stock companies (Source: PFTS ñ First Trading StockA System, Istock database:A www.istock.com.ua), (Corporate governance in Ukraine ‘ Vitaliy Zeka ).

Nowadays corporations in Ukraine are divided into joint stock companies founded pursuant to Law of Ukraine ‘On business association’:

Open Joint Stock company

Close Joint Stock Company

Ukrainian Joint Stock Company

Ukrainian Private Joint Stock CompanyA 

The biggest companies in Ukraine are:

Company Profit Sector – Naftogaz Ukraine Ukraine 6.126.451(Energy/Commodities), Mariupolskij Metkombinat Ukraine 2.382.034(Industry), Azowstal Ukraine 2.059.265(Industry) , Linos Ukraine 1.923.149(Energy / Commodities), Mittal Steel Kriwoj Rog Ukraine 1.836.833 (Industry), Industrialnyj Sojuz Donbasa Ukraine 1.750.239(Industry), Ukrtatnafta Ukraine 1.460.350(Energy/ Commodities), Zaporozstal Ukraine 1.325.41(Industry).

Directors can be nominated by the supervisory and the management boards independently.

At least 25 % of Companies with where controlling block of shares (50 percent +1 share) belongs to one owner, have boards with 5-6 members. They represent interests of the controlling shareholder. (A Kostyuk 2002)

In accordance with Article 118 of the Commercial Code of Ukraine, basic shareholder rights are established by law. The width of shareholders rights in Ukrainian firms may vary and depends on whether the joint stock company has free circulation of shares (an open type) or its shares are distributed among the founders and cannot be traded on stock exchange( a close type) . Companies controlled by the foreign institutional investors or Ukrainian investment companies have 7 or 9 members on the board (see the Commercial code of Ukraine).

Supervisory board members at Ukrainian joint stock companies meet every quarter. Boards at the companies, where the ownership is strongly concentrated, hold meetings less frequently than at those companies, where the corporate ownership is spread. This is because of controllers have a chance to have both the supervisory and the management boards under their control.

The procedure of nominating new directors in Ukraine is plain and chaotic. Shareholder may nominate committees by themselves. In order to do this, they must possess enough stake in enterprise. Each shareholder who possesses shares of the enterprise above 2 % of shareholders equity can offer his own candidate on the supervisory board. As we see from the chart, 44% of elected directors were nominated by shareholders. 31 % of elected directors were nominated by the management board. Only 25% of directors were nominated by the supervisory board.

(A. Kostyuk 2002).

In other words, shareholders wish to be controllers through electing directors and executive who would represent their interests.A 

Groups of the director nominators and their efficiency in nomination

Supervisory boards at Ukrainian joint stock companies are not independent. Some of them possessA largeA share of equity of the companies. The researches show that only about 8 % of board directors are independent.A There is evidence that 42 % of Ukrainian joint stock companies have no independent directors on supervisory board. About 31 %of researched companies in Ukraine have not more than 1 independent director .Companies have policy committee, which are under control of foreign institutional investors.A Directors can be nominated by the supervisory and the management boards indecently. The companies with dispersed ownership structure have a practice of nominating directors by governing corporate bodies. All candidates must be shareholders . A 

Definition of Corporate Governance.

The term ‘corporate governance’ can be interpreted as ‘the system of legal and economic institutions that create formal and informal regulatory system, which determines behavior of enterprise. (Piotr Kozarevswski 2009).

Mechanism of concentration of corporate ownership structure in Ukrain during 1998-2001 is illustrated by next figure.

(Kostyuk, 2007)

The researches ofA Saul Estrin, Adam Rosevear, AlexA Krakovsky, Alex PivovarskyA helped usA  greatly A to understanding theA issue of corporate governance mechanisms in Ukraine. All these expertsA considered that many corporate governance mechanisms, such as the boardA of directors, financial reporting etc, hardly work in Ukraine.A According to Alexander N. Kostyuk (“Corporate Governance in aA transition economy” 2007) “One of the well-known reasons is the absenceA of an Act of Joint Stock Companies.” The draft of this Act had beenA presented in 2001. However, the Act has not been approved by theA Ukrainian parliament, where a strong political lobby protects theA rights of large owners, named “oligarchs”. Therefore, joint stock companies in UkraineA have to work with reference to “The Act of Enterprises”, which does notA explain the nature of many corporate governance mechanisms, such as boardA committees,A executive directors,A executiveA monitoring, etc. As the result, corporate governance in Ukraine allows violation of minority shareholders rights, weak transparency and inadequateA corporate social responsibility. Under such circumstances, one of theA ways out is through developing a set of internal statements to makeA all these corporate governance mechanisms work.

Evidences of corporate governance in Ukraine.

There is evidence on corporate governance, which we observed while studied the statistical data on corporate governance in the country. “Our survey reveals that performance at the enterprise level has also not been improving, average output, employment, and productivity in Ukrainian firms have fallen every year since 1990 and profitability has been uniformly low, if not negative. Moreover restructuring has been very modest, although rather more differentiated across enterprises. For example there has been little increased trade with the West on average only 2%of enterprise sales in 1996 went to OECD countries, up from 0.5 % in 1999. Investment has also been low, so capital stock is largely obsolete.” (Saul Estrin & Adam Rosevesr, 1999)

This is another example we may apply for. In the average firm in Ukraine , the number of managers holding shares is around 15 , while the number of employees is 599 and former employees is 302. Holdings by Ukrainian citizens and companies are also highly dispersed at 1065 and 616 shareholders on average respectively. However, the typical number of shareholders, which are banks, foreign individuals and foreign firms, is one and investment fund is two.

The basic conditions for fundamental structure change in company corporate governance in Ukraine are still weak and need for radical policy changes and capital market development to make company corporative governance more effective (Saul Estrin & Adam Rosevesr, 1999).

After we studied the supervisory board practices in Ukraine, we may conclude the following: they are small in size, lack of legal employee participation in the corporate governance, rare meeting of board, small number of committees on board, management board influences, supervisory board, small number of independent directors.

Analysis of corporate governance in Ukraine from the approach of agency theory.

The Principal- Agent relations exist when one person called the agent acts on behalf of another, called principal. The welfare of the principal is affected by the choice of the agent.A In companies it is the shareholder who acts as the ‘ principal ‘ and company directors act as the ‘agent.’ A 

This interaction works well when the agent is a professional at making the necessary decisions, but contrary doesn’t work well when the interests of the principal and agent differ. A ‘There is possibility of opportunistic behavior on the part of the agent that works against the welfare of the principal’ (Baza Oba, 2004 ).

Most of agent’s actions in the companies are unknown to the principal or expensive to obtain.A A As applied to corporate governance in companies in Ukraine the second practice is common. The absence of accounting and audit norms in Ukraine as we mentioned above, leadsA to corruption and bureaucracy. All these prevent the Ukrainian companies from ‘ bringing simultaneous capital, access to Western ‘, technology, markets and managerial expertise’ ( Estrin & Rosevear, 2003 ).

Analysis of corporate governance in Ukraine from the approach of transaction costs theory.

In order to be able to transact at all and to transact safely, actors have to incur costs to find out how and where transaction opportunities occur, and about the possibilities the possible risks and uncertainties involved. These expenses are called transaction costs. Market transactions consist of several aspects:

1. Search and information costs (who offers the product? Is the seller the owner? What are the conditions?)

2. Costs to draft, to negotiate and to conclude the contract.

3. Monitoring costs and enforcement costs. These are the costs that are incurred to make sure that the other party commits to an agreement, whether this is of a private nature or a public nature (John Groenewegen, 2010).

According to Vladimir Andreff ( 2006), along with ‘ contract’ corporations (enterprises, established on the basis of the contract) there are a large number of corporations formed to address public authorities – ‘public’ corporations typically, in business practices of Ukraine. These corporations are successors of the reorganized ministries, state committees, departments and state enterprises to unite industry, or other principles.

(Inna Pidluska, 1998)

Analysis of corporate governance in Ukraine from the approach of business ethics theory.

It’s of common knowledgeA that no universal model ofA corporate governance exists. However,A there are generally accepted standards of good corporate governance. They may be applied in the frames of legal, economic and political aspects. InternationalA principles of corporate governance appeared as a result of increased public interest in corporate governance, which was generated by the globalization of financial markets and the capitalization of capital flows.A 

Ukraine is notoriously famous for engagingA inA corruption openly and freely. Ukraine’s President Leonid Kuchma has identified the main obstacle to business development as bureaucratic abuse of power, bribery and extortion. He also admitted that the government has failed to create conditions for conducting business honestly. (Inna Pidluska, 1998)

After the Orange Revolution the government of Ukraine has seen itA fit to sell business off to rich elite. It leads to the rise of the business oligarchs who have taken over the exercising state power into their own hands. So calledA ”shadow economy” was flourishing (Egger and Winner (2005).

In modern Ukraine giving a bribe is a regular everyday routine. To give a bribe to an inspector who checks the required norms in the company, or win a tender using special privileges, became a norm in Ukraine.

Average Ukrainian manager spends two days per week on inspection issues.A (Inna Pidluska, 1998)

The facts of double accounting and money laundering is a widely spread practice in a ‘shadow ‘economy of the country.

The size of Ukraine’s informal sector, or “shadow economy”, reflects the high degree of corruption. It is currently estimated that seven out of ten enterprises work in the shadow economy. These companies have no protection from corruption and are open targets for bribery and other forms of graft. (Inna Pidluska, 1998)

Nowadays, UkraineA is making a concerted effort to improve corporate governance at the national level. This goal can be achieved through the implementation of national Code of corporate governance. Problems of corporate governance in Ukraine must be addressed through introduction of standards of ethics and a code of practice for corporate governance. Business ethics is mainly aimed at promoting good reputation of the company at the market. TheA most important principles areA responsibility andA freedom. Employees and partners are individuals. They should beA honest, reliable and trustworthy. All the employees of the company with good will aim at high results, which improve quality of business itself and stuff’s lifeA (World Bank Group, 2009).

Nowadays corruption and bureaucracy widespread among the business community and judiciary itself is subject to political interference and corruption (Adam Mycyk & Elizabeth Cook, 2007 ).

Conclusion to the chapter.

An absence of progress in corporate governance in Ukraine can be explained by insufficiently deep character and consistency of institutional reforms realization.A The functioning of the new global economy is based on an effective management mechanism, implementation of the international accounting and audit standards and professional culture formation in corporate governance.

In general, the corporate governance practices, which were adopted by Ukrainian companies, fail to reflect the high levels set byA more developed European market economies and the United States.

5. Corporate governance in Germany

5.1 Introduction to the corporate governance system in Germany.

History of corporate governance in Germany:

In the 19th century, Germany’s typical form of business organisation was the “Kommanditgesellschaft” (“limited commercial partnership”). A “Kommanditgesellschaft” always had at least one member with unlimited liability whereas the other investor’s liability was limited to their contribution. In 1861, the General Commercial Code was enacted which devoted a section to joint stock companies and allowed incorporations with limited liability. Companies could choose between a single board of directors and a two tiered board system, involving shareholders appointing a supervisory board, which in turn elected the management board. This changed in 1884 when a reform was introduced which mandated that companies have a two-tier board that allowed free registration without a system of state concession. Thus a supervisory board was needed to take over the state’s monitoring role. For members of the supervisory board it was not possible to be a member of the management board but it was possible for a shareholder to directly elect member for the management board.

In the early 20th century, formal acts of corporate law led to the abandonment of mercantilism and the rise of classical liberalism. Corporations increasingly became public and private entities free from government control. Under the Nazi government of Adolf Hitler then, companies became less democratic in a reform of 1937. From then on, shareholders could not elect managers directly, and managers could only be removed “for an important reason”, directors were elected for terms of five years and were under the duty to serve the “Gemeinwohl” or “general good” which was manifested by the state officials to be of higher priority than maximizing the company’s revenues. After the war, new laws and changes all over the world led to more participation for workers within the corporations.

Corporate Governance from 1980-2010 in general

In the 1980’s, many countries privatized large state-owned corporations. Deregulation – reducing the regulation of corporate activity – has often been accompanied by privatization and is part of the laissez-faire policy. Another major post-war shift caused the development of conglomerates, meaning that large corporations purchased smaller corporations to expand their industrial base. Especially more concentrated and owner-controlled firms had high returns during the 1970s and early 1980s but this turned in the late 1980s and1990s. Increasing international competition could be the cause. In the mid-1990s, Germany adopted a series of legal and regulatory reforms related to corporate governance.

In 2002, the German Corporate Governance Code was created. The aim of the German Corporate Governance Code is to make Germany’s corporate governance rules transparent for both national and international investors, thus strengthening confidence in the management of German corporations. The Code addresses all major criticisms – especially from the international community – levelled against German corporate governance, namely

* inadequate focus on shareholder interests;

* the two-tier system of executive board and supervisory board;

* inadequate transparency of German corporate governance;

* inadequate independence of German supervisory boards;

* limited independence of financial statement auditors.

Each of these five points is addressed in the provisions and stipulations of the Code, also taking into consideration the legal framework. Of course the Code cannot cover every detail of every single issue; instead it provides a framework which the individual companies will have to fill in.

5.2 Analysis of corporate governance in Germany from the approach of agency theory

Corporate governance is about the way suppliers – who finance corporations – get a return from the managers on their investment. How can be ensured that managers do a good job and do not free-ride? How do suppliers of finance control the managers? These are principal-agent problems which have the essence that ownership and control – or separation of management and finance – are separated. Suppliers of finance give money to firms; the managers run the firm by using this supply of money and return some of the profit to the investors. Although this mechanism works out most of the time, the corporate governance problem is not yet solved.

In Germany, a top manager even with poor performance is usually only removed after extreme circumstances as the boards are quite passive.

There are large differences in legal protection of investors around the world. In Germany, at least some suppliers of finance have their rights protected and have them enforced by law through the courts, in contrast to many other countries. But still in Germany, managers are in most of the cases not liable.

In Germany, over a quarter of all votes in major companies are controlled by large commercial banks. The banks also have smaller but still significant influence as direct shareholders or creditors. As studies estimate, do about 80% of the large German companies have a non-bank shareholder who owns a share of over 25%. Family control through majority ownership or pyramids is the norm in smaller German companies. A pyramid means that the owner controls 51% of the company which controls 51% of its subsidiaries. The function of pyramids is to enable the ultimate owners to control the assets with the least amount of capital.

In Germany, large shareholders are associated with a higher turnover of directors.

The effectiveness of large creditors and large shareholders depends on the legal rights they have. In Germany, banks have much power because they vote significant blocks of shares, sit on boards of directors, play a dominant role in lending and work in a legal environment favorable to creditors. In Germany, banking governance is very effective.

German banks are relative to their lending power and control over equity votes not as active in corporate governance as one could expect. Large investors such as banks often fail to terminate unprofitable projects they have invested in when continuation is preferred to liquidation. A large investor often maximizes private benefits of control rather than wealth because he is rich enough. He will not internalize the costs of these control benefits to the other investors, large investors fail to force managers to maximize profits and pay them out.

Germany has a successful corporate governance system relying on a combination of concentrated ownership and legal protection of investors.

Compared to the United States, German creditors have stronger rights but shareholder rights are weaker. Germany has a system of

governance by both permanent large shareholders, for whom the existing legal

rules suffice to exercise their power, and by banks, but it does not have participation of small investors in the market. As Germany has a system of permanent large investors, hostile takeovers are rare. The advantage is that firms with long-term investors go through crises with less economic distress and better access to financing. Takeovers limit the planning for future for the managers and reduce the efficiency of investment. Permanent large shareholders and banks that dominate corporate governance in Germany are able to influence corporate management through informed investors who are better able to help firms.

A large investor-oriented governance system discourages small investors from participating in financial markets.

Germany has a successful corporate governance system that combines significant legal protection of at least investors with an important role for large investors. This combination is very different from the governance systems in most other countries which provide limited legal protection of investors and are stuck with family- and insider-dominated firms receiving little external financing.

5.3 Analysis of corporate governance in Germany from the approach of transaction costs theory

The degree to which a firm can switch or differentiate its governance mechanisms depends on the legal jurisdiction in which it operates. German law accords greater bargaining power to labour unions than other countries do. This tends to create a stronger degree of governance inseparability. Governance inseparability means that a firm’s choice of governance mode for a transaction is constrained by the governance choices it made for prior transactions. Governance inseparability can also be created by contractual commitments. Most German firms are efficiently engaged in long-term exchange relationships which require long-term contractual commitments. These contractual commitments cause governance inseparability because they are costly and sometimes even impossible to reverse. The flexibility of a firm is restricted for the future through contractual commitments.

Changes in bargaining power of other parties -e.g. employees, suppliers or customers – to a firm’s contractual commitments can also lead to governance inseparability. Changes in bargaining power can for example emerge from changes in law and regulations. Parties that gained bargaining power unforeseen, try to use this circumstance to improve their own positions but forcing the firm to adopt locally suboptimal governance mechanisms in the future. The German government does not change its regulations constantly giving security to firms and private actors, but there are still other factors that could affect bargaining power and thus make changes in bargaining power to a constant risk in Germany.

As German firms engage in long-term transactions, no firm can entirely avoid making contractual commitments and are thus always aware of the risk of governance inseparability. Governance inseparability constrains most firms over time because of their existing arrangements which limit their scope and flexibility.

5.4 Analysis of corporate governance in Germany from the approach of business ethics theory.

Germans in general are pessimistic about the introduction of an ethical code. Businessmen in Germany think that ethical codes are not effective. In their view, ethical codes do not provide aid for executives in refusing unethical requests and do not give a clear definition of acceptable limits of conduct. But over the years, there is a growing acceptance of business ethics among German executives. Managers like former Nestlé chairman Helmut Maucher, who are fed up with such “moral poppycock” have given way to an increasing number of corporate members of the German branch of the European Business Ethics Network, including well-known German companies, such as Daimler Benz, Bayerische Hypo Bank, Siemens, together with German subsidiaries of transnationals like Procter & Gamble and IBM.

5.5 Conclusion to the chapter.

The German corporate governance system is one of the best in the world. Of course it has some disadvantages and it still can be improved but it already works more efficient than most other corporate governance system and is one of the most advanced ones.

Case study.

Corporate governance in Ukraine and Germany differs in many ways. Ukrainian corporate governance system is younger and less developed, it has many weaknesses yet, comparing to the OECD standards of corporate governance and German Code of Corporate Governance (GCCG). This gap between the corporate governance systems in the two countries becomes especially obvious when globalization enters the picture. Due to the internationalization of the markets, foreign (German in our case) corporations with their own systems of corporate governance involve in the economy (Ukrainian in our case) with completely new to them conditions. Such changes have a double effect on both foreign corporations and domestic market. To show this, we will focus on how different are German corporations’ headquarters from their branches in Ukraine.

1). Metro AG was formed in Germany in 1996 through a merger of retail companies Asko Deutsche Kaufhaus AG, Kaufhof Holding AG and Deutsche SB-Kauf AG. The same year the company entered the list of 20 largest publicly listed companies in Germany and since then it started expanding to foreign markets as well. (Official website of METRO Group, https://www.metrogroup.de) METRO AG has established its branch in Ukraine in 2002. One of the main changes the company implemented was decentralization of its structure in order to improve performance of each separated sales division, this way METRO Cash & Carry was formed in Ukraine. Further on METRO Cash & Carry launched a new strategic performance improvement program “MCC 2012 – Committed to Excellence” in Ukraine. The program is built upon two cornerstones: the re-positioning of METRO Cash & Carry’s business focus and the optimization of the company’s structure with the introduction of a regional organization. METRO Cash&Carry Ukraine established an “Inter-corporation university” to provide practical managerial education to potential employees. (Official website of METRO Cash&Carry Ukraine, https://www.metro.ua)

The company had to adjust to a number of particularities with regard to Ukrainian economy, political state and geographical specialties; weather conditions, different consumer preferences and available labour market supply were taken into consideration, and few alterations in the company’s strategy, structure and logistics were made. A substantial problem was the process of negotiation in the beginning of business in Ukraine, the reason for that was lack of unity between the state national level authorities and city level authorities and inconsistency of their activity. Another substantial problem was caused by the difference in business ethics, written contracts are of the highest value in Ukraine, whereas METRO relies on the agreements with suppliers that regularly has contract proof, and therefore a number of trials on that account took place in Ukraine.

As a matter of fact, METRO Cash&Carry was performing successfully in Ukrainian market, since they cooperate with mostly domestic suppliers, with national authorities and launch special projects for Ukrainian market, they employ national specialists as company managers, the company also focuses on the exchange of experience between the international branches and attempts to adjust the most to the country they operate in.

2). Henkel corporation has its headquarters in Dusseldorf, Germany. Henkel has business lines: Laundry & Home Care, Cosmetics/Toiletries and Adhesive Technologies. The company management is committed to such principles: value creation as the foundation of our managerial approach; sustainability as a criterion for responsible management; transparency underpinned by an active and open information policy.

Henkel corporation was established in Ukraine in 1998. The company is centrally managed, a range of products is not presented in Ukraine due to a lower level of demand for these products in Ukraine. The company succeed in Ukrainian market by employing Ukrainian specialists as top managers, although they would dedicate German specialists marketing and financial reporting functions, as the corporation required accounting to be done by its standards. Strong system of detailed planning for 5-years periods and experience of Ukrainian specialists in the domestic economy helped the company to get itself a strong position on the market. (Official website of Henkel corporation, https://www.henkel.ua/SID-AE091F88-63C2EB69/about-henkel-85.htm).

Conclusion.

The most essential factors in formation of a national model of corporate governance in Ukraine are:

The structure of ownership of shares in corporations;

Specificity of financial system as a mechanism of transformation of savings into investments;

Ratio of sources of corporate investments;

Macroeconomic and economic policy in Ukraine;

Political system;

History of development and modern features of legal system and culture;

Traditional Ukrainian ideology;

Business relations practice;

Traditions and level of government intervention in economy and its role in regulating of legal system.

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Official website of Henkel corporation, https://www.henkel.ua/SID-AE091F88-63C2EB69/about-henkel-85.htm

Official website of METRO Cash&Carry Ukraine, https://www.metro.ua

Official website of METRO Group, https://www.metrogroup.de

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