In March 2010, the European Confederation of Director's Association (ecoDa) published a set of corporate governance guidelines intended to be implemented by unlisted companies. Based on similar guidelines already available in Spain, Belgium and Finland, other countries across Europe are currently discussing how to adapt the ecoDa guidelines for their own use.
According to ecoDa data, unlisted companies account for more than 75% of European GDP; however their governance needs have, until now, been neglected compared to publicly traded companies. These guidelines are intended to fill that perceived gap. The ecoDa, made up of 10 national institutes of directors, also believes that improved governance can promote growth and sustainability and underpin entrepreneurship in unlisted companies.
The ecoDa document contains 14 principles that shareholders and directors can use in a stepped or phased approach to design a governance framework to suit their particular needs. They are also designed to take into account various factors such as the size of the company and the complexity of the ownership group.
Governance and complexity
Principle 9 states that family businesses need more formal governance because they become more complex due to the changes that occur naturally over time:
It makes intuitive sense to introduce formal structures and policies to cope with this increased complexity and to replace of the informal practices that exist in every business family.
Informal governance, based on assumptions, understandings and expectations of what the family deems acceptable behaviour in private and business life, exists in every family business. But what works for an entrepreneur and his or her nuclear family is less likely to serve the interests of a group of siblings (and spouses and grandchildren) who become involved in or attached to the family business. If these informal governance structures are not addressed, the business will struggle to make a successful transition to a generation of cousins. An accumulation of mistaken assumptions, misunderstandings and unfulfilled expectations can contribute to the demise of a family business.
The oft-repeated cliché about family businesses is that they go from "clogs to clogs in three generations". There is some truth in this but it is not because all family businesses are poorly run or "dysfunctional". The reason is more prosaic; it's because family governance is not updated to keep abreast of predictable developments. The simple message permeating the ecoDA principles is if a family wants to build a successful multigenerational business, they need to get organised.
Although informal governance has limitations, if a family reaches the stage when more structured governance is necessary then they've done something right. Time, therefore, should be spent articulating the best of the family's current practices and building these in to the new structures being created to cope with increasing complexity.
Where to start with structured governance?
Principle 7 emphasises the importance of "a dialogue between the board and the shareholders based on a mutual understanding of objectives". The first step to improved governance requires the family shareholders (and possibly the wider family, including the next generation of shareholders) to articulate why they want to be in business together, if at all. The family needs to agree their objectives and communicate these to the board so that they know what they are aiming for and how they will be held accountable.
The importance of a shared purpose
The greatest strength in a family business is a clear and strong sense of shared purpose among the owners and the wider family. It can generate a sense of belonging, worth and shared resolve that non-family businesses are unlikely to be able to generate among their owners. This is a competitive advantage that family businesses should try to maximise.
Without a shared purpose, there is nothing to bind family members to each other and their collective investment in the business. As time unfolds, no amount of governance or technical structures can prevent disintegration, often at the cost of much conflict and unhappiness.
Each family needs to define their version of "success" and then work through how this will be reflected in their business governance. The family has to decide who will participate in articulating the shared purpose. There is a lot of value in holding a family meeting between those whose lives will be affected by the family business now and into the future. A family meeting for this purpose needs careful planning and may benefit from the introduction of an external facilitator who can help make sure that there is a thorough debate in which everyone has an opportunity to express their views. This will ensure the shared purpose is based on consensus and not the views of a dominant family member.
Other families might prefer to leave the decision to family members whose views are respected and who are trusted to do the right thing in the overall interests of all stakeholders. The choice will depend on each family's attitudes and beliefs; but what is important is that there is a clear, shared purpose and everyone understands it. Only then will owners, directors and family members be able to decide if they want to be involved in the family business. If any member decides that the shared purpose of the business is not in line with their personal aspirations, it is better to find a way for them to exit gracefully than bind them reluctantly into structures that could cause much unhappiness for the individual and the wider family.
The returns on investment that families seek – their version of "success" - may be singularly financial or a combination of financial and emotional. For example the shared purpose could include the following:
Providing the desired level of financial security for a growing family; each family has their own ideas of "enough" and "too much".
How the shared purpose affects governance
The following brief example illustrates how a shared purpose flows through into the type of practical governance arrangements recommended by the ecoDa principles.
Assume that the family has agreed that the reasons they want to remain in business together are as follows:
a) to provide reasonable financial security for a growing family.
b) to preserve a legacy of private ownership to pass to the future generations.
c) to remain involved in the industry that has been inherited (because the family name is also a brand product name); and
d) to remain in the local area where the business has always been located.
In this case the ownership policies should reflect the expectation that owners should hold on to shares rather than sell them. If someone wanted to sell, the custodian attitude to ownership might mean that sellers will receive a discounted valuation, rather than full market value, to reflect the fact that the overall objective is about protecting and passing a legacy to the next generation and sale is contrary to this purpose.
The financial return on investment for owners could well be affected by their desire to remain present in a certain geographical area. Relocation might reduce operational costs and secure other efficiencies leading to increased profits for shareholders, but that would not be tolerated since part of the shared purpose is to retain the family's attachment to a particular geographical place. Furthermore, the dividend policy would need to balance the desire to provide reasonable financial security for owners (not too much for shareholders but by no means a zero cost of capital for the business) with the intention to reinvest for the longer-term.
The details of the ownership policies flow naturally once the family is clear about its shared purpose. It also helps when implementing Principle 1 of the ecoDa recommendations, which is that "there should be a formal schedule which states which matters are specifically reserved for the shareholders' decision and which are delegated to the board".
In this example it would be consistent with the shared purpose for the family to control decision-making in relation to the below areas as they lie at the heart of the shared purpose:
The family may also want the final say in any decisions that could involve a major financial or reputational risk. Principle 2 of the ecoDa document contains a list of decisions that shareholders may want to retain power to make, but this should not be treated as a tick list. Far better for a family to start with its shared purpose and then adapt the ecoDa guidance to suit its own needs and aspirations.
The board in the above example would be expected to understand the family's shared purpose and willingly accept what others might consider to be limitations on executive decision-making in return for the competitive advantage of having the clear commitment from a group of shareholders who are in it for the long term.
The directors would be clear about the scope of their delegated authority, which will help to mitigate the risk of unintended conflicts caused by the board taking decisions they assumed they had power to make, but which the family retrospectively challenge. The shared purpose would also mean that executive rewards (including any executive incentives) would need to be structured in a manner that was aligned with
achieving the shared purpose.
An alternative scenario
In contrast to the above example, if the family's shared purpose was to maximise financial returns for shareholders, there would be larger dividends, more opportunity for shareholders to sell shares and redeploy their investment if they thought the business was underperforming and the executives would, in this case, be held accountable based on financial performance alone. The shareholder's decision-making would focus on financial risks and the board would expect to be criticised by shareholders if they took account of any of the factors mentioned above in their decision-making.
These examples illustrate how a clearly articulated purpose breathes life into governance structures. It is an essential step in translating the ecoDa principles into reality. John Carver's "rule of reasonable implementation" would also assist families looking to strengthen their governance structures.
Carver recommends delineating boundaries between the powers and responsibilities of the shareholders and the board, but he accepts that this boundary is likely to be permeable. In the upper echelons of a family business, people are paid to think on their feet. A valued attribute of senior staff is sound judgement based on an understanding of the family's shared purpose as expressed in its corporate governance structures and processes. Therefore it is important that all shareholders and the board understand the spirit as well as the detail of the governance structures and are not tempted to rely on a detailed linguistic analysis of the words.