Corporate law bulletin bulletin No 71, July 2003



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CORPORATE LAW BULLETIN
Bulletin No 71, July 2003

Editor: Professor Ian Ramsay, Director, Centre for Corporate Law and Securities Regulation

Published by LAWLEX on behalf of
Centre for Corporate Law and Securities Regulation,
Faculty of Law, The University of Melbourne
(http://cclsr.law.unimelb.edu.au)

with the support of

The Australian Securities and Investments Commission (http://www.asic.gov.au),
The Australian Stock Exchange (http://www.asx.com.au)

and the leading law firms:

Blake Dawson Waldron (http://www.bdw.com.au)
Clayton Utz (http://www.claytonutz.com)
Corrs Chambers Westgarth (http://www.corrs.com.au)
Freehills (http://www.freehills.com)
Mallesons Stephen Jaques (http://www.mallesons.com)
Phillips Fox (http://www.phillipsfox.com)

ACCESS TO ARCHIVED ISSUES

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Centre for Corporate Law and Securities Regulation 2003.

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CONTENTS

1. RECENT CORPORATE LAW AND CORPORATE GOVERNANCE DEVELOPMENTS


(A) UK Corporate Governance Combined Code
(B) IFAC Board proposes changes to code of ethics impacting accountants worldwide
(C) SEC publishes staff report on proxy process review
(D) Microsoft to expense stock options
(E) The world’s largest companies
(F) Settlement of SEC'S claim for a civil penalty against Worldcom
(G) ACCC issues discussion paper on longer-term accounting separation rules for Telstra
(H) Commonwealth DPP to undertake HIH criminal prosecutions
(I) Standards Australia blueprint for good corporate governance
(J) UK survey of company directors’ responsibilities
(K) New guidance on audit reports issued by AuASB
(L) FSA finalises new regime for Alternative Trading Systems
(M) FSA refines plans for regulating general insurance
(N) New US rules require shareholder approval of equity compensation
(O) Expanding the scope of audit
(P) FSA implements reforms on governance of life insurance firms
(Q) CalPERS approves plan to crack down on executive compensation system
(R) Study of CEO pay in Europe
(S) Canadian corporate law reform report
(T) Survey of investment managers
(U) Levels of share ownership
(V) UK Parliamentary Committee releases report on the UK Government’s major review of company law

2. RECENT ASIC DEVELOPMENTS


(A) ASIC acts on conflicts of interest
(B) Guide to organisational competency obligations: responsible officers
(C) Defective prospectuses
(D) Late disclosure of financial statements
(E) ASIC’s interim approach for regulation of mutual risk products
(F) ASIC regulation of promissory notes
(G) Court upholds appeal by Nicholas Whitlam
(H) Court upholds penalties against HIH directors
(I) Tower Australia to repay investors
(J) ASIC guidelines: using past performance figures in investment advertisements
(K) Valuing options for directors and executives
(L) Court hands down Water Wheel penalties
(M) ASIC calls for financial literacy education in schools

3. RECENT TAKEOVERS PANEL MATTERS


(A) Panel decides second PowerTel application
(B) Panel declaration of unacceptable circumstances in relation to the affairs of Trysoft Corporation Limited
(C) Panel declines to commence proceedings in relation to PowerTel Limited

4. RECENT CORPORATE LAW DECISIONS


(A) Water Wheel No 2 – imposition of penalties
(B) Chairman not exercising director’s duties when voting proxies
(C) HIH appeals by Adler and Williams
(D) Application for summary dismissal of a claim for insolvent trading because of delay
(E) Application for leave to enforce a guarantee given by a director of a company in administration
(F) Privilege against exposure to a penalty
(G) The availability of the privilege against self-incrimination
(H) Opposition to extension of time for meeting of creditors
(I) Abuse of process in an examination summons made under section 596A of the Corporations Act
(J) Partnerships, joint ventures and the appointment of receivers
(K) Application for removal of liquidator, appointment of liquidator and power for liquidator to appoint himself as administrator

5. RECENT BOOKS BY CENTRE FOR CORPORATE LAW MEMBERS

6. CONTRIBUTIONS

7. MEMBERSHIP AND SIGN-OFF

8. DISCLAIMER

1. RECENT CORPORATE LAW AND CORPORATE GOVERNANCE DEVELOPMENTS

(A) UK CORPORATE GOVERNANCE COMBINED CODE

At its meeting on 23 July 2003, the UK Financial Reporting Council (FRC) agreed the final text of a new Combined Code. The new Code will come into effect for reporting years beginning on or after 1 November 2003.

The new Code is based on the draft revision of the existing Code that Derek Higgs suggested in his report on non-executive directors published in January 2003, which also incorporated the recommendations of Sir Robert Smith’s report on audit committees. The agreed final text reflects extensive consultation by the FRC since January.

The Code’s overall aim is to enhance board effectiveness and to improve investor confidence by raising standards of corporate governance. Its main features are:

- new definitions of the role of the board, the chairman and the non-executive directors;
- more open and rigorous procedures for the appointment of directors and from a wider pool of candidates;
- formal evaluation of the performance of boards, committees and individual directors, enhanced induction and more professional development of non-executive directors;
- at least half the board in larger listed companies to be independent non-executive directors, with a definition of independence of non-executive directors;
- the separation of the roles of the chairman and the chief executive to be reinforced;
- a chief executive should not go on to become chairman of the same company;
- closer relationships between the chairman, the senior independent director, non-executive directors and major shareholders; and
- a strengthened role for the audit committee in monitoring the integrity of the company’s financial reporting, reinforcing the independence of the external auditor and reviewing the management of financial and other risks.

As with the existing Code, in order to meet their obligations under the Listing Rules, listed companies will have to describe how they apply the Code’s main and supporting principles and either confirm that they comply with the Code’s provisions or provide an explanation to shareholders. The new Code emphasises that companies and institutional investors should enter into dialogue based on trust and mutual understanding. Companies should give helpful and informative explanations, and institutional investors should take a considered approach when evaluating them.

The Code published on 23 July incorporates the substance of Derek Higgs’ and Sir Robert Smith’s proposals. The detailed drafting reflects the consultation process. The main areas of difference are:

- modification of the Code’s structure to include not only main ‘principles’ and ‘provisions’ but also ‘supporting principles’, allowing companies greater flexibility in how they implement the Code;


- the board chairman to be able to chair the nomination committee;
- clarification of the roles of the chairman and the senior independent director (SID), emphasising the chairman’s role in providing leadership to the non-executive directors and in the communication of shareholders’ views to the board;
- for smaller listed companies below the FTSE 350, relaxation of the rule on the number of independent non-executives to 'at least two' instead of 'at least 50%'; and
- particularly rigorous review rather than special explanation when non-executive directors are re-elected beyond six years.

The intention is that provisions should be as clearly defined and verifiable as possible, so that companies can report unambiguously whether or not they have followed them. The supporting principles are cast in more general terms and leave the detailed method of implementation for companies to decide. Companies will be required, as at present, to make a statement on how they have applied the main principles, and this requirement will extend to the supporting principles as well.

The new Combined Code is available on the FRC website at http://www.frc.org.uk/combined.cfm

(B) IFAC BOARD PROPOSES CHANGES TO CODE OF ETHICS IMPACTING ACCOUNTANTS WORLDWIDE

On 21 July 2003 the International Federation of Accountants (IFAC) recommended significant changes to its Code of Ethics for Professional Accountants, expanding both the guidance and authority of the Code, which is applicable to all member bodies and to accountants worldwide.

An exposure draft of the revised Code, posted on IFAC’s website at http://www.ifac.org/EDs, proposes that the Code be elevated from a “model code” on which to base national requirements to a “standard,” requiring IFAC member body compliance. This change is part of IFAC’s overall efforts to work with its member bodies to raise the quality of practice by accountants worldwide.

The proposed revised Code specifically expands guidance for all individual accountants addressing integrity, objectivity, professional competence, confidentiality, and professional behaviour. Clearer identification of threats and safeguards are set out for professional accountants in public practice in the areas of second opinions, fees and remuneration, and custody of client assets.

The revised Code also provides new and in-depth guidance for professional accountants in business by addressing issues such as potential conflicts, preparing and reporting information, financial interests, inducements, and disclosing of information.

The exposure draft extends the principles-based approach, consistent with that used in Section 8 on Independence issued in November 2001, to the entire Code, addressing accountants both in practice and in business.

Because these proposals call for significant changes for member bodies and individual accountants, the exposure period has been extended to 120 days. Comments are requested by 30 November 2003. They may be submitted to Edcomments@ifac.org or faxed (+1-212-286-9570) to the attention of the IAASB Technical Director.

Comments may also be mailed to the Technical Director’s attention at IFAC, 545 Fifth Avenue, 14th Floor, New York, NY 10017, USA.

IFAC is the worldwide organization for the accountancy profession. Its 155 member bodies are located in 113 countries and represent over 2.4 million accountants employed in public practice, the private sector, education, and academia.

(C) SEC PUBLISHES STAFF REPORT ON PROXY PROCESS REVIEW

On 15 July 2003 the United States Securities and Exchange Commission published a report prepared by its Division of Corporation Finance concerning the Division's review of the Commission's rules and regulations regarding the nomination and election of directors. The staff report notes the need to improve the existing proxy process and recommends action in two areas: improved disclosure and improved shareholder access to the director nomination process. The report recommends the following actions:

- Require more robust disclosure of the nominating committee processes of public companies, including the consideration of candidates recommended by shareholders.
- Require specific disclosure of the processes by which shareholders may communicate with the directors of the companies in which they invest.
- Require that major, long-term shareholders (or groups of long-term shareholders) be provided access to company proxy materials to nominate directors, where there are objective criteria that indicate that shareholders may not have had adequate access to an effective proxy process. Examples of events that would trigger this access could include situations where the results of the proxy process are not acted on by companies or where there is substantial shareholder dissatisfaction with the operation of the proxy process.

SEC Chairman William H Donaldson said, "An effective proxy process has never been more important to restoring investor confidence. We have worked and continue to work with the markets to put in place listing standards and rules that increase both the role of independent directors and the voice of shareholders. The next step is to assure that the proxy process reinforces these important advances. The staff is to be commended for its work in gathering the views of the public and preparing timely and responsible recommendations. I have asked them to prepare rule proposals that would effect each of the recommendations in the report. I hope that the Commission will be able to consider such proposals as early as August with regard to the disclosure recommendations and as early as September with regard to the proxy access recommendation. I look forward to the Commission's deliberations and to public discussion regarding those proposals."

The staff report may be found on the Commission's website at http://www.sec.gov

(D) MICROSOFT TO EXPENSE STOCK OPTIONS

On 8 July 2003 Microsoft Corp announced changes in employee compensation. Starting in September 2003, employees will be granted Stock Awards instead of stock options. The Stock Award program offers employees the opportunity to earn actual shares of Microsoft stock over time, rather than options that give employees the right to purchase stock at a set price.

While many companies provide stock awards, commonly known as restricted stock units, to executives, Microsoft is one of the first major corporations in which every employee will be eligible to become a direct owner of the company through Stock Awards.

As a result of the changes in its compensation approach, Microsoft indicated that starting with its 2004 fiscal year, the company will begin expensing all equity-based compensation, including previously granted stock options.

"Because Stock Awards must be expensed as they vest, we will include the cost of all equity-based compensation in both future and prior years' financial statements to preserve year-over-year comparability," said John Connors, senior vice president, finance and administration, and chief financial officer at Microsoft. "We agree with others in our industry that there's no one-size-fits-all approach when it comes to equity compensation programs and the resultant accounting for them. Every company has a unique set of circumstances, and this is the appropriate accounting treatment for our new compensation plan."

(E) THE WORLD'S LARGEST COMPANIES

In its 14 July 2003 issue Business Week published its list of the top 1,000 companies based on the share price of these companies as at 31 May 2003. The list excludes companies from what Business Week refers to as emerging markets. About 100 companies from emerging markets (such as China, Korea, Russia, Taiwan, South Africa, Brazil and Mexico) would have made the list based on their market capitalization.

Companies from the following countries make up the top 1,000 list (2002 figures are in brackets):

Australia - 27 (19); Austria - 2 (1); Belgium - 9 (10); Britain - 77 (85); Canada - 41 (39); Denmark - 6 (6); Finland - 5 (6); France - 48 (51); Germany - 35 (35); Greece - 7 (3); Hong Kong - 18 (15); Ireland - 4 (5); Italy - 24 (24); Japan - 129 (142); Netherlands - 19 (19); New Zealand - 1 (1); Norway - 5 (5); Portugal - 4 (3); Singapore - 6 (6); Spain - 18 (15); Sweden -17 (17); Switzerland - 17 (20); and United States - 488 (473).

(F) SETTLEMENT OF SEC'S CLAIM FOR A CIVIL PENALTY AGAINST WORLDCOM

On 7 July 2003 the United States Securities and Exchange Commission announced that the United States District Court Judge Jed Rakoff issued an Opinion and Order approving the SEC's settlement with WorldCom, Inc.

In its Opinion and Order, the Court concluded that "the proposed settlement is not only fair and reasonable but as good an outcome as anyone could reasonably expect in these difficult circumstances." The Court noted that the civil penalty to be paid by WorldCom, would be "75 times greater than any prior such penalty." The Court wrote that "the Court is satisfied that the Commission has carefully reviewed all relevant considerations and has arrived at a penalty that, while taking adequate account of the magnitude of the fraud and the need for punishment and deterrence, fairly and reasonably reflects the realities of this complex situation."

In its Opinion and Order, the Court stated that the Court will enter the Final Judgment as to Monetary Relief in the form submitted by the parties. That Final Judgment provides that WorldCom is liable for a civil penalty in the amount of $2.25 billion. The Final Judgment also provides that in the event of confirmation of a plan of reorganization of WorldCom by the Bankruptcy Court, WorldCom's obligations under the Commission's judgment shall be deemed to be satisfied by the company's payment of $500 million in cash and by its transfer of common stock in the reorganized company having a value of $250 million to a distribution agent to be appointed by the District Court. Under the terms of the settlement, the funds paid and the common stock transferred by WorldCom to satisfy the Commission's judgment will be distributed to victims of the company's fraud, pursuant to Section 308 (Fair Funds For Investors) of the Sarbanes-Oxley Act of 2002. The proposed settlement remains subject to review and approval of the United States Bankruptcy Court for the Southern District of New York.

The Commission has alleged that WorldCom misled investors by overstating its income from at least as early as 1999 through the first quarter of 2002, as a result of undisclosed and improper accounting (Litigation Release No 17829).

The Commission filed its case against WorldCom on 26 June 2002, the day after WorldCom announced that it intended to restate its financial results for five quarters-all quarters in 2001 and the first quarter of 2002 (Litigation Release No 17588). The Commission also sought the appointment of a corporate monitor for WorldCom, and on 3 July, US District Judge Jed S Rakoff appointed former SEC Chairman Richard Breeden to that position.

On 26 November 2002, the Commission obtained a judgment against WorldCom through which the Commission obtained the full injunctive relief it sought against WorldCom. In addition, the judgment ordered WorldCom to undertake extensive reviews of its corporate governance and internal controls, as well as required the WorldCom to establish a training and education program for WorldCom officers and employees to minimize the possibility of future violations of the federal securities laws. The 26 November 2002 judgment explicitly left open the determination of monetary penalties to be imposed on WorldCom (Litigation Release No 17866).

Since the Commission filed its action against WorldCom, the company has made a series of announcements expanding its anticipated financial restatement due to the fraud, both in dollar amount and in time. In addition, the Commission has brought civil actions against four former employees of WorldCom. The Commission filed civil actions against former WorldCom Controller David F Myers on 26 September 2002 (Litigation Release No 17753); former WorldCom Director of General Accounting Buford "Buddy" Yates, Jr, on 7 October 2002 (Litigation Release No 17771); and Betty L Vinson and Troy M Normand, former accountants in the WorldCom's General Accounting Department, on 10 October 2002 (Litigation Release No 17783). All of these actions are pending.

In determining to enter into the settlement, the Commission considered remedial acts promptly undertaken by WorldCom and cooperation afforded the Commission staff.

The Commission acknowledges the assistance and cooperation of the US Attorney's Office for the Southern District of New York and the Federal Bureau of Investigation.

(G) ACCC ISSUES DISCUSSION PAPER ON LONGER-TERM ACCOUNTING SEPARATION RULES FOR TELSTRA

On 4 July 2003 the Australian Competition and Consumer Commission (ACCC) issued a Discussion Paper on new record keeping rules to implement a longer term accounting separation regime for Telstra. The paper raises a number of issues which need to be resolved in order to ensure a more transparent, accountable and informed regulatory market by improving the provision and disclosure of information on Telstra's operations to the ACCC, industry, the public and the Government.

The paper seeks comment on issues relating to the development of the current cost accounting and imputation testing frameworks which will apply to Telstra's longer term (post-2003) reporting under the new accounting separation regime.

The paper is available from the ACCC website at http://www.accc.gov.au under Telecommunications or from John Bahsevanoglou on (03) 9290 1949 or Carl Toohey on (03) 9290 1872.

(1) Background

On 24 September 2002 the Minister for Communications, Information Technology and the Arts, detailed a range of measures aimed at increasing the level of competition and investment in the telecommunications market to benefit consumers and business.

One of the key measures announced was the encouragement of a more transparent regulatory market by requiring an augmented system of Accounting Separation (AS) of Telstra's wholesale and retail operations. AS was seen as a means of addressing competition concerns arising from the level of vertical integration between Telstra's wholesale and retail services and improving the provision of costing and price information to the ACCC, access seekers and the public.

The Telecommunications Competition Act allows the Minister to give a Ministerial Direction to the ACCC about Telstra's wholesale and retail operations. It also provides the Minister with a power to direct the ACCC to prepare or publish reports using its existing broad record-keeping rule powers under Part XIB of the Trade Practices Act 1874.

On 10 June 2003, the Minister issued a Ministerial Direction instructing the ACCC to use its existing powers under Part XIB of the Trade Practices Act 1874 to ensure that:

- Telstra prepares current cost accounts, as well as existing historical cost accounts to provide more transparency to the ACCC about Telstra's cost as an ongoing sustainable business;


- Telstra prepares reports for the ACCC on current cost and historic cost key financial statements in respect of 'core' interconnect services;
- Telstra's reports be disclosed by the ACCC with an accompanying assessment statement by the ACCC;
- the ACCC publishes an ‘imputation’ analysis (based on information provided by Telstra, which assumes that Telstra purchases the ‘core’ interconnect services at the price that it charges external access seekers);



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