在公司治理中的关联方交易[文献翻译].doc

本科毕业论文（设计）外 文 翻 译题 目 上市公司关联方交易相关问题的探讨 专 业 会 计 学 外文题目 Related Party Transactions in Corporate Governance外文出处 Second University of Naples Ttaly 外文作者 Michele Pizzo 原文:Related Party Transactions in Corporate GovernanceIntruductionUntil recent scandals related party transactions did not deserve indepth analyses; academic research mainly focused on different issues and limited attention was paid by regulators and overseers too. Accounting was mainly concerned with potentially biased financial figures; not being carried out at arms length, they might diverge from market prices. Meanwhile, in governance studies and codes topics such as board composition and independence, audit committee, directors remuneration, etc,largely prevailed. As a matter of fact, financial disclosure suited both accounting and governance studies because the information required was both a proxy of potential accounting bias and a tool for monitoring purposes .However, Enrons, Adelphias and Parmalats2 crises shed light on the inherent risks, as related party transactions emerged as a powerful instrument of financial frauds, shareholders expropriation, etc.,turning the veil from the many relevant loopholes affecting existing requirements.Such a discovery has obliged regulators and standard setters to strengthen current rules and principles and/or introduce new bans and requirements. A clear shift towards better and more detailed disclosure and the implementation of monitoring procedures (i.e. board approval,independent directors involvement, external qualified opinions) can be easily observed (i.e. O.E.C.D. 2004) and considered an effective strategy (Djankov et al., 2005). Such a process is still on-going and its impact cannot yet be properly examined.Contemporarily, thanks to the substantial anecdotal evidence, provided also by former scandals, the suspicious attitude and the negative common perceptions, generally accompanying these operations, became more widely and profoundly accepted. Review of the literature and the regulatory framework does not provide a clear and definite picture, but it supports many shades of opinion and reveals both theoretical and operational open issues, deserving further and more detailed analysis.This paper carries out a critical survey of the literature on the issue .and attempts to examine the economic rationale behind related party transactions. In the last part the European state-of-the-art is reviewed in order to assess its thoroughness and consistency with the economic nature of related party transactions.Related party transactions as conflict of interestsThe topic has always been studied in the literature according to two different theories:a) conflict of interests;b) efficient transaction hypothesis.According to the former, related party transactions may imply moral hazard and may be carried out in the interest of directors in order to expropriate wealth from shareholders. By contrast, the latter considers these dealings as sound business exchanges fulfilling economic needs of the firm. Academic research consistent with the former approach has thrown light on the drawbacks associated with related party transactions:a) weakening corporate governance. Related party transactions may undermine non-executive directors functions, turning them into affiliated or “grey” directors, classified as non-independent outside (Denis and Sarin, 1999; Klein, 2002; Vicknair et al., 1993;Weisbach, 1988), closer to dependent directors. Furthermore, weaker corporate governance makes these transactions more likely to occur, while board independence and their lower probability are positively associated (Kohlbeck and Mayhew, 2004;Gordon et al., 2004);b) earnings management (i.e. “a purposeful intervention in the external financial reporting process, with the intent of obtaining some private gain”; Schipper, 1989). Directors have incentives to manage earnings to increase or legitimate their perquisites or to hide such wealth expropriation. Related party transactions may turn out to be a useful tool for managing earnings (Jian and Wong, 2008; Aharony et al., 2005), operating results and achieving ROE or other targets (i.e. avoiding delisting, new equity issue placement) (Jian and Wong, 2003; Ming and Wong, 2003); c) tunneling, i.e. wealth transfers out of a company for the benefit of shareholders with a controlling interest (Johnson et al., 2000). A company may pay a related party transaction above market prices or pay market prices for goods or services of inferior quality3. Such a phenomenon does not necessarily imply opportunistic behaviour,but may be due to an overconfident approach or biased judgement (for instance, overestimating ones relatives, Ryngaert and Thomas, 2007).Transfer of assets and profits, although common in developed countries, becomes more relevant and frequent in emerging economies where external markets are inadequate or corporate governance rules are lacking and, presumably, less effective (Jian and Wong, 2004; Jiang et al, 2005); d) employment of relatives in family firms. A director can be appointed or promoted owing to his family influence over the company;e) misleading statement. Many studies provide evidence of their role in many financial crises (Swartz and Watkins, 2003; Mc Tague,2004) and in the achievement of specific aims (Erickson,2000). Moreover, apart from these cases, these transactions are generally regarded as less reliable than arms length ones.Because of these factors, related party transactions may be associated with abnormal stock returns (Cheung et al., 2006), firms poor performances (Chen and Chien, 2004) or lower value (Gordon et al., 2004;Jian and Wong, 2004).The previous circumstances support the idea that these transactions represent a conflict of interest (conflict of interest hypothesis) and that they are inconsistent with shareholder wealth maximization (Emshwiller,2003). To this extent, such a view encompasses agency issues and is consistent with an agency prospective (Berle and Means, 1932; Jensen and Meckling, 1976) where owners face moral hazard (lack of effort or misuse of company resources) and adverse selection by the CEO (misrepresentation of ability). Thus, risk sharing policies, monitoring, information systems are adopted and, in particular, mechanisms like CEO compensation and board structure are suggested. Once framed in such a context,related party transactions may imply the misuse of firm resources (moral hazard) and the misrepresentation of private information (adverse selection)too: their potential harm in eluding alignment mechanisms, like CEO compensation and board composition, is increasingly perceived.Moreover, the potential bias in financial statements, with a negative impact on their reliability and relevance, introduces further uncertainty and weakens the effectiveness of contracts aiming at reducing agency conflicts.In particular, according to agency theory (Fama, 1980; Fama and Jensen, 1983) an optimal board composition requires both executive members as well as external (non-executive) directors, thus monitoring becomes even more crucial when non-executive directors are involved (Gordon et al., 2004). Not surprisingly, these findings contributed in definitely shifting opinion in favour of the view that related party transactions represent conflict of interests, compromising directors independence and monitoring functions, potentially serving deceptive and fraudulent purposes. Indeed this idea, has always largely prevailed, but corporate collapses and, to some extent, literature provided ultimate evidence of possible abuses and, moreover, a difficult point to challenge. The risks of harm to company shareholders through self-interested decisions by directors, spoiling corporate wealth, are often stressed in business press and in regulators positions, thereby favouring widespread acceptance of the prevailingly negative meaning of the term. The ability to influence the counterpart even in contrast with its own interests, the departure from terms applied in relationships with third parties and, last but not least, the potential wealth transfers are often recalled by S.E.C. and F.A.S.B. (F.A.S. 57).The following quotation from the 2008 CONSOB draft on related party transactions enlightens as to the cautions and adverse approach lying behind the suggested changes: “In general, , the existence of companies interest in carrying out related party transaction cannot be a priori excluded. In a few cases, they may be seen as efficient transactions ”. Their economic soundness is not, in principle, rejected, but is clearly limited to few cases, and even then the asymmetrical information among insiders and outsiders leads to stricter regulation.Indeed, definitions like “accounting minefields” (Sherman and Young, 2001) clearly express the general mood.Not surprisingly, growing concern for abuses, lack of information symmetry, negative influence on directors independence and integrity and weakening of monitoring functions is warranted among overseers and standard setters. In actual fact, newly introduced rules or principles,aimed at improving disclosure and implementing more effective monitoring procedures, represent a clear attempt to balance the above-mentioned risks and perceptions.Specifically, solutions enhancing conflict of interest provisions, such as:- monitoring procedures like board approval, independent directors involvement, audit committee evaluation, external independent opinion, assembly approval;- increasing disclosure concerning subjects, type of transactions,amount, terms and conditions, alignment with market conditions,etc. In fact, investors can analyse the possible expropriation and weight it in order to discount equity prices (Barth, 1994; Wilkins and Zimmer, 1983; Harris and Ohlson, 1987; Sami and Schwartz,1992);- ban on some operations i.e. employment-loans, prohibited by Sox in 2002.gain wide support and seem unavoidable measures to cope with the perceived risks.At the same time, the consistency of the above-mentioned measures with agency theory principles, that suggests monitoring, incentive alignment and control of managers to minimize the agency problems (Tosi,2008), can be easily perceived.However, costs of monitoring and of reporting complexity increase sharply because of the former measures and they add on the potential economic costs associated to related party transactions (due to wealth transfers, earnings management, etc.) as well as the associated opportunity costs (often widely neglected). The overall resulting negative impact on performance can be legitimately presumed and could improperly represent a cage for this sort of transaction, to which recourse may be limited. The efficient transaction hypothesis In contrast with the previous approach, the efficient transaction hy-pothesis assumes that related party transactions represent sound business exchanges, efficiently fulfilling underlying economic needs of the firm. Therefore, they do not harm the interests of shareholders and emerge as an efficient contracting arrangement where incomplete information there is. Moreover, possible benefits may be: -contracting parties representatives appointed as board members facilitate the achievement of better coordination of the different activities, quicker feed back or more insights; -deeper reciprocal knowledge as well as greater familiarity can justify transactions that are not feasible at arms length or create more convenient terms and conditions for both parties; - hold up problem may be mitigated; -these transactions may also supplement CEO and director cash remuneration or compensate them for increased risk. The view of related party transactions representing internal dealings, alternative to contractual or market exchanges, able to reduce transactions costs and overcome difficulties impairing production is consistent with the transaction cost theory (Coase, 1937; Williamson, 1985) and support-ing evidence has been provided by many studies (Fan and Goyal, 2006). In particular, in institutional contexts without efficient capital, labour and product markets, like many developing economies, information and agency problems, as well as market imperfections, increase risks associ-ated to firm activity, while group structures and internal dealings may provide a better allocation of financial resources, economies of scale, easier access to finance, more opportunities, increased influence, etc. Therefore, internal capital markets may be created with beneficial effects for the entire group when external funds are scarce and uncertain (Khanna and Palepu, 1997); scale and scope of the groups permit difficulties impairing production in emerging countries to be overcome and make investment in these regions more likely and profitable (Fisman and Khanna, 2004); sharing technological skills and advertising, associated with available group financial resources, contributes to profitability, supplementing inefficient capital markets and reducing transaction costs (Chang and Hong, 2000; Moscariello, 2007). Nevertheless, evidence is not yet decisive (Khanna and Palepu, 2000) and the possibility of wealth transfers through internal dealings (Chang and Hong, 2000) is not excluded. Moreover, agency issues still play a role in shaping benefits and costs of group affiliation and related problems reduce the beneficial effects deriving internal markets (Claeessens and Fan, 2002; Claessens, et al., 2006). A different conceptual framework: some guidelines Both the above-mentioned theories are affected by inconsistencies or deficiencies and, in providing almost diametrically opposite interpretations, they are unable to cope with different kinds of possible cases. The conflict of interests theory seems probably more sensitive to social needs, such as minority protection and capital market fairness and efficiency. Not surprisingly, its solutions are coherent with the growing concern for these dealings and the political climate around the issue. It could be argued that, to some extent, this perspective offers a “political excuse” to legitimate more binding, disclosure and monitoring requirements.However, this approach is weakened by significant drawbacks or loopholes, some of which are hereinafter briefly examined.Empirical evidence neither always nor consistently accomplishes the expected outcomes. As previously seen, the literature supports contradictory conclusions too and gradually reveals, instead of a black and white picture, a multicoloured portrait, introducing distinctions and warnings which call for specific treatment.Source:University of Naples Italy译文：在公司治理中的关联方交易介绍直到最近，关联方交易的丑闻还没有值得深入分析，学术研究主要侧重于不同问题的局限性引起了规管机构及监督员很大