All posts by mlamnini

Opinion of the IGOPP : Bill 44c and Bill 38

Act to amend the General and Vocational Colleges Act with respect to Governance.

For the purposes of the Parliamentary committee on the governance of the Vocational Colleges and Universities, IGOPP have submitted two memorandum stating that good governance is the best safeguard for the autonomy of the colleges and the universities : the legitimity and the credibility of the board is the best guarantee that this autonomy will prevail againts the assaults and the attempted intrusions in the pending business of the colleges and the universities.

Like the Chairman of the board of directors of the IGPPO have often said : « there is no autonomy without good governance and no good governance without autonomy » (Allaire, Y., 2004 : 2006)

Saving private enterprise!!

THIS TEXT IS ADAPTED FROM THEIR RECENTLY PUBLISHED BOOK BLACK MARKETS AND BUSINESS BLUES.

Capitalism, famously wrote Karl Marx, bears the seeds of its own destruction. Yet Marx was blind to capitalism’s ability to renew itself and soar, Phoenix-like. The last time this happened, after its near-death experience in the 1930s, governments had to salvage a battered, discredited capitalism and give it a new lease on life, albeit a tightly regulated one. The managerial capitalism that resulted was dominant from the 1930’s to the late 1970’s. Then, our industrial system was slowly nudged away from that model and replaced by a financially driven capitalism.

The recurring financial fiascos since the 1980s — including the most recent — share  common underlying factors rooted in warped values and a peculiar model of business ownership  This model, which was gradually, slowly, ushered in over the last 30 years, has infected all parts of the economy and was promoted in all parts of the world:

  • Publicly listed company “owned” by an array of funds, many of them with short-term goals;
  • Pressured by sharp, international competition for its products and services;
  • Fastidiously governed by “independent” directors;
  • Managed by a mobile executive class MOTIVATED by stock options and other compensation schemes to work exclusively for these “shareholders” (with short-term goals);
  • Surrounded by speculative funds free to play all sorts of lucrative games with the company’s shares and debt.

All the key players of the last financial crisis, with the exception of hedge funds and pension funds (including at least one credit rating agency, Moody’s), were publicly traded companies subjected to the kind of pressures described here. Even the investment bankers, the Bear Stearns, Lehman Brothers and others, which historically were organized as partnerships, had become publicly listed corporations during the 1990s.

The financial crisis should be a Eureka moment, an epiphany, an eye-opener. However, this crisis may well fade away without some fundamental assessment of its causes. Influential players will seek to preserve the status quo in slightly modified form, adding a pinch of regulations, a drop of oversight to the mix and, perhaps, to divert public anger away from the politicians and real causes, some criminal trials and jail terms for the visible few.

For the foreseeable future, the open, highly competitive product-and-service markets will continue to exert pressure on the performance and survival of companies. The short-term focus and relentless pressures for EPS (earnings per share) growth exerted by financial markets are highly detrimental. That is the paradox: the more competitive the markets for products and services, the less pressure for short-term profits should come from “company owners.”

Precisely because product-and-service markets are so competitive, financial markets should not pile on companies, bully them for short-term results and black-mail them in the very times when these companies are fighting a tough competitive battle. They need the time and the latitude to adapt, to innovate, and to put in place strategies for the future, without financial speculators breathing down their necks.

Notwithstanding the current agitation, financial markets will not change. There’s too much money to be made with this model of the corporation. Different forms of ownership are required to insulate the economy of a society from these crisis-mongers. Fortunately, the Canadian industrial structure already contains a significant number of large companies and industrial champions, which, by virtue of their ownership, are immune to financial market shenanigans or may, with relative impunity, tell financial operators and short-term speculators to go fly a kite.

For instance, the 100 largest business corporations in Canada in 2008 (on the basis of revenues) exhibit the following ownership structures: Publicly-traded with a controlling shareholder (19); State-owned corporations (13) ; Subsidiaries of foreign companies (13); Privately-owned companies(11); Cooperatives (3); Publicly-traded and widely held corporations(41). Several of these 41 companies are also subject to government-enforced restrictions on their ownership (banks, insurance companies, etc.)

Similarly, The Conference Board of Canada identified (in a 2005 report) 43 Canadian champions that it defines as companies with more than $ 1 billion in revenues and a significant position in their respective international markets. The ownership structure of these “champions” has provoked little curiosity. Three widely held, publicly traded companies have already been taken over. Of the 40 remaining, six are privately owned and fourteen are publicly traded but with a controlling shareholder. We need more of them.

Government policies should be framed in ways that foster the growth of these forms of company ownership with stable, long-term shareholders. Policy prescriptions should also curtail the most damaging form of executive compensation: the stock options. We are convinced that a modicum of social trust, loyalty and reciprocity must be re-built in publicly traded companies. We are also convinced that this will not happen with the compensation models currently in use in most companies.

In the universe of widely held corporations, no single company can, with impunity, flaunt the rules of a distorted game. Governments must act. Societies and their governments have a small, rapidly closing, window of opportunity to make fundamental changes before the shaken, destabilized maestros of finance recover their aplomb. Whether the lessons of this crisis lead the U.S. to adopt truly different economic arrangements remains unanswered, even doubtful. So be it.

Canadian policy-makers should learn the true lessons of our recent brush with worldwide financial catastrophe. Globalization notwithstanding, Canada should build on its very own foundation of regulations and on forms of business ownership impervious to financial legerdemain and the short-term pressures of financial operators.

Bill 63 (Business Corporations Act) : Memorandum of the IGOPP

According to IGOPP, the proposed Business Corporations Act (Bill 63) is a quantum leap in the right direction. It modernize and clarify some dsyfunctionnal aspaects of our business laws and legal system. Furthermore, Bill 63 introduce some useful innovations. Howewer, some modifications to the Bill would improve the chances of Québec to become a destination of choie for the establishment for a company.

Business Corporations Act: Bill 63

According to IGOPP, the proposed Business Corporations Act (Bill 63) is a quantum leap in the right direction. It modernize and clarify some dsyfunctionnal aspaects of our business laws and legal system. Furthermore, Bill 63 introduce some useful innovations. Howewer, some modifications to the Bill would improve the chances of Québec to become a destination of choie for the establishment for a company.

Opinion of the IGOPP : Bill 44c and Bill 38

Act to amend the General and Vocational Colleges Act with respect to Governance.

For the purposes of the Parliamentary committee on the governance of the Vocational Colleges and Universities, IGOPP have submitted two memorandum stating that good governance is the best safeguard for the autonomy of the colleges and the universities : the legitimity and the credibility of the board is the best guarantee that this autonomy will prevail againts the assaults and the attempted intrusions in the pending business of the colleges and the universities.

Like the Chairman of the board of directors of the IGPPO have often said : « there is no autonomy without good governance and no good governance without autonomy » (Allaire, Y., 2004 : 2006)

Pushing for Change : A 40% Gender Equality Target for Corporate Boards

Today, the IGPPO releases a policy paper that includes key practical proposals to increase the number of qualified women directors on corporate boards in Quebec and Canada

Currently, corporate boards of directors are not taking full advantage of the benefits that qualified and competent women can bring. Representation by both genders on corporate boards should thus be increased to a minimum of 40%.

The Institute for Governance of Private and Public Organizations proposes five major Recommendations to enhance the representation of women on corporate boards.

 

For any information or to request an interview:

Majida Lamnini
Director, Strategic Initiatives, IGOPP

514.439.9301

mlamnini@igopp.org

Black Markets and Business Blues

This book tells a sad tale. This is the tale of how and why the U.S. financial  system and the American  model of corporations, touted as examples for the rest of the world,  have proven fragile and destructive. It is the tale of how, over the last thirty years, financial markets became populated by funds of all sorts, operators of every breed, speculators  of every stripes, and have taken control of publicly listed corporations.

This tale tells of the consequences: short-term management of companies, greed in and around corporations, the loss of loyalty and commitment  within companies, weak governance …

This sytem crashed in the fall of 2008. This is the time and opportunity , write the authors, for societies and their governements to make radical changes before the shaken, destabilized maestros of finance recover their aplomb …

What is required, according to the authors, is a new capitalism , a capitalism based on forms of business ownership and compensation which will maintain or bring back some level of trust and loyalty within companies, a long term perspective in their management  and a due consideration of the stakeholders that give companies their legitimacy and purpose.

The authors argue persuasively for a set of policies that will bring about this new form of capitalism, one that yields and countenances the good society.

Giving Shareholders a Say on Pay

At a time when several Canadian financial institutions are about to hold a non-binding shareholder vote on executive compensation, the Institute for Governance of Private and Public Organizations (IGPPO) states in a position paper made public  that this process should not be imposed on all publicly traded companies.

“The arguments pros and cons a non-binding vote by shareholders on executive compensation do not readily tip the balance in one direction or the other. The sense of unfairness and the frustration with some patent cases of excessive compensation have generated a good deal of sympathy for more direct and vigorous measures to curb extravagant compensation practices. Nevertheless, boards of directors fully responsible and accountable for the governance of publicly traded corporations do form the cornerstone of our system of corporate governance.” says Yvan Allaire, the IGPPO’s chairman.

“Say-on-pay voting by shareholders may indeed persuade more companies to hold consultations with important shareholders on executive compensation prior to annual meetings. Of course, such consultations are already possible and have been held for a good while with many companies. However, it is claimed that without the threat of a formal (and possibly negative) vote by shareholders, consultations are less effective” adds Allaire

However, “the call for a non-binding, shareholder vote on executive compensation is a small but significant shift in responsibility for corporate governance away from boards of directors towards shareholder. If corporate boards cannot be trusted to make the right decision on executive compensation, how can shareholders rely on their judgment for other equally important decisions?” says Allaire.

For their next annual meeting of shareholders, several financial institutions have submitted to a vote by shareholders the approach that the compensation committee took to set executive compensation. This process was preceded, presumably, by consultations between large shareholders and members of the boards of directors of these companies.

“Yet, should the approach result in large, indefensible compensation some years hence, no one could complain as shareholders formally approved the process leading to these compensations” adds the IGPPO’s general manager Michel Nadeau

“In the specific cases of unsatisfactory compensation practices, institutional investors should propose a say-on-pay vote by shareholders in the future as a deterrent and a form of punishment for delinquent boards. Ultimately, investors should be prepared to use their right to vote (or “withhold” their votes) against specific directors in the few cases where board members have clearly failed to act in a responsible manner. “ says Allaire.

“A shareholder non-binding vote on compensations would foster a tighter link between executive performance and their compensation, it is claimed; and this link should be expressed in quantified, measurable terms to demonstrate to shareholders that executives do deserve their compensation. However the performance of effective, high level executives may not be fully captured by quantitative measures. Boards of directors need to show judgment when evaluating an executive’s performance” adds Nadeau.

The Status of Women Corporate Directors in Canada

Corporate boards of directors are not taking full advantage of the benefits that including qualified, competent women can bring. Representation by both genders on corporate boards should thus be increased to a minimum of 40%. These are the key recommendations included in an IGPPO policy paper.

The report also recommends that the gender balancing process should take place gradually, with target dates set based on the pace at which organizations appoint new directors, and must not be done at the expense of board quality. Companies should also integrate diversity and gender equality into their corporate policies and report regularly on their progress.

Since 1990, the percentage of women directors on boards of North American publicly- traded corporations had stalled at 15%.

According to Dr. Yvan Allaire, Chair of the Board of Directors of the Institute for Governance of Private and Public Organizations (IGPPO), “The proportion of women directors remains low despite the fact that the reasons invoked to explain this situation – perhaps plausible in years past- have since become largely excuses or equivocations .”

The policy paper was prepared by a working group made up of IGPPO board members. The group was chaired by Monique Lefebvre Ph.D., a well-known psychologist who specializes in executive coaching. The report was later approved by the full IGOPP board (with one dissenting vote).

“After two decades of minimal progress, it is time to increase gender balance on corporate boards in Quebec and the rest of Canada,” said Lefebvre. “The governance of companies benefits from the balanced perspectives of men and women oin their board.

The Report makes the obvious point that competence remains an essential quality for all board members, whether male or female.

The IGOPP policy paper makes five major recommendations to help increase the number of qualified women directors on corporate boards in Quebec and Canada:

1. A 40% gender equality target for corporate boards

The IGOPP policy paper recommends that Canadian companies strive for a minimum of 40% representation of both genders on their boards. Achieving this target should be calibrated to the pace of change in board membership for each particular company.

2. Integration of gender diversity into corporate strategies

Companies should systematically seek out and compile a list of potential women candidates to replace outgoing board members. The nomination committee and the board of directors should thus establish competency profiles for potential new members in order for the board to add value to the organization.

3. Use of professional recruitment firms

Identifying and recruiting qualified women candidates as potential replacements for outgoing directors may require the use of outside recruitment firms. To increase the pool of potential candidates, recruitment efforts should extend beyond individuals who are already directors or chief executive officers of other major corporations.

4. Disclosure

The Working Group recommends that companies evaluate their progress with respect to women representation on their board and make this information public and easily accessible. Boards should adopt a long-term succession plan for board membership, which would include measures and timelines to raise the representation of women. The company’s annual report should describe these measures and report on progress achieved over the years.

5. Coaching

The report’s final recommendation is that the board chair or a senior director should work closely with incoming board members to ensure their integration and to familiarize them with the dynamics and culture of that particular board.

The Group advocates a gradual voluntary approach rooted in a clear commitment to increasing the proportion of women on corporate boards at an accelerated rate. “The recommendations do not involve legal mandates forcing companies to increase the number of their women directors. The goal is to help companies recognize the benefits that greater diversity can bring,” concludes Dr. Lefebvre.

A national securities commission:

Finance Minister Jim Flaherty’s obsession with creating a national securities commission is becoming clearer. On Tuesday evening, he revealed the cost of the new federal infrastructure project he wishes to roll out, which comes to $154 million for 2009-2010 alone (as indicated on page 102 of the budget speech).

We understand Mr. Flaherty’s commitment to spending in order to boost the Canadian economy, but this $154 million to create a national commission seriously undermines the argument that a single regulatory agency would be more cost-effective than the current structure.

This expenditure would be a mere drop in the bucket, however, if it became necessary for all of the organizations regulated by such a national, federal body to ensure that Canadian investors had access to financial information in both official languages.

Indeed the Hockin Report proposes that any publicly traded company could opt to be regulated by the federal, or national, securities commission rather than by the securities commission of the province where the company keeps its legal residence. Does that mean that this federal or national commission would have to require all publicly traded companies to communicate with their investors in both official languages?

Indeed, would a francophone investor, regardless of where he or she lives in Canada, be entitled to receive a French version of annual reports and all other financial communications published by a publicly traded, federally regulated, company?    Canadian consumers are informed of the contents of their cereal box in either official language wherever in Canada they’re having breakfast. So why would it be any different when it comes to a national organization that is supposed to ensure Canadian investors are adequately informed about their investments?

Let’s look at a concrete example. In the spring of 2008, Visa Inc. became a publicly listed company in Canada. To avoid the financial costs and delays involved in translating its (503-page) prospectus and related documents, Visa decided not to distribute and sell its shares to Quebec investors.

How would that be possible if Visa had been regulated by a national, or federal, commission? How could a federal agency endorse such a scenario, depriving francophone investors outside of Quebec as well as in Quebec from information in French?

This is not a minor issue. The cost to produce legally binding translations of all documents is enormous. At this time, even among the 253 largest listed companies in Canada, the companies making up the TSE-S&P Index, only 81 (37%) publish their annual report in French and in English. Only 60% actually provide a French version of the all-important Management Information Circular, the document that provides information on executive compensation, proposes board members for election as well as any special resolution to be voted on by the general assembly of shareholders.

For the thousands of smaller companies listed on Canadian exchanges, the problem would be even more formidable. Proponents of a national, federal, securities commission better answer those questions before proceeding too hastily with their plan. Were a national securities commission to require that all communications of publicly traded companies with their investors be available in both official languages, the cost would be astronomical.

If a national, federal commission were required to insist that all documents sent to investors be made available in both official languages, the cost would be astronomical. Keeping the current system in place, which would suit everyone outside of Toronto and Ottawa, would save $154 million of taxpayers’ money and tens of millions of dollars in translation fees for Canadian businesses, which have much more pressing priorities to deal with right now.

2008 Korn/Ferry Award for Excellence in Corporate Governance

The winners of the 7th annual Excellence in Corporate Governance awards presented by Korn/Ferry International and Commerce magazine have been announced. Rona walked away with top honours for a large business, with Astral Media winning in the medium-sized business category

In addition, Raymond Garneau was named Corporate Director of the Year. Mr. Garneau is a former Quebec finance minister and served as president of the Conseil du trésor under Robert Bourassa’s first government. He was also the head of Industrial Alliance between 1989 and 2000.

The Fine Print on a National Securities Commission

Admittedly, this is no easy task. The Hockin Report is the third attempt in recent years at selling the idea. Which combination of carrot and stick can sway those provinces that are still reluctant to hand over to a federal or national organization their regulatory and supervisory powers of securities markets?

Instead of focusing on the major overhauls of the global financial system, the Canadian finance minister seems determined to nationalize our provincial securities regulators, risking a constitutional confrontation in the process – which is exactly what Canada needs in these turbulent and uncertain times.

Keep in mind that securities commissions played a minor, very minor, role in the on-going global financial melt-down. Even when it comes to our own contribution to the financial drama, the ABCP crisis, a study conducted for the Hockin Expert Panel states:

The ABCP crisis turns out to be a poor test with respect to arguments in favor of greater consolidation of regulatory responsibility… The case for consolidation would be strengthened if there is evidence that communication between different parts of a single agency proves more effective than communication among agencies. (Chant, 2008, p.46)

At any rate, the crisis originated, and has been most damaging, in the United States and United Kingdom, both countries which have had a national securities commission in place for a very long time.

It is also argued that the complexity of the current structure with 13 securities commissions is bound to increase costs for issuers and make enforcement less effective. It makes sense, does-it-not, that a single, national securities commission would be so much more effective. The merger of several cities and towns into the Greater Montreal was also to lead to cost efficiency, lower taxes and better quality of service. Well, it is wise to be sceptical about this one too.

But the debate may go on ad nauseam and probably will before the courts. However, a somewhat thorny issue does not seem to have been addressed by the Hockin Report nor by its predecessors.

The Hockin Report proposes that any publicly traded company could opt to be regulated by the federal, or national, securities commission rather than by the securities commission of the province where the company keeps its legal residence. Does that mean that this federal or national commission would have to require all publicly traded companies to communicate with their investors in both official languages?

Indeed, would a francophone investor, regardless of where he or she lives in Canada, be entitled to receive a French version of annual reports and all other financial communications published by a publicly traded, federally regulated, company?    Canadian consumers are informed of the contents of their cereal box in either official language wherever in Canada they’re having breakfast. So why would it be any different when it comes to a national organization that is supposed to ensure Canadian investors are adequately informed about their investments?

Let’s look at a concrete example. In the spring of 2008, Visa Inc. became a publicly listed company in Canada. To avoid the financial costs and delays involved in translating its (503-page) prospectus and related documents, Visa decided not to distribute and sell its shares to Quebec investors.

How would that be possible if Visa had been regulated by a national, or federal, commission? How could a federal agency endorse such a scenario, depriving francophone investors outside of Quebec as well as in Quebec from information in French?

This is not a minor issue. The cost to produce legally binding translations of all documents is enormous. At this time, even among the 253 largest listed companies in Canada, the companies making up the TSE-S&P Index, only 81 (37%) publish their annual report in French and in English. Only 60% actually provide a French version of the all-important Management Information Circular, the document that provides information on executive compensation, proposes board members for election as well as any special resolution to be voted on by the general assembly of shareholders.

For the thousands of smaller companies listed on Canadian exchanges, the problem would be even more formidable.  Proponents of a national, federal, securities commission better answer those questions before proceeding too hastily with their plan. Were a national securities commission to require that all communications of publicly traded companies with their investors be available in both official languages, the cost would be astronomical.

Beyond Monks and Minow

The distember of our times and investors’ belated outrage has turned corporate governance into a growth industry. Along with much hand wringing, disconsolate essays on ethics, host of new rules and regulations have come the banal and the trivial, invariably trotting on the allure of a surging.

The essays contained in this monograph were written à chaud over the period of January 2002 to June 2003 as the debate was raging over the causes of this latest round of financial fiascos and over the prosper measures to prevent a recurrence. The leitmotiv of our texts is that we must seek the root causes for what happened before launching into poorly conceived, and ultimately self-defeating, crusades.

We are at great risk to experience again the perverse effects of good intentions.

Public censure and exacerbated fiduciary governance will easily turn corporations into sterile bureaucracies, devoid of risks as well as of growth and innovation. Corporate executives may well become again secure and timid functionaries, intent on never committing any sin of action but only sins of omission, as the later rarely leads to any sanction.

Board of director, staffed with independent “governors”, are expected to assert their authority over management; they will come to share with executives a new risk aversion and a positive loathing for any initiative  with large upside but potential downside. Their reputation is at stake; it can only be damaged by initiatives that turn sour and will be little enhanced by the success of risky initiatives.

The theme of this monograph is that it does not have to be this way. Prosper corporate governance can and should be creating value for shareholders. There are ways of coping with the fundamental flaw of governance:

the asymmetry of information and expertise between board members and management. There are ways of compensating executives that will work better than stock options; and if we keep options, there are ways of making them work much better.

“Good” corporate governance calls for a fundamental re-arrangement of the ways board members are selected and elected; it requires a new breed of board members, attuned to the exigencies of market-driven corporations and truly knowledgeable about the company’s economics, issues and challenges. It is not too much to ask; it is indeed very feasible; we hope this short monograph will make a significant contribution in showing the way forward!

Transparency and Integrity: Toward Improved Corporate Governance

You can now view a video of a presentation given by Dr. Huguette Labelle, the head of Transparency International and Chancellor of the University of Ottawa, on November 5, 2008, at a business luncheon presented in conjunction with the Montreal Council on Foreign Relations

Dr. Labelle’s presentation focused on the importance of good corporate governance in the private, public, profit and non-profit sectors, especially in the context of the ongoing global financial crisis. She stressed that governments need to be more transparent and more responsible in the management of their plans to help organizations hit by the crisis.

Dr. Labelle is the chair of Transparency International, a global civil society organization leading the fight against corruption.

November 5, 2008

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Huguette Labelle
Head of Transparency International and Chancellor of the University of Ottawa

Transparency and Integrity: Toward Improved Corporate Governance

Conference Video

The Crisis… and How to Deal With It!

“History never repeats itself. Mankind always does.” – Voltaire

How did this unparalleled financial crisis come about? How can it be explained in simple terms? How can we learn from it and avoid making the same mistakes in future?

The problem – the direct cause of the crisis – can be traced to a series of cryptic abbreviations (CDO, CDS, VAR, MtM, etc.), which represent virtual financial instruments, off-balance-sheet deals, opaque transaction networks and so forth. The resulting context is so convoluted that coming up with a satisfactory explanation, one that is neither overly simplistic nor overly complex, is a virtually insurmountable pedagogical challenge.

“Explaining” the crisis

Part of the explanation – the easiest part to understand in fact – lies in the avarice of key stakeholders (including credit rating agencies) who succumbed to the lure of financial gain, the alignment of staggering compensation terms with short-term performance and extravagant rewards for hazardous management practices rooted in hidden or misunderstood risks. This Machiavellian greed for profit, although a constant throughout history, has evolved into a veritable moral crisis in the past 20 years.

Other more specific and more technical factors have also contributed to the onset and exacerbation of the crisis. Mark-to-market (MtM) accounting principles, which financial institutions are bound to put into practice, have had a major impact on the sequence of events leading up to the crisis. (See Allaire, Yvan, “La crise : un iceberg financier!”, La Presse, October 1, 2008.)

Flawed or patently absent regulations for new financial products and players, such as hedge funds (or, more accurately, speculative funds), have also helped inflate the credit and real estate bubble in the United States. From a regulatory perspective, this position was the manifestation of a kind of market ideology – one might even say market fundamentalism. Preached and practiced by Greenspan and others of his ilk, this fundamentalism is rooted in a rather touching faith in the markets’ ability to regulate themselves and rapidly and effectively correct any excesses or abuses that may arise.

This laissez-faire, come-what-may policy in the financial sector is inevitably a perilous approach and one that, in this case, has left a path of destruction in its wake. The unbridled growth of credit default swaps (CDSs), left unchecked, unchallenged and unaccounted for, is one of the leading (and technical) causes of the current crisis. This market, which in a few short years reached a nominal value of $55 trillion, has been prone to all kinds of schemes and scams from unscrupulous speculators and has served to conceal the global build-up of financial leverage. (For more on the subject of credit derivatives, see Allaire, Yvan, “Chronique d’une bulle financière,” Forces, Spring 2008)

Finance and mathematics

The mathematization of finance and investment over the past 30 years has also contributed subtly to the chaos of recent months. The massive influx of professionals trained in mathematics and physics into the financial instruments market (among the JP Morgans, Goldman Sachs, Morgan Stanleys and the like, not to mention hedge funds) has led to the emergence of “financial innovations” of an unprecedented level of complexity and abstraction as well as the development of risk assessment models capable of handling new financial products.

At first glance, these intricate statistical and mathematical systems are as impressive as they are intimidating for anyone without a PhD in the field, which is the case for most board members, fund managers and even credit rating agency professionals, despite the fact that the latter are the very individuals who should be able to understand the risks of these esoteric products in order to rate them appropriately. However, as precise as these quantitative risk assessment models appear to be, they ultimately hinge on flimsy assumptions and historical statistics that have little or no bearing on future performance.

Value-at-risk (VAR models) have played an increasingly key role in determining the amount of capital necessary to provide prudent support for an activity, the acceptable level of financial leverage and the appropriate returns for the degree of risk assumed.

These models attempt to estimate the likelihood that certain events or certain levels of loss will occur. This likelihood depends on the first historically observed volatility leader in relevant markets (“volatility” being financial-speak for “risk.”)

Using a simple example to illustrate, the following table shows the level of volatility of stock markets (in this case, the S&P 500) in a given index (VIX) since 1990. (The higher the index, the higher the volatility and risk):

Capture d’écran 2014-09-21 à 16.38.22

To assess the level of risk incurred by an investment, analysis models use relevant data on the volatility of the type of investment over a five- or ten-year horizon. Accordingly, in early 2008, to assess an investment falling covered by the VIX index, the models would have taken into account the fact that the average volatility had been 15.5 for the previous five years and 20.2 for the previous ten years (including the turbulent dot-com bubble years and the aftermath of September 11, 2001).

It is important to note the very low volatility recorded between 2003 and 2007. This phenomenon has had a decisive influence on how risk, capital funding and maximum financial leverage have been determined. When volatility is this low, the risk involved in any kind of investment or debt is perceived as minimal.

However, investment professionals with a more critical mindset will require the risk assessment model to be subjected to what is known in financial circles as a stress test, in which it is exposed to data that is less favourable than that of recent years. In this example, the calculations would be redone, either using the worst results since 1990 (28.6 in 2002) or doubling the volatility observed in the past five years (2 x 15.5 = 31.0).

After conducting these tests and making decisions based on the findings, these professionals will conclude that they have acted with all due diligence. But have a closer look at the volatility rates for 2008:

Capture d’écran 2014-09-21 à 16.38.34

Over a period of only few weeks in October and November, market volatility skyrocketed to a level nearly three times higher than the previous peak recorded since the index was created in 1990.

Risk calculations, the value of derivative products and the corresponding warranties, the capitalization required to support risk and debt, projected returns, credit premiums and other factors were thrown into disarray when volatility rates went through the roof.

Even the most sophisticated mathematical models failed to pick up on the warning signs (of which there were many) and interpret to what extent the behaviours they prompted would exacerbate the crisis. Like meteorologists riveted to their computer in a windowless room, the financial math whizzes kept on predicting fair weather while a financial hurricane was raging all around them.

“It is better to be vaguely right than precisely wrong,” said John Maynard Keynes. And wasn’t it Blaise Pascal, despite the fact that he was a mathematician, who claimed that intuition inevitably trumps logic?

What next?

The public must believe that this dysfunctional financial system can be changed and that it is not the inevitable outcome of incontrollable and irrepressible forces. It is a system developed and implemented by human beings. And one that human beings have the power to change.

Although it is true that stock markets around the world are all dropping dramatically, the fact remains that the Canadian financial and taxation systems are secure enough to help the country weather the brewing economic storm.

A concrete way of measuring Canada’s favourable position is, interestingly enough, by looking at the state of credit derivatives (or credit insurance) in various countries. The following table shows the cost (as of November 21, 2008) of purchasing insurance against credit defaults in various countries over the past five years:

Capture d’écran 2014-09-21 à 16.39.01

The message is clear: the international markets see Canada as a better financial risk than any other country.

However, it is inappropriate to use the global financial crisis to advocate unrelated policies and measures. The federal finance minister, Jim Flaherty, is bordering on demagoguery when he holds up the crisis as a reason for creating a single securities commission in Canada. In actual fact, the countries that have been the most influential in and the most affected by this crisis, i.e., the United States and Great Britain, already have highly centralized securities commissions in place… to little or no avail!

Some concrete changes could help us avoid repeating (once again) the painful experience that we are currently enduring. Some of these suggestions have also been put forward by the Financial Stability Forum and mentioned in expert testimonies before a U.S. House of Representatives committee on November 13:

  • Rein in out-of-control compensation. This is a problem we have not yet managed to resolve. And remuneration caps arbitrarily established by the state are not the solution (except in instances of a bailout, where a government invests directly in a company to save it from collapse). Our suggestion is simple: board members must be explicitly accountable for compensation paid to company executives, specialists and officers. They have the fiduciary responsibility for setting up a variable compensation system that is aligned with assumed risks, staggered over time and equipped with penalty clauses for non-performance. The recent example set by UBS can serve as a basic model in this regard. (For more information, see http://www.ubs.com/1/e/investors/compensationreport.html or Allaire, Yvan, “Fair Wages for an Honest Day’s Work,” Beyond Monks and Minnow by Yvan Allaire and Mihaela Firsirotu, Forstrat International Press, 2005).

It is just as important for institutional investors to stop pandering to the excesses of speculative funds. Ineffectual negotiating strategies and a lack of cooperation on the part of leading institutional funds have given rise to indecent levels of compensation for speculative fund managers. In fact, in 2007 the 25 highest-paid hedge fund managers (or more precisely speculative fund managers) together earned more than the top 500 CEOs (who already come under heavy fire for the “excessive” amount of money they earn!).

  • Abolish over-the-counter transactions or, at the very least, decrease the volume and scope. It is baffling to think that the credit swap market could have grown at such a phenomenal rate and achieved a nominal value of $55 trillion in 2007, without any regulatory or supervisory mechanisms whatsoever in place to ensure transparency and identify the parties assuming the corresponding risks. Under a revamped system, when an OTC instrument reaches a certain volume, it would have to be converted into an appropriate stock market instrument and would thus be covered by a central compensation and disclosure mechanism.
  • Review the role and methodology of credit rating agencies. These agencies have had too much influence over investors and lulled them into complacency. Moreover, motivated by handsome compensation from the very engineers of these complex financial instruments, credit rating agencies have been disposed to sanction products that have sometimes fallen outside their own realm of expertise. It is therefore high time to come up with compensation models that require credit agency users to pay for these services. Perhaps the major institutional funds should even create their own agency for derivative instruments and other complex products they tend to deal in. This agency would have to be staffed by qualified professionals capable of interpreting the complexities of the more intricately designed products on the market.
  • Standardization of new financial instruments. The assumption that so-called “sophisticated” investors are adept at interpreting the finer points of the complex financial products that come their way does not hold. Often, risk control and regulatory mechanisms lag behind market “innovation.” In any other field, products that present a risk to public health or welfare are subject to an approval process before they are rolled out – for example, experienced travellers would never be called upon to weigh in on the safety of a new aircraft. New financial instruments should therefore be confidentially submitted to a body that is overseen by a securities commission or other entity, for the purpose of assessing risk and identifying the information that should be disclosed to buyers. This body should be independent and staffed by teams who are capable of assessing the risks associated with these new products.
  • Reassess the latitude of pension funds in terms of alternative investments. Long subjected to a set of investment restrictions (i.e., caps on shares, foreign equity and real estate holdings), pension funds have gradually seen these conditions relaxed. As a result, pension funds have become the main backers of hedge funds and investment funds (i.e., privatization funds). Without the support of pension funds, these hedge and investment funds, both of which have played a definitive role in the market upheaval, would be much more limited in scope. For example, it turns out that 61% of the Blackstone privatization fund is financed by pension funds and foundations. For several reasons, including the dysfunctional way in which pension funds are assessed and compared on a yearly basis and the pressures to which they are subjected in order to satisfy performance obligations, pension funds have become avid investors in these new funds and leading buyers of these new esoteric products. It would therefore be useful to initiate a dialogue on how to curb this pursuit of the best corporate returns through alternative investments. As Paul Soriano so eloquently put it, “When events impact institutions, it’s generally because something has gone wrong.” And this financial crisis is, indeed, indicative of something that has gone very wrong!

Conclusion

It is true that people tend to learn slowly and forget quickly. It is true that financial fiascos never hit the same way twice. It is true that hastily or poorly designed regulations can do more harm than good. Nevertheless, not since 1929 has there occurred a crisis that has required such extensive public- and private-sector intervention. Doing nothing is simply not an option.

The purpose of this article is to provide a very rough idea of the causes of the financial crisis and to put forward a few recommendations to protect ourselves, even if only slightly, from repeated financial disasters.

The Financial Crisis: An End in Sight?

While the U.S. Congress was desperately scrambling to salvage its bailout plan, a panic-inducing chill went through the spine of the financial markets this past Monday, September 29 – as specialists and laymen alike are still struggling to come to terms with the finer points of this ongoing crisis.

How exactly did the massive issuance of mortgages to financially vulnerable U.S. households send the worldwide financial system into a tailspin? Some $1.8 trillion in so-called “subprime” mortgages were granted between 2004 and 2006. Based on the assumption that an unprecedented 25% of these loans will fall into foreclosure and the properties put up for resale for a mere 50% of the original value of the mortgage, total losses would amount to $225 billion.

But as of August 27, 2008, banks, insurance companies and other financial players had already reported losses of US$436 billion. (Canadian financial institutions accounted for only $11.6 billion of this total, half of which is attributable to CIBC).

And European banks, which never ventured into the subprime market in the first place, have reported greater losses than their U.S. counterparts ($181 billion versus $140 billion).

Clearly, subprime mortgages are not the cause of the financial crisis but one of the triggers and are, quite possibly, only the tip of the financial iceberg. For modern finance has transformed debt into a convoluted collection of complex, esoteric instruments that are traded on virtual markets and whose values fluctuate constantly, depending on supply and demand.

Automobile loans, credit card balances and other consumer debts ($3.5 trillion), commercial mortgages ($1.7 trillion) and corporate bonds and debts ($17 trillion), like subprime mortgages, are often grouped together into tranches according to projected returns, level of risk and maturity dates. These tranches are then sold to investors, banks, investment funds, pension funds, hedge funds and other players around the word, in accordance with their investment strategies and tactics.

In addition, these credit tranches can be backed by credit derivatives to protect them against borrower default. This is where things get particularly complicated.

Since the value of these “products,” i.e., loan tranches, credit derivatives, etc., is contingent on supply and demand, those who hold these instruments must account for them on a mark-to-market basis. Regardless of the value of the underlying assets or the fact that the product will achieve its full value upon maturity, these products must be reported in quarterly or other financial statements as a loss if the corresponding market, as of the reporting date, is down. As a result of these mark-to-market accounting rules, the losses that appear in financial statements are unrealized losses, since it is possible that at a later date (3 months, 6 months, 12 months, 3 years, 5 years, etc.) these “losses” will have to be reversed, in whole or in part, if the market takes an upswing.

When the outlook for these markets turns negative and extremely prudent buyers are seeking high returns, banks and other investors must immediately claim enormous accounting losses due to the rapid drop in the value of the assets they hold. These losses trigger margin calls (i.e., the need to add warranties or pay additional amounts to guarantee the solvency of a derivative product that has suffered a dramatic drop in value) and a decline in the capitalization of the corresponding institutions. This makes them more vulnerable, exposes them to the risk of violating their regulatory obligations and forces them to seek out additional capital in a challenging market. Thus begins a downward spiral.

Because all markets for these new products (not just the subprime sector) are vulnerable to uncertainty, their value falls dramatically. But the total amount of these instruments held by investors and funds of every type is astronomical, exceeding $20 trillion.

One of the technical causes of the financial crisis – over and above greed, the lure of financial gain, the indefensible lack of regulation of credit derivatives and the arrogance of so-called “financial geniuses” – is the widespread use of mark-to-market accounting principles. Although this approach is appropriate in some circumstances, its impacts on the market that financial “engineers” have constructed for us have been unexpected and detrimental.

The bailout bill defeated by the U.S. Congress on this Black Monday, September 29, 2008, contained two interesting provisions in this regard. It granted the head of the U.S. Securities and Exchange Commission the authority to suspend mark-to-market accounting for any category of transaction, where warranted by the public interest. The bill also required the impact of this accounting rule on financial institutions to be studied and accounting measures better adapted to current financial markets to be proposed. It is highly probable that the final version of the bill will contain similar provisions.

Why the need to act immediately?

U.S. authorities are under a great deal of pressure to act swiftly and more boldly than ever for several reasons:

  • Widespread pessimism has resulted in significant drops in market value across the board, not only in the subprime sector, but even in markets that are still solid and are showing no increase in payment defaults, no significant rise in bankruptcies and no other signs of imminent danger.
  • These virtual losses have led to bankruptcies, mergers and the nationalization of financial institutions around the world. They have eroded the capital base of financial institutions, which in turn hampers their ability to issue corporate and consumer credit.
  • A credit crunch of this nature would have tremendous repercussions on the state of the economy and, consequently, the financial situation of corporations and consumers.
  • All of these financial instruments (other than subprime mortgages) that are falling in value because of widespread pessimism would see their market value drop even further should there be a sudden plunge in the quality of their underlying assets.
  • The markets for these other products are enormous. The additional losses that would be incurred by financial institutions of all types would have a disastrous effect on the global economy.

The challenge facing authorities in the U.S. and around the world is to prevent this scenario from occurring. They need to control the contagion and brace for the approaching tsunami by vigorously fighting against the credit crunch at the corporate and consumer levels and finding ways of minimizing accounting losses. Here’s hoping that they are successful in their efforts.

After that, however, is when the real work will begin. We need to overhaul the financial system – which has become little more than a black market, accurately identify the causes and culprits of the current crisis and put the financial markets back in their place – as a tool serving industry and society as a whole.