企業統治における｢経営の透明性｣とは何か

12/8　日経｢社外取締役　義務化も｣｢法制審中間試案　大企業対象に｣(一面および総合面)

日経はよほど｢経営の透明性｣がお気に入りらしく記事の中で四度もこの言葉が登場する。

改正案の内容は、企業法務ナビによれば次のとおりである。
http://www.corporate-legal.jp/houmu_news561/

今回の改正案には、１．企業統治のあり方、２．親子会社に関する規律、３．その他、の３点がある。このうち、注目すべきは１．企業統治のあり方、である。
　取締役会の監督機能を高めるためとして、公開会社かつ大会社である監査役会設置会社において、１人以上の社外取締役選任を義務付けるという案が出されている（A案）。この案以外にもあるが、現状維持のC案以外は、社外取締役を監査役会設置会社に義務付けることを含む内容となっている（残りのB案も、金商品取引法２４条１項により有価証券報告書を提出しなければならない株式会社において、１人以上の社外取締役選任を義務付けているため）。
　加えて、社外取締役の定義を見直し、その範囲を絞る案も提出されている（親会社の取締役もしくは執行役又は支配人その他の使用人でないものであること等が追加される）。
　その一方で、社外取締役の確保が困難を極めることを回避するため、社外取締役就任１０年間に限り、その株式会社の業務執行取締役に等になったことがなければ、社外取締役に就任できるとの要件緩和も併せて提案されている。

改正案では｢取締役会の監督機能を高めるため｣とあるのに、日経では｢経営の透明性｣に意訳されている。｢経営の透明性｣では意味が通らないから、日経の読者は日経の記事に頭をひねる必要はない。日経はどうしても企業統治を経営の枠内に押し込めたいのか、そうでなければ勉強不足である。

それはともかく、社外取締役、独立取締役や監査・監督委員会設置会社が有効か否かは、(1)　企業統治とは何か、(2)　取締役会の役割は何か、を十分に考察しないとただ形だけ整えましたということになってしまう。監査役制度改革の実効性が乏しかったことを学ばなければならない。

同日の日経・経済教室｢第三者調査委員会　機能の条件｣｢企業価値回復掲げ活動を｣国広正氏が掲載されている。
国広氏は｢第三者委の依頼者は誰かという本質論の理解が不可欠だ｣と指摘し、これに対し、「社外取締役を中心に決められる仕組みをあらかじめ危機管理体制に組み入れておくことが必要だ（図参照）」と提案している。ただ、国広氏の図では、取締役会の委員会である仮称・ガバナンス委員会の構成員は社外取締役と社外有識者が過半数を占めるものとされているが、会社自治の建前から、株主から選任されていない社外有識者は助言者に退くべきである。

最後にアメリカにおける企業統治の例としてウォーレン・バフェット氏の率いるBerkshire Hathaway社の掲げるCORPORATE GOVERNANCE GUIDELINESを添付しておく(NYSEのガイドラインに沿ったもので、新奇なものはない)。序文で取締役会が経営を監視することを明記していることに注意されたい。

BERKSHIRE HATHAWAY INC.
CORPORATE GOVERNANCE GUIDELINES
AS AMENDED ON JANUARY 7, 2010
The Board of Directors has adopted the following guidelines to promote
the effective governance of the Company. The Board will also review and amend these
guidelines as it deems necessary or appropriate.
On behalf of the Company’s shareholders, the Board is responsible for
overseeing the management of the business and affairs of the Company. The Board acts
as the ultimate decision-making body of the Company, except on those matters reserved
to or shared with the shareholders of the Company under the laws of Delaware.

1. Director Qualifications
In choosing directors, the Company seeks individuals who have very high
integrity, business savvy, shareholder orientation and a genuine interest in the Company.
The Company is required to elect a majority of directors who are independent. All
references to “independent directors” in these guidelines are to directors who are
independent according to the criteria for independence established by Section 303A of
the New York Stock Exchange Listed Company Manual. The Board does not have limits
on the number of terms a director may serve. The Board does not have any retirement or
tenure policies that would limit the ability of a director to be nominated for reelection.
The Governance, Compensation and Nominating Committee is responsible for
nominating directors for election or reelection.

2. Board Size and Committees
The Board presently has 12 members (two management directors, two
non-management but not independent directors and eight independent directors). Under
the By-Laws of the Company, the Board has the authority to change its size, and the
Board will periodically review its size as appropriate. The Board has three committees:
(i) Audit; (ii) Governance, Compensation and Nominating; and (iii) Executive. The
Audit and Governance, Compensation and Nominating Committees each consist solely of
independent directors. The Board may, from time to time, establish and maintain
additional or different committees, as it deems necessary or appropriate.

3. Voting for Directors
Any nominee for director in an uncontested election (i.e., an election
where the number of nominees is not greater than the number of directors to be elected)
who receives a greater number of votes “withheld” from his or her election than votes
“for” such election shall, promptly following certification of the shareholder vote, offer
his or her resignation to the Board for consideration in accordance with the following
2
procedures. All of these procedures shall be completed within 90 days following
certification of the shareholder vote.
The Qualified Independent Directors (as defined below) shall evaluate the
best interest of the Company and its shareholders and shall decide on behalf of the Board
the action to be taken with respect to such offered resignation, which can include: (i)
accepting the resignation, (ii) maintaining the director but addressing what the Qualified
Independent Directors believe to be the underlying cause of the withhold votes, (iii)
resolving that the director will not be re-nominated in the future for election, or (iv)
rejecting the resignation.
In reaching their decision, the Qualified Independent Directors shall
consider all factors they deem relevant, including: (i) any stated reasons why
shareholders withheld votes from such director, (ii) any alternatives for curing the
underlying cause of the withheld votes, (iii) the director’s tenure, (iv) the director’s
qualifications, (v) the director’s past and expected future contributions to the Company,
and (vi) the overall composition of the Board, including whether accepting the
resignation would cause the Company to fail to meet any applicable SEC or NYSE
requirements.
Following the Board’s determination, the Company shall promptly
disclose publicly in a document furnished or filed with the SEC the Board’s decision of
whether or not to accept the resignation offer. The disclosure shall also include an
explanation of how the decision was reached, including, if applicable, the reasons for
rejecting the offered resignation.
A director who is required to offer his or her resignation in accordance
with this Section 3 shall not be present during the deliberations or voting whether to
accept his or her resignation or, except as otherwise provided below, a resignation offered
by any other director in accordance with this Section 3. Prior to voting, the Qualified
Independent Directors will afford the affected director an opportunity to provide any
information or statement that he or she deems relevant.
For purposes of this Section 3, the term “Qualified Independent Directors”
means:
(a) All directors who (1) are independent directors (as defined in accordance
with the NYSE Corporate Governance Rules) and (2) are not required to
offer their resignation in accordance with this Section 3.
(b) If there are fewer than three independent directors then serving on the
Board who are not required to offer their resignations in accordance with
this Section 3, then the Qualified Independent Directors shall mean all of
the independent directors and each independent director who is required to
offer his or her resignation in accordance with this Section 3 shall recuse
himself or herself from the deliberations and voting only with respect to
his or her individual offer to resign.
The foregoing procedures will be summarized and disclosed each year in
the proxy statement for the Company’s annual meeting of shareholders.

4. Director Responsibilities
The basic responsibility of the directors is to exercise their business
judgment to act in what they reasonably believe to be in the best interests of the Company
and its shareholders, and to conduct themselves in accordance with their duties of care
and loyalty. Directors are expected to attend Board meetings and meetings of the
committees on which they serve, and to spend the time needed to carry out their
responsibilities as directors, including meeting as frequently as necessary to properly
discharge those responsibilities. Directors are also expected to review in advance all
materials for the meetings of the Board and the Committee(s) on which they serve.

5. Director Access to Management and Advisors
Each director has full and free access to the officers and employees of the
Company and its subsidiaries. The Board and each of its Committees has the authority to
hire independent legal, financial or other advisors as it may deem to be necessary without
consulting or obtaining the advance approval of any officer of the Company.

6. Board Meetings
The Chairman of the Board is responsible for establishing the agenda for
each Board meeting. Each director is free to suggest items for inclusion on the agenda
and to raise at any Board meeting subjects that are not on the agenda for that meeting. At
least once a year, the Board reviews the Company’s long-term plans and the principal
issues that the Company will face in the future.

7. Executive Sessions
The non-management directors meet in regularly scheduled executive
session (i.e., without directors who are members of management). The independent
directors also meet in a separate executive session consisting solely of independent
directors at least once a year. The presiding director at each executive session is chosen
by the directors present at that meeting.

8. Director Compensation
Only directors who are neither an employee of the Company or a
subsidiary nor a spouse of an employee receive compensation for serving on the Board.
Director fees are nominal and are limited to immediate compensation. Changes in the
form and amount of director compensation are determined by the full Board, taking into
consideration the Company’s policy that the fees should be of no consequence to any
director serving the Company. The Board critically reviews any amounts that a director
might receive directly or indirectly from the Company, as well as any charitable
contributions the Company may make to organizations with which a director is affiliated,
in determining whether a director is independent. The Company does not purchase
directors and officers liability insurance for its directors or officers.

9. Orientation and Continuing Education
All new directors receive an orientation from the Chief Executive Officer
and are expected to maintain the necessary level of expertise to perform his or her
responsibilities as a director. The Company does not maintain any formal orientation or
continuing education programs.

10. Management Succession
Assuring that the Company has the appropriate successor to the current
Chief Executive Officer in the event of his death or disability is one of the Board’s
primary responsibilities. The Company does not anticipate that the Chief Executive
Officer will retire other than due to disability. The Chief Executive Officer reports
annually to the Board on executive management succession planning and makes
available, on a continuing basis, his recommendation on succession in the event he were
disabled. The Board and the committees of non-management directors and independent
directors regularly review succession planning and the strengths and weaknesses of
certain individuals currently employed by the Company who could succeed the Chief
Executive Officer in the event of his death or disability.
The Governance, Compensation and Nominating Committee is
responsible for evaluation of the performance of the Company’s Chief Executive Officer
and setting his compensation.

11. Annual Performance Evaluation
The Governance, Compensation and Nominating Committee conducts an
annual evaluation to determine whether the Board and its committees are functioning
effectively and reports its conclusions to the Board. Each of the Audit Committee and
the Governance, Compensation and Nominating Committee separately conducts an
annual evaluation of its performance relative to the requirements of its Charter and
reports its conclusions to the Board. The Board annually conducts a self-evaluation of its
performance based in part on the reports of these two Committees.

12. Public Disclosure of Corporate Governance Policies
The Company posts on its website copies of the current version of these
guidelines, the Company’s Code of Business Conduct and Ethics and the charters of the
Audit Committee and the Governance, Compensation and Nominating Committee of the
Board, and discloses in its annual report that such information is available on its website
or in print to any shareholder that requests it.