A board of directors is a governing body that supervises the activities of a business, a nonprofit organization, or a government agency.
The powers, duties, and responsibilities of a board of directors are determined by government regulations (including the jurisdiction's corporate law) and the organization's own constitution and by-laws. These authorities may specify the number of members of the board, how they are to be chosen, and how often they are to meet.
In an organization with voting members, the board is accountable to, and may be subordinate to, the organization's full membership, which usually elect the members of the board. In a stock corporation, non-executive directors are elected by the , and the board has ultimate responsibility for the management of the corporation. In nations with codetermination (such as Germany and Sweden), the workers of a corporation elect a set fraction of the board's members.
The board of directors appoints the chief executive officer of the corporation and sets out the overall strategic direction. In corporations with dispersed ownership, the identification and nomination of directors (that shareholders vote for or against) are often done by the board itself, leading to a high degree of self-perpetuation. In a non-stock corporation with no general voting membership, the board is the supreme governing body of the institution, and its members are sometimes chosen by the board itself.
The legal responsibilities of boards and board members vary with the nature of the organization, and between jurisdictions. For companies with shares publicly listed for negotiation, these responsibilities are typically much more rigorous and complex than for those of other types.
Typically, the board chooses one of its members to be the chairman (often now called the "chair" or "chairperson"), who holds whatever title is specified in the or articles of association. However, in membership organizations, the members elect the president of the organization and the president becomes the board chair, unless the by-laws say otherwise.
Typical inside directors are:
An inside director who is employed as a manager or executive of the organization is sometimes referred to as an executive director (not to be confused with the title executive director sometimes used for the CEO position in some organizations). Executive directors often have a specified area of responsibility in the organization, such as finance, marketing, human resources, or production.
Outside directors bring outside experience and perspectives to the board. For example, for a company that serves a domestic market only, the presence of CEOs from global multinational corporations as outside directors can help to provide insights on export and import opportunities and international trade options. One of the arguments for having outside directors is that they can keep a watchful eye on the inside directors and on the way the organization is run. Outside directors are unlikely to tolerate "insider dealing" between inside directors, as outside directors do not benefit from the company or organization. Outside directors are often useful in handling disputes between inside directors, or between shareholders and the board. They are thought to be advantageous because they can be objective and present little risk of conflict of interest. On the other hand, they might lack familiarity with the specific issues connected to the organization's governance, and they might not know about the industry or sector in which the organization is operating.
Individual directors often serve on more than one board. This practice results in an interlocking directorate, where a relatively small number of individuals have significant influence over many important entities. This situation can have important corporate, social, economic, and legal consequences, and has been the subject of significant research.
Much of what has been written about boards of directors relates to boards of directors of business entities actively traded on public markets.See generally, Bowen, William G., The board book: an insider's guide for directors and trustees (2008 W.W. Norton & Co.); Murray, Alan S., Revolt in the boardroom: the new rules of power in corporate America (2007 Collins); Charan, Ram, Boards that deliver: advancing corporate governance from compliance to competitive advantage (2005 Jossey-Bass); Carver, John, Corporate boards that create value: governing company performance from the boardroom (2002 Jossey-Bass); Harvard Business Review on corporate governance (2000 Harvard Business School Press). More recently, however, material is becoming available for boards of private and closely held businesses including family businesses.See specifically Tutelman and Hause, The Balance Point: New Ways Business Owners Can Use Boards (2008 Famille Press).
A board-only organization is one whose board is self-appointed, rather than being accountable to a base of members through elections; or in which the powers of the membership are extremely limited.
The setup of a board of directors varies widely across organizations and may include provisions that are applicable to corporations, in which the "shareholders" are the members of the organization. A difference may be that the membership elects the officers of the organization, such as the president and the secretary, and the officers become members of the board in addition to the directors and retain those duties on the board. The directors may also be classified as officers in this situation. There may also be ex-officio members of the board, or persons who are members due to another position that they hold. These ex-officio members have all the same rights as the other board members.
Members of the board may be removed before their term is complete. Details on how they can be removed are usually provided in the bylaws. If the bylaws do not contain such details, the section on disciplinary procedures in Robert's Rules of Order may be used.
Another feature of boards of directors in large public companies is that the board tends to have more de facto power. Most shareholders do not attend shareholder meetings, but rather cast proxy votes via mail, phone, or internet, thus allowing the board to vote for them. However, proxy votes are not a total delegation of the voting power, as the board must vote the proxy shares as directed by their owner even when it contradicts the board's views. In addition, many shareholders vote to accept all recommendations of the board rather than try to get involved in management, since each shareholder's power, as well as interest and information is so small. Larger institutional investors also grant the board proxies. The large number of shareholders also makes it hard for them to organize. However, there have been moves recently to try to increase shareholder activism among both institutional investors and individuals with small shareholdings.
A contrasting view is that in large public companies it is upper management and not boards that wield practical power, because boards delegate nearly all of their power to the top executive employees, adopting their recommendations almost without fail. As a practical matter, executives even choose the directors, with shareholders normally following management recommendations and voting for them.
In most cases, serving on a board is not a career unto itself. For major corporations, the board members are usually professionals or leaders in their field. In the case of outside directors, they are often senior leaders of other organizations. Nevertheless, board members often receive remunerations amounting to hundreds of thousands of dollars per year since they often sit on the boards of several companies. Inside directors are usually not paid for sitting on a board, but the duty is instead considered part of their larger job description. Outside directors are usually paid for their services. These remunerations vary between corporations, but usually consist of a yearly or monthly salary, additional compensation for each meeting attended, stock options, and various other benefits. such as travel, hotel and meal expenses for the board meetings. Tiffany & Co., for example, pays directors an annual retainer of $46,500, an additional annual retainer of $2,500 if the director is also a chairperson of a committee, a per-meeting-attended fee of $2,000 for meetings attended in person, a $500 fee for each meeting attended via telephone, in addition to stock options and retirement benefits. Fees, CEO Evaluation, and Ownership Structure By Joshua Kennon, About.com
Academic research has identified different types of board directors. Their characteristics and experiences shape their role and performance. For instance, directors with multiple mandates are often referred to as busy directors. Their monitoring performance is considered to be comparatively weak due to the limited time they can dedicate to this task. Overconfident directors are found to pay higher premiums in corporate acquisitions and make worse takeover choices. Locally rooted directors tend to be overrepresented and lack international experience, which can lead to lower valuations, especially in internationally oriented firms. Directors' military experience is associated with rigorous monitoring and improved corporate governance.
In the United States, the board of directors (elected by the shareholders) is often equivalent to the supervisory board, while the executive board may often be known as the executive committee (operating committee or executive council), composed of the CEO and their direct reports (other C-level officers, division/subsidiary heads).
Board structures and procedures vary both within and among OECD countries. Some countries have two-tier boards that separate the supervisory function and the management function into different bodies. Such systems typically have a "supervisory board" composed of nonexecutive board members and a "management board" composed entirely of executives. Other countries have "unitary" boards, which bring together executive and non-executive board members. In some countries there is also an additional statutory body for audit purposes. The OECD Principles are intended to be sufficiently general to apply to whatever board structure is charged with the functions of governing the enterprise and monitoring management.
However, by 1906, the English Court of Appeal had made it clear in the decision of Automatic Self-Cleansing Filter Syndicate Co Ltd v Cuninghame 1906 2 Ch 34 that the division of powers between the board and the shareholders in general meaning depended on the construction of the articles of association and that, where the powers of management were vested in the board, the general meeting could not interfere with their lawful exercise. The articles were held to constitute a contract by which the members had agreed that "the directors and the directors alone shall manage." Per Cozens-Hardy LJ at 44
The new approach did not secure immediate approval, but it was endorsed by the House of Lords in Quin & Axtens v Salmon 1909 AC 442 and has since received general acceptance. Under English law, successive versions of Table A have reinforced the norm that, unless the directors are acting contrary to the law or the provisions of the Articles, the powers of conducting the management and affairs of the company are vested in them.
The modern doctrine was expressed in John Shaw & Sons (Salford) Ltd v Shaw 1935 2 KB 113 by Greer LJ as follows:
It has been remarked that this development in the law was somewhat surprising at the time, as the relevant provisions in Table A (as it was then) seemed to contradict this approach rather than to endorse it.See Gower, Principles of Company Law (6th ed.) at 185.
In countries with co-determination, a fixed fraction of the board is elected by the corporation's workers.
Directors may also leave office by resignation or death. In some legal systems, directors may also be removed by a resolution of the remaining directors (in some countries they may only do so "with cause"; in others the power is unrestricted).
Some jurisdictions also permit the board of directors to appoint directors, either to fill a vacancy which arises on resignation or death, or as an addition to the existing directors.
In practice, it can be quite difficult to remove a director by a resolution in general meeting. In many legal systems, the director has a right to receive special notice of any resolution to remove them; the company must often supply a copy of the proposal to the director, who is usually entitled to be heard by the meeting. The director may require the company to circulate any representations that they wish to make. Furthermore, the director's contract of service will usually entitle them to compensation if they are removed, and may often include a generous "golden parachute" which also acts as a deterrent to removal.
A 2010 study examined how corporate shareholders voted in director elections in the United States. It found that directors received fewer votes from shareholders when their companies performed poorly, had excess CEO compensation, or had poor shareholder protection. Also, directors received fewer votes when they did not regularly attend board meetings or received negative recommendations from a proxy advisory firm. The study also shows that companies often improve their corporate governance by removing poison pills or classified boards and by reducing excessive CEO pay after their directors receive low shareholder support.
Board accountability to shareholders is a recurring issue. In September 2010, The New York Times noted that several directors who had overseen companies which had failed in the 2008 financial crisis had found new positions as directors.Craig S, Lattman P. (2010). Companies May Fail, but Directors Are in Demand. The New York Times. The SEC sometimes imposes a ban (a "D&O bar") on serving on a board as part of its fraud cases, and one of these was upheld in 2013.
In most common law countries, the powers of the board are vested in the board as a whole, and not in the individual directors. Breckland Group Holdings Ltd v London and Suffolk Properties 1989 BCLC 100 However, in instances an individual director may still bind the company by their acts by virtue of their ostensible authority (see also: the rule in Turquand's Case).
The duties apply to each director separately, while the powers apply to the board jointly. Also, the duties are owed to the company itself, and not to any other entity. Percival v Wright 1902 Ch 421 This does not mean that directors can never stand in a fiduciary relationship to the individual shareholders; they may well have such a duty in certain circumstances.For example, if the board is authorised by the shareholders to negotiate with a takeover bidder. It has been held in New Zealand that "depending upon all the surround circumstances and the nature of the responsibility which in a real and practical sense the director has assumed towards the shareholder," Coleman v Myers 1977 2 NZLR 225
The seminal authority in the United Kingdom in relation to what amounts to a proper purpose is the Supreme Court decision in Eclairs Group Ltd v JKX Oil & Gas plc (2015). The case concerned the powers of directors under the articles of association of the company to disenfranchise voting rights attached to shares for failure to properly comply with notice served on the shareholders. Prior to that case the leading authority was Howard Smith Ltd v Ampol Ltd 1974 AC 821. The case concerned the power of the directors to issue new share capital.Following Hogg v Cramphorn Ltd 1967 Ch 254 It was alleged that the directors had issued many new shares purely to deprive a particular shareholder of his voting majority. An argument that the power to issue shares could only be properly exercised to raise new capital was rejected as too narrow, and it was held that it would be a proper exercise of the director's powers to issue shares to a larger company to ensure the financial stability of the company, or as part of an agreement to exploit mineral rights owned by the company. Teck Corporation v Millar (1972) 33 DLR (3d) 288 If so, the mere fact that an incidental result (even if it was a desired consequence) was that a shareholder lost their majority, or a takeover bid was defeated, this would not itself make the share issue improper. But if the sole purpose was to destroy a voting majority, or block a takeover bid, that would be an improper purpose.
Not all jurisdictions recognised the "proper purpose" duty as separate from the "good faith" duty however.
This does not mean, however, that the board cannot agree to the company entering into a contract which binds the company to a certain course, even if certain actions in that course will require further board approval. The company remains bound, but the directors retain the discretion to vote against taking the future actions (although that may involve a breach by the company of the contract that the board previously approved).
However, in many jurisdictions the members of the company are permitted to ratify transactions which would otherwise fall foul of this principle. It is also largely accepted in most jurisdictions that this principle can be overridden in the company's constitution.
In many countries, there is also a statutory duty to declare interests in relation to any transactions, and the director can be fined for failing to make disclosure.
In Regal (Hastings) Ltd v Gulliver 1942 All ER 378 the House of Lords, in upholding what was regarded as a wholly unmeritorious claim by the shareholders, held that:
And accordingly, the directors were required to disgorge the profits that they made, and the shareholders received their windfall.
The decision has been followed in several subsequent cases, Industrial Development Consultants v Cooley 1972 1 WLR 443 (corporate information), Canadian Aero Service v. O'Malley (1973) 40 DLR (3d) 371 (corporate opportunity) and Boardman v Phipps 1967 2 AC 46 (corporate opportunity, which again, the company itself had declined to take up) and is now regarded as settled law.
However, this decision was based firmly in the older notions (see above) that prevailed at the time as to the mode of corporate decision making, and effective control residing in the shareholders; if they elected and put up with an incompetent decision maker, they should not have recourse to complain.
However, a more modern approach has since developed, and in Dorchester Finance Co Ltd v Stebbing 1989 BCLC 498 the court held that the rule in Equitable Fire related only to skill, and not to diligence. With respect to diligence, what was required was:
This was a dual subjective and objective test, and one deliberately pitched at a higher level.
More recently, it has been suggested that both the tests of skill and diligence should be assessed objectively and subjectively; in the United Kingdom, the statutory provisions relating to directors' duties in the new Companies Act 2006 have been codified on this basis. Norman v Theodore Goddard 1991 BCLC 1027
This represents a considerable departure from the traditional notion that directors' duties are owed only to the company. Previously in the United Kingdom, under the Companies Act 1985, protections for non-member stakeholders were considerably more limited (see, for example, s.309 which permitted directors to take into account the interests of employees but which could only be enforced by the shareholders and not by the employees themselves). The changes have therefore been the subject of some criticism.
Board of directors technology
The adoption of technology that facilitates the meeting preparation and execution of directors continues to grow. Board directors are increasingly leveraging this technology to communicate and collaborate within a secure environment to access meeting materials, communicate with each other, and execute their governance responsibilities. This trend is particularly acute in the United States where a robust market of early adopters garnered acceptance of board software by organizations resulting in higher penetration of the board portal services in the region.
Social boards recognise that they are part of society and that they require more than a licence to operate to succeed. They balance short-term shareholder pressure against long-term value creation, managing the business for a plurality of stakeholders including employees, shareholders, supply chains and civil society.
The law requires companies listed on the major stock exchanges (NYSE, NASDAQ) to have a majority of independent directors—directors who are not otherwise employed by the firm or in a business relationship with it.
According to the International Institute of Management, the rise in investor dissatisfaction, class-action lawsuits and shareholder activism has resulted in more attention directed toward the board of directors and the lack of corporate governance accountability. Shareholders' complaints include issues such as excessive executive compensation and passive participation (lack of proper governance) of the board members. The journal paper cites examples of underperforming CEOs of Fortune 500 companies who took compensation and retirement package in hundreds of millions of dollars while the stock price of their companies lost billions of dollars. The research proposes institutionalizing a standardized board evaluation framework to help balance between the executive compensation and protecting the interest of shareholders
The issue of gender representation on corporate boards of directors has been the subject of much criticism in recent years. Governments and corporations have responded with measures such as legislation mandating gender quotas and comply or explain systems to address the disproportionality of gender representation on corporate boards. A study of the French corporate elite has found that certain social classes are also disproportionately represented on boards, with those from the upper and, especially, upper-middle classes tending to dominate.
Two-tier system
History
A company is an entity distinct alike from its shareholders and its directors. Some of its powers may, according to its articles, be exercised by directors, certain other powers may be reserved for the shareholders in general meeting. If powers of management are vested in the directors, they and they alone can exercise these powers. The only way in which the general body of shareholders can control the exercise of powers by the articles in the directors is by altering the articles, or, if opportunity arises under the articles, by refusing to re-elect the directors of whose actions they disapprove. They cannot themselves usurp the powers which by the articles are vested in the directors any more than the directors can usurp the powers vested by the articles in the general body of shareholders.
Demographics
Election and removal
Exercise of powers
Duties
"Proper purpose"
"Unfettered discretion"
"Conflict of duty and interest"
1. Transactions with the company
2. Use of corporate property, opportunity, or information
3. Competing with the company
Common law duties of care and skill
Remedies for breach of duty
Current trends
The board and society
United States
Sarbanes–Oxley Act
Size
Committees
Compensation
Criticism
See also
Notes
Citations
Sources
target="_blank" rel="nofollow"> The Case for a Social Board, London, UK
External links
. They operate with two domains Boardroomeducation.com and globalboardadvisors.com
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