background-img

Munish Jauhar

Can Clause 49 Improve Governance?
Can Clause 49 Improve Governance?

A corporate governance system is a set of legal, regulatory, and best practice elements. It was not only popular in India but around the world. The global community (investors and lenders) is less likely to add governance risks to the country and industry risks that are already inherent in their investment portfolio. The revised Clause 49 and the Listing Agreement are needed to be viewed in the backdrop of a significant increase in capital flows across the globe.

 


Corporate Governance

Good corporate governance can increase the value of shareholders. This has motivated legislators and regulators to tone up standard practices and laws. Stock exchanges observed that a separate index of companies with high governance ratings significantly outperformed the market index.

 

International credit agencies have also incorporated corporate governance variables into their credit rating methodology. However, the most interesting development is the weightage of corporate governance in the investment selection process by fund managers as opposed to the ownership management processes that have been the most relevant so far.

 

As the calibration gets fine-tune, the global banking systems could follow portfolio capital adequacy norms with risk weights for corporate governance. Therefore, governance might be an explicit consideration for companies issuing debt and influence the corporate cost of capital.

 

Business performance measures, such as well-hones internal systems, processes, and governance standards, are essential for companies to be competitive. Indeed, corporate governance is rapidly transforming into a business consideration.

 

More independent boards have become the order of the day. A significant number of independent or non-executive board of directors are required by almost all internal and international governance codes to address this issue. Independence is also gaining momentum in all parts of the world.

 

One cannot find fault with the need for independent professionals to make qualitative contributions to the board as it takes some time to create a reservoir of such independent directors. The independent directors can ask critical questions, bring in new perspectives to risk management and strategy, and evolve board meetings into brain-storming sessions that add value.

 

Increasing business complexity has made it impractical for the board to look at the company’s financial statement in detail. Thus, the role of the audit committee must be expanded, and they must be given tasks to understand such financial statements, discuss with internal and external auditors, and review the financial and accounting policies of the company periodically.

 

Committees can perform efficiently if their members are competent professionals having an understanding of finance. Proactive companies had already appointed audit committees (that are effective) even before the advent of Clause 49.

 


Clause 49

Clause 49 of the Listing Agreement is the only comprehensive set of requirements for corporate governance for listed companies in India. There are several pitfalls in Indian corporate governance. For instance, In India, the requirement of Clause 49 is completely inappropriate due to control over directors’ remuneration. In countries other than India, directors, and management receives sky-high remuneration and perks, irrespective of the company’s performance.

 

Remuneration of directors is hardly an issue in typical promoter-driven companies in India, so with Companies Act archaic limits on managerial remuneration and sitting fees are retained.

 


CEO/CFO Certification

Corporate governance requires vigilance that introduces the requirement for CEO/CFO certification. It can be viewed as a culmination of immaculate systems and business practices.

GrayCell Technologies has created an innovative web-based solution (i.e., CEO/CFO certification application) for helping Indian companies to implement Clause 49 compliance requirements. This application utilizes the .NET technology framework that helps to simplify the implementation process of CEO/CFO certification. It has already established processes to bring changes in the controls environment of several Indian companies such as Tata Chemicals Ltd. and Nestle India Ltd.

GrayCell Technologies is an award-winning digital solution provider company having more than 16 years of experience in delivering result-driven design, development & analytics solutions. It has proven experience in a broad range of business applications that use both open source and proprietary software technologies. GrayCell’s development team ensures to offer top-notch quality solutions at a competitive price within the specified timeline.


Conclusion

Issues in Clause 49 occurs in the method and techniques and not in the concept. Rather than copying methods that are not suitable for Indian corporations, a fresh approach is needed to bring a willing and enthusiastic application of corporate governance that will benefit all stakeholders in the long run.

 

Corporate Governance in India: Has Clause 49 Made a Difference?
CORPORATE GOVERNANCE IN INDIA: HAS CLAUSE 49 MADE A DIFFERENCE?

India’s economic scenario began to alter radically with the commencement of the liberalization process. Globalization has significantly increased the number of players in the corporate market and eventually led to an increase in business risks. However, it also had a positive impact, i.e., it has compelled Indian companies to adopt international norms of transparency and good governance. Executive management is given more freedom to enhance its ability to respond to the dynamics of a fast-changing business environment. Good corporate governance practices have now become the feature of several Indian companies like ITC, Infosys, ONGC, BHEL, and RIL.

Corporate Governance

Corporate governance is a set of principles, processes, and systems for governing a company in the best interest of all stakeholders. It is committed to achieving corporate objectives by providing business values and ensuring ethical conduct. Besides, it offers the following:

  • Improved transparency in business transactions
  • Statutory and legal compliance
  • Adequate disclosures, and
  • Effective decision-making

In simple words, corporate governance is all about promoting corporate transparency and accountability. Good corporate governance means good business.
Corporate governance has been present for ages; however, it was present in a different form. In the Vedic period, kings had appointed ministers to run their state with ethics, values, principles, and laws. Today, corporate bodies are run by corporate governance with the same ethics, values, principles, and laws in more effective ways. Everything from finance, taxation, banking to the legal framework requires good corporate governance that helps corporate bodies to become global giants.

If more and more Indian companies want to access the global capital market, they need to be more transparent in their operations and financial results. It means the Indian companies need to improve their standards of corporate governance. Therefore, SEBI (Securities and Exchange Board of India) that regulates the Indian stock markets took a major step to resolve this issue and asked the Indian firms (above a particular size) to implement Clause 49.

Clause 49

Clause 49 is an agreement listed to the Indian stock exchange to improve the corporate governance in companies. As per the clause, if a company has appointed an executive chairman, then at least 50% of its board members should be independent directors. On the other hand, if the company has appointed a non-executive chairman, then at least one-third of its board members should be independent directors. The CEO and CFO must establish and maintain internal controls and implement remediation and risk mitigation towards deficiencies in internal controls. All companies must submit a quarterly compliance report to the stock exchange in the given format. Moreover, the annual report must be a detailed compliance report having a separate section on corporate governance. The company must obtain a certificate (from auditor or practicing company secretary) for meeting stipulated compliance requirements and annex it to the director’s report. The company must form an audit committee; one of the directors must be financially literate. All the companies must comply with clause 49.

Clause 49 was modified by SEBI to strengthen the responsibilities of independent directors serving on corporate boards. The revised Clause 49 incorporated certain provisions of the Sarbanes-Oxley Act that was prevalent in the US. According to the modified clause, the roles and responsibilities of the board, quality and quantity of disclosures, and accountability of top management (especially the CEO and CFO) have been enhanced. Also, the roles and responsibilities of the audit committee related to internal controls and financial reporting have been consolidated.

Compliance Solution in India

In India, GrayCell Technologies have created a web-based solution that can help companies implement Clause 49 compliance requirements. They have created the CEO/CFO certification application using the .NET technology framework to simplify the implementation of the CEO/CFO certification process. This solution has already established processes to bring changes in the controls environment of various companies such as Nestle India Ltd. and Tata Chemicals Ltd.

GrayCell Technologies is an award-winning digital solution provider company having more than 15 years of experience in delivering result-driven design, development & analytics solutions. It has proven experience in a broad range of business applications that use both open source and proprietary software technologies. GrayCell’s development team ensures to offer top-notch quality solutions at a competitive price within the specified timeline.

SOX Compliance – What Is It and Why You Need It?
SOX COMPLIANCE – WHAT IS IT AND WHY YOU NEED IT?
SOX

Sarbanes-Oxley Act, popularly known as the SOX Act, was made to protect shareholders and the public from accounting errors as well as fraudulent practices in companies by improving the accuracy of corporate disclosure.

It is essential to bring transparency in corporate governance and formalize a system of checks and balances to avoid financial scandals. Hence, all public companies must comply with the Sarbanes-Oxley Act. This act does not specify how to store the data or a data plan for companies; however, it specifies the time length and the type of records to be stored.

SOX compliance applies to

  • Public companies in the United States.
  • International companies with registered equity/debt securities in the US.
  • Any accounting firm or any third party that offers financial services to the above-mentioned businesses.

Companies must save their business records (that include electronic records and electronic messages) for at least five years to comply with SOX guidelines. Non-compliance may result in fines, imprisonment, or both.

SOX for IT Department

The SOX Act has the following two sections that require the attention of the IT department:

Section 302

It is related to the financial reporting of a company. According to section 302, the CEO/CFO of a company must certify that all records are accurate and complete. They must hold themselves responsible for all internal controls, review these controls in the past 90 days, and confirm the same. In short, there is a clear guideline for all modern businesses to ensure high-security standards are enforced.

Section 404

It specifies the requirements for the monitoring and maintenance of internal controls that are related to the accounting and finance of a company. According to section 404, businesses must have an annual audit of these controls that should be performed by another firm. In this audit, the effectiveness of all internal controls is assessed and its findings are reported.

If these sections are well-understood, it will help you in guiding the policies for your IT team, hardware implementation, and software implementation.

SOX Audit

“What data do you have?”
“What type of data do you have?”
“What precautions need to be taken for which type of data?”

SOX compliance is not possible without tools and processes to secure your data. You require written evidence of internal controls. The written evidence must state that these controls have been communicated and enforced.

You can put the right security tools and processes in place after completing your audit. The SOX audit should be done once a year. Based on your findings, you may require to update your controls. For unbiased results, the SOX audit must be performed by an outside company.

Electronic Record Management

Companies have migrated to electronic records to keep the data safe. SOX Act requires that IT departments create and maintain an archive of all corporate records. The real trick is to find the best way to keep these records manageable, cost-effective, and in compliance.

IT department need to comply with SOX guidelines due to the following concerns:

  • Managing records that may lead to issues like destruction, alteration, or falsification of records.
  • The retention period of record storage that includes the best practices for securely storing public accounts.
  • Type of business record to be stored such as electronic communications

IT department must address how to prevent falsification of records, destroy data properly (especially sensitive data) and manage alterations and versions of data. Since the data retention period depends on the data, the SOX guidelines help companies to better understand which data to keep and for how long. Some data cannot be destroyed after a certain period. Thus, the third concern of the SOX guidelines (i.e., which type of data must be stored) cannot be ignored by the SOX Act.

Data Protection & Compliance

How your company can monitor its data and enforce corporate policies for data handling?

Initiating with the proper data classification method is the key. It ensures that your data will be stored properly. When the data is classified properly, you will know what precautions must be taken for what data. Whether the data is to be encrypted and compressed or be in a certain file format depends on the data itself.

It is important to mask the data while transferring from one person/system to another. It is a part of protection and compliance. Thus, you must monitor data, enforce your policies, and log every user action.

Your company must comply with the SOX guidelines as non-compliance may lead to serious consequences.

Conclusion

SOX compliance cannot be pushed off or leave to chance; keeping up with it requires dedication. It is good to have the bandwidth for keeping your SOX compliance. You must ensure that all policies are communicated to your IT department. You can take help from an outside company that can audit, recommend tools, set up policies, and monitor data.

Do You Need SOX Compliance To Help Win New Business?
DO YOU NEED SOX COMPLIANCE TO HELP WIN NEW BUSINESS?

The US federal law passed the SOX Act, which states that the public companies in the US must comply with the regulation. SOX compliance requires companies to identify and test their internal controls over their financial reporting process and submit specific financial certifications to the Securities and Exchange Commission (SEC) quarterly and annually. Private companies that want to transform into public may also require to comply with certain requirements of SOX.

Also, non-compliance with SOX requirements may lead to the following:

  • Million dollars fines and penalties against the company, and
  • Removal from listings on public stock exchanges
Why SOX Compliance is Needed?

Let’s understand how the SOX compliance framework will help your company grow from adolescence into adulthood.

1. Make Your Business Run More Efficiently

According to the SOX compliance requirements, your business must follow the step-by-step procedure to identify the areas where serious errors are likely to occur. Proper understanding of business processes can help your organization in identifying new ways (that includes new software tools) to make these processes more efficient.

For instance, a person was working in a company having more than 60 different cash and money market accounts. At the time of the SOX compliance process, it was discovered that each month, two different people were reconciling those accounts manually. They eliminated this duplicated effort by automating this complicated process so that they have enormous time for other work. Automating this process also helped in minimizing the opportunities for internal fraud.

2. Get a more accurate picture of your business health

If your company establishes consistent processes, the gathered data (from sales to a tax bill) will become more accurate and hence, valuable. Controls drive consistency; consistency drives benchmarks.

For instance, rather than recording sales whenever a team has time, a company can establish a consistent process for recording sales at the moment a contract is signed. Consistency offers more accurate data for better decision-making and a clearer view of long-term growth.

3. Find better ways to assess employee performance

Better benchmarks lead to better performance assessments for the team. Performance measurement becomes less qualitative and more quantitative.

For instance, a company created a consistent process for recognizing sales when a contract was signed or payment was received. This process helped in eliminating the temptation for an individual or a team to pull pending sales forward to strengthen the lackluster quarter. Every salesperson was recording their sales the same way and while comparing performance across the team, it was found that the comparison was fair and accurate.

4. Make it Possible to Scale

Small and big companies are driven by people and systems respectively. For informal processes, individuals can keep essential information in their heads. For instance, the VP of tax knows every small detail about a company’s tax position. If processes are not consistent and repeatable, then everything will be personally run by the VP. However, think of a situation when the VP is absent due to any reason.

Creating systems enable businesses to slot new people into key roles, whenever required. If your business has clear systems and everything is well-documented, it is much easier to grow a department quickly as new people will be able to hit the ground running.

5. Start the Cultural Shift from a Startup Mentality to a Mature Company

It was observed that when the SOX compliance process took through a company, the VP of tax got fed up with the new paperwork requirements and started to complain.

Running a business is not easy. However, some people love the all-night hackathons of the startup phase but will find it tedious to work in a more formal company. When a public company starts to establish systems, it will need early help to identify such people and either change their minds or exit them. When the company becomes public, everybody must be fully aligned and pulling in sync. SOX compliance can help companies tackle those essential people issues early so that they are ready for their next phase of growth.

Final Thought

Although SOX compliance is costly to organizations, it provides benefits to the company. Implementation of SOX compliance helps to build a strong internal control environment that enhances confidence in company internal financial reporting, reduce fraud risk, and improve corporate governance. It eventually helps companies to win new businesses.