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| 文件名称： | 墨西哥公司治理原则.doc |
| 所属大类： | 国外动态 |
| 行业分类： | S:公共管理与社会组织 |
| 生效日期： | 2009-01-05 00:00:00 |
| 文件星级： | ★ |
| 文件字数： | 6322 |
| 文件页数： | 18 |
| 文件图表： | 0 |
| 资料语言： | 中文 |
| 文件大小： | 102KB |
| 文件简介： | In order to provide a guide for Mexican companies to improve the way their administrative bodies function, and a way for investors to gain access to more information on how they are run, on June 9, 1999, a group of leading Mexican business organizations presented a new Corporate Governance Code for Mexico. The document was prepared jointly by the Mexican Stock Exchange, the Mexican Bankers' Association, the Mexican Institute of Finance Executives and the Mexican Institute of Public Accountants, as well as representatives from the industrial, retail and service sectors. It was then submitted to the National Banking and Securities Commission so that the securities authorities could issue the necessary regulatory provisions on disclosure of information regarding conformity to the practices suggested therein. The recommendations contained in the Code do not in any way conflict with current legislation; in fact, they complement many of the applicable legal provisions. They can be applied to any Mexican company, whether listed on the stock exchange or not. Compliance is voluntary, but publicly-traded firms must report to the Bolsa on the degree to which their practices conform to the Code. If they do not follow the Code, they must establish an alternative mechanism for this purpose. The Corporate Governance Code for Mexico is the first of its kind in Latin America. It has its root in the abiding interest expressed by various sectors of the economy, in the ability of Mexican companies attain international standards and to be more competitive. Its purpose is to encourage more transparent management practices in order to enhance the confidence of local and foreign investors and thus attract more investment to benefit the Mexican economy. To create the Code, representatives from the private sector and the government formed a committe. Their first task was to analyze international experiences in the field before they began the work of actually drafting the text of the code. In this phase of the project they examined the experiences of England, Spain, France, Holland, Canada and South Africa, among other countries. At the same time, committee members were attentive to the need to formulate their recommendations in keeping with the practices a Mexican corporation must follow, consistent with this country's economic and social reality. They also recognized the need to create principles not covered by the ordinances of other countries. For example, the capital structure of a Mexican corporation is clearly different from that of other countries. In various developed countries, corporate capital is fragmented and held by major institutional investors, whereas in publicly traded Mexican companies, most of the capital is held by control shareholders, which gives them a preponderant role in the company's management. Another key part of the Code establishes recommendations regarding the operation and makeup of Boards of Directors. Here, the Code recommends some specific and some functional aspects. With regard to the specific recommendations, the Code stresses that they provide a recommendable standard for companies in general, but that each company must make its own decisions on how it will comply with these points. On the subject of functional recommendations, the Committee proposes setting up intermediate bodies or committees below the level of the Board of Directors, to act as an intermediary that can support the Board in its functions and enhance its decision-making capacities. The Corporate Governance Code for Mexico consists of five sections:: Board of Directors. Includes recommendations on the functions, makeup, structure, operation and duties of the Board. Evaluating and Compensating Directors. To allow company management to function more efficiently. Auditing. Selection of auditors or examiners, verification of financial information, internal controls and compliance with applicable legal provisions in this area. Finances and Planning. Suggestions and operating aspects. Stockholder information. Aspects covered in the agenda of stockholders' meetings, quality and promptness of information, and communication between the Board of Directors and investors. CORPORATE GOVERNANCE CODE FOR MEXICO Background and Objectives In order for investors to feel complete confidence in the way a company is run, that company must make its management processes as clear and above-board as possible, and encourage an appropriate level of information and disclosure. Aware of this need, various sectors of the Mexican economy have expressed an interest in encouraging local companies to attain international standard and to become more competitive, applying more transparent management practices in order to enhance the confidence of local and foreign investors and thus attract more investment to benefit the Mexican economy. To this end, a Committee on Corporate Governance was formed of representatives of industry, the government, the financial world, and service providers, among others. The Committee's first task was to analyze international experiences involving mechanisms that had been used successfully to clearly communicate information about company management. It found that the most widely used and appropriate method to achieve this purpose was the Corporate Governance Code, which is used to establish principles that would create a greater harmony among the various participants in a company, thus enhancing its corporate governance. The Committee then set about drafting a Corporate Governance Code for Mexico. This Code establishes voluntary recommendations to improve the corporate management of Mexican companies. Its recommendations do not conflict with any current legislation, but rather complement many of the applicable legal provisions. The recommendations were formulated in keeping with the practices a Mexican corporation must follow, consistent with this country's economic and social reality. They also recognize the need to create principles not covered by the ordinances of other countries. On the subject of functional recommendations, the Committee proposes setting up intermediate bodies below the level of the Board of Directors, to act as an intermediary that can support the Board in its functions and allow it to make better informed decisions. The code can be applied to any Mexican company, whether listed on the stock exchange or not, although there are certain principles that apply solely to publicly traded companies because of their unique characteristics. Finally, in an effort to encourage an increased flow of information to the market, the Committee asked the National Banking and Securities Commission to issue provisions requiring companies that list stock on the Mexican exchange to reveal the extent to which they follow the suggested practices. Introduction At the initiative of the Business Coordinating Council, a Committee on Corporate Governance was created, which in turn drafted and issued this Corporate Governance Code, establishing recommendations to improve the corporate governance of Mexican companies. The recommendations contained in the Code define basic principles to help Board of Directors function better and improve the flow of information to stockholders. Specifically, the recommendations seek: (i) to encourage companies to increase the amount of information regarding their management structure and the function of their corporate bodies; (ii) to suggest mechanisms by which companies can ensure that their financial information is sufficient; (iii) to establish processes that encourage participation and communication among board members; (iv) to encourage companies to develop mechanism that encourage a proper level of disclosure to stockholders. These principles are found throughout the Code and are indicated in boldface type, and preceded by a bullet. The rest of the text of the Code offers a brief explanation and context for each principle. In drafting the Code, the Committee recognized the specific reality and needs of Mexican companies. Among these was their stock structure and the important role stockholders may play in their management. Finally, readers should note that the code can be applied to any Mexican company, whether listed on the stock exchange or not, although there are certain principles that apply solely to publicly-traded companies. Listed companies must report on the degree to which they follow the suggested practices. If any publicly-traded company does not follow them, it must indicate its reasons for refraining to do so, and describe the alternative mechanism it uses in their stead. To facilitate compliance with the Code's recommendations, subsidiaries may choose to comply with the Code through their holding companies. I. Board of Directors The day to day operation of a company is the responsibility of its management team. The definition of its strategic vision and approval of its management should be the responsibility of the Board of Directors. All the members of the Board share in the responsibility for these tasks. To fulfill its purpose, the Code recommends that the Board include members that are not involved in the daily operation of the company so they can provide an external, independent perspective. In order to, facilitate its tasks, the Board should rely on intermediate bodies whose job it is to evaluate information and propose tasks in specific areas of importance to the Board. This will give board members more complete information for efficient decision-making. Finally, there should be clear rules regarding the operation and functioning of the Board. I.1 Functions Although some of the faculties of the Board of Directors are dictated by law, the Committee believes that there are other functions that would help to define its tasks and make company information more useful, prompt and reliable. In addition to the obligations stipulated in the General Mercantile Companies Law, the Credit Institutions Law, the Securities Market Law and other specific laws, the following should be included in the functions of the Board of Directors: (i) establish a strategic vision for the company; (ii) ensure that stockholders and the market have access to public information about the company; (iii) establish internal control mechanisms; (iv) ensure that the company has the necessary mechanisms to prove that it complies with the various legal provisions to which it is subject; and (v) regularly evaluate the performance of the chief executive officer and other senior management of the company. I.2 Composition The composition of the Board of Directors is crucial to its ability to function properly. The Board should therefore include at least enough members to offer an adequate range of opinions, but not so many that members cannot effectively express and discuss their viewpoints with out provoking inefficient practices by an excessive number of board members. The Board of Directors should consist of between 5 and 15 regular members. It is important to avoid situations in which regular members who are unable to attend meetings are replaced at random by any alternate member, because this dilutes his or her obligations to the rest of the Board. It is also important the regular member and his or her alternate form a team in order to participate more effectively in the Board. For this reason, regular members should participate in the process of selecting their alternates. There should be no alternate board members; if there are, they should be assigned to replace only a previously-established regular member, and each prospective regular board member should be asked to suggest their alternate. The makeup of the Board of Directors is also important to its ability to define a strategic vision of the company and to support its operations. For this reason, it is important that the Board include outside members. The term outside member is used to identify members who are not connected with the company's management team. These members are called to join the Board by virtue of their personal and professional prestige. Their main purpose is to offer an impartial perspective on the company's strategic planning and other tasks that fall to the Board. Outside board members are those selected for their professional prestige, experience and capacity and who do not fit into the following hypothetical situations at the time of their assignments. (i) employees or executives of the company; (ii) stockholders that have control over the company's directors; (iii) consultants to the company or partners or employees of companies that serve in an advisory or consulting capacity to the company or its affiliates, and whose revenues depend significantly on this contractual relationship; (iv) clients, suppliers, lenders or borrowers of the company, or partners or employees of a firm that is a significant client, supplier, lender or borrower of the company; (v) employees of a foundation, university, or non-profit organization that receives substantial donations from the company; (vi) chief executive officers or senior management of a firm on whose Board of Directors the company's chief executive officer or upper-level executive sits; or (vii) relatives of any of the individuals mentioned in points (i) to (vi), above. It is also important that the Board include what are called owning directors. This type of member has assumed the risk of a significant participation in the company's equity, and their presence in the board is helpful because as they keep a constant watch on their investment, they benefit the entire company. Owning directors are selected from among major stockholders or the individuals that direct them. Depending on whether the major stockholder or its director qualify to be outside directors, they can be appointed as outside owning directors or inside owning directors. Inside directors are those that do not fall into either of the previous two described categories. In order for outside and owning directors to fulfill their purpose, they must be represented in a sufficient percentage on the Board. Outside and owning members should together make up at least 40% of the Board of Directors. And that, outside members should make up at least 20% of the Board of Directors. In order for the market to be able to evaluate the makeup of the Board, the company should provide information on the background and category of each member. The annual report presented by the Board of Directors should mention which members are outside and which are owners, and which type the owning members are. The annual report presented by the Board of Directors should also describe the main positions held by each board member as of the report date. I.3 Structure The Committee believes that there are at least three specific areas in which the Board of Directors must make key decisions for the company. These are: evaluation and compensation; auditing; and finances and planning. The Board therefore should have access to mechanisms that allow it to make the right decisions in these areas. The Committee recommends creating one or more intermediate bodies to serve as intermediaries that support the functions of the Board. Structurally, these bodies should be made up of members; functionally, they should serve as an extension of the Board, to support it in making decisions on a variety of issues. The intermediate bodies should not intervene in company operations. Thus, to be able to carry out their tasks, they should rely on the work of the management structure. This means the intermediate bodies would not be an executive department, nor would they assume the functions that correspond to the Board itself or to the operating areas of the company. In order to make better informed decisions, the Board of Directors should perform the tasks of evaluation and compensation, auditing, finances and planning, which are defined later in the Code, through one or more intermediate bodies. Although the Committee recognizes that there must be some flexibility in the organizational structure of different companies, international experience has shown that committees are a useful tool for carrying out these specific functions. What is particularly important is that the Board of Directors make informed decisions on important issues. For example, it is considered important that owning and outside members participate in the work of the intermediate bodies. The latter because they were selected for their professional prestige and experience, and the former because they have the incentive to get involved in and resolve the affairs of those bodies. The following principles should be considered when creating intermediate bodies: One or more can be created, providing they have a clear purpose and there is no conflict of interest among their members. They should be made up solely of regular board members. They should have between three and seven members. They should report to the Board of Directors on their activities on a regular basis. The chairman of each body may invite company executives whose duties correspond to the intermediate body's area of concern to attend meetings. In addition to his or her duties on the Board, each outside board member should participate in at least one intermediate body. The intermediate body in charge of auditing should be chaired by an outside board member. I.4 Operations The Board should meet frequently enough to ensure proper and continuous oversight of the company's affairs. The Board of Directors should meet at least 4 times a year. One of its meetings should be devoted to defining the company's medium- and long-term strategy. It is also important for companies to have mechanisms that guarantee openness within the Board, so that its functions do not depend on just one person. A procedure should be in place under which a Board meeting can be called by agreement of at least 25% of its members. The active participation and responsibility of the members of the Board of Directors makes the Board a stronger institution. To promote this, it is important that board members are supplied with information in advance to give them the elements they need to perform their duties. Board members should have access to any information relevant to decisions that are on the meeting agenda at least five days in advance of that meeting. This does not apply to confidential strategic matters that are to be discussed, in which cases there should be mechanisms available by which board members can proper to assess proposals regarding those strategic matters. New board members should be given the information necessary for them to properly perform their duties. They should therefore have a broad knowledge of the business, including, among other aspects, the company's position within its sector, its main competitors, clients and suppliers. In addition, board members are legally bound to perform their duties. Ignorance of their responsibilities does not exempt them from these duties. It is therefore important that new board members are informed of the scope and the legal and statutory consequences of their position. When board members are first appointed, they should be given proper orientation with regard to their new responsibilities. At the least, the company should supply them with information regarding the company and its environment, as well as the obligations, responsibilities and powers that accompany appointment to the Board. I.5 Duties of Board Members Board members assume obligations and responsibilities when they accept their appointment. For this reason, it is important for a company to have a general frame of action that establishes standards of conduct for its board members. Companies should address six principles of conduct, recommending that board members: Notify the Chairman and the Secretary of the Board of Directors of any situation that constitutes or could be construed as a conflict or interest, and refrain from participating in the corresponding debate. Use the company's assets and services exclusively in pursuing its corporate purpose, and define clear policies to apply in exceptional cases when these assets must be put to personal use. Dedicate the necessary time and attention to their job, attending at least 70 per cent of the meetings that are called (this point applies only to regular members); Hold all information that might affect company operations, as well as the discussions that take place in board meetings, in utmost confidence. Board members and their respective alternates, if any, must be kept mutually informed of the matters discussed in the board meetings they attend. Support the Board of Directors with opinions, recommendations, and directions that are based on an analysis of the company's performance, so the decisions it makes are duly founded on professional criteria and qualified personnel who can offer a broader independent focus on the company's operations. II. Evaluation and Compensation The Committee recommends that there be a mechanism to support the Board in its responsibilities with regard to evaluation and compensation of the chief executive officer and senior management of the company. This mechanism may be supported by the company's internal structure, such as the human resources area. The Committee believes that it is essential that the mechanism chosen involves bringing the proposals to the Board of Directors so that it can make the appropriate decision. Furthermore, the existence of this mechanism should be openly known and operated in an clear and above-board fashion, to enhance investors' confidence in management. II.1 General functions The following functions are intended to supply the company with appropriate human resource and remuneration policies. The evaluation and compensation mechanism should encompass the following functions: (i) suggesting procedures for the Board of Directors to propose candidates for chief executive officer and senior management positions; (ii) proposing criteria for the Board of Directors to evaluate the chief executive officer and senior management, according to general guidelines established by the Board of Directors; and (iii) analyze and bring before the Board of Directors the chief executive officer's proposal regarding the structure and amount of compensation for the company's senior management. II.2 Operating aspects The mechanism or intermediate body should assist the Board in evaluating policies to determine compensation for the chief executive officer and senior management of the company. These policies should encompass aspects such as established goals, individual performance, and the performance of the company itself. The Committee believes that the market at large should be informed of the compensation policies applied by the Board of Directors. To protect the company's equity, the intermediate body should also help the Board to avoid paying excessive amounts to executives for severance pay, by carefully reviewing the hiring conditions of these executives. The mechanism established for assisting the Board of Directors in its evaluation and compensation functions should verify whether the hiring conditions of the chief executive officer and senior management, as well as any severance pay commitments, comply with Board-approved guidelines . The annual report presented by the Board of Directors should describe the policies used and the compensation packages of board members, the chief executive officer and the company's senior management. |
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