1.Introduction 介紹

通常被視為公司治理的措施，公司運營和控制。今時今日，企業(yè)是非常重要的社會提供就業(yè)，創(chuàng)造財富，繳納稅款（ICAEW，2006:4）。該系統(tǒng)成為企業(yè)的“治理”及其后的公司運作的結(jié)果是不斷增加的社會意義。一般來說，代表他們的國家的文化，經(jīng)濟和法律的情況下，世界各地幾乎所有的國家都有其獨特的公司治理模式。這是一個不公平的假設(shè)來決定是否一個企業(yè)管治是有效或不直截了當(dāng)它的股價表現(xiàn)或利潤ablity的通過，因為它依賴于質(zhì)量的因素。因此，立法和監(jiān)管的要求是不可或缺的支撐有效性治理corpaorate，隨著獨立的司法制度起訴失敗。Corporate governance is generally regarded as the measures which companies are operated and controlled. Nowaday, companies are highly important in society to provide employment, create wealth and pay taxes (ICAEW,2006:4). The system of corporate governace and its subsequent consequence in company operation is becoming of ever increasing social significance. Generally speaking, almost all countries around the world have their unique corporate governance model on behalf of the cultural, economic and legal circumstances of their nations. It is an unfair assumption to decide whether one corporate governance is efficient or not straightforwardly through its share performance or profitablity since it depends on a mass of factors. Accordingly, the legislative and regulatory requirements are indispensible to underpin effectiveness of corpaorate governance, along with an independent judicial system to prosecute failures.

在這方面，美國和英國的企業(yè)管治，以及成功的經(jīng)驗有相當(dāng)長的歷史。從全球的角度來看，英國和美國這需要全體股東“的利益擺在首位，但相反，那些歐洲大陸和日本之間的公司治理制度頗為相似，所以，英國和美國模式是常見的治療幾乎相同（愛等，2003:1）。然而，這兩個國家之間的根本分歧是不容忽視的。它可以簡單地描述了在英國的股東在公司治理中發(fā)揮積極的作用，而美國的特點是由導(dǎo)演主導(dǎo)的公司治理制度。如今，股東為主導(dǎo)的模式，不僅在英國，股東是委托人的企業(yè)債券，但他們也擁有大大提高執(zhí)政能力和權(quán)威主辦到行使最終CONTROLL的公司業(yè)務(wù)（班布里奇，2002:21）。In this regard, the United States and the United Kingdom both have considerably long history of corporate governance as well as successful experiences. From the global point of view, the corporate governance system is quite similar between the United Kingdom and the United States which takes the sharehold s' interests in first place, but contrast to those mainland Europe and Japan, so that the UK and the US model is commonly treated as practically identical (Amour et al,2003:1). However, the fundamental divergence between these two countries cannot be ignored. It can be simply described that shareholders in the UK play an active role in corporate governance while the US is characterised by director-led corporate governance system. Today, shareholder-led model in the United Kingdom not only that shareholders are the principals of the corporates, but also that they possess substantially greater coporate governance capacity and authority to exercise ultimate controll of the company business (Bainbridge,2002:21). On the other hand, even though director-led model in the United States still places the interets of shareholders above other stakeholders such as employees and creditors, shareholders cannot involve in neither direct nor indirect decison-making control (ICAEW,2006:12). Therefore, the different posture of sharesholders and directors in the United Kingdom and the United States indicates that legal distinction of corporate governance in these two countries tends to lead practical consequence, in other words, the purposes and functions of corporate do not perform identically in their respective society.

2.1 Regulatory framework 監(jiān)管框架

Firstly, a great amount of regulatory codes and laws define relationships and responbilities among shareholders, directors and manegement both in the US and UK. However, in terms of the pattern of regulatory framework, the divergence is significant. #p#分頁標(biāo)題#e#

The United State has a rule-based approach, defining a wide range of exact provisions strictly that corporations must follow, mainly enforced by the Securities and Exchange Commission (SEC), stock exchange listing rules and state law (Gonencer,2008:18). It is worth to note that each state is free to set up its own model in respect of internal affairs of corporate governance, such as shareholder rights and directors' duties (Jackson and Roe,2007). One of the most influential state law is the state of Delaware, which governs more than half of the US listed companies (Kershaw,2009).

On the other hand, the United Kingdom has a principle-based approach that parliamentary acts and self-regulatory rules establish the regulatory framework of corporate governance. The Cadbury Code, the first corporate governance principles, was introduced in 1992 and brought about the development of Combined Code (Gonencer,2008:19). The UK government ulitized a so call "complyor explain' approach, which was first establised in the Combined Code that public listed companies are responsible for disclosure if they have abided by the code, otherwise, they are responsible for explanation if they have not complied with the code (Waring and Pierce,2005:165-167). It appears to that this approach may decrease the risk of abiding by the letter other than the spirit of the code. Therefore, compared to statutory regime of the Sarbanes-Oxley Act in the US, UK approach tends to leave more flexibility to the corporations.

2.2 power of shareholders 股東權(quán)利

Secondly, as above the outset, corporate governance model in both contries perform conspucious similarities that there are widely possessed by dispersed shareholders. However, These two systems have substantial difference in the degree of shareholder orientation not only in theoretical but in practical implications. In order to facilitate this perspective, it will briefly provides an overview of corporate governance in terms of each jurisdiction to clarify the divergence in shareholder power toward shareholder interests.

According to US company law, it stirctly restrains sharesholder power to take part in independent action. Taking the Delaware General Corporate Law as example, which governs the majority of US public corporations (Allen et al,2002), establishes the broad principle in section 141(a) that " [t]he business and affairs of every corporation...shall be managed by or under the direction of a board of directors (Bruner,2010:594)." In other words, it sharply prohibits shareholders to compel the broad of directors to undertake any particular action directly. Moreover, under the Delaware code, it essentially constrains shareholder rights to election of directors, sale of corporate's assets, approval of charter or bylaw amendments (Bainbridge,2002:29). On the one hand, the work of Dale Oesterle (2005:519) points out that shareholders can replace directors with or without cause as a result of default matter, however, "shareholders may dismiss directors without cause unless the company constitution expressly permits it " when the board is divided into classes which is elected in subsequent years. On the other hand, the capacity of shareholders under Delaware Corporate Law have no rights to call special meetings only if the charter or bylaws explicitly give such power (Kershaw,2009). Additionally, any fundamental transactions such as sale of corporate's assets or any company constitution modification should be proposed by the board in advance which means that shareholders cannot initiate these actions (Bruner,2010:595). Thus, it can be seen that the board in the US corporate acts as a gatekeeper while the the shareholders' ability of unilateral action is quite narrow.#p#分頁標(biāo)題#e#

By contrast, the shareholder-centric governance system in the UK confers substantial powers upon shareholders to directly take part in corporate governance as well as benefits from directors' duties. Unlike in the United States, the Companies Act(2006) empower sharesholders in a UK public corporation to modify the articles of association unilaterally by " special resolution of 75 percent majority ", which is significantly different from the Delaware approach that any amendement of the company constitution should be proposed by the board first. Furthermore, shareholders in a UK corporation can remove directors by convoking a meeting when shareholders on behalf of 5 percent voting power, and then replace directors by ordinary resolution of a simple majority. Although the board of directors is clearly "the most important decision-making body in the corporation" both in the US and UK, the divergence between these two countries is substantial that shareholders in the UK shareholders can direct the directors through special resolution under model articles (Kershaw,2009). It appears to that shareholders in the UK corporations would play an nonignorable role in discussions with management than the US shareholders. Not only the UK shareholders possess substantial power to participate in corporate affairs, but Companies Act 2006 has confirmed straightforwardly in section 172(1) that a director must "must act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole". Therefore, based on the analysis above, it perhaps could state that shareholder primacy corporate governance model in the UK is considerably more emphasizing on the theory of shareholders' interests than director primacy corporate givernance in the US is.

2.3 efficiency of corporate operation 企業(yè)運營效率

Thirdly, another divergence between these two corporate governance model is the effect on the efficiency of corporate operation. Undoubtedly, the separation of ownership and control can influences the efficiency of corporate operation so that shareholder primacy in corporate governance may go against the efficient exercise of fiat. For example, as mentioned at above, the UK shareholders are able to direct the directors by special resolution, however, if every decision of board of directors will be reviewed by sharesholders—whether through utilize voting rights to effect a change in policy or review management decisions, the directors' power could become barely advisory than authoritative (Bainbridge,2002:33). In practice, the majority of shareholders not only lack the professional knowledege and information but also the incentive necessary to take part in corporate decision-making. Thus, it tends to be costly and difficult if shareholders involve in every parts of coporate actions. Under this circumstance, Kenneth Arrow indicates that it could be more efficient and cheaper if all the pieces of information will be congregated at a central body to make collective decisions.#p#分頁標(biāo)題#e#

In contrast to shareholder primacy, the director primacy, on the one hand, emphasizes on authority and accountability. Basically, it is difficult to balance authority and accountability, because greater accountability may lead less efficiency of decision-making process, while highly efficient operation would require nonreviewable decision-making process since the power to review can be regarded as the power to dicide (Bainbridge, 2008). On the other hand, under director primacy, Bainbridge (2002:33) claims that the power of the directors are "original and undelegated" instead of on behalf of the board by shareholders nor usurped by them. The board of directors deal with massive problems of operating a large corporation including numerous shareholders, employees, creditors and managers. Accordingly, authoritative control is crucial for business success when the information is widely dispersed and speedy decision-making is important. Therefore, it perhaps can be said that, although director primacy model (i.e.the United State corporation) ultimately takes the shareholders' interests as the fundamental objective of business activity as shareholder primacy model does, the sepration of ownership and control and the considerable power of board of directors tends to make substantial divergence between two corporate governance system in terms of efficiency of corporate operation.

2.4 power of chief executive officer 行政總裁的權(quán)利

Fourthly, it has been said above that the independence of the board of directions is a premise of the efficiency of corporate operation, which are able to exercise the power of monitoring as well as advising. Nevertheless, if the same person both serve as the board of directors and control executive affairs in one company, the function of monitoring may not be brought into action as well as result in the over power of one person or a small group. Hence, the considerable restriction on the exercise power of chief executive officer of corporation in the UK and US become one of the divergence in corporate governance.

Traditionally, the chairman of the board of directors and chief executive officer is the same person in the US corporation. Higgs (2003) reports that nearly 80% of chief executive officer in the US corporation simultaneously works as the chairman of the board. This practice could cause abuses, such as monitoring and executive power concentrate in one person or a small group; directors and manegement officers preserve power for a long period of time while disregard for other stakeholders' interests; and the board of directors without take outside shareholders' interests into account (Mazullo,2008:3).

On the contrary, the functions of chief executive officer and chairman of the board is clear separated in the UK corporations. This conception was first introduced by the Cadbury Committee and was incorporated into the Combined Code 2003, which explicitly requires that the responbility for operating the board and executive responblity for managing the company's business should be divided (Higgs,2003). In other words, no individual person can possess unfettered power of decision. According to the PIRC reports (1999), approximately 90% of chairman of board is splitted with the chief executive officer in the UK corporations. Moreover, the Higgs Review's structural suggesstion further confines the exercise power of CEO that requires company to appiont a position of senior independence director (Rao and Sheng,2008:354). Consequently, it appears to that the power at the top of the UK corporation is spreaded by strengthening the board of directors' power to operating management independently as well monitoring executive affaris effectively.#p#分頁標(biāo)題#e#

2.5 power of institutional shareholders

Finally, the work of Mallin et al.(2005) stated that close to 80% of equity market is controlled by institutional investors, while about 60% institutional investiors in the US equity market. The institutional ownership is considerably equal in these two countries. However, the role of institutional investors in corporate governance in the UK and the US is quite different, since the shareholders in the UK corporation possess extensive rights that can lead to some active institutional investors to utilize their influence to monitor performance of the corporation.

In practice, the UK institutional investors play a more active role in fostering corporate governance standard beacuse they own large blocks so that have motive to monitor company manegment through develop specialized expertise (Bainbridge,2002:31). The institutional investors held over 70% of listed UK equity in the early 1999, compared to approximately 60% of shares in 1990 (Stapledon,1999). This steady growth of institutional ownership in corporations can result in institutional shareholders' increasing influence, that will trigger regulatory modifications to facilitate their interets in the corporate governance. As Armour et al.(2003:17) notes, the Combined Code set principles that institutional investors' governance activities, firstly, should be conducted through ongoing dialogue with managers based on the understanding of company objectives; secondly, should consider the exercise of voting rights. Consequently, It can be seen that institutional investors may behave considerably different with dispersed individual shareholders as a result of rational apathy phenomenon among small individual investors. Institutional shareholders, such as pension funds and insurance companies, which dominate equity market in the UK, not only might have long-term payout obligations, but more willing to adopt a long-term project on the opportunities as well as risks presented by the corporations (Rao and Sheng,2008:353). All in all, Institutional investors in the UK, which is more shareholder friendly than that of the US in some respects, greater access to adequate corporation on-time information, combined with thrie concentrated voting rights, might enable them to have considerable impact on corporate important tactical and governance issues.

However, in the US, the largest institutional investors is pre-dominated by investment companies and investment advisors, such as mutual funds and money managment firms. The relationship between corporations and institutional shareholders more emphasizes on the communications between corporate investor relations departments and anlysts to meet quarterly financial projects, rather than the long-term prosperity of the company (Rao and Sheng,2008). Accordingly, the US institutional shareholders do not play a strategic consulting role in corporation as the UK institutional shareholders do. Hawley and Williams (2003) points out that institutional shareholders in the US corporations are difficult to gain access to the board of directors due to strictly restricted between annual general meetings, while the board of directors are empower to modify the articles of association or bylaws in many circumstances. In other words, the institutional shareholders' power to intervene the course of corporations in the general meetings is very limited, for instance, they can neither call an extraordinary gemeral meentings nor table a proposal (ICAEW,2006:11-16). Thus, to organize a very expensive proxy contest is the only residual rights reserved for them.#p#分頁標(biāo)題#e#

3. Conclusion 總結(jié)

Overall, it can be seen from the above analysis that corporate governance in both the Unitied Kingdom and United State put shareholders interests at the first place, but, a great amount of divergence still cannot be ignored. Compared to a descriptive and legislative pattern of regulatory framwork of corporate governance in the US, the UK approach of self-regulation of " comply or explain " may leave more flexibility to corporations. Additionally, the legal and regulatory framework lead to the most substantial difference between these two countries that shareholders in the UK corporations are much more powerful than those of the US. Consequently, the position of shareholder results in institutional shareholders playing a more active role in the UK corporations, which will participate in corporate operating affairs as well as supervise the performance of corporations. Moreover, the functions of chief executive officer are the further divergence that in the US corporations majority of chief executive officer simultaneously server as the chairman of the board while these two position are separated in the UK corporations. Therefore, it perhaps can concluded that theoretical divergence in the US and UK would lead to practical difference in corporate governance.

 

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