Projects / Programmes
LEGAL AND ECONOMICS ASPETS OF CORPORATE GOVERNANCE IN THE PUBLIC AND PRIVATE SECTOR AS A TOOL FOR OVERCOME ECONOMIC AND DEVELOPMENT CRISIS
| Code |
Science |
Field |
Subfield |
| 5.05.00 |
Social sciences |
Law |
|
| Code |
Science |
Field |
| S110 |
Social sciences |
Juridical sciences |
| Code |
Science |
Field |
| 5.05 |
Social Sciences |
Law |
Corporate Governance, Financial / Monetary Sector (Financial and Banking Sector), Real sector, Public sector, Global Financial and Economic Crisis
Researchers (15)
Organisations (3)
Abstract
The research project will first offer a comparative analysis of the main causes for the global financial and economic crisis from the viewpoint of corporate governance in the areas of the financial, banking, real and public sector.
Then, a comparative analysis will be performed of the current situation of corporate governance as a tool to overcome the crisis. Specifically, the following will be covered:
- corporate governance in the financial and banking sector (capital market management; management of banks and financial institutions; the controlling function of the regulators);
- corporate governance in the public sector (relationships between founders and public institutions, agencies, funds; managerial and controlling functions of public service providers; public and private performance of public service; implementation of OECD guidelines for state-owned companies);
- corporate governance in the real sector (supervisory role in corporations; conflict of interests; directors' liability for damages, implementation of the OECD principles in the area of corporate governance).
Finally, measure proposals for Slovenia and the EU in the area of corporate governance in the broader sense of the phrase will be crafted:
- corporate governance in the financial and banking sector (grounds for changes in legislation dealing with financial organizations, the securities market, the banks market and the regulators' position);
- corporate governance in the public sector (grounds for changes in legislation dealing with executing services in the general interest and/or services in the general economic interest);
- corporate governance in the real sector (grounds for changes in legislation dealing with companies, takeovers and the regulators' position).
The globalization of the financial markets led to a simpler access of the financial intermediaries to foreign markets, which allowed for more opportunities to differentiate business strategies and diminish exposure towards single markets, but also – due to lower costs for entering foreign markets – increased the competitiveness and exposure to common shocks. Excess crediting and an anti-cyclical state's expenditure further complicated the situation, requiring adequate corporate governance of the financial, banking, public and real sector.
In The Modern Corporation and Private Property book, Barle and Means in 1932 presented a thesis on the separation of property and governance. The power is in the hands of professional managers that are only minor shareholders. Thus, in a big public corporation, the owners barely influence the decisions.
Director's duties are defined differently in different legal regimes: in a detailed manner, like in GB, or not at all, like in Germany or in Slovenia, where the legislation only determines the duty of care, which is just a legal standard. Regarding the conflict of interests, different legislations choose different approaches: they provide its definition and the duties arising from it in the legislation, like in GB or France, or, like in Slovenia, everything is left to the governance codes that usually only address public (stock market) joint stock companies. Slovenia has left these questions out of its legislation, and its reaction to the EU Recommendation on the role of supervisory board members and the supervising members of the management board was to leave questions like the supervisors' independence to the autonomous law. A loose regulation in this area has led to a management and supervisory boards' members' behavior that is against the interests of the company, thus calling for a better corporate governance legislation.
Scientific monitoring of the policies that can only be successful if properly planned, coordinated and monitored, is necessary in the public sector, too. The research will attempt to uncover up-to-date information and technology enhanced solutions for the development of the public sector, especially its governance and management re
Significance for science
The core research subject was – among others – the classification of legal persons on private and public legal persons. In Slovenia, classification on the private and public legal persons became relevant after changing the system of socialistic self management to a democratic system in early 90's. Before that time a legal person was an universal term for economic and non economic sector, regardless if a person was a foundation (universitas bonorum, rerum) or a corporation (universitas personarum). In the Slovene legal system, the trihotomy of classifying the legal persons as public or private, profit or nonprofit, foundations or corporations became important as a methodological approach in the beginning of the 90's. Diversification between private and public legal persons is derived from different legal interests (public interest, private interest), which are followed by either a public or a private legal person. Because of this, interest based differentiation demands from a legal system a different legislative approach in formulation of legal regimes (public and private law) and therefore different legal institutions and different terminology. The legal consequences of differentiating between private and public legal persons are multiple. They can be observed in different legal regimes for public and for private legal persons (for example: labour versus administrative employment law, administrative procedure versus civil procedure, administrative corporate law versus civil corporate law, public auditing versus private auditing). According to this there is a question of validity of different forms of legal persons according to the constitutional rule of numerus clausus of legal forms. In the area of corporate governance of the public legal persons, we have clarified some key terms and their use in practice. We started with the assumption that the principle of numerus clausus of legal forms (also from a management viewpoint) should be established in public law as well. This principle is de lege lata gradually affirming itself, based on the new status legislation on public funds and public agencies, yet it will still have to be introduced de lege ferenda with the new legislation on public institutions and public enterprises. The issues, broadly discussed by the theory to which we have given some comparative analysis thus first relate to the issue of composition of the board (single or dual) and distribution of powers between boards and the board of directors and executive management. A number of concepts are devoted to finding solutions for more efficient supervision and monitoring of the management. Analysing the above presented theories and in addition some European theoretical, uptodate trends in modern corporate governance, the research project has contributed additional theoretical views to a modern corporate governance paradigm.
Significance for the country
Final part of the research project contains proposals measures to be taken in Slovenia and the EU in the corporate governance area in the broad sense of the phrase. The proposals are available also to the executive and legislative branches of power, and can play an important role in updating and upleveling the corporate governance in the broad sense, leading to an increase in the economy's competitiveness as well as the public sector's efficiency. In Slovenia, the issues of conflict of interests are regulated by the Governance Code of the public joint stock company. Nevertheless, considering the experience of seeing these rules violated, we should follow the example of those countries that address such questions in their legislation. By changing ZGD-1 the following conflict of interest situations should be handled: - director's duty to avoid situations where their interests could be in conflict with the interests of the company (taking advantage of the assets, information or opportunities); - prohibition to the directors to enter into relationships that create conflicts of interests between then and the company; - director's duties in case of a conflict of interests (the duty to reveal the conflict of interests to the company members and the duty to acquire a consent from the members for specific types of business transactions; - dutiesof bigger shareholders and connected persons that find themselves in a conflict of interests. The division of tasks and powers between the European Union and the Member States leads to a shared responsibility of the Union and the public authorities in the Member States; Slovenia is thus confronted with the responsibilities to develop public policies and services, according to EU professional standards. The EU concept reflects the Community values and goals, and is based on a set of common elements, including: universal service, continuity, quality of service, affordability, as well as user and consumer protection. This research has contributed to the implementation of these goals in connection with the following principles: - Enabling public authorities to operate close to the citizens - Achieving public service objectives within competitive open markets - Ensuring cohesion and universal access - Maintaining a high level of quality, security and safety - Ensuring consumer and user rights
Most important scientific results
Annual report
2011,
2012,
2013,
final report,
complete report on dLib.si
Most important socioeconomically and culturally relevant results
Annual report
2011,
2012,
2013,
final report,
complete report on dLib.si
