قانون 25 قديم و يحتاج لبعض التجديد لمواكبة العصر لا شك فى ذلك لكنه قانون جيد و كونه يعطى اصحاب الاسهم الكثيرة حق السيطرة فهذا منطقى لانهم اصحاب راس المال والمتضرر الاكبر اذا استلم اصحاب الاسهم الاقل الادارة و بددوا المال و نعت القانون بالاستعمارى فهذا فيه اجحاف لانه تقريبا يشابه معظم قوانين الشركات فى باقى دول العالم وحتى فى السعودية و المسؤلية المحدودة جزء اصيل و معروف فيها و السودان اصلا لم يكن فيه قانون للشركات قبل الانجليز بل لم يكن فيه شركات بالمعنى الحديث واما عن الربط بين تحذير القران عن ان لا يكون المال دولة بين الاغنياء و بين قانون الشركات لسنة 1925 والزععم بانه قائم على المبدأ الرأسمالى الإستعمارى ولا يتمشى مع التوجه الإسلامى و المساواة فى المغرم والمغنم كما فى شركات العنان فهذا حديث لا سند له وفيه مزايدة و لا ارى تعارض بين القانون و الشريعة وليس كل ما يأتى من الغرب يضرنا بدليل استخدامك للانترنت لعرض و جهت نظرك ,,
أتفق تماما مع كاتب التعليق, فالجوء الى نظرية الموامرة خطا بالغ من أن ألاستعمار وضع ألسم فى الدسم فالانجليز عندما وضعو القوانين والمشاريع لم يكن فى حساباتهم أنهم سيتركو البلد يوما ما و بالتالى لم يراعو الجودة فيما قامو بة من مشاريع وقوانين,هذا خطا ومشروع ألجزيرة شاهدا, فكرة الشركة ذات المسؤلية المحدودة لاتوجد في إلاقتصاد الاسلامى , فهى فكرة عبقرية هولندية ظهرت مع ألاستكشافات لامريكا و الشرق الاقصى لجمع الاموال الضخمة لتمويل الاساطيل التجارية المتجهة للشرق الاقصى والادنى لجلب التوابل.
القانونالانجليزى هو نفس القانون السوداىى مع تعديلات فى التفاصيل,
العيب ليس فى القانون وانما فى التطبيق السليم وعدم تفعيل مايسمى فى قانون الشركات ,,بالادارة المؤسسية أو إدارة المؤسسة CORPORATE GOVERNANCE,, ودى أمكن تكون مشكلة إدارة السودان كلو كبلد فى عدم تفعيل هذا ألمبدأ.
أرسل بحثي فى هذا الموضوع بالغة ألانجليزية أسف لعدم وجود نسخة عربية , بعنوان دراسة مقارنة بين القانون ألانجليزى وألاماراتي فى إدارة المؤسسات, وهو لم يكتمل بعد ولم ينقح فالمعذرة .
بابكر كباشى التنى
مستشار سابق بالمسجل ألتجارى للشركات
Corporate governance is the "system, which companies are directed and controlled" (Cadbury Committee, 1992). Is set rules the relations between the company's external stakeholders - the shareholders, creditors, customers, suppliers, communities, and government affected by the activities of the company internal stakeholders - the Board of Directors, executives non- executive directors and employees.
It deals to prevent the conflicts of interests of stakeholders  how to mitigate or prevent such conflicts of interest include processes, customs, policies, laws, and institutions that affect how the control is in the company. [2
Corporate governance practices in different countries influenced by mix of law, culture, and custom, the recent financial crises, and the fall down of some of the world biggest corporation. The following study overview, analyses, and highlights a number of areas where it makes corporate governance in the UK different from that of U.A.E (United Arab Emirates). Answers below will cover public joint stock companies whose shares are eligible for listing on one of the two of the UAE stoke exchanges. Public joint stock companies and private joint stock companies are sharing a similar regulatory regime. In this essay, we will analyse the extent to which Corporate Governance in the U.K. differs from that in U.A.E and evaluate specific instances where distinctions can identified.
One of the main features of the differences is in UK there is only one corporate governance code which apply on both public and private companies but in UAE there are two corporate governance codes, one code regulations relevant to corporate governance in Dubai International Financial Centre , (The Corporate Governance Code For Small and Medium Enterprises). For the purposes of the Code, an small and medium enterprises is defined as one with a turnover of less than 250 million UAE dirhams and with fewer than 250 employees and that due to the nature of the commercial activity in Dubai ‘free zoon area’.
In this survey we will not cover companies established in the Dubai Financial Centre eligible for listing on the Dubai International Financial Centre Securities exchange which is organised under a separate common law regime within the UAE stats.
The UK corporate governance regime has begun with the Cadbury Code in 1992; these recommendations added to at regular intervals since that date. In 1995, the Greenbury Report set out recommendations on the remuneration of directors. In 1998, the Hampel Report brought the Cadbury and Greenbury Reports together and the Combined Code issued. In 1999, the Turnbull Guidance on internal control issued for directors. Following the Enron and WorldCom scandals, the Combined Code updated in 2003 to include the recommendations of the Higgs Report on non-executive directors and the Smith Report on audit committees. Further small amendments made to the Combined Code in 2006, 2008, 2010.
In United Arab Emirates, the corporate governance has been regulated by the UAE Commercial Companies Law 1984 (the "Commercial Companies Law") however it only applies to companies incorporated in the UAE and not to the foreign companies for the most part. In 2007, the Security and Commodities Authority's issued the Decision No. R/32 of 2007 on Corporate Governance expanding the ambit of application of corporate governance regime to any joint-stock company established in the UAE or any company listed on a securities market licensed in the UAE by the SCA.
Currently UAE has two stock exchanges; the Abu Dhabi Securities Exchange and the Dubai Financial Market in which the joint stock companies are listed. #3
The Code went under further revision and amendment by the Minister of Economy issuing the Ministerial Resolution No. 518 of 2009 concerning Governance Rules and Corporate Discipline Standards (the New Code) #4 The New Code of U.A.E in Article 2, all companies and institutions whose securities have been listed on a securities market in the UAE and their board members are obligated to comply with the New Code, however the New Code may not apply to companies and institutions that are wholly owned by the Federal Government or the local government. It further gives the SCA the discretion to grant exemption from certain provisions to companies that subscribed by the government, that in contrast with U.K code that applies to all company regardless who subscribed in the company.
The U.A.E New Code does not apply to Private Joint Stock Companies 19# on the contrary to U.K code apply to private and public companies.
The compliance with the U.A.E New Code by the public joint stock companies made mandatory (similar to the American corporate governance code). As per Article 13, The UAE adopts a strict and authoritarian approach in contrast to UK, which adopts a 'comply and explain' approach putting the responsibility squarely on the company. The U.A.E New Code imposes penalties on breach and non-compliance of any of its provision including warning, suspension of company's security listing and delisting, however U.K code in case of non- comply all is asking for an explanation of why the code has not been adopted but this principle of comply or explain classified as soft approach is not insignificant as there are powerful market force at work to ensure compliance rather than allowing public listed companies to explain why they are not complying. 6 #
The UAE new code requires a governance report in the prescribed form published and send to SCA on an annual base or upon request. The information required will include statement as to the company’s corporate governance principles, violation of the new code( include causes and method of remedy and avoidance in the future) and information on the board and CEO 20# companies are there for required to monitor their own compliance with the new code on an on -going bases and notify the SCA of any violation or breaches of the new code. Such information may result in SCA imposing some form of penalty on the relevant company. (#Article 14 of the new code) In U.K, code article similar to this is not exist.7#
Article B.2.1 There should be a nomination committee, which should lead the process for board appointments and makes recommendations to the board. Majority of members of the nomination committee should be independent non-executive directors. The chairman or an independent non-executive director should chair the committee. Moreover, with due regard for the benefits of diversity on the board, including gender. (B.2) The U.A.E new code mentioned the nomination committee but without the effectiveness exist in the U.K code as well as the U.A.E new code did not mentioned any diversity regard the gender on board formulation.
In the second part of this essay, we will compare and analyse the extent to which corporate governance in the two jurisdictions has addressed the level of protection available to stakeholders.
As a result of the introduction of C.A 2006 the separation of ownership and control in the sense of management become clear and that distinguish U.K corporate governance from most countries,1(corporate ownership and control pg1) as described by a British financial journalist “ Full divorce between ownership and control is a British obsession” 10#
IN spite of C.A 2006 reduce the capacity of the shareholders to interfere in a company management especially the minority (after C.A 2006 abolished the need of stating the company objects in the article of association), the minority members can seek an injunction order to prohibit the company from dealing on the activities that restricted, bear in mind the minority accessibility to the court may not be justified if the claim lacks merit particularly where the majority were not in support. While personal right of minority protected through the courts. 11# in order to address the imbalance of power between majority and minority shareholders and to secure protection for minority shareholders, there are a number of protections afforded to minority shareholders, contained mainly in the Companies Act 2006. 8 #
It is a well-established principal that the proper Claimant in an action for a wrong that alleged to be done to the company is the company itself; and if the alleged wrong is a matter, which the company could settle, itself then no individual [shareholder] may bring an action. This is called the rule in Foss and Harbottle ((1843) 1 Hare 461 (Chancery)).
Nevertheless, what if a wrong to the company directly affects a shareholder? This is addressed as an exception to the rule in Foss & Harbottle which recognised that the shareholders in a company acting alone or as a group are permitted to pursue a claim if they are successful the shareholders will obtain a remedy for the benefit of the company and not directly to themselves although, presumably, they will derive indirect benefit from having the wrong rectified.
Under Section 260 of the Companies Act 2006, shareholders are given the right to bring a derivative action, which replaces the common law exceptions to the rule of Foss & Harbottle that shareholders previously had to rely on. The law even open the door wide for the shareholders by another exception to the common law ‘Doctrine of estoppel’ stating that if the cause of action arose before the claimant become member of the company could bring a derivative claim, and the norm of estoppel prevent the person from agree and accept something in the beginning and later opposite it. Section 260(4).
Section 260(3) provides that a derivative claim may be brought only in respect of a cause of action arising from an actual or a proposed act or omission involving negligence, default, breach of duty, or breach of trust by a director of the company.
Protection against Unfair Prejudice
Under Section 994(1) of the Companies Act 2006, a company shareholder may petition the court for an Order protecting him from unfair prejudice on the ground:
(a) That the company's affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of shareholders generally or some part of its members (including at least himself), or
(b) That an actual or proposed act or omission of the company is or would be so prejudicial.
The remedy most often sought under a Section 994 Petition is that the other shareholders buy their shares for a fair value. However, this is not the only potential outcome of a Petition because the court has complete discretion as to the remedy it grants. As an alternative, it may make an order that the minority shareholder purchases the majority shareholding. It can order repayment of any monies found wrongfully taken out of the company by those in control of it and, as a last resort, the court has the power to wind up the company on just an equitable grounds.
100) As an equitable remedy, this will only be granted if the applicant who is seeking it has had no part in the matters that he complains of. This called coming to the court with ‘clean hands' 9 #
The combined code1998 and 2010 introduce a best practice and principle of corporate governance albeit not legally binding but was seen as removing the need for recourse to the courts or reliance on statutory right when the conflict emerge 21# companies are obliged to either comply with corporate governance best practice or explain why they have not done so 'comply or explain' system. That means full explanation to shareholders so that they can judge whether the choice is acceptable. 22#) the flexible approach provided by the ‘comply or explain’ is a great strength and adopted in many countries.
The UK's corporate governance policies base on the core belief that shareholders who should hold the deciding vote when it comes to determining whether a company's governance policies are adequate. 12 #
UK shareholders enjoy more rights than investors in many other jurisdictions. There is a universal one-share, one-vote standard, shareholders may put forward their own resolutions and nominate candidates at annual general shareholder meetings, and they enjoy an annual advisory vote on executive remuneration policy (the so-called 'say-on-pay' vote). Shareholders also enjoy pre-emptive rights over new share issues and may themselves convene AGMs. 13 #
In U.K, every company must appoint an auditors for each financial year, unless the directors reasonably chose not in the ground that audited accounts are unlikely to be required in instance of small companies or dormant company or non-profit making companies they are audit by Auditor General, for a person appointed, as company auditor must be:
# a member of recognised supervisory body and,
# eligible for appointment under the rule of that body.
The company who fail to appoint an auditor it must give notice to Secretary of state otherwise will face criminal charges and the Secretary of State have the power to appoint one. (14 # Is criminal offence to act as auditor if ineligible. 15#
The Combined Code also includes provisions on the composition and role of the audit committee and these are fully compatible with the Listing Rule requirements. The Combined Code recommends audit committees be comprised of at least three members, all of whom should be independent non-executive directors and one of whom should have recent and relevant financial experience.
Public companies designed and bound by law to maximise financial value for their shareholders. Increasingly, companies are recognising that in order to maximise value in the long run, they need to pay due regard to environmental and social issues and manage them effectively.
UK-based public companies now required by law to report annually on environmental, social and community issues, to the extent that they are relevant to the business of their company. 16 #
The New Code also provides the companies to apply environmental and social policies requiring greater corporate social responsibility.
The obligation on the auditor as section 496 of the Companies Act (2006) state; the auditor “must state in his report on the company’s annual accounts whether in his opinion the information given in the directors’ report for the financial year for which the accounts are prepared is consistent with those accounts.” The provisions which do apply to the quality of reporting hold directors liable for loss to the company suffered as a result of any untrue or misleading statements in the directors’ report 23#. Personal liability also attaches to directors if they fail to disclose relevant information to the company’s auditor or if they fail to take all relevant steps to do so 24#.
A related issue, which attracted attention and require disclosure of “information about persons with whom the company has contractual or other arrangements which are essential to the business of the company” 25#
Takeovers in UK are regulated by the takeover panel (Panel on Takeovers and Mergers), a quasi-public body that supervise the bid and adjudicates disputes during takeovers. The panel have a power to apply to court for an order to secure compliance with it rule, or may take legal action in its own name in spite being unincorporated 18#
Boards of Directors
UK listed boards combine executives and independent, non-executive directors (NEDs). The Combined Code recommends that at least half the board, excluding the chairman, comprises independent NEDs. The Code also recommends that there is a clear division of responsibilities at the head of the company and so practically all boards separate the roles of chairman and chief executive. Many boards have also appointed a "senior independent director" in addition to the chairman, whose role is, among other things, to act as an additional channel of communication between the board and shareholders. 26# Most boards maintain an audit committee, a remuneration (compensation) committee and a nomination committee.
The UK becomes as a leader in the "comply or explain" corporate governance regime. Beginning with the Cadbury Code in 1992, these recommendations added to at regular intervals since that date. In 1995, the Greenbury Report set out recommendations on the remuneration of directors. In 1998, the Hampel Report brought the Cadbury and Greenbury Reports together and the Combined Code issued. In 1999, the Turnbull Guidance on internal control issued for directors. Following the Enron and WorldCom scandals, the Combined Code updated in 2003 to include the recommendations of the Higgs Report on non-executive directors and the Smith Report on audit committees. Further small amendments made to the Combined Code in 2006, 2008, 2010 but the "comply or explain" regime retains throughout.
Executive pay remains a topic of considerable debate in the UK. Investors, led by the NAPF and the ABI, keep close watch on pay schemes that exceed accepted norms. Share option schemes are common, as are restricted share unit schemes. Service contracts for chief executives also watched to ensure that pay outs on departure do not exceed one year's remuneration. but are becoming increasingly common in the current economic climate when so-called "rewards for failure" are being heavily criticised. Lloyds makes £3.5bn loss but pays out £375million bonus.
Disclosure Requirements of Public Companies
Section 420 of Companies Act (CA) 2006 requires a director's remuneration report to prepare by the directors of a public company. Section 422 of the CA 2006 requires an approval of the director's remuneration report by the board and signed by a director or the company secretary. Failure to comply with these requirements is a criminal offence as is the approval of the report knowingly or reckless as to whether it complies with the requirements of the act.
Role of Institutional Investors
While share-ownership is not highly concentrated, (ownership stakes of more than 5 per cent of listed companies are uncommon), institutional investors play a large role in their on-going discussions with management. Many investors follow the lead of the Association of British Insurers and National Association of Pension Funds, who both produce guidance for UK boardrooms. Institutional engagement has increased in recent years; however, it remains behind the scenes more often than in the press. Since the credit crisis, there has been some criticism that shareholders could have done more to prevent abuses by holding management to account. this area needs revise to make shore what I have stated down is it applicable or just proposal).
To encourage boards to be well balanced and avoid “group think” there are new principles on the composition and selection of the board, including the need to appoint members on merit, against objective criteria, and with due regard for the benefits of diversity, including gender diversity.
To help enhance the board’s performance and awareness of its strengths and weaknesses, the chairman should hold regular development reviews with each director and FTSE 350 companies should have externally facilitated board effectiveness reviews at least every three years.
The changes that seem most likely to be contentious and attract most debate relate to the annual re-election of directors and the move to encourage boards to consider diversity, including gender, in board appointments.
Annual re-election of directors
According to Rachel Sanderson and Kate Burgess, in their article ‘Directors must be re-elected annually’ 27# the annual re-election of directors in FTSE 350 companies is the most controversial aspect of the Code. They state ‘Critics, including the Institute of Directors, have said it will encourage short-termism and be disruptive. Those in favour have said it will make boards more accountable to shareholders.
The widespread concern about the underperformance of some UK board directors prior to, and during, the recent financial crisis no doubt led to increased support for the idea of the annual re-election of directors.
The boards are now encouraged to consider the benefits of diversity, including gender, to try to ensure a well-balanced board and avoid ‘group think’. (To encourage boards to be well balanced and avoid “group think” there are new principles on the composition and selection of the board, including the need to appoint members on merit, against objective criteria, and with due regard for the benefits of diversity, including gender diversity.)28#
During the discussion of related but separate focus on the impact of a system of corporate governance to achieve economic efficiency, with a strong emphasis on the welfare of shareholders, and this is present, especially in the debates and contemporary developments in the rules of public policy (regulatory policy and regulation).