2012年-世界发展银行全球_Corporate_Governance_Country_Assessment___Brazil_64页_1mb

Corporate Governance Country Assessment: Brazil (June 2012)

Core Content

This report provides a comprehensive assessment of corporate governance in Brazil, focusing on the legal and regulatory framework, practices, and enforcement mechanisms in relation to the OECD Principles of Corporate Governance. It is an update of the 2005 Corporate Governance ROSC and highlights recent developments, challenges, and policy recommendations.

Main Findings

Commitment and Enforcement

• Regulatory Reforms: Brazil has made significant progress in corporate governance, particularly through the establishment of special listing tiers on the BM&FBOVESPA stock exchange (Novo Mercado and Level 2).
• CVM's Role: The Comissão de Valores Mobiliários (CVM) has been active in introducing new regulations and improving enforcement, notably through Instructions 480 and 481 in 2009, which enhanced financial and non-financial disclosure requirements.
• Legal Framework: The legal framework now aligns with many OECD disclosure principles, although the absence of a mandated corporate governance code remains a gap.
• Enforcement Challenges: Despite improvements, the enforcement of corporate governance standards is uneven, and legal mechanisms for minority shareholder protection are still limited.

Shareholder Rights

• Voting Rights: Shareholders have the right to participate in general meetings, and minority shareholders can appoint board members and require cumulative voting for 10% shareholders.
• Pre-emptive Rights: Shareholders have the right to pre-emptive rights for capital increases, though these are not required for public offerings.
• Takeover Rules: A mandatory tender offer is required for 50% or more of shares, but non-voting shareholders are not included in the offer, leading to concerns about fairness and transparency.
• Legal Actions: Shareholders can sue directors and executives, similar to US derivative lawsuits, but the process is often hindered by the court system.

Disclosure and Transparency

• IFRS Adoption: Since 2007, all listed companies must prepare consolidated financial statements under IFRS.
• CVM Instruction 480: This regulation requires companies to complete a comprehensive "Reference Form" with detailed disclosure items, which is more extensive than the "comply or explain" approach used elsewhere.
• CODIM's Role: CODIM is working on guidelines to assist in preparing these forms.
• Compliance Issues: Compliance with the Reference Form is uneven, and some companies have raised concerns about the complexity of the requirements.

Board Practices and Company Oversight

• Board Composition: Most listed companies in Brazil have unitary boards, and some have a conselho fiscal (statutory audit board) with oversight responsibilities.
• Independent Directors: Novo Mercado and Level 2 companies must have at least 20% independent directors, though many traditional companies do not have independent members.
• Board Responsibilities: Directors have fiduciary duties to act in the company's best interest, but in practice, they often prioritize the interests of the controlling shareholder.
• Committees: Audit committees are required for banks, and CVM has introduced incentives to promote their formation. However, board committees in general are underdeveloped.

Special Issues in the Banking Sector

• Banking Sector Oversight: The banking sector has its own governance codes and self-regulatory bodies, such as ANBIMA and AMEC.
• Shareholder Rights: Banks are subject to specific governance rules, including the requirement for independent directors and board committees.
• Disclosure: Banks must comply with the same disclosure requirements as other listed companies, but the application of these rules is not always consistent.

Implementation of the 2005 CG ROSC

• The 2005 Corporate Governance ROSC was updated in 2012, reflecting the evolution of corporate governance standards in Brazil.
• The assessment highlights that while the legal and regulatory framework has improved, enforcement and compliance remain uneven.

Key Recommendations

1. Establish a True Audit Committee: The current framework lacks a mandatory audit committee, which is standard in most countries. A rationale should be developed to justify the need for such a committee, and CVM should be granted legal authority to enforce its implementation.
2. Increase CVM Resources: Allocate more resources to the CVM, particularly to the Corporate Finance Department, to improve oversight and enforcement.
3. Update Disclosure Requirements: Refine Instructions 480 and 481 to ensure full alignment with OECD Principles.
4. Strengthen Minority Shareholder Protection: Continue to improve legal protections for minority investors, especially in the context of takeovers and restructuring.
5. Amend Corporate Law: Long-term improvements in corporate governance and shareholder protection will require significant amendments to the Corporate Law.

Ownership Structure

• Concentrated Ownership: Most large companies are owned by a few major shareholders, including families, large blockholders, foreign multinationals, and the state.
• Impact on Governance: Concentrated ownership increases the risk for minority shareholders and discourages broader shareholder participation.
• Novo Mercado Influence: The introduction of the Novo Mercado listing tiers has driven improvements in corporate governance and shareholder rights, but not all companies have adopted these standards.

Market Development

• Equity Market Growth: The Brazilian equity market has grown significantly over the past decade, with a market capitalization of US$1.23 trillion by the end of 2011, representing 49.6% of GDP.
• Market Liquidity: Average daily trading value has increased by nearly 600% from US$667 million (2005) to US$3.89 billion (2011).
• Listing Trends: The number of listed companies has grown, but Brazil still lags behind other emerging markets in terms of the number of companies listed.

Conclusion

The report concludes that while Brazil has made notable progress in corporate governance, especially through the Novo Mercado initiative, further reforms are needed to strengthen legal protections for minority shareholders, improve disclosure standards, and enhance board accountability. The continued development of corporate governance frameworks is essential for attracting foreign investment and ensuring the long-term stability and growth of the Brazilian capital markets.