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In order to determine a policy approach for corporate governance of nonlisted companies, this book provides an overview of the current practices and
mechanisms for structuring and organizing closely held rms and attempts to
explain the incentive structures for adopting an improved corporate governance regime. The corporate governance framework of non-listed companies can
roughly be split in three separate pillars. The core pillar focuses on company law
which provides rules and standards for registration and formation, organization
and operation, distribution of powers and decision-making, exit and dissolution,
information and disclosure, duciary duties, and liability protection. The second
pillar includes contractual mechanisms, such as joint venture agreements and
shareholder agreements, that enable parties to contract around irrelevant and
inconvenient company law default rules and tailor rights and duties that are more
consistent with the organizational requirements of non-listed companies. Due to
information asymmetries and bounded rationality which limit the ability of rms
to foresee and describe all future contingencies and, hence, hampers the parties
to contract into the most optimal governance structure, best-practice principles
or guidelines (the third pillar) could assist rms to organize and manage their
business in the most eective manner.
As for this third pillar, closely held companies increasingly embrace parts of
the corporate governance rules and principles that are tailored to the organization of their publicly held counterparts. Although internal control mechanisms
and provisions regarding the composition of the board of management are not a
must for adoption, they seem to provide focal point solutions to corporate governance problems among business participants within non-listed companies. The
chapters in this book will explore in more detail the reasons for voluntary compliance and evaluate which provisions are used in an attempt to make the organizational structure of non-listed rms more ecient. It is certainly reasonable to
infer that best practice mechanisms that are imposed on listed companies contribute to the awareness creation of the importance of good governance and, at
the same time, persuade non-listed companies across the board to opt into a welltailored framework of legal mechanisms and norms. Indeed, examples from the
organization of private equity funds, joint ventures, and family-owned businesses
illustrate that parties themselves are in the best position to design good governance mechanisms. As we will see, business parties usually design contractually
tailored arrangements, which, in combination with company law rules, serve to
protect shareholders and creditors interests. The chapters suggest that non-listed
companies have ample incentives to contract into eective information duties,
stringent distribution procedures and participation rights, and minority protections. The recent company law developments in the United States, Europe, and
Asia can be explained as a response to the demand for the reduction of regulation
protability, more time is available to develop innovative products. See Het Financieele Dagblad
(Hein Haenen), Innovatie gedijt in familie-bv, 4 October 2006.
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and improved legal vehicles that are better positioned to meet the contractual
needs of dierent types of rms to facilitate the smooth running of the business. It is argued that the chances of success depend largely on how the business
participants contractually address the economic issues underlying their business
venture. The next section will discuss the core problems that business participants must take into account when designing a governance structure that may
ultimately create value and boost rm performance.
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process. The transfer of eective control to a team of specialists (ie the board of
management) avoids the bureaucratic costs of collective decision-making. The
delegation of control, however, leads to substantial monitoring costs, as opportunistic managers may be inclined to exploit collective action problems that bar
eective monitoring by shareholders.
It is generally recognized that this principalagent problem is due to managers having superior information on investment policies and the rms prospects.
Managers tend to be better informed, which allows them to pursue their own goals
without signicant risk. Consequently, shareholders nd it dicult, due to their
own limitations and priorities, to prompt managers to pursue the objectives of the
rms owners. Information and collective action problems not only prevent close
monitoring of management performance, but also enable directors and managers
to develop a variety of techniques to extract prots and private benets from the
rm for their own interests. The disparity between ownership and control leads,
besides monitoring costs, to a number of other managerial transaction costs that
are likely to frustrate rm performance: (1) exorbitant compensation and remuneration; (2) replacement resistance; (3) resistance to protable liquidation or merger;
(4) excessive risk taking; (5) self-dealing transfer pricing; (6) allocation of corporate
opportunities; and (7) power struggles between managers.
The applicability of the traditional principalagent theory to non-listed
corporations is questionable. Problems that are related to publicly held rms are
not necessarily present in their non-listed counterparts. To see this, we should
distinguish between two extreme types of non-listed rms. On the one hand,
there are so-called open, non-listed rms, such as companies with the potential
to go public in the short term and unlisted mass-privatized companies with a
relatively high number of shareholders. On the other hand, there are contractual
arrangements in which the rm-owners retain substantial autonomy and the
small partnerships in which the owners are active managers themselves. A third
category of rms includes the larger companies that have neither listed shares
nor the direct intention to go public. Th is book will focus on the middle group
of companies, in particular family-owned companies and joint ventures.
This type of company is often characterized by the three-way conict between
controlling shareholders, managers, and minority shareholders (Berglf and
Claessens 2004).
Shareholders who are prepared to undertake the nancial risk are not necessarily equally
suited and talented to make the appropriate management decisions about the allocation of the
rms resources.
Rational shareholders have incentives to free-ride on the costly monitoring eorts of other
shareholders. Attempts to engage in collective monitoring will therefore fail if a few shareholders
bear the entire cost, but receive only a portion of the benets.
In transition economies many socially owned companies entered directly into mass privatization programmes through which shares were distributed freely to insiders, privatization and other
funds, and citizens.
This group of companies also contains group-owned companies, state-owned, and privateinvestor-owned companies.
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Shareholders
Principal
Environmental conditions:
(1) asymmetric information
(2) complexity/uncertainty
(3) difficulty in measuring
Company
Directors/
Managers
Agent
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Agent
Minority
shareholders
Principal
Controlling
shareholders
Principal
Company
Directors/
Managers
Agent
venture capitalist may encounter many complex and costly problems that need
to be addressed contractually. Monitoring costs are substantial in high-growth
start-ups. Venture capitalists invest large stakes in entrepreneurs about whose
abilities they have less than perfect knowledge. They consequently need to monitor and bond the entrepreneur closely, as basic problems of shirking and opportunism exist from start-up and expansion until the nancial buyout stage. The
impossibility of complete risk diversication and the absence of an active market
for shares emphasize the importance of monitoring. Empirical research shows
that monitoring costs will increase as assets become less tangible, growth options
increase, and asset specicity rises (Gompers 1995).
Nevertheless, venture capitalists tend to monitor their investments through
active participation, namely by due diligence, establishing a relationship with the
start-up businesses managers and by sitting on their board of directors. Whilst
involvement in key corporate functions tends to limit moral hazard problems,
information asymmetries are likely to persist and can potentially create signicant value dilution for investors. Information asymmetries are likely to arise from
two principal sources: (a) the entrepreneur has information unavailable to the
venture capitalist; and (b) the entrepreneurs information is often distorted by
Although the agency relationship is quite obvious in venture capital deals, it is comparable to the relationship between the shareholders and managers in a publicly held corporation or the relationship
between the controlling and minority shareholders in family rms and joint ventures. However, as
will be described in this book, various governance structures have been designed in practice to address
similar problems in rms with dierent characteristics and preferences.
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overestimating his chances. The rst kind of information concerns the actual
product, technology, and market, as well as the quality, ethics, and fortitude of
the entrepreneurial team, whereas the second kind could diverge dramatically
from reality due to the entrepreneurs personal attachment to the venture and the
feeling that his bright idea will denitely yield the expected wealth. Nevertheless,
to a certain extent the venture capitalists must contemplate the opposite interests
of the businesss founder in order not to destroy the incentive to the latter to be
prepared to go to any lengths to make the venture a success.
Conicting interests bear particularly on the control over the business and
issues involving the venture capitalists means of exit. Venture capitalists typically choose to exit the venture either through an IPO, transferring their shares
piecemeal, or by trade sale. In the nal stage, the venture capitalists reap the
fruits of their investment, while the entrepreneur hopes to recoup control over
his rm. It comes as no surprise that the nature and costs of exit are also shaped
by the ventures internal governance structures and ex ante contracts.
Whilst the literature on venture capital emphasizes the one-sided moral hazard
issues that characterize the relationship between venture capitalists and start-up
rms, this relationship cannot be explained exclusively in such terms. We now recognize that to a certain extent the relationship resembles a double-sided moral hazard problem, with each party contributing resources so as to maximize their joint
wealth. In order for the venture to succeed, the (leading) venture capitalist must be
willing to provide the entrepreneur with value-added services, if the venture has
the chance to raise its performance. The importance of these services has been demonstrated by the setback of the new economy at the beginning of the twenty-rst
century, which showed that the provision of capital alone is usually not enough to
fertilize promising ventures. Value-added services involve identifying and evaluating business opportunities, including management, entry, or growth strategies;
negotiating further investments; tracking the portfolio rm and coaching the rm
participants; providing technical and management assistance; and attracting additional capital, directors, management, suppliers, and other key stakeholders and
resources. Since these non-nancial contributions are a substantial element of the
venture capital relationship, it might be argued that the entrepreneur, in obtaining
these services from the venture capitalist, is also subject to shirking and opportunism. Entrepreneurs often believe that venture capitalists either fail to meet
their obligation to provide value-added services, or try to renegotiate the contract,
including their promise to add services, as soon as they obtain more leverage.
Nevertheless, the documentation for venture capital investments is usually
silent on the breach of venture capitalists. It is argued that the fear of damage
to their reputation gives venture capitalists sucient incentives to refrain from
opportunistic behaviour. The market for reputation may serve as a solution to
agency problems or conicts of interest between the entrepreneur and venture
capitalists, if it is both quickly and accurately accessible to entrepreneurs. This
appears to be the case when both sides of the market are relatively concentrated,
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Opt-in
3
Optional
Guidelines
Opt-out / Contracting
around
Contract
Company Law
Enforcement
Governance Options
(The options are dictated by other rules and regulations, such as taxrules and foreign direct investment regulations)
As noted above, the legal corporate governance framework of non-listed companies can roughly be split into three separate pillars (see Figure 1.3). The core
pillar focuses on company law. The second pillar includes contractual mechanisms, such as articles of association, investors rights agreements, and shareholder
agreements, that enable parties to contract around irrelevant and inconvenient
company law default rules and tailor rights and duties that are more consistent with their organizational priorities. Due to information asymmetries and
bounded rationality which limit the ability of rms to contract into the most
optimal organizational structure, soft-law measures could ll gaps in the rst
two pillars and allow rms to achieve a stronger governance structure.
Indeed, the nal pillar includes best-practice principles to help participants to
organize and manage their business in the most eective manner. Such measures
should not enshrine principles and norms that are a must for adoption. These
principles should be viewed as a form of advice. In that respect, they serve several
functions: (1) they provide the business participants with recommended solutions to complement the contractual exibility of the company law rules; (2) they
provide focal point solutions to corporate governance problems among business
participants; and (3) they are meant to assist business participants in the interpretation and implementation of good governance practices.
People intend to act rationally, but they are simply not able to foresee and describe all future
contingencies in a contract. As a consequence, economists claim that people are boundedly rational
(Williamson 1985).
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Overview
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3. Overview
The chapters in this book are divided into three parts. The rst part introduces
and discusses the rst pillar. It evaluates the role of company law in formulating
eective solutions to the core agency problems that arise in non-listed companies. Our work focuses on the contractual theory of the rm, which provides that
company law mostly comprises default rules, which has been disputed insofar
as the public corporation is concerned. This book describes how the creation of
clear and simple default rules, tailored with the features of non-listed companies
in mind, will not only help to minimize transaction costs but provide benets
for participants in these rms and their relationships. Chapter 2 recounts the
history of corporate law from the development of a joint venture business form
(commenda) that facilitated the networking of entrepreneurs and investors with
their opposing interests to the recent initiatives that help to foster the legal infrastructure needed to keep a modern economy in gear. This chapter suggests that
the company and securities law framework that gradually emerged in the wake
of earlier stock market bubbles and governance failures is not sucient to the
task of curbing abuses within non-listed companies and inadequate to fostering
a competitive environment which assists business parties to write equilibrium
contracts. We argue that policy-makers and lawmakers have drawn attention to
other legal measures that serve to minimize the specic agency, adverse selection,
and moral hazard problems inherent in the governance of non-listed companies. This resulted, we argue, in a one-size-ts-all corporate form for non-listed
companies. Chapter 3 addresses the manner in which European legislators have
responded to increased corporate mobility, which set in train the transformation
of the close corporation form into a more exible, all-purpose vehicle. Rigid
formalities and capital maintenance rules locked the evolution of company law
in a certain path, and so thwarted the emergence of more exible legislation.
Company law was mandatory in nature and made rms highly immobile until
the path-breaking decisions of the European Court of Justice, involving the freedom of establishment of foreign corporations by member states, which introduced the possibility for existing rms to move across borders. Because mobility
increases pressure on national lawmakers, who are prone to defending various
interest group preferences, they are inclined to identify legal reforms that have
the potential to be more cost-eective and more closely aligned to the changing
requirements of many types of rms. In Chapter 4, we illustrate how competitive pressures could open up further opportunities for reform-mined lawmakers,
who were previously blocked in their eorts to undertake company law reforms.
These pressures, along with the inuence activities of interest groups, gave rise
to a exible menu of partnership-type structures in the United States, which
thus resulted in the erosion of traditional restrictions on the internal structure
of legal business forms. These chapters show the large benets from the oering
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of company law techniques that are eective in dealing with internal decisionmaking procedures, the conicts between majority and minority shareholders,
and the relations between the rm and third parties.
In the next part, in contrast to the previous chapters, we examine the governance framework for non-listed companies that is largely based on private ordering. Chapter 5 shows that hybrid vehicles usually oer businesses the freedom
to contractually establish the rights and obligations within their organizational
structure, which accounts for the growing popularity of these forms for pooled
investments and other risky ventures. While there is great demand to the utilization of these forms, the ever-changing nature of the business environment
conrms the importance of exible provisions giving parties not only the opportunity to contract around the company law default rules, but also permitting
them to contract into additional protective measures that reect their preferences.
In Chapter 6, we take this argument further by looking closer at the contractual
governance structure of private equity and hedge funds. This chapter shows that,
while both fund types rely on similar features of the limited partnership form
to manage the risks and monitor investment decisions, the trend toward contractual convergence nevertheless is incomplete due to investor and other market
pressures.
Even though it is commonplace that business parties themselves are in the
best position to bargain for the optimal governance structure of their venture,
the next two chapters indicate that optional guidelines and more responsive
regulation could assist the business parties in overcoming the costs and deciencies of legal contracting. Furthermore, these chapters make clear that several
soft law initiatives in this area have been heralded as a solution to corporate governance issues in non-listed companies. Chapter 7 deals explicitly with the gaplling function that best practice guidelines play in improving the contractual
relations between parties in closely held companies. We will see that besides the
enhancing eect on businesses, industry guidelines can serve another important
goal as a self-regulatory mechanism in response to political pressures. We show
that optional guidelines can oer the public important information about how
the industry operates. In Chapter 8, which is the only chapter that deals with
external market regulation, we make clear that the exible corporate and business forms, which serve a diverse range of needs for businesses, can under special
circumstances be used to undertake illicit and illegal activities. The investigations into recent nancial scandals revealed that the fraudulent activities of
major European and American corporations were facilitated by the misuse of
oshore subsidiaries and other special purpose vehicles. It turns out that the
prevalence of illicit related party transactions, which served not only to assist in
tunnelling out corporate assets, but also to provide the means to cover up losses
and manipulate market disclosures, caused regulators to make important legislative changes and increased enforcement eorts. The analysis in this chapter
shows that a range of mechanisms, including optional guidelines, is needed to
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Conclusion
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provide proper nancial market oversight and to address the abusive or illegal
activities by company law forms. Since many of these techniques are designed
by nancial intermediaries and lawyers, reformers have naturally had to think
about their role in stimulating the abuse of legal entities, and correspondingly
giving them incentives to assist regulatory authorities in the disclosure and prevention of these transactions.
4. Conclusion
This initial chapter has presented the basic governance structure of non-listed
companies within which the legal strategies available to curb the agency problems
and organize the rm can be explained. How can these strategies, many of which
were designed originally for public companies but later adapted for closely held
rms, be used eectively to promote economic value of the rm while detecting
and correcting problems that may occur? How can the new soft law measures,
such as optional guidelines, provide a more eective approach for dealing with
problems in the existing organizational structure of rms? How do the major
three pillars, company law, contractual arrangements, and optional guidelines
which form a legal framework of non-listed business entitiesfunction? To this
end, this book will examine the channels in which these pillars, which are complementary and mutually reinforcing, operate.
The objective has been to examine the core problems of non-listed rms and
set the stage for understanding how the legal pillars work to support the business environment in which rms operate and deal with problems resulting from
the rms contractual structure and decision-making processes as well as external
relations.
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