A guide for directors of subsidiary companies in Hong Kong. August 2011

Transcription

1 A guide for directors of subsidiary companies in Hong Kong August 2011

2 Dear reader, Welcome to our guide for directors and prospective directors of subsidiary companies in Hong Kong. While the duties of a subsidiary company s directors often coincide with the strategy and requirements of the parent company, this is not always the case. Depending on the jurisdiction or the circumstances, a subsidiary company s directors may need to act independently of the parent. The directors may also risk personal liability. Increasingly, for example, regulators and enforcement agencies around the world are taking a much tougher line on bribery, corruption and cartel abuses. So directors will wish to know the extent to which they can be protected against these risks, for example through being indemnified and/or insured. We hope you find this guide useful as an introduction to your role as director. Kind regards, Barry O Brien Co-chair Corporate governance client solutions group Andreas Fabritius Co-chair Corporate governance client solutions group Robert Ashworth Asia regional managing partner

3 Contents The regulatory framework for directors duties and corporate governance 1 What is the regulatory framework for unlisted private companies incorporated in Hong Kong? 1 General duties 2 Where do these duties come from and to whom do I owe them? 2 What are my general duties? 2 Do these duties apply if I am a non-executive director? 3 What are the consequences if I breach these duties? 4 Conflicts 5 What are my duties relating to conflicts? 5 What are the types of conflict to which I should pay particular attention? 5 Are only my interests taken into account? What about connected persons? 5 Am I expected to be aware of conflicts? 6 What practical steps can I take to deal with conflicts? 6 The environment, health and safety and competition 7 What are my obligations towards the environment? 7 What are my obligations for health and safety? 7 What are my obligations concerning competition law? 7 Restricted transactions 9 Are there restrictions on particular transactions between me and the company? 9 What about the company giving me a loan? 9 Insolvency 10 To whom do I owe my duties in an insolvency situation? 10 Is there a concept of wrongful trading in Hong Kong corporate insolvency legislation? 10 What practical steps can I take if my company s solvency is in question? 10 What if I sit on the board of two companies within the same group and one of those companies is in financial trouble? 10 Indemnification, insurance and ratification 12 What do I need protection from? 12 Is it possible for the company to indemnify me against liabilities? 12 Where should the indemnity be given? 12 What about insurance? 12 Is it possible for shareholders to ratify a breach of duty that I committed? 13 Recent developments companies ordinance rewrite 14 Contacts For further information please contact Robert Ashworth T E robert.ashworthi@freshfields.com This material is for general information only and is not intended to provide legal advice. Freshfields Bruckhaus Deringer LLP 2011

4 THE REGULATORY FRAMEWORK FOR DIRECTORS DUTIES AND CORPORATE GOVERNANCE What is the regulatory framework for unlisted private companies incorporated in Hong Kong? Constitutional documents. These include the memorandum and articles of association. Companies Ordinance. This sets out the main statutory rules governing your role as a director of a Hong Kong company. It supplements but does not replace your duties at common law (see General duties). Securities and Futures Ordinance. This is of wide application, including to companies involved in financial services and companies offering securities and/or promoting investment opportunities. It is the key legislation governing the Hong Kong securities market. Common law. As well as statutes, regulations and general guidance, a company must comply with common law principles. 1 Freshfields Bruckhaus Deringer LLP, August 2011

5 GENERAL DUTIES Where do these duties come from and to whom do I owe them? The duties originally came from common law, and were derived from case law developed over many years. There are ongoing proposals to codify the duties partially, but even if the proposals are adopted and the duties appear in a statute, the courts will still have regard to the common law when interpreting them. You owe the duties to your company and not to other group companies or individual shareholders or groups of shareholders. You do not owe them to the parent company or person who nominated and appointed you. What are my general duties? There are a number of general duties. You must: act in good faith in the best interests of the company. This normally means the interests of the shareholders as a whole, including present and future shareholders. In evaluating whether any particular course of action is for the benefit of the company, you should consider (among other matters): the long-term as well as short-term consequences of your decisions for the company and for the shareholders as a whole; the impact of your decisions in a wider context (eg on the community and environment); and the desirability of maintaining a reputation for high standards of business conduct and a good compliance culture. As a matter of best practice, you should also consider: the interest of the company s employees; the need to foster the company s business relationships with suppliers, customers and others; and the need to act fairly as between members of the company. The Companies Ordinance does not expressly require the board minutes to record that these factors were considered, but some companies may have more detailed provisions in their articles of association. It is usually good practice to include a written reference to directors having considered the factors as evidence that they did this; act within your powers and for appropriate purposes. This means exercising your powers in line with the company s constitution and for the purpose for which they were conferred. For example, although you may consider that it would promote the company s success to allot shares, this power cannot be used to entrench you in office or to deprive an existing majority of its majority position. You could be liable for a breach of your duty to act for a proper purpose, even though you are acting in good faith; 2 Freshfields Bruckhaus Deringer LLP, August 2011

6 exercise independent judgement. You can seek advice from, and where appropriate rely on the judgement of, external advisers and others in areas in which you are not expert. You are also able to delegate matters to committees. However, delegation to others or engagement of professional advisers does not exonerate you from your duty to exercise your own judgement to decide whether to follow particular advice or to accept someone else s judgement on a matter; exercise reasonable care, skill and diligence. You may be taken to have both the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as you, and your own knowledge, skill and experience. The first requirement is an objective test, while the second looks to your own particular knowledge, skill and experience. Even if you have delegated parts of your duties to others (such as professional advisers), it remains your duty to supervise the person you have delegated to and make enquiries as circumstances require; avoid conflicts of interest. You must avoid a situation in which you have, or could have, a direct or indirect interest or duty that conflicts or possibly may conflict with the interest of the company (see Conflicts); not take advantage of your position as a director. You must not use your position as a director for your own benefit (directly or indirectly). This includes using for a personal gain any information that has become available to you in the course of your duties as a director, or any property of the company; not accept benefits from third parties, unless the acceptance of the benefit cannot reasonably be regarded as likely to give rise to a conflict of interest; and disclose any material interest (whether direct or indirect) in a contract or proposed contract with the company. You must declare the nature of your interest at the earliest meeting of the directors at which it is practicable for you to do so (even if such contract is not being considered at the meeting). Do these duties apply if I am a non-executive director? The duties owed by a non-executive director are, in substance, no different from those owed by an executive director, because the statutory statement of general duties applies to both. In practice, however, a non-executive director s exposure may be reduced because the terms governing his office (for example in the form of a service contract) will likely set out a narrower range of functions that he is expected to perform. The common law acknowledges that although a non-executive director will play a lesser role in a company s management, they always have a duty of inquiry if circumstances demand. Therefore, if you are a non-executive director, you cannot hope to absolve yourself of responsibility simply by claiming you did not have relevant knowledge. 3 Freshfields Bruckhaus Deringer LLP, August 2011

7 What are the consequences if I breach these duties? You may: be personally liable to compensate the company for a loss caused as a result of a breach; have to restore company property; have to account for profits made or received; and have to rescind a contract that has been entered into if there is a conflict of interest. Under the Companies Ordinance, there is also a statutory right for shareholders to sue directors, in the company s name, to recover any loss the company has suffered as a result of the directors negligence, default, breach of duty or breach of trust. This right is known as a derivative action. 4 Freshfields Bruckhaus Deringer LLP, August 2011

8 CONFLICTS What are my duties relating to conflicts? Under common law principles, you are under a general duty not to put yourself in a position of conflict between your duties as a director and your personal interests. This principle may be manifested in many ways, for example in the rule that you must not use for your personal gain any property, information or opportunity that has become available to you because of your position as a director. What are the types of conflict to which I should pay particular attention? The following are some typical cases where you should be aware of potential conflict: if you have multiple directorships if you sit on more than one board you are advised to have all your directorships authorised by the shareholders of the relevant companies; if you are a shareholder in a competing company or a company that is an actual or potential customer of, or supplier to, your company; if you own a property adjacent to your company s property or otherwise of value to your company that could affect, or be affected by, your company s activities; if you have an advisory relationship (eg financial, accountancy, legal or consultancy) with your company or have an interest in an advisory firm; if you are a trustee of your company s pension scheme or a director of its trustee company; if you are in a position to take up an opportunity that has been offered to your company even if your company has declined it or are in a position to make a profit as a result of your directorship; or if you are offered a role by a potential bidder for your company. These examples are not exhaustive you should only use them as a prompt to consider the types of situations in which shareholders informed consent is called for. The safest approach is for all actual and potential conflicts to be authorised by the shareholders in general meeting if there is any doubt. Are only my interests taken into account? What about connected persons? In some cases, the interest or duty of someone who is connected with you may be treated as your indirect interest or as giving rise to a conflict of interest or duty. This will be a question of fact in some circumstances there may be scope for arguing that it is not your indirect interest, but in most cases it will be safer to assume that it may be. 5 Freshfields Bruckhaus Deringer LLP, August 2011

9 The categories of connected person may include: family members, including a spouse (or co-habitee), children and parents; bodies corporate under your control; and trustees of a trust of which you (or a family member or a body corporate with which you are connected) are a beneficiary. Am I expected to be aware of conflicts? There is no breach of your duties relating to conflicts if you are not aware of an interest or are not aware of the transaction or arrangement but you are treated as aware of all matters of which you ought reasonably to be aware if you had made appropriate enquiries. This will depend on the facts. What practical steps can I take to deal with conflicts? Under the Companies Ordinance, you are required to declare any material interest in a transaction with the company. Declaration of a transaction does not by itself validate a contract or arrangement that contravenes the general duty to avoid a conflict of interest and, in appropriate cases, the transaction may need to be approved by shareholders to avoid any allegations of breach of duty. At the board level, you are generally not allowed to vote on the relevant contract, nor will you be counted in the quorum at the meeting. If a potential conflict actually materialises, you should notify your company immediately. You should also advise your company if you have any direct or indirect interests in existing or proposed transactions or arrangements with your company that have not already been disclosed to the board. If you have given general notice to the board that you are to be regarded as interested in a contract by reason of the facts stated in the notice, you are not required to disclose again each time such a contract is proposed. If a specific conflict arises, particularly in sensitive areas, such as a possible takeover bid, you should seek independent advice. If you cannot disclose the conflict and obtain shareholders authorisation, it may be necessary for you to absent yourself from relevant board discussions or even resign. 6 Freshfields Bruckhaus Deringer LLP, August 2011

10 THE ENVIRONMENT, HEALTH AND SAFETY AND COMPETITION What are my obligations towards the environment? You should be aware of any environmental legislation applicable to the company s business in all jurisdictions in which it operates. Shareholder activism, facilitated by the availability of the derivative action procedure, is commonly focused on the impact of companies on the environment and local communities. Even companies operating outside industries associated with obvious environmental risks can be affected by environmental legislation due, for example, to the presence of historical contamination that requires remediation or even to the amount of energy they use. Committing pollution offences may give rise to criminal liability punishable by a fine or imprisonment or both, depending on the nature and gravity of the offence. Civil liability may also arise under common law, leading to claims for damages or injunctive relief. In extreme cases, personal liability can be imposed on you for breaches of environmental law if your own acts or omissions have brought about the commission of the offence. What are my obligations for health and safety? You should comply with any health and safety legislation applicable in all jurisdictions in which the company operates. If your office premises are in Hong Kong, you must observe the requirements of the Occupational Safety and Health Ordinance, which imposes a duty on every employer to ensure, among other things, the safety and health at work of all the employees. This includes: providing workplaces and systems of work that are safe and without risks to health; putting in place safe procedures for the use, handling storage or transport of substances; and providing relevant information, instruction and training. If your company is convicted of an offence against the Occupational Safety and Health Ordinance and it is proved that the offence was committed with your consent or connivance, or was attributable to any neglect on your part, you will also be held guilty of the relevant offence. What are my obligations concerning competition law? You should comply with any anti-monopoly or anti-trust legislation applicable in all jurisdictions in which your company operates. If your company has businesses in China, its activities must comply with the Anti-Monopoly Law that came into force on 1 August With this, the Chinese government launched a new merger control regime and 7 Freshfields Bruckhaus Deringer LLP, August 2011

11 a merger review process with significant impact on domestic as well as cross-border merger activities. If your company s business is in Hong Kong, your competition law obligations will come mainly from the sector-specific competition laws, chiefly in the fields of telecommunication and broadcasting. There is some prospect of a general, cross-sector competition law for Hong Kong, which is under consideration by the Hong Kong authorities at present. 8 Freshfields Bruckhaus Deringer LLP, August 2011

12 RESTRICTED TRANSACTIONS Are there restrictions on particular transactions between me and the company? There is a general principle that, as a director, you must not directly or indirectly benefit from a position where there is a potential conflict of interests between you and your company, unless shareholders have given their consent (see Conflicts). The law requires you to declare any interest you have in a potential transaction with the company. There may also be specific provisions in your company s articles of association for your abstaining from the relevant decision-making process by the board. Provided that the normal principles on directors conflicts of interest are managed properly (involving, where appropriate, obtaining shareholders approval), the transaction may be allowed to proceed. What about the company giving me a loan? Your company and its subsidiaries are prohibited under the Companies Ordinance from providing a loan to you, or entering into any guarantee or providing security for a loan made by a third party to you. The restriction applies to their providing similar loans, guarantees, etc to a company controlled by you. This is, however, subject to a number of exceptions, including: where the provision of such loans, guarantees, etc is in the ordinary course of your company s business; or where the loan has been approved by shareholders in general meeting. Under current law, the second exception above is available only to private companies that are not in the same group as a Hong Kong-listed company. However, under proposals to rewrite the Companies Ordinance (see Recent developments), the exception may be extended to other companies, including listed or non-listed public companies (in which case, the proposal is to require approval of disinterested shareholders). The law also excepts from the prohibition certain types of advance made by the company to a director, for example advancing funds to meet expenditures you have incurred as a director in the discharge of your duties, providing funds to facilitate your acquisition of residential premises, and entering into a hire-purchase agreement with you on no less favourable terms (to the company) than those available in open market. 9 Freshfields Bruckhaus Deringer LLP, August 2011

13 INSOLVENCY To whom do I owe my duties in an insolvency situation? The Companies Ordinance imposes various duties and requirements on you that are designed to protect the interests of the company s creditors if your company has become, or is likely to become, insolvent. If your company s financial position has deteriorated to the point where its solvency is in question, your attention must shift away from the shareholders and towards protecting the interests of creditors. You must consider the interests of creditors as a whole, and not just the interests of any creditor or class of creditor. You are subject to these duties even if appointed as a representative of a particular creditor. Is there a concept of wrongful trading in Hong Kong corporate insolvency legislation? No. A wrongful trading or insolvent trading regime was considered in 2001 when the Companies (Corporate Rescue) Bill was introduced for consultation. The Bill was subsequently shelved and the concept has not been incorporated into Hong Kong s corporate insolvency regime. However, if in the course of a winding-up it appears that any of the company s business has been carried on with intent to defraud creditors or for any fraudulent purpose, the court may make a director personally liable for all the company s debts and liabilities if he was knowingly a party to this carrying on of business. What practical steps can I take if my company s solvency is in question? Seek professional advice. The board should regularly seek appropriate legal and accountancy advice to ensure it is complying with its responsibilities. Board meetings should be held regularly and fully minuted. Regular meetings demonstrate the directors intent to consider all possibilities to minimise loss to creditors. Review dubious transactions. When a company s solvency is in question, the review of any transaction that might be perceived as unfair or at an undervalue must be conducted with particular care. If you authorise a transaction that is subsequently reversed (because it is deemed unfair or at undervalue), you may be held in breach of your duties to the company. What if I sit on the board of two companies within the same group and one of those companies is in financial trouble? You may find yourself in the firing line if your company is in financial distress and you must take extra care in the discharge of you duties. 10 Freshfields Bruckhaus Deringer LLP, August 2011

14 This can be made harder in a group situation if you are a director of several companies within a solvent group and one of those companies is insolvent. This may lead to a conflict of interest (see Conflicts). If you find yourself with multiple directorships in a financially distressed group, you must carefully consider how you make decisions. Importantly, you should take independent legal advice and monitor the decision-making process at every stage in light of that advice. The following practical guidelines may be of use: ensure there are several different directors on the board of each company to enable the appropriate procedures to be implemented; if a board is to discuss issues relevant to another group company that are not to be disclosed to that company, it should consider excluding a director who is on the board of both companies from those discussions, or the director in question should ask to be excluded. This should be recorded in the minutes so that there is a proper record, should this ever become an issue; frequently, decisions may have to be made concerning both companies. Therefore, it is useful to have specific provisions in each company s articles of association allowing for a reduced quorum on certain matters. This would enable the conflicted director not to attend while allowing the board meetings to be held with the reduced quorum; if this becomes unworkable, the director may consider resigning from one board. This course should not be taken without specific independent legal advice and careful documentation of the decision; and both boards should check that they have adequate D&O insurance (see Indemnification, insurance and ratification). 11 Freshfields Bruckhaus Deringer LLP, August 2011

15 INDEMNIFICATION, INSURANCE AND RATIFICATION What do I need protection from? You may be personally liable for your actions under a range of heads of liability, including: breaches of duties to the company (eg where a shareholder brings a derivative action in the company s name); breaches of duties to third parties (eg for a misleading statement in a prospectus or announcement for which the directors have taken responsibility); orders under statute (eg for obligations under the Companies Ordinance); fines and restitution orders imposed by regulators and the courts; and legal and other costs incurred in defending proceedings. The proper execution of your duties will go a long way towards mitigating liability, but you should ensure you are protected to the fullest extent possible in case of any claims. Is it possible for the company to indemnify me against liabilities? Your company may indemnify you against any liability incurred by you in: defending any proceedings (civil or criminal) in which judgement is given in your favour or in which you are acquitted; or any application you may make to the court for an order relieving you from liability arising from negligence, default, breach of duty or breach of trust. However, apart from a case falling within these two provisions, it is generally not permissible for your company to exempt or indemnify you against any liability you may have to the company (or its related company) for any negligence, default, breach of duty or breach of trust. Where should the indemnity be given? Since you may not be able to enforce an indemnity in your company s articles of association directly (as the articles do not necessarily constitute a contract between you and the company), it may be preferable to include appropriate wording (as far as is permissible) in your contract of service or letter of appointment. Alternatively, your company may enter into a separate deed of indemnity with you. What about insurance? A company can take out insurance to cover you against most of your liabilities. Directors and officers insurance (D&O insurance) is designed to protect a company s directors and officers from a loss resulting 12 Freshfields Bruckhaus Deringer LLP, August 2011

16 from claims made against them regarding the discharge of their duties. However, insurance will not cover loss due to fraud or dishonesty, wilful default or criminal behaviour. You can obtain insurance against some personal liabilities; for example, negligence, default, breach of duty and breach of trust towards the company. Insurance may also cover derivative claims brought by shareholders. Again, you cannot be insured for fraud or dishonesty, wilful default or criminal behaviour. Is it possible for shareholders to ratify a breach of duty that I committed? Shareholders can ratify conduct by a director amounting to negligence, default, breach of duty or breach of trust by ordinary resolution (unless otherwise stated in the company s articles). The votes of the director (if he is also a shareholder) and his connected persons will be disregarded in such a resolution. However, you should be aware that there are limits to what shareholders are able to ratify. For example, if a transaction entered into is illegal or constitutes a fraud on the company s creditors, shareholders cannot ratify it. In this situation, you risk being personally liable for any loss or damage arising from your act or omission. 13 Freshfields Bruckhaus Deringer LLP, August 2011

17 RECENT DEVELOPMENTS COMPANIES ORDINANCE REWRITE Efforts are under way to reconsider and, where appropriate, rewrite various parts of the Companies Ordinance. This project, launched by the Financial Services and The Treasury Bureau in December 2009, aims to modernise Hong Kong s company statute. The areas covered by the rewrite project include, among others: powers and procedures of the Registrar of Companies; powers and duties of company directors and secretaries; company administration and procedures; protection of shareholders; share capital structures and share capital transactions; distribution of profits and assets; registration of charges; accounts and audit; arrangements, amalgamation and compulsory acquisitions; and investigations and enquiries. A revised Companies Bill is currently being considered by the Legislative Council and it is currently estimated that it may begin operation in Freshfields Bruckhaus Deringer LLP, August 2011

18 Freshfields Bruckhaus Deringer LLP is a limited liability partnership registered in England and Wales with registered number OC It is regulated by the Solicitors Regulation Authority. For regulatory information please refer to Any reference to a partner means a member, or a consultant or employee with equivalent standing and qualifications, of Freshfields Bruckhaus Deringer LLP or any of its affiliated firms or entities. Freshfields Bruckhaus Deringer LLP 2011 August