Corporate governance issues: United States and the European Union.

I. INTRODUCTION II. SOME GOVERNANCE ISSUES IN THE UNITED STATES: AN

OVERVIEW OF THE CORPORATE BOARD OF DIRECTORS III. THE SARBANES-OXLEY ACT AND ITS IMPLICATIONS

ABROAD

A. Corporate Auditing

B. Provisions relating to CEO and CFO; Criminal Sanctions

C. Audit Committee Independence

D. Code of Ethics IV. CORPORATE TAKEOVERS, CONSTITUENCY STATUTES

AND SHAREHOLDERS RIGHTS

V. CONCLUSION

I. INTRODUCTION

While the exact definition of corporate governance should be specifically tailored to the requirements of each jurisdiction in which it is maintained, one concept utilized by both the United States and Europe is consistent: Corporate governance relates to some form of company "control." (1)

The European Union has very recently increased its list of member states from fifteen to twentyseven with the recent accession of Bulgaria, Cyprus, the Czech Republic, Estonia, Hungary, Malta, Latvia, Lithuania, Poland, Romania, Slovakia, and Slovenia; and, with a total population in excess of 450 million, it is certainly a force in corporate governance to reckon with. (2) It is in the interest of other powerful industrialized nations, such as the United States, to monitor trends set by the European Union and for the country's corporate practitioners and academicians to monitor the trends in corporate governance and their implication for the United States. Not surprisingly, the European Union has been doing just that with respect to corporate governance trends in the United States. For example, the European Commission (the Commission) in May 2003, responding to recent corporate governance crises depicted by Enron and its progeny and the enactment of the Sarbanes-Oxley Act of 2002 in the United States (SOX or the Act), "presented a proposed 'Action Plan for Moderni[z]ing Company law and Enhancing Corporate Governance in the EU'."(3) This plan refers to some of the same corporate governance challenges faced in the United States, relating to such things as management responsibilities, composition, and operation of the board and its committees, shareholders' rights and how they can be exercised, derivative suits, takeovers and mergers, public auditing and public confidence in the audit profession, a reference to a code on corporate governance designated for use at national level, and so forth. (4) The European Union and the United States have identified basically the same broad problems and goals in corporate governance (the importance of good corporate governance for the investors and the economy); (5) however, unlike the Sarbanes-Oxley Act, which imposes mandatory provisions for U.S. companies (through a one-size-fits-all approach), the corporate governance initiatives proposed in the E.U. Action Plan are not intended to be mandatory. (6) The European Commission stated "it d[id] not believe that a European Corporate Governance Code would offer significant added value but would simply add an additional layer between international principles and national codes." (7) The Commission, in conceding that "a self-regulatory market approach based on non-binding recommendations" would be futile as sound corporate governance, especially "[i]n view of the growing integration of European capital markets," adopted in the Action Plan a "common approach covering only certain essential rules[.]" (8) This is typical of the European approach to corporate governance: self-regulation through corporate governance codes, with public companies then required to disclose whether or not they are in compliance with such codes. (9)

Consequently, a comparison of some of the corporate issues in these two systems in light of recent laws and regulations may not only be beneficial in understanding how each system functions, but may also be helpful in drawing lessons from the potential strengths and weaknesses of each system, thereby fortifying global corporate governance principles. For example, although the Sarbanes-Oxley Act of 2002 was drafted primarily with the U.S. regulatory market in mind, it also "regulates non U.S. companies doing business in the U.S. capital markets despite the fact foreign jurisdictions may already have their own corporate governance regulatory schemes in place." (10) Foreign companies doing business in the United States therefore would find it in their best interests to understand the implications of the Sarbanes-Oxley Act on their businesses. (11)

This Article will present a general overview of the aforementioned corporate governance issues and their regulation in the United States in Part II. Parts III and IV will critically analyze the new corporate laws and the issues raised by crossborder application of these laws in the European Union, highlighting the implications, similarities, and differences.

II. SOME GOVERNANCE ISSUES IN THE UNITED STATES: AN OVERVIEW OF THE CORPORATE BOARD OF DIRECTORS

In the traditional model of corporate structure, the board of directors manages the business of the corporation. (12) Although boards generally do continue to maintain this central legal role, it is widely understood that the traditional managing model of the board is no longer accurate; rather, under modern corporate practice, the executives of the corporation hold the management function, not the board members. (13) Because the "managing model" is now an unrealistic description, especially in the last 25 years, the shift from a "managing model" to a "monitoring model" recognizes management function is exercised not by the board but by senior executives of the corporation. (14) Hence, in the classic governance theory with a separation of powers, the role of the board is to oversee and limit the exercise of power by the executive officers; the board is, in turn, accountable to the shareholders. (15) Consequently, "[b]y making executive officers responsible to directors and then making directors directly responsible to shareholders, the framework rests on the ability of the shareholders effectively to monitor and respond to the directors' oversight of the corporation." (16) This intended hierarchy between the board and management was commonly reversed in the past, however, with the directors' incentive to properly monitor management undercut by some factors. (17) "Today, the monitoring model of the board has been almost universally accepted and adopted [by] large publicly held corporations" in the United States. (18) It is inadequate to say that "the monitoring model of the board rests on its economic advantage in providing an additional system to monitor the efficiency of management--in particular, of the CEO." (19)

But looking at the board from either a managing or monitoring perspective, the board of directors is made up of individuals selected by shareholders of a company (20) and is the ultimate decision-making body of a company. (21) The board selects the senior management team, acts as the advisor and counselor to the senior management, and ultimately monitors its performance. (22) Hence, the directors and management are said to have a contract with the corporation. (23) In fact, the corporation is often described as an organization consisting of a nexus of contracts (24) involving the employees, suppliers, contractors, shareholders, directors, and the corporation. (25) The agreement between the directors and the corporation is the most important contract because it relates to the directors' duties and obligations to the corporation. (26)

A director's powers to act on behalf of the corporation are derived from the state of incorporation. This regulation of the corporation by the laws of the state of incorporation is often referred to as the "internal affairs doctrine." (27) Consequently, state law, among other things, defines the directors' powers over the corporation; (28) in this vein, corporations are said to be the '"creatures of state law[,]' and it is state law that is the font of corporate directors' powers." (29) Whether state regulation results in efficient corporate law rules has been a scholarly debate. Some scholars espouse the view that, because the grants of corporate charters result in state tax revenue, (30) states tend to adopt statutes that are management friendly at the expense of shareholders. (31) Companies incorporated in Delaware are often said to be involved in "a race to the bottom." (32) Regardless as to whether companies are racing to "the top" or to "the bottom," their state of incorporation determines how the board of directors, as the managing head of the company, is to exercise authority. This exercise of authority may, however, be subject to limitations placed by the shareholders in the articles of incorporation or bylaws. (33)

III. THE SARBANES-OXLEY ACT AND ITS IMPLICATIONS ABROAD