Independent - PowerPoint Presentation

Slide1

Independent Directors: Functions, Responsibilities & Accountability.

Dimensions of the office of the Independent Director in India.Slide2

Governance Challenges in Contemporary Business Environment

Corporate Reporting: Enhanced disclosures & Responsibility

Greater focus on

strategy,

long-term value

creation and Reputation

Shareholder

Engagement & Activism. Heightened

Proxy Advisory interventions

Stakeholder value, Responsibility Towards Society

Board composition, diversity and boardroom effectiveness

Key Governance Issues for companies in 2015Slide3

Independence in LawSlide4

What defines an Independent Director?

Independent Director is defined u/s 149(6), CA 2013, as a director other than managing director, whole-time director or a nominee director, one who qualifies the tests of Integrity, expertise and experience and fulfils the exclusionary relationships test, as laid down under the law.

Integrity. Threshold defined under the Companies Act (CA), 2013 and additionally

assessed by the board of directors and self-attested by the

ID.

Independence.

Assessed in terms of an IDs relationships with the company/ promoters/ management. Not having held

relationships (personal, professional, familial) excluded

under CA 2013.

Expertise. a combination of subject matter expertise, industry exposure and past board experiences. Slide5

Independence defined …

A person of IntegrityIntegrity is not defined in law. Black’s Law Dictionary defines integrity

of a person to mean soundness of moral

principles

and character

.

The test of Integrity is done through an subjective assessment by the Nomination Committee and the board of directors against minimum legal standards or enhanced standards.

Relevant expertise and experience

Independent Directors should

possess

an appropriate balance of skills, experience, and

knowledge of one or more areas like finance, law, management, sales, marketing, administration, research, corporate governance. Exclusionary Relationships – Section 149(6), CA 2013 – e.g.

An Independent Director must not be related to the promoters of the company, and must be independent of the management of the company.

A

part from director’s remuneration, has or had no pecuniary relationship with the company, its holding, subsidiary or associate company, or their promoters, or directors, during

current as well as

two immediately preceding financial

years

Restrictions on company shareholding. (self

plus

relatives shareholding < 2% of company’s total voting power).

No restricted professional relationships current or previously held.Slide6

Legal Duties of Independent DirectorsSlide7

Fiduciary DutiesIndependent directors hold their position in a fiduciary capacity. Their legal

duties are embodied by the principles of fiduciary duty.The expression “fiduciary capacity” implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. It

extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other. Sri Marcel Martins vs. M. Printer & Ors. (SC)

The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or things belonging to the beneficiary.

CBSE and Anr. Vs. Aditya Bandopadhyay and Ors.

(2011) 8 SCC 497

Fiduciary duty is broadly categorized into,

Duty

of Care

and Duty of Loyalty.Slide8

Duty of Care

Duty of care entails that decisions by directors are made after due deliberations, balance in judgement and in awareness of key facts and information. Section 166 (3), CA 2013.Duty of care imposes upon directors a duty of competence or skill – to act with a certain level of skill, and a duty of diligence.Duty of care requires directors to inform themselves of “all material information reasonably available to them,” prior to making a business decision. 

Smith v. Van Gorkom, 488 A.2d 858, 872 (Del. 1985).

Directors

must “act in an informed and deliberate manner” prior to making a business decision. Gross negligence is the standard in determining if there has been a breach of the duty of care.

In re Walt Disney Co. Derivative Litigation

, 906 A.2d 27, 53 (Del. Ch. 2006).Slide9

Duty of Care – as established by Indian Courts

Duty of care entails a duty to act with reasonable prudence, includes duty to seriously deliberate matters that comes before them. It includes the duty not to be oblivious to what is obvious. Supreme Court in Official Liquidator v. PA Tendolkar (AIR 1973 SC 1104), held:

“…

a director cannot

shut his eyes to what must be obvious to everyone

who examines the affairs of the Company even

superficially.

If he does so he could be held liable for dereliction of duties undertaken by him and

be compelled

to make good the losses incurred by the Company due to his neglect even if he is not shown to be guilty of

participating in the commission”.Test of Reasonable Prudence

calls for exercising prudence as expected of a person having equivalent knowledge and experience.“Duty of care for an independent director calls for exercise of independent judgment with reasonable care, diligence and skill which should be reasonably exercised by a prudent person with the knowledge, skill and experience which may reasonably be expected of a director in his position and any additional knowledge, skill and experience which he has”. SEBI order in matter of Pyramid Saimira Theatre Ltd. (2011). Slide10

Tests of Due Care, Skill and Diligence

Duty of Reasonable Skill, Care and DiligenceDue care entails directors to take decisions after due deliberations, in consideration of key facts, and subject to verifiable checks.SAT in the Pyramid Saimira case (2012), referred to the English case of Equitable Life Assurance Society [(2003) EWHC 2263 (Comm)], to establish the dimensions of ‘duty of care

’.Directors have, both collectively and individually, a continuing duty to acquire and maintain a sufficient knowledge and understanding of the company's business

to enable

due discharge of

duties as directors.

Whilst directors are entitled to delegate particular functions to those below them in the management chain, and to trust their competence and integrity to a reasonable extent, the exercise of the power of delegation does not absolve a director from the

duty to supervise the discharge of the delegated functions

.Slide11

Tests of Due DiligenceAccording to

Words and Phrases by Drain-Dyspnea (Permanent Edition 13A), “due diligence” in law means doing everything reasonable, not everything possible’. It means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. Ref. Supreme Court order in Chander Kanta Bansal v. Rajinder Singh, (2008) 5 SCC 117 The test of diligence is essentially fact-based. Tests of Diligence,

SAT in the Pyramid Saimira case (2012)Demonstrate due care and diligence while verifying documents placed for approval in board meetings.

Identify deficiencies wherever possible by employing verification and scrutiny expected of a prudent man.

A director cannot take a stand that he has approved the documents totally depending on the integrity and expertise of the

management.

While functions may be delegated to

professionals

, the duty of care, diligence, verification of critical points by directors cannot be abdicated.Slide12

Demonstrating Diligence

Adequate attendance and preparation for the role by attending most meetings;Have all documents, papers, presentation, minutes archived in an intranet to demonstrate due processRaise relevant questions at meetings, and seek answers to them;Where not satisfied with the answers that affect the overall interests of the company, express dissent;

and adequately record in minutes( needed under the law); Where there are concerns about running of the company or a proposed action, ensure they are

addressed by the Board. Also,

insist

that the concerns raised by IDs with

respect to

the unresolved concerns be recorded in minutes.

When any action is delegated, there must be an effective oversight.Engage services of an external expert, wherever considered necessary esp. in matters involving minority interests.Since independence is measured in action, act in a manner that is established by due processSlide13

Duty of Loyalty

Duty of Loyalty requires that directors act “in the interest of the company”.Under Companies Act, 2013, a director is required to act in good faith to promote the objects of the company for the benefit of its members and in the best interests of the company, its employees, shareholders

, community and for protection of environment. - Section 166(2), CA 2013.

The definition is broad in the respect that it requires ensuring a collective benefit of key stakeholders, including its shareholders. Independent Directors are required to ensure that interests

of all

stakeholders, particularly minority shareholders, are

duly considered as part of Board

deliberations.

Duty of loyalty, as interpreted by courts, means that acts and deeds of directors must be exercised for the benefit of the company.

Dale And Carrington Invt. P. Ltd. vs P.K. Prathapan and Ors. 2004 Supp.(

4) SCR 334. Slide14

Duty of loyalty …contd.

Duty of LoyaltyDuty of Loyalty requires directors not to engage in transactions that involve a conflict of interest.Under Section 166(5), CA 2013, a director shall not achieve or attempt to achieve any undue gain or advantage, either to himself or relatives, partners or associates.Directors have an “affirmative duty to protect the interests of the corporation

, but also an obligation to refrain from conduct which would injure the corporation and its stockholders or deprive them of profit or advantage.”

Ivanhoe

Partners v. Newmont Mining Corp.

, 535 A.2d 1334, 1345 (Del. 1987

).

The acts of directors in a private limited company are required to be tested on a much finer scale in order to rule out any misuse of power for personal gains or ulterior motives. Dale And Carrington Invt. P. Ltd. vs P.K. Prathapan and Ors. (SC) 2004

The Delaware Supreme Court in Stone v. Ritter said, ‘[w]here directors fail to act in the face of a known duty to act, thereby demonstrating a conscious disregard for their responsibilities, they breach their duty of loyalty by failing to discharge that fiduciary obligation in good

faith. Stone v. Ritter, 911 A.2d 362 (Del. 2006).Slide15

Duty of Loyalty (Good faith) – Legal Tests.Duty of loyalty requires a director to

demonstrate that actions taken were in ‘good faith’ and in best interests of the company.Courts must be convinced that decisions taken were not with a wrong intent or purpose, and hence not in ‘bad faith’. The test of purpose behind a decision is used as a measure. “To act in good faith, a director must act at all times with an honesty of purpose and in the best interests and welfare of the corporation.”

In re Walt Disney Co. Derivative Litigation 906 A.2d 27, 53 (Del. Ch. 2006).

A

director owes a duty to the company to act in what she/he honestly considers to be the interests of the

company.

Madoff

Securities v. Stephen Raven

[2013] EWHC 3147 (Comm). A director would not be held to have failed in fiduciary duty if they

act in good faith in what they believe, on reasonable grounds, to be the interests of the company. Needle Industries (India) Ltd. and Others Vs. Needle Industries Newey (India) Holding Ltd. and Others [(1981) 3 SCC 333

]Honesty in purpose is key to establishing good faith

. Demonstrating good faith depends on facts and circumstances, which must be backed by evidence.Slide16

Duty towards Shareholders

Duty of loyalty, as established in US, has a duty of disclosure towards the shareholders. Directors are obligated to disclose all material information when soliciting shareholder action. The duty of disclosure is an application of both the duties of care and loyalty. Pfeffer v. Redstone, 965 A.2d 676, 684 (Del. 2009). Duty to the shareholders include a duty to make a full and honest disclosure to the shareholders regarding all matters relating to the company. Dale And Carrington Invt. P. Ltd. vs P.K. Prathapan and Ors.

(2004). The requirement flows from

a director’s duty

to act in good faith and make full disclosure to the shareholders regarding affairs of a company

.

Dale And Carrington Invt. P. Ltd. vs P.K. Prathapan and Ors

.

The duty of disclosure is significant in the case of listed companies.Slide17

Demonstrating Good Faith

Setting of Board processes- timing, evidence, recording, preserving protocolsSetting the tone for the company and the standards of conductEstablishing oversight responsibilities that operate independentlyOversight of controls, risks, information, processes etc.Address deviations and demonstrate corrective actionsEstablish principles of fair play and fair pricing especially with related party or with parties having any significant influenceDisclose effectively and have err on more than lessSlide18

Accountability of Independent DirectorsSlide19

Accountability for Independent Directors

Independent Directors are legally accountable only in respect of such acts of omission or commission by a company which occurred with their knowledge, attributable through board processes, and with consent or connivance, or where he had not acted diligently.

[Section 149(12), CA2013].

This is equivalent of the ‘

business

judgment rule

, as prevalent in the United States, where courts have held

the court will not second-guess a board’s decision

if it:followed reasonable processtook into account key relevant facts

Is made “in good faith” - “good faith” requires that the board act without conflicts of interest and not turn a

blind eye to issues for which is it responsible.Slide20

BJR – Tests of Good Faith and Fairness

The concept of ‘Business Judgment Rule’, as embodied in the safe harbor provisions for independent directors under Indian laws, is yet to be tested in Indian courts.As held by the Delaware court in

Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984

)

to avail immunity under BJR:

directors

have a duty to inform themselves of all material information reasonably available to them.

the decision must have been taken in good faith

informed business decisions.The presumption of good faith and fairness, may be rebutted, if

it is shown that a director had a personal financial interest in a

transaction (i.e. lacked independence)did not inform her/himself of all information that was reasonably available, failed to exercise the requisite level of care,

or stood on both sides of the transaction

;the

director must satisfy the

stricter standard of ‘entire fairness’.Slide21

Board Process ExplainedAccording to a circular of the Ministry of Corporate Affairs issued in 2011,

board process includes meeting of any committee of the Board, and any information which the director is authorized to receive as director of the Board as per the decision of the Board.They include formal channels of communication such as circulars, agenda, resolutions, etc. made available to Board members. In determining whether a director had acted in accordance with law, prosecuting agencies would examine Board minutes of the company to arrive at a conclusion as to whether the Independent Director is responsible for any violation of law.Minutes that detail a board’s

deliberations serve to bolster the defense against a claimed breach of the director’s duty of care.Slide22

W

hen can an ID invoke safe harbor provisions seeking immunity from wrongful acts of omission or commission

Section 149(12), CA 2013

Was not

aware of essential facts and circumstances leading to

the illegal decision

, but had through legitimate means

(attributable through Board process) tried

to access information regarding the same.

Did not give consent to the decision or had not connived. This must be supported through dissenting views recorded in board minutes, in case the ID was aware of the decision being taken.

Had acted in due diligence. (in which case an ID must demonstrate that he had acted with due diligence).

Invoking safe harbour provisions Slide23

Liability of Independent DirectorsSlide24

Liability for Independent Directors

Independent directors function with a common goal of achieving higher standards of corporate governance, by working as a collective team.In terms of determining liability, however, every independent director is personally accountable towards due discharge of her/his responsibilities.

The liability for violation of laws is contingent upon two tests—

Substantive

Assessment:

Whether

an Independent Director is at default

, by active association?[Definition of ‘officer in default’-Section 2(60), CA2013]Demonstrative Assessment: If an Independent Director has effectively discharged her/his duties — essentially a test of diligence and good faith?.

The substantive liability would weigh upon an ID if was party to the default, or was in knowledge of its occurrence (gained in accordance with board process), or had consented/ connived in its decision making process.Slide25

Liability for Independent Directors … contd.

Officer who is in default [Section 2(60), C2013] includes any person on whose advice, directions, or instructions the Board of Directors of the company is accustomed to acting. It also includes every director who is aware of a

contravention by virtue of the receipt by her/him of any proceedings of the Board or participation in such proceedings without objecting to the same, or where such contravention had taken place with her/his consent or connivance

.

The

liability

on an ID will be deemed established if as a member of a Board Committee (Audit, Nomination & Remuneration Committee, CSR, etc.) they provide

to the Board of

Directors, advice/ recommendation with respect to an action which is illegal. The liability can even arise when an ID is aware of an illegality, in which case it needs to be established if the ID

was aware of the contravention taking place. Breach of company law generally entails civil and criminal liabilities under a number of sections including punitive action under section 447, CA 2013 (defining fraud) which provides for imprisonment from 6 months to 10 years and a fine up to the amount of fraud to a maximum of three times the amount under question for fraud or false disclosure in any returns, report, financial statement, or prospectus.Slide26

Mitigating Liability for IDs

The liability provisions under the scope of ‘officer of default’ [Section 2(60), CA 2013] can be mitigated if the ID can satisfy the courts that decision was taken with due diligence and good faith in action. Based on the “business judgment rule,” immunity safeguard, as applicable in India, courts are unlikely to doubt the credence of an Independent Director is she/he has discharged responsibilities by:

application of an independent mind, recorded in Board deliberations and evidenced through properly maintained minutes

a

pplying knowledge as expected

of her/him, a

test

of prudence of an ordinary person with an equivalent level of knowledge/ expertise

acting on an informed basis, (availed of sufficient and credible information, as provided through legitimately accessed Board documents).

not being party to the commission of the offence.Slide27

Functions of Independent DirectorSlide28

Independent Directors – Primary Functions

Independent Directors is categorized broadly into as:Advisory: consult with management regarding strategic and operational direction of the company.

Oversight: monitor management actions to ensure they act in sync with company objectives and policies.

Advisory

functions by Independent Directors covers issues of strategy, performance, risk management, resources, key appointments and standards of conduct.

Oversight

functions include scrutiny of management performance, monitor reporting of performance and providing

objective opinion in the evaluation of the performance of the board and the management.Slide29

Areas of Intervention for IDs

Role of independent directors includes the following, categorised into :Strategy. Constructively challenge and help bring an independent judgement on Board’s deliberations on issues of strategy.

Performance.

Review

the performance of management in meeting objectives and monitor the

reporting of performance. Bring an objective view in the evaluation of performance of Board and management.

Financial Reporting, Internal Controls and Risk.

Ensure the integrity of

financial

information and the adequacy of financial controls and systems risk management.

People. Bring independent judgement with respect to Board’s deliberations on key appointments and standards of conduct. Determining

remuneration of executive directors in management succession planning and in appointing and where, necessary, recommend removal of executive directors, KMPs, senior management.Slide30

Responsibility towards Stakeholders

Under section 166 of CA2013, directors are required to take actions in the best interests of the company, its employees, shareholders, and towards protection of the environment. Independent Directors are additionally required to safeguard the interests of all stakeholders, particularly the minority shareholders.

(Schedule IV, CA 2013).

Stakeholders not defined under the law. Hence, responsibility lies towards all who face a direct or indirect impact due to a company’s operations.

Role

of IDs towards safeguarding stakeholders’ interest entails them to

ensure that concerns of the minority shareholders or other stakeholders are not curbed and not left unaddressed.Slide31

Managing Stakeholders’ Conflict …Independent Directors required to resolve stakeholder conflicts.

Balancing conflicting interests of all stakeholders is difficult and may need strategic prioritisation based on circumstances of a particular situation and assessment of the medium to long-term impact of a decision.Discussions and deliberations are the keys to achieve such a balance.Pursuing the long-term interests of the company on a sustained basis could address the potential conflict areas between one group of shareholders and others.Stakeholder value creation is important in dealing with concerns over conflicts between stakeholders. Independent Directors all through must ensure a balanced treatment of all stakeholders, and convince

the management to pursue policies that blends a harmonious relationship among all stakeholders. Slide32

Independent Directors in Board CommitteesSlide33

Board Committees and Independent Directors

Board CommitteesBoard Committees are carved out among existing Board members, based on the degree of expertise. Independent directors form an essential part of Committees, for their specialized subject-matter knowledge and relevant industry experience, and for imbuing independent thinking.Board Committees function independently but are required to bring their recommendations on key issues before the full board for approval. Board Committees share greater responsibility as they are primarily in knowledge of facts and circumstances leading to the decisions taken.

Rights and PrivilegesCommittees have operational freedom, subject to areas defined in their Charter.

They are entitled to hire, at company’s cost, services of experts, as felt required to meet their standards of duty.

Board Committees function under powers delegated by the Board. Board Committees look into operational aspects of matters under consideration, and base their judgement accordingly. The role of Committee’s goes into fact-finding and analysis of a subject under consideration. Audit Committee’s cannot plead ignorance of missing out on essential facts leading to a decision. The onus of correctness of a decision lies with the Committee and members who form part of it. Slide34

Role as an ExpertRole of Independent Directors is not

generalist in nature. They are specialists in their respective fields. Under CA2013, Finance, law, management, sales, marketing, administration, research, corporate governance, technical operations, or disciplines related to company’s business have been listed out as fields of study for Independent Directors. The level of expertise expected of an ID vary according to the committee they are associated with. For instance, Audit Committee members must have ability to read and understand financial statements. [Proviso to Section 177(2), CA2013].While the law recognizes the technical competence, expertise and experience of an ID, this recognition is subject to enabling factors, like, whether she/he was coerced into a decision, or whether all data/ information leading to the decision were available.

So long, an independent director establishes that the decision taken was prudent, reasoned/ justified (based on available facts) and was taken with due regard to existing tests of due care, diligence and good faith, an Independent Director can claim recourse under the Business Judgement immunity.Slide35

Expertise of an IDDoes being a specialist or an expert in a committee create a greater risk for Independent Director?

In the US, in a case relating to a class action suit, in Tischler v. Baltimore Bankcorp 801 F. Supp. 1493 (D. Maryland 1992), it was held that the overall responsibility for supervising the management of Bancorp and verifying the assets, collateral, loan values, and determination of appropriate loan-loss reserves and write-downs of non-performing loans and assets, was limited to Independent Directors alone, because of their specialized knowledge and expertise.

The court, while allowed the motion against those directors who were experts and sat in the Audit Committee, and disallowed the motion against others who did not have such expertise

.

Similar position exists in India, as Sebi in its orders have disallowed ID’s from taking a defence over lack of understanding of financial statements resulting into errors.

Independent Directors, particularly those sitting in Audit Committees, must fulfil the higher standards of accountability commensurate to their expertise and experience.Slide36

Expertise of an ID ...contd.

In Pyramid Saimira Case, Independent Directors overlooked several red flags in the trends in revenues, profits, receivables, advances, etc., which enabled the company to inflate its revenues and profits by fictitious entries in its accounts, and failed to disclose these in quarterly and annual accounts of the company.SEBI, in its order, noted that such aberrations in financial numbers could not be missed by an Independent Directors in the normal course, as was argued. Such gaps would alert a man of ordinary prudence, and an independent director who is part of Audit Committee, .IDs

, sitting on Audit Committee or any other committees with respect to matters of financial statements, accounting, internal controls, etc

,

face a higher risk of

liability by their expert role.

Similarly

,

ID’s fulfilling an expert role in any other committee or process, would have similar liabilities.Slide37

Thank you

Thought Arbitrage Research InstituteC 16, Qutab Institutional AreaNew Delhi - 110016