Introduction
This analysis of the relevant literature review begins with an introduction of corporate governance and family companies, and within the Hong Kong context. The board in the head of a firm, its purpose and efficacy, and agency theories are next covered in the literature study. It narrows down to research on INEDs on boards, including general knowledge, role, competency, independence, and effectiveness of INEDs, to depict the efficacy of independent non-executive directors in family listed companies in Hong Kong, from the perspective of the matter at hand. A comparison will be made between the existing challenges and specifics related to the family business management of the parties involved. To analyze the effectiveness of corporate govarnance in the context of the family business management in Hong Kong, local economical and social characteristics will be taken into account.
Corporate Governance
As a business concept, corporate governance refers to the norms and guidelines that guide and control a company’s management with the aim of maximizing profitability and long-term returns for shareholders. The key attendees of the ongoing negotiations within this framework are shareholders, managers, and the members of the board tfhemselves. Community and investor relations need a firm’s corporate governance to be communicated. Most modern firms aspire to corporate governance as a type of operational and financial management due to its democratic appeal and proven efficiency in the most relevant contexts. Many shareholders think that a company’s prosperity isn’t enough; it also has to present good corporate citizenship through its environmental awareness, ethical conduct, and strong corporate governance. Effective corporate governance establishes a visual system of rules and regulations with matched incentives for shareholders, directors, and executives. Undoubtedly, this model of management is regarded as beneficial to the corporate success in today’s world.
The board is the main pillar of the corporate governance that should, ideally, be comprised of diverse individuals with a wide range of perspectives. It is in charge of critical decision-making, which may include appointing new board members, determining executive salary, and dividend system. When shareholder resolutions urge particular social or environmental issues to be emphasized, the board’s duties go beyond financial optimization. According to Alanazi’s (2019) research, “the number of board members is positively correlated with the competence exhibited during thegovernance. In other words, larger boards have a higher level of corporate governance, owing to a greater diversity of viewpoints and perspectives. Furthermore, major shareholders (sometimes known as block-holders), such as government ownership and institutional investors, significantly affect corporate governance. Surprisingly, independent directors are negatively related with corporate governance excellence. This might in part be due to the divide of interests between independent and family directors.
As Alanazi (2019) cited, the separation between ownership and management is a significant dilemma in corporate governance, which results in the agency issue. Agency costs are expected to be mimized by effective board management, which balances theoretical expertise and practical experience. Both inside and independent members are frequently found on boards, thus once again ensuring a variety of perspectives being represented. Insiders include principal stock holders, founders, and executives; they are major shareholders whole professional actions are closely influenced by the company’s perfromance. Independent directors are not tied to the firm in the same way, being instead chosen for their management or leadership expertise in large businesses. Independents are good to governance because they help align shareholder and insider interests by diminishing power concentration.
Corporate governance refers to the governing principles that a business creates to guide all of its actions, including pay, risk management, employee treatment, reporting unfair practices, environmental effect, and more. If its financials are in good form, a company with strong, transparent corporate governance takes responsible, mutually beneficial decisions in accordance with ethical principles to position itself as an appealing investment option. A company’s collapse is caused by poor corporate governance, which commonly leads in scandals and bankruptcy.
Interest in family business research has expanded and gotten more rigorous over the last two decades, but it is a relatively new field of study that continues to evolve. The diversity and success of family businesses make them a fascinating subject to research (Pounder, 2015). Family firms have a distinct corporate governance practice than non- family enterprises, and management of family companies encompasses both family and commercial considerations. Serving on a board of directors is difficult in any company, but it’s considerably more difficult in a family-owned corporation. Unlike their public- company counterparts, who are primarily concerned with maximizing the bond value, family-business boards must act on behalf of various and possibly contradictory stakeholders, such as co-owners with equal authority but entirely divergent financial timetables. Because family firms have more intricate interpersonal relationships, discussions of crucial topics like leadership succession, remuneration, and management performance are sometimes tricky, messy, and emotionally charged. In this case, family directors frequently avoid such situations, leaving it up to independent directors to handle them.
The People’s Republic of China (PRC) restored sovereignty of Hong Kong in 1997, and the territory’s legal system has remained unchanged since then. The fact that the majority of Hong Kong’s largest enterprises, whether listed or not, are family businesses is a defining attribute. As a result, Hong Kong’s regulatory authorities confront a challenging problem in putting in place corporate governing procedures that recognize the benefits of concentrated ownership while balancing the interests of larger and smaller shareholders alike (Bhagat and Bolton, 2019, p.152). Hong Kong’s corporate governance structure is dominated by the family-based system (FBS), which has undergone several modifications. There, it appears to have been recognized that when the firm’s proportion of external financing grows, agency costs rise due to asymmetric knowledge difficulties between management and external financiers.
FBS can be a feasible form of governance under such conditions with competent financial system monitoring skills, management experience, and market competitiveness. The necessity to recruit and train qualified individuals so that financial institutions can obtain and evaluate relevant information about the companies they support is especially vital for reforming the FBS. Furthermore, when a borrowing corporation appears to be underperforming, legal and informal ways of influencing its actions must be available. Although there isn’t usually a majority of family-connected members of the corporate board in question, the influence of substantial shareholders from families is still significant.
Hong Kong’s success in implementing incremental corporate governance changes may be tied to a number of reasons. The relative strength of the financial sectors is first and foremost. During and after the crisis, the banks and equities markets in the area have shown to be significantly more robust than those in other regional economies. Second, the financial sector’s existence of both competition and collaboration has made it possible to efficiently control through Banking Ordinances, Listing Rules, and Takeover Codes. A third aspect is tied to frequent insolvency and bankruptcy proceedings in Hong Kong, which remain pretty structurally simple. This pattern reduces the cost of bankrupt enterprises exiting the system and regains its strength following such withdrawals. Fourth, focusing on improving accounting and auditing standards will make monitoring, including more self-monitoring by family firms, simpler. Finally, although it is not the essential factor, Hong Kong’s small size facilitates the formation and maintenance of informal agreements through reputational and other relational processes.
Family Companies
A family firm, according to general opinion in the business world, is one in which the founders or relatives of the individuals continue to occupy top management roles, serve on the executive board, or own stock. In a number of industries, family enterprises may be found. Around 44 % of businesses in Western Europe might be classified as such, but the figure exceeds two thirds for East Asia, and 33% and 46% of the Standard & Poor’s 500 and Standard & Poor’s 1500 companies, respectively. In Hong Kong, about 60% of the private businesses are family-controlled, demonstrating a distinct landscape.
A family-owned firm is one in which two or more family members are involved and where the majority of ownership or control is held by the family. Family-owned enterprises are possibly the oldest type of company structure. Farms were an early sort of family enterprise in which what we now consider private and professional lives were linked. In the past, it was common for a shopkeeper or doctor to reside in the same building where he or she worked, and family members would frequently assist with the business as needed.
A lot of research has been done to investigate whether family companies outperform non-family companies. They do, at least for publicly listed companies, according to the common consensus. For example, family companies in Hong Kong perform better in terms of return on assets invested and return on equity (Lang et al., 2003). Performance differences, however, are dependent on the level of family engagement or involvement, for instance, founder or descendant’s control, the degree of independence of the Board, CEO’s identity, and control. Alternative sources find out that the management practices are worse for family companies, which in turn adversely affect the business performance. Nevertheless, it was pointed out that family companies should not be treated as the dominant factor; whether the chief executive and head of operations is a family member actually matters. Due to the essential role of the company’s value in buy-out choices, tax payments, executive remuneration, capital raising tactics as well as selling the company, there has also been an upsurge in research in investigating family company’s performance as well as its precursors.
Family companies have distinct and advantageous characteristics, lengthy tenure of family members, long investment horizon, and concern on their family reputation, which result in positive performance and enhancement in the company’s value. Family companies may reduce agency costs with the alignment of ownership and control (Young et al., 2002; Fama and Jensen, 1983; Jensen and Meckling, 1976). On the other hand, family companies confront agency problems attributable to family involvement.
Most family companies will experience a variety of challenges at some point in their lives. Non-family employees might be difficult to recruit and retain because they may struggle to deal with work-related family problems, limited prospects for growth, and special treatment given to family members. Furthermore, some family members may object to outsiders joining the company. Outsiders, on the other hand, can act as a stabilizing element in a family firm by providing a balanced and objective viewpoint on business concerns. Exit interviews with leaving non-family workers can help family company executives figure out what’s causing the turnover and develop a plan to minimize it.
Family companies and corporate governance in the Hong Kong context
From a historical perspective, Hong Kong was a British colony that was brought corporate governance. It, therefore, means that the establishment of the corporate governance code and practice mirrored that of the West (Lau, Nowland and Young, 2014), i.e., the Anglo-Saxon corporate governance model, also known as a market model, where ownership and management of businesses are separated between different individuals. On the contrary, Hong Kong had been predominantly populated with Chinese, where traditional Chinese culture is rooted and mixed with Western culture. Chinese culture places much emphasis on harmony and interpersonal relationships as compared with independence and autonomy in the West (Wheaton, 2000, as cited from Lau, Nowland, and Young, 2014, p.13). Like other Asian countries, the majority of companies are family-owned and controlled. Hence, the corporate governance in Hong Kong experienced a highly confounding model of practice because of the differences in structure and culture, and perceptions.
Generally, Hong Kong has a robust financial system and a stringent monetary authority. While there are outliers, the fact that the banking system did not collapse and a systemic financial catastrophe was avoided during the period of maximum contagion supports the overall assumption (Barnes and Lee, 2017, p.402). Hong Kong boasts one of the deepest equity markets in the area, in addition to competent macroeconomic management and a reasonably robust banking sector. Its financial stability counterbalances the risks associated with family-owned businesses and the evident presence of these risks that stems from their market domination in Hong Kong.
In Asia, one of the most noticeable characteristics of family enterprises is their capacity to adapt and reform. In the context of latecomer industrialization, one reason for the success of family firms in Asia has been their flexibility in terms of management decision-making and capital accumulation efficiency. This would appear to show that the FBS was effective at least for quick capital accumulation throughout Asia’s early stages of growth. The concern that emerges in the aftermath of the current crisis is whether the process of catch-up growth, especially for Southeast Asian economies, is still ongoing. A mix of reasonably transparent norms and regulations, as well as an aptitude for resolving difficulties through mutual consultation, appears to give a method to combine the qualities of formal institutions, rules, and processes with the strengths of informal connections and procedures.
Board of directors and its effectiveness
The board oversees the corporate performance and safeguards the shareholders’ interests. The board is managed as a group because directors are collectively responsible for the decisions made by the board. Hence, the board should always reach decisions by discussion and consensus. HKEx does not specify any specific requirements in relation to the board size. There has not been consensus drawn from the empirical research on the relationship between board size and firm performance. Some scholars suggest that bigger boards can increase monitoring capabilities, while others suggest that bigger boards will result in more beuracratic organizational hazards, poor communication, and slower decision making. According to Lipton and Lorsch (1992) an increase in the number of board members results in board ineffectiveness. It is further recommended that the limit of a board member to 10 members and preferred board member of 8 or 9 members. In the Hong Kong context, Lipton and Lorsch (1992), by using a sample of 246 mainboard listed companies from January 2008 to December 2010 and evidenced that board size positively affects firm performance.
Many of the literature on board effectiveness has considered board independence (i.e., the proportion of independent directors on board) as an important element affecting board effectiveness, in turn, ethical corporate management. Independence refers to whether a director’s ability to be objective (Nordberg, 2007). Regulators have been promoting and strengthening board independence regulations in the past decades as a counterpoint to agency issues so as to better monitoring of the board and control shareholders. However, the value of an independent board has been a doubt in academic research. Empirical research has no clear and conclusive findings on the relationship between the autonomy exhibited by the board and firm value (Yeung, 2014). In Yeung’s findings, board independence exhibited no significant impact on the financial performance.
In family businesses, external parties served on the board, other than the monitoring function as presumed by regulators or perceived by the public, also play the function of arbitrators since they can give objective opinions and views based on their experience. In terms of Board composition and process, boards with external members’ have more commitment in fulfilling its responsibility such as effort norms and cohesion and are better at utilizing their knowledge and skills.
Much of the existing scholarship on corporate governance refers to board effectiveness as to the ability of the board to perform its functions effectively. Petrovic (2008) further states that one stream focuses on board composition and, whilst another emphasizes on board dynamics such as board cohesiveness and conflict. The management of ethics and financial effectiveness together define the understanding of this form of governance in the modern community to variying degrees of success.
Hong Kong’s Law and Regulations in Corporate Governance
In Hong Kong, company law, which is called the Companies Ordinance, is governed. The principle of Companies Ordinance requires companies to have directors; in particular, a minimum of one director is required for a private company. The board is responsible for the management and operation of the company. The board comprises all the directors of the company. There is no distinction between the executive (ED) and non- executive directors (NED) under the Companies Ordinance. Each director is responsible for the company individually and collectively. The new Companies Ordinance, effective in March 2014, modified and codified the standard on the director’s duties of care, skill, and diligence to provide clear statutory guidance to directors to enhance corporate governance. However, the fiduciary duties of the directors are yet to codify. Securities and Futures Ordinance is another legislation that governs in particularly companies listed on the Hong Kong Stock Exchange (HKEx).
Other non-statutory rules, codes, and guidelines are also available in Hong Kong. For example, the Companies Registry published “A Guide on Directors’ Duties,” which outlines the general principles of directors’ duties. Hong Kong Institute of Directors, a non-governmental body, also issued the following guidelines:
- “Guidelines for Directors”;
- “Guide for Independent Non-Executive Directors”;
- “Guidelines on Corporate Governance for SMEs in Hong Kong”
Unlike private companies, all companies listed on the HKEx must strictly comply with the Listing Rules, a set of non-statutory rules issued by the HKEx. Based on my review and experience, a key distinguishing difference between private and listed companies is the requirement under Rule 3.10 of the Listing Rules of HKEx that an established board should include at least three independent members, i.e. independent non-executive directors (INED) and one of them is required to have appropriate professional qualifications or accounting or related financial management expertise”. Furthermore, independent directors must comprise at least one third of the board, as required under Rules 3.10A of the Listing Rules of HKEx. Nevertheless, it is notable that there is no separation of rules for family-listed companies or non-family-listed companies.
HKEx also established the Corporate Governance Code under Appendix 14 of the Listing Rules, which suggested the formulations of key principles of positive corporate management, and requested compliance by listed companies where appropriate. The core code is a comply-or-explain code that demands the firms to present a sufficiently strong explanation to speak for their breaches of the principles. It is not mandatory because the HKEx admits that it may not suit every company. The core code is divided into the code provisions and the recommended best practices. They are two levels of recommendations. Companies are technically obliged to comply with the outlined regulations, but may have deviations and adopt alternatives appropriately. The recommended best practices are a guidance only.
According to studies, the comply-or-explain strategy is ineffective. By differentiating the roles of the board leading chairman and Chief Executive Officer, the CodeCode mandates listed firms to have a clear separation between the board and the administration of everyday operations. The goal is to avoid power concentration and maintain a power balance. However, it is not difficult to identify listed firms in Hong Kong when a person serves in two capacities. As a result, the CodeCode is suggested to be into legally obligatory parts, easily identifyiable within the chosen regulations.
Functions of Board of Directors
After a comprehensive assessment of the literature on boards of directors, most scholars agree on identifying three purposes of boards in the West, which are resource reliance, service, and control. The board’s primary role, “resources reliance,” comprises obtaining vital resources like as financial resources, competitive intelligence, and reputation. The executive board is epected to aid the organization not just in collecting vital resources, but also in gaining respectability. Review suggests that most of independent directors were aware of being employed for the purpose of legitimacy and certification, to demonstrate compliance with the current legal and reputational paradigm. Guanxi or reciprocal relationships, is proof of resource dependency. Outside directors are required to make their networks available. As a result, Guangxi is seen as a great resource for gaining or securing resources, as well as establishing legitimacy, which is more crucial in Chinese business groups than in the West (Young et al., 2001). Outside directors’ importance in resources produces enormous authority within the board of directors and within the company’s management. They use their authority by applying pressure to management and the board of directors, among other things, to change governance systems and enact specific policies. Under these conditions, fractional disputes between internal and independent directors are unfourtunately common.
The board’s second job is the “service function,” which entails giving guidance and assistance to the CEO or senior management. When it comes to establishing company strategy, board members’ skills and experience are crucial. Outside directors, on the contrary, may find it impossible to effectively advise the company executives within the Chinese business scene, according to Young et al. (2001). Outside directors are frequently selected by management or original members, and they may have a close relationship with the company. They are not comfortable providing advice because of “Guanxi” and the possibility of taking that as challenging the professional judgment exhibited by them.
Finally, the board is in charge of control, and thus it exercises monitoring of the ongoing processes to protect shareholders’ interests. Young et al. (2001) identified that there is a lack of control in Hong Kong and Taiwan when compared to that of the West. Hong Kong is populated with family companies whose single largest shareholders have absolute control. Generally, family members, relatives as well as personnel with close relationships are board members of family companies. In addition, family members are involved in the management. Most literature on the control function draws on the agency theory of separation of control and management. Except for principal-agent agency issues, there are also principal-principal agency issues involving controlling shareholders and non-controlling shareholders. In family-owned businesses, the principal-principal agency issues may be more serious.
Agency Theory
Agency theory is the main framework-defining theory in the modern accounts of corporate governance in medium and laregr firms. According to Jensen and Meckling (1976), an agency relationship exists when a person or a group of persons engages another person to perform services on behalf of the former. This involves the delegation of the authority to the agency, for instance, the decision-making and execution. Problems arise because of the divergence of interests between the principal and agency. Agency may not always act in the best interests of the principal. Jensen and Meckling (1976) define agency costs consist of analysis and observation costson the agent by the principal; bonding costs that agent would not take certain actions against the principal, i.e., the human resources costs paid to the agent (Li & Zuo, 2020); and residual loss that is the divergence between the decision of the agent and the decision of the principal as if the later one is the decision making to maximize its interest.
Based on a review of literature, it is generally perceived that family companies have lower agency costs than non-family companies because ownership and management are unified. The interests of the owner and management tend to be the same (Li & Zuo, 2020). The conflict of interests in these scenarios is possible, but typically successfully and easily dissolved.
Principal-agent agency conflict
Principal-agent agency conflicts are a common occurrence during the separation of the ownership and management due to the clashing interests and agencies of important stakeholders. Corporate governance mechanisms aim to reduce agency costs or problems, for instance, improve interests alignment of shareholders and management. Internal mechanisms are primarily from boards of directors and concentrated ownership, while external mechanisms are primarily from the market (Young et al., 2002; Fama and Jensen, 1983). It is generally accepted, that the strength of the executive board correlates with its proven ability to include outsiders. This can be identified and categorized as the issue of board composition. Concentrated ownership is considered as one of the internal mechanisms because shareholding on companies is more dispensed in developed economics. However, it is possibly not the case with family companies.
For family companies, principal-agent agency conflicts occur in different ways, as summarized by Li and Zuo (2020). Conflicts between family members because of their different roles, for example, a family member with only ownership as principal vs. family member have management role as agent. Conflict may also arise between family and non-family members of different roles such as “owner, owner board member, owner- manager, non-owner board member, non-owner manager.” For instance, non-family member as owner vs. family member as manager, regardless the latter one is also an owner or not.
Principal-principal agency conflict
Principal-principal agency conflict is another type of agency problem that occurs between shareholders, attributable to the shareholding concentration of companies such as family companies. Controlling shareholders of family companies may expropriate the interests from minority shareholders, i.e., to benefit the family at minority shareholders’ expenses. According to Young et al. (2002), costs of monitoring may, in fact, be higher for principal-principal agency conflict, among other reasons, the agent (i.e., the board or management) is appointed by the controlling shareholder. It is noted that research shows that the board of directors is often “rubber stamps” of the controlling shareholder. Besides, bonding cost is incurred by the controlling shareholders guarantee against expropriation thus trying to attract minority shareholders.
Conclusion
The most recent 2021 audit in Hong Kong has indicated that furhter measures are necessary within the country to elaborate on the corporate governancne principles. The Code will be reorganized into a single Corporate Governance Code that lays out the mandatory disclosure requirements (MDRs) in an issuer’s Corporate Governance Report up front, followed by different topics that group together relevant principles of good corporate governance, code provisions (CPs) that operate on the comply or explain principle, and certain recommended best practices (RBPs). A new CG guidance letter will be released that explains how the Code’s principles are applied and reported on.
Newer measures promote and, in some ways, enforce accountability and transparency. They orignated in a response to persistent inequalities among hte corporate boards in Hong Kong. In some ways, these patterns can be explained by the aforementioned features of family businesses and the social structure within the nature as a whole. However, it does not take away from the fact that modern firms should actively work to dismantle these patterns within themselves, both for ethical and profit-related reasons.
For the foreseeable future, the Hong Kong market will be dominated by family and closely held corporations. Despite the fact that major measures have been taken to address the issues posed by these arrangements, corporate governance requirements must continue to grow if Hong Kong is to stay up with worldwide best practices. Institutional investors will contribute to the future developments within the firm. The quality of corporate governance in Hong Kong listed businesses will be considerably improved by adopting more stewardship of the company’s management, as is common in developed markets. Moving forward regular updates and reviews will continue to emerge, contextualizing and discussing the current trends in the financial governance in Hong Kong.
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