Institute of independent directors in the corporate management system. Profession "independent director" and its competencies. Currently, there are many such examples, we have considered only a couple of them. But that's enough to make you

Vladimir SIDOROVICH, Candidate of Economic Sciences (Moscow)

According to international practice, independent director is a member of the board of directors who has no property relations with the company in whose management he participates, who is not associated with its suppliers or consumers. The Institute of Independent Directors is an important part modern system corporate governance(that is, the management of a firm, a corporation. - Ed.).

In our country, recently the issues of the efficiency of the work of the executive bodies of the company, including the board of directors, have become increasingly important. Business owners are gradually realizing the need to abandon the artisanal-entrepreneurial approach to organizing a business.

Bodies such as the meeting of shareholders, the board of directors and the board of directors have long and firmly entered the domestic corporate practice. Against this background, the institution of independent directors looks like an innovation and may still seem like an artificial entity brought in from outside.

Indeed, this is a borrowing from Western experience. Nevertheless, it should not be dismissed as something alien and imposed. Because it contributes to the achievement of a good goal: to make corporate relations more efficient and perfect.

The presence of independent directors on the boards of joint-stock companies is not yet a legal requirement. It is only recommended by the Code of Corporate Conduct adopted by Federal Service on financial markets(FFMS). The State Bank, contributing to the development of the supervised industry, sent out a letter in 2005 “On modern approaches to the organization of corporate governance in banks”, in which he also recommended introducing independent directors to the boards of banks.

Why does a Russian joint-stock company need independent directors, what is the use of them?

First, by introducing this institution, the enterprise gives the market a signal of its desire to play by the rules of business relations of the 21st century, about the transition of business to another level, to the "big league". Studies show that investors are willing to pay higher prices for shares of companies with good corporate governance. Without independent directors, it is impossible to enter international markets capital, since the largest foreign exchanges have corresponding and very strict rules. Moreover, Russian stock exchanges (RTS and MICEX) have recently established similar requirements for issuers. Unfortunately, outward compliance with these conditions does not always mean an improvement in corporate governance in reality. Attempts to use the institution of independent directors as a kind of mask that hides the real face are quite understandable, including the traditions Russian entrepreneurship in recent history.

Secondly, shareholders (including those who own large blocks of shares) in practice realize that the presence of a powerful and capable board of directors is competitive advantage simply because of the involvement of additional intellectual resources in enterprise management. The ability to develop unbiased and professional judgments in the name of increasing the manageability of the enterprise and the effectiveness of control over the activities of the executive bodies is what is expected from independent directors.

The problem is that in resolving a number of subtle and controversial issues, these people are expected not to take the position of the majority of shareholders, but to be on the side of the truth. Here, not so much professional and business as moral characteristics of a person and his reputation come to the fore. Since such a practice is in the interests of the economy and society as a whole, it obviously should be supported and protected by state regulations.

Ideally, “normative” independence, that is, unrelated to joint stock company property relations, and the independence of professional judgment must coincide. But “absolute independence” does not exist in practice. Candidates for governing bodies are nominated by specific individuals. In addition to being members of the board of directors, its independent members often work in large companies and thus subject to influence from this side as well.

And the remuneration (often very significant) received by members of the council also does not really fit with independence. Therefore, the reputation and moral and ethical properties of a person are so important.

The widespread use of the institution of independent directors can be regarded as the next stage in the development of modern capitalism, as a strengthening of its socially responsible orientation. In a certain sense, this is a means that to some extent compensates for the negative (predatory and immoral) aspects of the market order.

However, we must not forget that the institution of independent directors is only one of the many elements of modern economic relations. Its effectiveness largely depends on the development of other, external, framework conditions for the functioning of enterprises. Such as corporate law, the judiciary and standards accounting.

According to Vedomosti.

Independent director (in English terminology - non-executive director, NED or independent director, ID) in the company - a third-party expert; formally, he is not among the top managers of the organization and has no personal interest in this business (shares, high remuneration, options, bonuses, etc.). A truly independent director is an important link in decision-making, he is responsible for monitoring the implementation management decisions, internal audit, internal control, risk management, etc.

Unlike the executive director, who is directly involved in the operational work of the company, an independent director performs control functions - in the main areas of activity (see Table 1).

Tab. one. Functions of an independent director in a company

Function	Tasks
Definition of strategy	Assist top managers in developing the company's strategy, including through constructive opposition
Performance analysis	Carefully analyze (scrutinize) the results of the activities of top managers, check them for compliance with the goals and objectives of the company. If necessary, initiate the dismissal/replacement of senior management in accordance with the developed succession planning procedures
Risk management	Control authenticity financial information companies, system reliability financial control and risk management
Motivation of top managers	Determine the required level of motivation of executive directors, implement appropriate motivational policies. If necessary, initiate the dismissal/replacement of members senior management in accordance with the succession planning procedures developed in the company
Information disclosure	Monitor the effectiveness of the company's information provision system, its compliance with the transparency policy. Facilitate voluntary disclosure. The task of an independent director is to include in the annual report the most complete information for shareholders, which will allow them to evaluate the results of the company's activities for the year

The competence of an independent director also includes:

• participation in the preparation and holding of the meeting of shareholders, meetings of the board of directors;
• analysis of prospects for the company big deals/issuance of securities (as well as their execution);
• audit, disclosure of information about the company's activities;
• management of corporate culture, solution of issues of social responsibility.

Of course, an independent director must have professional knowledge and skills. In addition, success will be ensured by such personal characteristics such as independence of judgment, courage in making decisions, readiness to constructively defend one's position (especially if an independent director believes that current actions to achieve the company's goals are ineffective). Opposition is one of the most important professional skills of an independent director, as he must be able to reasonably convince top managers of the need to change course, make a different decision, etc. In case of disagreement with the proposed decision, it is recommended to demand that your dissenting opinion be recorded in the minutes of the meeting of the Board of Directors .

An independent director acts on behalf of all shareholders of the company (including minority shareholders), therefore, within his competence, he protects their rights and legitimate interests, for which he contributes to the establishment of a constructive dialogue between shareholders and the company's management.

Investors are interested in placing their funds in companies with a high level of corporate governance. For quality management (and therefore the likelihood of a greater return on investment), they are willing to pay additional premiums.

"Independence Test"

An independent director must provide an independent assessment of:

• company resources;
• procedures for the appointment of top management;
• procedures for remuneration of top management;
• ethical standards of the company;
• effectiveness of procedures internal control, risk management, preparation of financial information, procedures for business planning and performance analysis, internal audit;
• corporate governance standards.

Corporate governance codes adopted in developed countries often put forward special requirements for checking an independent director for non-affiliation (a kind of “independence tests”). Independence is the most important condition for successful activity, a person occupying this position is obliged to refrain from any actions that could lead to its loss. In the event of circumstances jeopardizing independence, the director is obliged to immediately notify the shareholders of the company and its management.

According to the Russian "Code of Independent Director", developed in addition to the "Code of Corporate Conduct", an invited director can be considered independent if he complies with:

1. main criteria:
   • has not been in the last three years this moment is not an official (manager) or employee of the company, as well as an official or employee of its managing organization;
   • is not an officer of another company in which any of the officers this society is a member of the HR and Compensation Committee of the Board of Directors;
   • is not affiliated with the official (manager) of the company (official of the managing organization);
   • is not an affiliate of the company, as well as affiliated with affiliates;
   • is not a representative of the state.
2. additional criteria:
   • does not own personally (or through affiliated persons) an ownership interest in the company sufficient to approve his candidacy for the board of directors;
   • does not receive remuneration for consulting and other services provided by him to the company, except for remuneration for his activities on the board of directors;
   • does not represent the interests of consultants and contractors working with the company;
   • has a good business reputation, keeps high ethical standards possesses the necessary leadership qualities and entrepreneurial experience;
   • publicly announced his status as an independent director before being elected to the board of directors.

The status of independence is directly related to a particular society; it is valid from the moment a person is elected to the board of directors until the resignation of a member of the board of directors or an application for a change in status.

The author of an article is often asked the question: “How can a person who receives monetary compensation from a company be considered an independent director?” The fact is that the criterion of independence, first of all, is manifested in the ability of an independent director to act correctly in disputable situations. Indeed, directors who are ready to:

1. reasoned, to the very end (before the adoption final decision) defend your position;
2. leave the company if, for reasons beyond their control, their recommendations, confirmed by successful experience, are not implemented in the company.

When making decisions, an independent director must make sure that this is done for the benefit of the company itself, its shareholders and other interested parties (stakeholders), and also ensures a reasonable balance of interests.

In the event of a dispute, an independent director is guided by the principles of increasing the shareholder value of the company and equal treatment of the interests of all its shareholders, and in addition, calls on the parties involved to follow these principles.

It should be noted that the inclusion of independent directors in the management bodies of the company contributes to an objective assessment of its activities, the timely development of effective management decisions aimed at increasing the value of the company, and determining its correct strategic course. The presence of an independent director also has a positive effect on the company's image, but the experience of independent directors will be in demand only if the owners are ready to transfer the function of objective control to them, and top managers are ready to accept constructive criticism.

Main models of corporate governance

Independent directors take part in the work of the company's management bodies - the supervisory board or the board of directors (depending on the corporate governance model adopted in a particular country).

There are two main models of corporate governance - one-link and two-link.

Supervisory Board(Supervisory Board) - a collegial body that performs the functions strategic management and control over the activities of the company.
Board of Directors(Board of Directors) - a collegial body that performs the functions of operational management and control.

The single-link structure of the board of directors is adopted in the USA, Great Britain, Italy, Belgium and some other countries. In this model, there is no division into a supervisory board and a board of directors; All decisions are made by the board of directors, which includes:

• executive and non-executive directors (employees of the company and independent directors), or
• only executive/non-executive (independent) directors.

The effectiveness of control is determined by the presence of independent directors in the board.

With a two-tier structure of the board of directors, the functions of strategic management and the functions of an “independent agent” are strictly distributed between two management bodies: the supervisory board and the board of directors. The "independent agent" function is performed by independent directors.

Recommendations on the inclusion of independent directors in the management bodies are developed for public companies (whose shares are listed on international stock exchanges). But recently, local private companies are increasingly including independent directors in their board of directors to improve the quality of management, although this is not required by law.

Of course, for some organizations to create all recommended in accordance with best practices governing bodies (board of directors and supervisory board, committees) would be premature. However, independent directors may be included in the management bodies on any stage of development of public and private companies. These people will bring constructive criticism, ensure that effective controls are in place, and help achieve corporate goals.

In the UK Corporate Governance Code the best option is considered a management structure that includes:

* Board of Directors(relatively small but competent), dominated by independent directors;
* committees- on audit, compensation and appointments (in this case, it is not necessary to create all committees at once, if the company is not yet ready for this).

A good example of the effective involvement of an independent director in business development is the fast-growing Swedish designer watch company TRIWA: in just four years, sales increased by 112.5 times! To improve the quality of management of a super-dynamically growing business, the owners invited an independent director, who became the current CEO of a well-known Scandinavian chain fashion clothes. He joined the Board of Directors of TRIWA, so now, together with the owners, he takes part in strategic sessions, analyzes the results achieved.

According to the owners, the role of an independent director in the company is very important: his "sober view" objectively and independently evaluates the main processes of the company's development, he helps to introduce improvements in various business areas. The reasons for the inclusion of an independent director in the management bodies, the owners of the company Tobias Eriksson and Harald Weinachter explained as follows: “An independent director is a guarantor of the implementation best principles in the field of corporate governance and achievement of the company's goals”.

Principles of Corporate Governance

The basis for the formation of effective management bodies are adopted in various countries Principles of corporate governance. The provisions of this document are advisory in nature, but their observance in public companies is closely monitored by both investors and representatives of various regulatory bodies.

The best world practices highlight the following fundamental principles corporate governance:

1. distribution of powers and responsibilities by decision-making levels;
2. effective remuneration of directors based on performance;
3. appointment of directors on the basis of competence and transparency.

The main role in the implementation of these provisions belongs to independent directors. It is the presence of an effective board of directors, whose duties include informing the executive management / board of directors of the company about the problems and errors noticed, helps to improve the quality of management and concentrate efforts on achieving the set goals.

Collective responsibility and distribution of powers. This principle assumes that independent directors:

• constructively oppose top managers when developing a strategy;
• submit their proposals for effective management;
• build a system of reasonable and effective control to assess and manage risks;
• assess the tension and feasibility of setting strategic goals, the availability of the necessary financial and human resources;
• evaluate management actions.

At the same time, they equally respect the interests of both shareholders and top managers of the company. Their experience allows 1) to give an unbiased assessment of how achievable the goals of shareholders are (controlling the achievability of goals); 2) to analyze the actions of top management to achieve the set goals (to assess how "intense" the goals are, whether the managers underestimate the abilities and available resources). The convergence of the goals of shareholders and top managers is carried out in the process strategic planning company, in which independent directors must take an active part.

Independent directors are required to carefully evaluate the performance of managers in achieving the company's goals and objectives set by the shareholders, and monitor performance reporting. This is necessary in order to ensure the correctness of the financial information provided (the integrity of financial information) and the effectiveness of the internal audit, internal control and risk management system.

Objective control of the strategic planning process and adequate reflection of strategic goals in operational planning (budgeting) are also included in the area of ​​attention of independent directors.

Efficient remuneration of directors based on performance. The main performance indicators of top managers are the achievement of the planned financial results, the effectiveness of the internal control system, internal audit and risk management, etc. - is controlled by members of the audit committee under the company's board of directors. Issues of the adequacy of the level of remuneration (compliance with the results achieved, the expectations of shareholders and the realities of the labor market) are the responsibility of independent directors - members of the remuneration committee of the board of directors.

Appointments based on competence and transparency. Compliance of candidates for managerial vacancies with corporate requirements and legal requirements is controlled by independent directors - members of the nomination committee of the board of directors. Independent directors play a major role in the appointment and, if necessary, removal of executive directors, as well as in succession planning procedures. Traditionally, candidates for filling vacant positions of top managers are recommended by the CEO, and the appointment committee approves them (as well as the candidacy of the CEO).

The chairman of the board of directors must pass an independence test. As evidenced by the best corporate governance practices, transparency is ensured if:

• The membership of the board of directors is balanced and includes executive and independent directors - in this case, no member (or group of members by collusion) can voluntarily influence the decision-making process of the board.
• All members of the audit committee and all (or most) members of the nomination and remuneration committees are independent (non-executive) directors.
• At least half of the members of the board of directors are independent (non-executive) directors (except for small companies, in which it is enough to have two independent members).
• At a minimum, one of the independent directors must be a financial expert with managerial experience in this area, another is to have experience in the area/sector where the company operates.
• The board of directors appoints a chief/senior (senior) independent director who interacts with shareholders in case they have doubts about the reliability of the usual information flows (through the chairman of the board of directors, the general director or the financial director). The appointment of a senior independent director is appropriate if the board of directors consists of eight or more members.

The CEO should not hold the position of chairman of the board of directors in the same company.

The main asset of any independent director is his professional image. As a rule, people with many years of experience in managing large companies are invited to the position of an independent director (many of them have their own successful business). They do not perceive membership in professional associations and work as an independent director as a way to earn money. For many of them, the main motivating factor is the opportunity to share their experience, to help "brothers in business" - owners and top managers to improve the performance of companies. It is their image of professionals that they value in the first place, so the safety of trade secrets should not be a matter of concern.

Professionals are well aware of the principles of corporate governance developed by the Organization for Economic Cooperation and Development (OECD). The Eurasian Economic Community adopted the Model Corporate Governance Code. Links to the main documents in the field of corporate governance, including codes of corporate governance around the world can be seen on the website.

In Russia, the Association of Independent Directors and the Russian Institute of Directors are engaged in improving corporate governance and assisting companies in finding independent directors, in Kazakhstan - the Institute of Independent Directors of Kazakhstan. Active steps are being taken in Russia to improve the quality of management of state-owned companies and companies with state participation. Following the best practices in the field of corporate governance, in Russia and Kazakhstan, the national laws on joint-stock companies emphasize the importance of the presence of independent directors in the company's management structure, and ideas are put forward to prohibit officials from entering the boards of directors of state-owned companies.

Unusual worker

Where are independent directors usually found? Many countries have established Associations of Independent Directors (Institute of Independent Directors). They perform many functions, including assistance in finding and selecting specialists for companies that are necessary to build a proper corporate governance system: independent directors, experts in corporate governance, internal audit, internal control, risk management.

Each National Association has developed its own qualification requirements to the candidacy of an independent director: education; experience in companies known for best corporate governance practices; professional qualifications, reputation, etc. In addition, they contribute to the training / professional development of their members in order to facilitate their adaptation to a new company / role: they hold seminars, trainings, round tables, etc.

A candidate member of the Association studies the "Independent Director's Code", and also undertakes to act professionally, ethically, in the interests of shareholders and other stakeholders of the company, and accept it as a guide to action.

Usually, the employer limits the number of companies where a person can simultaneously work as an independent director. In addition, as a rule, work in companies of the same (or related) sectors is not allowed. In accordance with best practices, a contract is concluded with independent directors for a period of three years, while its prolongation is allowed, but no more than two times (that is, the maximum possible tenure in this position in one company is nine years). It is also not uncommon to set an upper age limit at which an independent director must resign.

The issue of inviting independent directors in the process of preparing for the placement of the company's securities on the stock exchange (IPO) is considered separately. Experts recommend forming a board of directors with the participation of two or three independent directors 8-12 months before the IPO. At the same time, an obligatory requirement on the part of an independent director is the inclusion in labor contract clause on insurance of liability of the director at the expense of the company. This is necessary because in many countries securities and corporate governance laws provide for significant penalties (in some cases even imprisonment) for failure to comply. public company certain requirements.

An independent director works in the governing bodies; he does not participate in the operating activities of the organization that invited him. The "working field" of an independent director is the agenda of the meeting of the Supervisory Board / Board of Directors and the attached materials (they are prepared by the corporate secretary). Members of the governing body meet once a quarter / month (depending on the practice prevailing in a particular company).

Usually, independent directors receive a fixed amount as a remuneration for work once a year, but sometimes they also receive remuneration based on performance. The size of the variable part may depend on the number of meetings in which they participate, the number of additional meetings with executive directors/ external experts, etc. Travel, transportation, hospitality and other expenses (additionally specified in the contract) are reimbursed separately. As a rule, the larger and more complex the company in terms of management (the number of branches, affiliated companies, etc.), the higher the remuneration of independent directors. (Features of the payment of independent directors is a topic worthy of a separate article.)

In today's Russia, corporate governance issues are becoming increasingly important. This is due both to the trends of Western “fashion” and to the increased complexity and complexity of market and corporate processes in modern Russia, which led to the realization by business owners of the need for a more corporate (as opposed to handicraft-entrepreneurial) approach to organizing business.

The institution of independent directors is an important attribute of the modern corporate governance system.

An independent director in Russia is a member of the board of directors who meets the criteria for independence set out in the Code of Corporate Conduct adopted by the FCSM (now the FFMS). This document is advisory in nature, so enterprises have the opportunity to creatively use its provisions, supplementing and changing them in accordance with their specific conditions. AT different countries there are different criteria for independence in detail, but the basic principle is the same: an independent director is a member of the board of directors who has no property relations with the company other than membership in the board of directors.

If such elements of corporate relations as a meeting of shareholders, the board of directors and the board of directors have long and firmly entered domestic corporate practice, look like natural accessories of a joint-stock company and their expediency is almost not in doubt, then the institution of independent directors can still seem artificial, introduced from outside education. Indeed, it is difficult to argue that the need for independent directors has matured in the bowels of Russian corporations. No, this is rather a borrowing from Western experience, pursuing a good goal: to make corporate relations more perfect. The extent to which this institution will organically fit into our corporate environment depends largely on the art of standard-setters and regulators, on their ability to creatively process foreign experience and adapt it to domestic conditions.

The presence of independent directors on the boards of joint-stock companies is not yet a legal requirement in Russia. It is recommended by the Code of Corporate Conduct. The Bank of Russia, making its contribution to the development of the supervised industry, issued in 2005 a letter “On Modern Approaches to the Organization of Corporate Governance in Banks”, also recommending the appointment of independent directors to the boards of banks. This event represents a certain milestone in the development of the corporate governance system in Russia, because, as you know, banks usually prefer to follow the recommendations of the supervisory authority.

Nevertheless, it is noteworthy that our domestic regulators (the Central Bank and the Federal Financial Markets Service) do not play the role of legislators, but act, in fact, as active “promoters and PR people” of this institution, trying, in accordance with the principles of marketing, to form consumers, that is, Russian owners the need for this institution.

Why does a Russian joint-stock company need independent directors, what is the use of them for business?

First, the institution of independent directors is an attribute of good corporate governance practice. By introducing this institution, the enterprise signals to the market about its compliance with this practice, its desire to play by the rules, about the transition of business to another level, to a higher league. Studies show that investors are willing to pay higher prices for shares of companies with good corporate governance. Without independent directors, it is impossible to enter the Western organized capital markets, since the exchanges have corresponding strict rules. Moreover, the Russian stock exchanges (RTS and MICEX) have recently also established similar requirements for issuers.

In this way, external factor, the need to comply with certain patterns and rules is the first reason that prompts the owner to introduce the institution of independent directors in his enterprise. It is clear that external compliance does not always mean a meaningful improvement in corporate governance. Attempts to use the institute of independent directors as a kind of mask that hides the real face are quite understandable, including the traditions of Russian entrepreneurship in recent history. They cannot be abandoned immediately, and no "violent" measures will help here.

Secondly, it is obvious that the internal expediency of the participation of independent directors in the board depends on the functions assigned to the board by the shareholders. The latter are increasingly coming to the realization that having a powerful and capable board is a competitive advantage, already because of the involvement of additional intellectual resources in enterprise management. The evolution of the corporate environment has led to the fact that formal-pocket boards of directors are gradually becoming a thing of the past. Under these circumstances, the need for independent directors who are able to develop unbiased and professional judgments, contributing to the increase in the manageability of the enterprise and the effectiveness of control over the activities of executive directors, naturally matures.

It is noteworthy that the trend of strengthening the influence of boards of directors is also noted in last years in Western countries. Moreover, many local researchers and practitioners believe that an independent director is the ideal chairman of the board of directors.

The professional qualities and personal characteristics of an independent director play the same important role as in the case of the selection of executive directors. Few owners will refuse an independent member of the board of directors, capable of practically contributing to the development of the enterprise through their activities.

The problem, however, is that an independent director is exactly the person who, in a number of “subtle” and controversial issues, should not take the position of the majority (say, the majority shareholder), but be on the side of the truth. Here, not so much professional and business as moral characteristics of a person and his reputation come to the fore. Since such a function of an independent director is in the interests of the economy and society as a whole and goes beyond narrow corporate issues, it obviously should be supported and protected by state regulatory means. When reforming corporate law, including advisory law, to which the above-mentioned acts refer, this circumstance should be taken into account. It is advisable to protect the rights, and perhaps the obligation of independent directors to provide information about the real state of affairs in the company, and at the same time it is very reasonable to obligatory quota representation of independent directors in key committees of the board, primarily in the audit committee.

An important role in supporting and “protecting” independent directors can be played by specialized professional organizations, such as the Association of Independent Directors, which contribute to the growth of transparency and honesty in the corporate environment.

Ideally, “normative” independence, i.e., not being connected with the society by property relations, and the independence of (professional) judgments of the director should coincide. But ideal situations, as you know, are very rare. "Absolute independence" does not exist. People are always connected with each other by a whole complex of relationships. Independent directors are nominated by specific individuals, often independent directors are representatives of large companies and structures that actually develop the position of such an independent director. The remuneration (often quite attractive) received by council members is also not very consistent with independence. Therefore, in the convergence of these types of independence, an important role is played by the reputation and moral and ethical properties of a person.

The widespread use of the institute of independent directors can be regarded as the next stage in the development of modern capitalism, as the strengthening of its "socially responsible" orientation. In this sense, the institution of independent directors is a means of maintaining a balance, to some extent compensating for the negative (predatory and immoral) aspects of capitalism.

We must not forget that the institution of independent directors is one of the many elements of modern economic relations. Its actual effectiveness largely depends on the development of other external framework conditions for the functioning of enterprises, such as, for example, corporate law, the judiciary and accounting standards.

The composition of the Board of Directors (BoD) of a joint-stock company largely determines the type of corporate governance. In the recent past and partly in modern practice, corporate governance models are classified according to the structure and composition of the board of directors.

It is considered that if the board of directors consists, for the most part, individuals, who are holders of large blocks of shares of this company, then this corresponds to Anglo-American model of corporate governance. If the SD is composed of representatives legal entities, which are the owners of certain blocks of shares - for example, other enterprises or commercial banks - then this is a different model of corporate governance, called German or Continental.

In recent decades, the existence of the described models can be said with a sufficient degree of conditionality due to the internationalization of markets and the mutual penetration of management culture into various national and business communities.

The board of directors, as the governing body of the corporation, is designed to smooth out the contradictions between business owners - shareholders and hired managers who carry out the current management of the company. However, if the board of directors is made up of the most competent and experienced managers, then this contradiction is not removed, but only aggravated.

It is not uncommon for the board of directors to be chaired by the same person who runs the business—i.e. CEO - Chief Executive Officer. Almost always in SD also included executive responsible for the finances of the enterprise - the chief financial officer or executive vice president (CFO). It is also common practice to include a chief engineer, chief accountant, head of the legal department, or head of marketing on the board of directors.

Interests labor collective corporations at the grassroots level are most often left unrepresented. If the enterprise and its branches have a trade union of the company's employees, then a representative of the trade union may be included in the board of directors.

It is natural to assume that the representative of the labor collective on the board of directors also cannot solve the problem of the imbalance of interests between business owners and management. In fact, another one appears in SD stakeholder(bearer of interests), who will also unilaterally defend the position he represents.

Solving a typical problem for all corporations, regardless of nationality or gender economic activity, suggests itself quite clearly - to introduce into the board of directors persons who would be:

a) respected people with an impeccable business, scientific or public reputation;

b) are not connected by family, friendship, commercial or other ties with the shareholders or management of the corporation;

c) were not members of the boards of directors of other companies;

d) sufficiently qualified specialists to recommend and make balanced and verified management decisions.

Such persons are now called independent or outside directors.

But do management and major shareholders always need independent directors? Do they need to be present in the Board of Directors of state corporations? After all, by their adherence to principles or lack of understanding of the situation, they can prevent the implementation of the strategy that is convenient for the majority shareholders, who appoint high positions managers who suit them.

The law on joint-stock companies, as a rule, does not stipulate a clause on the introduction of independent directors into the composition of the Board of Directors or reservation for them a certain amount places. This is understandable. Each corporation decides for itself how to act and what provisions to include in the company's charter.

But stock exchanges, which, in addition to the function of revealing market prices for shares, also perform protecting investors from manipulation of various kinds, began to introduce their own requirements for joint-stock companies conducting listing own securities on the exchange market. Thus, stock exchanges became the institution that required corporations to introduce several (or even half in number) independent directors into the board of directors.

Of course, corporations have the right to refuse the requirements of the exchange and form the SD at their own discretion, but then access to the mass public market, which is the stock exchange, becomes inaccessible to them.

Yes, but why do stockbrokers take sides minority shareholders, owners of small blocks of shares? After all, the exchange has always personified the sharks of capitalism and profit, a passion for quick enrichment and speculative transactions.

All this is so. But the role of the exchange here becomes clear after considering its interests as an organized market and institution. The fact is that the shares quoted by the corporation on the stock exchange make up a certain share of their totality - for example, 10 or 15%. This share is called freefloat. Quotations of this very small part of the company's shares are circulating among the mass circle of stock market players, who are essentially minority shareholders.

If the exchange does not protect them from the manipulation of management and the arbitrariness of large shareholders, then stock players and investors will always be in a losing position - for example, in mergers and acquisitions of corporations, share buybacks (buy-backs), inside trading, delisting, bankruptcies and other events.

For modern Russian corporate governance practice, the significance of the institution of independent directors goes beyond the circulation of securities on public markets - both exchange and over-the-counter turnover. Independent directors are needed by state joint-stock companies, JSCs with mixed capital, as well as companies with foreign participation. Participation in the management of independent directors, whose remuneration is stipulated by the charter of the JSC, will reduce the amount of theft and additions, increase dividend payments, make the bonuses of the CEO and top management more moderate, and balance the interests of the parties.

Independent directors:

Forced reality or real necessity?

Who are independent directors?

According to international practice, an independent director is a member of the board of directors who does not have property relations with the company in whose management he participates, he is not connected with its suppliers or consumers.

Why does a joint-stock company need independent directors, what is the use of them?

First, by introducing this institution, society is signaling to the market that it wants to play by the rules of business relations in the 21st century, that business is moving to another level, to the “big league”. Observations show that investors are willing to pay a higher price for shares of companies with good corporate governance. Without independent directors, it is impossible to enter the international capital markets, since the largest foreign exchanges have corresponding and very strict rules. Moreover, the domestic stock exchange has also set similar requirements for issuers. Unfortunately, outward compliance with these conditions does not always mean an improvement in corporate governance in reality. Attempts to use the institution of independent directors as a kind of mask that hides the real face are quite understandable, including the traditions of domestic entrepreneurship.

Secondly, shareholders (including those who own large blocks of shares) realize in practice that the presence of a powerful and capable board of directors is a competitive advantage simply because of the involvement of additional intellectual resources in the management of the company. The ability to develop professional judgments in the name of increasing the manageability of the company and the effectiveness of control over the activities of the executive bodies - that's what is expected from independent directors.

The problem is that in resolving a number of subtle and controversial issues, these people are expected not to take the position of the majority of shareholders, but to be on the side of the truth. Here, not so much professional and business as moral characteristics of a person and his reputation come to the fore. Since such a practice is in the interests of the economy and society as a whole, it is quite obvious that it should be supported and protected by the relevant state regulations.

Ideally, “normative” independence, that is, not being connected with the joint-stock company by property relations, and the independence of professional judgments should coincide. But “absolute independence” does not exist in practice. Candidates for governing bodies are nominated by specific individuals. In addition to being members of the board of directors, its independent members often work in large companies in the domestic or global market and are thus subject to influence from this side as well.

And the remuneration (often very significant) received by members of the council also does not really fit with independence. That's why it's so important reputation and moral and ethical properties of a person.

However, we must not forget that the institution of independent directors is only one of the many elements of modern economic relations. Its effectiveness largely depends on the development of other, external, framework conditions for the functioning of economic entities. Such as corporate law, the judiciary, and accounting standards.

An independent director is a member of the company's board of directors who is independent of the state, the company's management and the majority shareholder of the company.

Shareholders are primarily interested in an independent director performing external functions, that is, informing investors about the affairs within the company, and management sees the main task of an independent director in participating in the development of the company, bringing new, effective ideas to it. Ideally, an independent director should also not be associated with a major counterparty, with the company's auditor, and should not pursue political goals in his activities.

An independent member of the board of directors is independent, first of all, from management, and this is of fundamental importance. On the other hand, there is some dependence on the shareholders, since the directors are elected by the shareholders and represent them. But there is a point that many do not understand, including the current members of the councils. After the elections have taken place and the board of directors has been formed, the members of the board of directors must protect the interests of all shareholders, and not just their "patrons" or those who voted for them. An independent director is responsible for his decisions to all co-owners of the company.

The ideal independent board member is not just someone who is independent of management. It does not depend on any particular shareholder. We have yet to achieve the classic separation of powers in a company where owners and managers are not the same people. In some domestic companies, the separation of ownership and control has already taken place, while others have not begun to do so.

The most important criterion for selecting independent directors is reputation. Reputation itself is not an abstract concept, it consists of many parameters. By definition, a person with a high reputation has already achieved a lot, demonstrated his professionalism in many ways, and for a long time. Another aspect: in addition to measurable things (for example, the growth of the capitalization of the company where the director worked before), reputation is associated with phenomena that cannot be measured: moral qualities, behavior, reputation.

At the current stage of economic development, the main task of boards of directors is to control the work of management. This is not the task of developing a strategy: you need to carefully study the strategy proposed by management. Maybe correct it, maybe “ground it”, maybe add aggressiveness. That is, edit, not re-create. Another task of boards of directors is to monitor the behavior of management, which sometimes gets too carried away with different ideas, forgetting that the company has simple and understandable statutory goals: increasing profits, capitalization, etc. These goals can be detrimental, for example, rash business expansion . Of course, a dialogue between managers and the board of directors is necessary, and sometimes disputes are useful.

The issue of control over the activities of the board of directors in modern economic conditions is most often solved as follows. The main judge is the market - if the company does not show any results, and management is disorganized, the market punishes the company by lowering its value. And the reputation of members of the boards of directors, of course, suffers in this situation: in the future they will no longer be able to show how their work has increased the value of a particular company. The second aspect: each member of the board of directors, as a rule, represents some shareholder or group of shareholders, who may have their own agenda. Such a director is given an “instruction” on what steps to take. And the opinion of the shareholder regarding how the member of the board of directors nominated by him defends his interests, how many decisions were made in accordance with his wishes, is also a controlling factor. Third important indicator success or failure of the members of the board of directors lies in the absence of a permanent conflict between them and management. The ability to constructively develop a company without starting constant wars is extremely important. And the market is closely monitoring whether there are obvious or latent conflicts in the company.

And another positive thing is that a whole circle of people with experience in boards of directors and a good reputation has formed. The overall professionalism of board members today is significantly higher than, say, two or three years ago. Shareholders no longer want to invite "wedding" generals to the boards of directors, everyone wants to see the real professional contribution of the director to the activities of the board.

Considering the question of the real influence of independent directors on the company's activities, three degrees of such influence can be distinguished. The first is when the Board includes 1-2 independent directors. At this level, the transparency of the company and the interests of all groups of shareholders increase. Second degree - when a quarter or more than a quarter of the members of the Board of Directors are independent, influence on business decisions, corporate policy and strategy is already possible. The third degree of influence is that the majority in the Board of Directors belongs to independents. This degree of influence has reverse side– maximum responsibility of independent directors for the consequences of decisions made.

The position of an independent director first appeared in the 1980s and 1990s in the UK and the USA after a series of scandalous bankruptcies of well-known corporations, such as newspaper magnate Robert Maxwell. The cause of the financial misfortune was the unscrupulous actions of the management and the corruption of the members of the boards of directors. Large investors - mutual funds, investment, trust and other funds and companies that attracted money from the population - proposed to introduce independent directors into the main supervisory body of companies. The range of their functions was outlined as constant third-party monitoring of the decisions of the Board of Directors and their implementation and observance of the interests of all groups of shareholders. In the United States, after the start of the latest wave of financial scandals, at least half of the board members must be independent - this has become a mandatory requirement. A company that did not comply with this standard could simply not be allowed to participate in operations on the stock exchange. True, these rules did not save Enron from scandalous bankruptcy and blatant management abuses.
(In Russia, RAO UES was the first to be subject to such supervision, where, respectively, the first independent director, Ivan Lazarko, protected the interests of minority shareholders from Anatoly Chubais in 1999. A year later, with the help of his two new comrades, Boris Fedorov and Ivan Tyryshkin, he managed to to prove to Anatoly Borisovich that he is wrong. Fiction. Unscientific, but proven. The current reorganization of RAO UES is being supervised by independent directors.)

However, such cases rarely become public knowledge: this is why an independent director is introduced to the board in order to prevent conflicts and negotiate - quietly, without scandals. Their position "above the fight" allows them, as mediators, to help conflicting parties meet and negotiate.

What does an independent director do?

The company is profitable, the people are honest. Almost a god - that's really nothing personal. Complete independence from personal interest. A living guarantor of the transparency and integrity of the company, which in ancient times were the trustees of charitable and educational institutions and wedding generals in various funds, banks, etc. Initially, independent directors represented the interests of minority shareholders. Then the owners realized that they had no guarantees of real transparency in the accounting department of their companies and reliable protection against the tricks of top management. Independent directors now represent the interests of all shareholders.

The era of independent directors

An objective need for the introduction of so-called "independent" directors appears in Anglo-American practice in connection with the final separation of the concepts of "ownership" and "management", when companies with dispersed capital begin to prevail, the shareholders of which are no longer eager to take an active role in the management of the corporation. An independent director in the Anglo-American model is a unique tool for protecting the interests of numerous minority shareholders and society as such from the arbitrariness of management.

There are several classifications of directors in international practice.

Firstly, these are executive (executive) and non-executive (non-executive) directors. The executive director is both an employee of the company and is involved in the day-to-day management process. The non-executive director is not part of the staff, but nevertheless, as a rule, has significant connections with company. An external director may be a representative of a key partner, major supplier, buyer, legal advisor, etc. Sometimes the terms "internal" (inside) and "external" (outside) director are also used.

Secondly, independent directors and just directors stand out. Foreign practice does not give an unambiguous definition of an independent director; the term "independent director" itself is not used in all countries and is more typical for North America. In Europe, including in England, the term "non-executive director" is used, which is interpreted more broadly than "independent director".

The independence of the director implies his neutrality, objectivity in relation to the decisions made. From, so to speak, the properties of "independence" of an independent director stem from his main functions and "usefulness" for the company. The very notion of "independent director", as a rule, is defined by the method "by contradiction". In particular, an independent director:

is not an employee of the company (not part of the staff);

his close relatives are also not key employees of the company;

has no material interest related to the activities of the company (is not, for example, a supplier, a major buyer);

does not receive any remuneration from the company other than remuneration for the performance of his duties as a member of the board of directors (is not, for example, a consultant to the company).

Fact: of the 17 directors of Enron (the biggest bankruptcy of recent decades), only two directors were "internal", the remaining 15 directors formally had the status of "independent". Obviously, the concept of "independence" is difficult to define. Independence of the director from whom, from what? Most researchers agree that the independence of the director must be considered in the context of a certain situation: there is no independence at all, but there are situations in which the director either acts in the interests of the company within the framework of how he imagines them, or acts in some self-interest or for the benefit of third parties.

The concept of independence is thus related to situational independence. Interestingly, this concept resonates with another developed and frequently used institution: the duty of the director to act in the interests of the company, or fiduciary duty. In accordance with his fiduciary duties, the director must have a certain loyalty to the company and properly care for the interests of the company (duty of care). If the shareholders believe that the director has violated his fiduciary duties, they can take legal action, and such claims do occur in practice.

How to use the institution of independent directors in a company

Depending on what the company is ready for, there are two options for complying with the corporate governance code:

1) formal correspondence to list securities on the stock exchange;

2) application of the code for improve efficiency business.

Option 1. The company uses formal approach in the organization of corporate governance. In this case, an independent director with a well-known name can only improve the image business. The board of directors meets infrequently, automatically approves already decisions made and generally performs advisory functions. Therefore, if an expert or consultant, well-known in the business world, preferably a foreign one, is involved as an independent director, then his big name will be a guarantor of the stability and high reputation of the business. As a result, the functions of an independent director are reduced to advising on specific issues.

Option 2. The company is growing rapidly, facing uncertainties and risks. In this case, the board of directors acts actually functioning body, which determines the company's development strategy, considering all options for cardinal actions. As an independent director, it is advisable to invite an experienced professional in a particular field. Being a highly qualified specialist, he will be able to participate in practice in the discussion of all significant issues through the expression of an unbiased judgment based on independent evaluation the problems under consideration.

In this case, the invitation of independent directors, which is an innovation for domestic issuers, but has long been successfully used by foreign corporations, becomes an important element of the corporate governance system and is an effective tool for resolving conflicts of interest of various groups.

Independent director: who is who

A special difference between the status of an independent director and other members of the board of directors is that he is called upon to express an independent and impartial opinion on the strategic issues of the company's activities and take an active part in resolving conflicts of interest. In fact, independent director- a director whose judgments nothing can influence due to his remoteness from current activities and the lack of direct or indirect ties with the company.

The requirements for independent directors accepted in domestic corporate practice comply with global standards. In particular, section VI. E.1 of the OECD Corporate Governance Principles, adopted by member countries of the Organization for Economic Cooperation and Development in 2004, contains a fundamental requirement for the board of directors, according to which all directors must express independent objective judgment on the issues under discussion. Accordingly, the mere presence of independent directors is expected to be significant.

Purposes of activity of an independent director in the context of a conflict of interest

Targets and goals activities of an independent director are different in terms of interests different groups: minority, majority shareholders or managers.

Defender of the interests of minority shareholders

Many owners of small shareholdings hope that an independent director will protect their interests and block those decisions that could negatively affect their situation.

In practice, influence on decisions that violate the interests of minority shareholders is reduced to blocking large transactions, which, in accordance with Kazakhstani legislation, require unanimous approval.

Adviser for Majority Shareholders

An independent director is not a threat to the interests of the owners of large blocks of shares: he is a professional expert and expresses an independent and impartial assessment issues proposed for discussion.

Moreover, an independent director has a significant advantage compared to the company's executive directors: having an outlook that goes beyond the boundaries of one company, he is able to offer a much wider range of solutions one problem or another. The presence of an independent director on the board of directors contributes to the overall improvement of the company's image, and in particular to the formation of the image open company with a style of corporate governance close to Western.

Intermediary between shareholders and managers

By preventing potential conflicts of interest between shareholders and managers, independent directors have the ability to influence personnel policy companies, promote the attraction of qualified personnel, ensure transparent principles for the selection of candidates for key leadership positions, as well as determine the procedure for assessing the effectiveness of their activities.

Independent directors in Kazakhstan: pros and cons

The institution of independent directors grew out of the Anglo-Saxon model of the securities market, which a high share in the capital of owners of small blocks of shares(as a result, there is a separation of the functions of the owner and manager). In Kazakhstan, it traditionally develops large owner model, while managers can be shareholders of the company. This ownership structure predetermined the reluctance major shareholders include independent members in the board of directors.

At the same time, the invitation of independent directors who are foreign practices or experts, improves the image of domestic companies in the eyes of foreign investors considering the domestic stock market as a potential field for investment. In the case of real performance of his functions, an independent director becomes a guarantor of the prevention and objective resolution of corporate conflicts of interest.

For Kazakhstan, topical issues are ensuring the transparency of the company's activities, disclosure of information and application of the corporate governance code. These practices are still poorly developed, so there are very few companies that invite independent directors.

6 reasons to hire an independent director

An independent director monitors the observance of the interests of all shareholders of the company;
- Increasing transparency and publicity of the company;
- For the shares of companies with experienced directors on the board, investors are willing to pay a third more;
- Improving the reputation of the company in the eyes of foreign players;
- Relationships of independent directors can open many doors;
- An independent director is an authoritative adviser.

Galina Shalgimbaeva

PhD in Economics, President of GALA Invest Consulting