Corporate Governance - Implementation Guide. Saleh Hussain
also responsible for ‘establishing the objectives of the bank’.
Both the CG Code as well as CBB have emphasized that the Board should, at minimum, be responsible to perform the below roles and responsibilities.
•Duty to Approve and Monitor Company Strategy: The Board should assume overall responsibility of company’s business, risk management, and financial soundness. Thus, the Board should review, approve and monitor the objectives, strategies and overall business plans of the institution; in line with shareholders’ expectations
•Duty to Ensure Legal and Regulatory Compliance: All the members of the Board should undertake and fulfill their duties and responsibilities keeping in view their legal obligations under all the applicable laws and regulations
•Duty to Establish Optimal Management Structure: The Board should clearly define the authorities and key responsibilities of both the Directors and the Senior Management without delegating its policymaking powers to the Management and shall ensure that the Management is in the hands of qualified personnel. In addition, the Board should be responsible for human capital development process (including appointing, training, fixing the remuneration of and where appropriate, replacing senior management, and succession planning)
•Duty to Ensure Optimal Control Environment: The Board should approve and ensure implementation of policies, including but not limited to, in areas of Internal Audit & Control, Compliance, Risk Management, Human Resources, Finance, Treasury Management, Investments, Acquisition/Disposal of fixed assets, Donations/Charities, Prevention of Frauds & Forgeries and any other operational area which the ‘Board’ and the ‘Management’ may deem appropriate from time to time. The Board should also be responsible to review and update existing policies periodically and whenever circumstances justify
•Duty to Oversee Company Performance: The Board should ensure existence of an effective ‘Management Information System’ to remain fully informed of the activities, operating performance and financial condition of the institution, the environment in which it operates, the various risks it is exposed to and to evaluate performance of the Management at regular intervals
•Duty to Implement Corporate Governance: The Board of Directors should show leadership and “set the tone at the top”. The Board Chairman should place corporate governance issues on the agenda of Board meetings to ensure an efficient and timely treatment of all issues arising out in this respect. The Board should also adopt code of conduct for itself and senior management
1.3 RESPONSIBILITIES OF BOARD MEMBERS
The above section stated responsibilities of the Board collectively; however, since the Board is composed of various members, the best practices require that each member of the Board should be held individually responsible for his/ her activities as Board Member. The Directors are required to exercise their powers and carry out their fiduciary duties with a sense of objective judgment and independence in the best interests of the listed company.
The CG Code (section 1.4) states that each Director (Board Member) should consider himself as representing all shareholders and should act accordingly. Principal responsibilities of Director/ Board Member include the following:
•Duty of Good Faith: The duty of good faith demands that the director is reliable, trustworthy, act with integrity and does not seize corporate opportunities for his own self-interest. It further requires the director to act in the best interest of the company at all times and to avoid any action that causes or can cause any conflict of interest with the company. The shareholders and related stakeholders must be confident that the director will at all times deal with the affairs and decisions of the company in good faith and unquestionable trust. Without good faith and trust, no director has any business serving on the board of a company.
•Duty of Skill: The duty of skill deals with the necessity of demanding from the management timely, accurate and complete information and data relating to the affairs of the company. The director’s skill and knowledge must be used and applied in the analysis and evaluation of information and reports. Right decisions demand the honest application of brainpower and the most appropriate ways of conduct.
•Duty of Diligence: The duty of diligence makes the director’s knowledge of the industry in which the company is operating a pre-requisite for his selection to the board. The director must use such industry knowledge to pay attention to the details of all proposals referred to the board for consideration. Part of the details that need to be considered to arrive at board resolutions are the company’s relationships with its stakeholders. Those resolutions might be received by shareholders and stakeholders. The other dimension that must be looked at by the director in a diligent manner is the impact of the company’s business and decisions on others – what kind of precautions he needs to consider to mitigate any negative impact on others. ‘Others’ here include customers, service users, competitors, and the society within which the company operates. The social responsibility of the company’s business must be respected and protected.
•Duty of Care: (OECD defines “duty of care” as “The duty of a board member to act on an informed and prudent basis in decisions with respect to the company. Often interpreted as requiring the board member to approach the affairs of the company in the same way that a ’prudent man’ would approach their own affairs. Liability under the duty of care is frequently mitigated by the business judgment rule.”)
•Duty of Loyalty: (OECD defines “duty of loyalty” as “The duty of the board member to act in the interest of the company and shareholders. The duty of loyalty should prevent individual board members from acting in their own interest, or the interest of another individual or group, at the expense of the company and all shareholders.”)
CG Code – Principle 2: The Directors and Officers shall have full loyalty to the company
Each director is held personally accountable to the company and its shareholders by Bahrain’s Company Law, if he violates his duty of loyalty to the company. He can be personally sued by the company or the shareholders for such violations. The CG Code endorses this view.
CG Code – Principle 2.1: The duty of loyalty includes a duty:
•not to use property of the company for his personal needs as though it was his own property,
•not to disclose confidential information of the company or use it for his personal profit,
•not to take business opportunities of the company for himself,
•not to compete in business with the company,
•to serve company’s interest in any transactions with the company in which he has a personal interest
To perform the above key responsibilities, the Board can be guided by following:
•Each Director should ensure that he/she has familiarized himself/herself with the by-laws of the Company, its internal regulations and the general and specific obligations of his office
•Each Director should represent the interests of all Shareholders and should act under all circumstances in the best interests of the Company
•Each Director should ensure the effective functioning of the Board of Directors (a director should not accept more than a number of other directorships so as to be able to properly discharge his duties)
•Each Director must take into account the legitimate expectations of all of the Company’s partners or stakeholders (employees, clients, executives, suppliers and creditors)
•Each Director must report to the Board any conflict of interests, whether actual or potential and abstain from taking part in voting on the related resolution
•The Director should apply to his/her duties the necessary time and attention, and should, subject to all applicable laws and regulations, consult the corporate governance and nomination committee before accepting any additional seat on another Board of Directors
•The Director should attend all meetings of the Board and meetings of the