Abstract
Large corporations do not exist or operate in a vacuum, and must constantly adapt to the environments in which they operate in order to survive and prosper. They must also satisfy, where possible, the many demands and expectations of the groups they influence and with whom they interact. Many listed companies around the globe are voluntarily responding to mounting calls from investor and stakeholder groups for consideration and reporting of non-financial factors and outcomes. This is evidenced by reporting frameworks that include, among others, management discussion and analysis, disclosure of corporate social responsibility (CSR), sustainability and citizenship information, and integrated reporting. As these various reporting developments build momentum, policy makers are reviewing the legal frameworks and are establishing new rules or strengthening existing regulation around the governance and disclosure of information on employee, supplier, diversity, human rights, community impact, and sustainability matters. All of the regulatory options in use or mooted in the corporate sustainability space rely on disclosure as a means to drive awareness of sustainability matters and to ultimately move the culture and activities of corporations towards more sustainable business practices.
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Notes
- 1.
The OECD indicates that ‘Corporate governance involves a set of relationships between a company’s management, its board, its shareholders and other stakeholders. Corporate governance also provides the structure through which the objectives of the company are set, and the means of attaining those objectives and monitoring performance are determined.’: OECD (2015).
- 2.
The purposes and content of corporate social responsibility reports, corporate citizenship reports, corporate sustainability reports, and integrated reports overlap and include similar content regardless of the report title. For the purposes of this chapter, these frameworks are treated as interchangeable and referred to as sustainability reporting in most of the discussion.
- 3.
See for example KPMG International (2013), pp. 9–10. The KPMG survey reviewed corporate responsibility (CR) reporting across the 100 largest companies in 41 countries. This report notes that almost all of the world’s largest 250 companies report on CR with 78% of these companies referencing the Global Reporting Initiative guidelines. It suggests that the debate has well and truly moved on from whether or not companies should report on CR; the important issue now is the quality of such reporting and the best means to reach relevant audiences.
- 4.
There is no one agreed definition of sustainability. One scholar suggests that sustainable development ‘requires the balancing of the inextricable complexity of economic, social and environmental interests, within the non-negotiable ecological limits of our planet’: Sjåfjell (2015), p. 48. The World Bank Council for Sustainable Development (Corporate Social Responsibility) defines corporate social responsibility as ‘the continuing commitment by business to contribute to economic development while improving the quality of life of the workforce and their families as well as of the local community and society at large’.
- 5.
Directive 2014/95/EU.
- 6.
For discussion on the passing of Directive 2014/95/EU, see Kinderman (2015). Kinderman suggests the final text was weakened significantly as a result of opposition from business, with Germany the most outspoken opponent.
- 7.
- 8.
3rd edn (2014).
- 9.
ASX Corporate Governance Principles and Recommendations (2014), p. 30. The terms economic sustainability, environmental sustainability and social sustainability are defined in the glossary of the Code.
- 10.
ASX (2014), p. 30.
- 11.
ASX (2014), p. 11 (Recommendation 1.5).
- 12.
Australian Securities and Investments Commission, ASIC Regulatory Guide 247 (2013) Effective disclosure in an operating and financial review.
- 13.
The legislation in some countries refers to information released between periodic reporting periods as ‘ad hoc disclosure’.
- 14.
See for example United States Securities and Exchange Commission (2013), p. 42.
- 15.
North (2015), pp. 101–169—providing an overview of the periodic reporting and continuous disclosure regimes in the United States, Canada, Germany, the United Kingdom, Japan, Hong Kong, Australia and Singapore. I outline empirical research of disclosure practices in each of these countries and the features of best practice disclosure frameworks. Further, I discuss MD&A rules and practices in the jurisdictions examined.
- 16.
The socially responsible investing movement has grown rapidly over the last decade. The number of signatories to the United Nations Principles for Responsible Investment was 1380 on 4 February 2016, representing US$59 trillion in assets under management: United Nations environment program principles for responsible investment. Levels of investor activism in relation to environmental and social issues have also increased, particularly in the United States: The Conference Board (2010), p. 13.
- 17.
Levy et al. (2010), p. 96.
- 18.
Global Reporting Initiative (GRI): About sustainability reporting. [This online document is not paginated.].
- 19.
GRI, Intro to G4.
- 20.
International Integrated Reporting Council (IIRC), Integrated Reporting.
- 21.
IIRC, p. 1.
- 22.
IIRC, p. 7.
- 23.
IIRC, p. 2.
- 24.
IIRC, pp. 11–12.
- 25.
IIRC, pp. 18, 21.
- 26.
IIRC, p. 8.
- 27.
IIRC, pp. 16–17.
- 28.
Communication is commonly defined as a two-way process of reaching mutual understanding, in which participants exchange information, news, ideas and feelings, and create and share meaning.
- 29.
There is no generally agreed definition of ‘stakeholders’. See Corporations and Markets Advisory Committee, Commonwealth of Australia (2006), pp. 54–55. This report defines stakeholders as ‘groups or individuals who are expected to be affected by, or whose actions could affect, the activities, products or services of the organisation.’
- 30.
- 31.
- 32.
- 33.
Elhauge (2005); Devinney (2009); Hahn et al. (2010); Sarfaty (2013), p. 613. Elhauge argues that the law gives corporate managers considerable implicit and explicit discretion to sacrifice profits in the public interest. He notes at [743] that ‘Of course, corporate managers can and should do good when it maximises profits. What could be the argument to the contrary? The serious question is whether they can and should do good when it decreases profits.’ Sarfaty notes that issues like human rights may not be financially material and may therefore be largely excluded. He suggests that human rights is generally treated as a risk mitigation area with reporting used as a tool to mitigate reputational, commercial and litigation risks. Hahn et al. argue that proactive sustainability strategies do not avoid the conflicts involved and accept trade-offs to achieve substantial sustainability gains at a societal level.
- 34.
Elhauge (2005), p. 743.
- 35.
Suchman (1995), p. 574
- 36.
Lerner and Tetlock (1999), p. 255.
- 37.
- 38.
- 39.
This argument is often made within company reporting spheres. See North (2015), pp. 199–201.
- 40.
North (2015), pp. 207–10.
- 41.
- 42.
- 43.
Mitchell et al. (2012), p. 1062.
- 44.
Hess (2008), pp. 463–464.
- 45.
Gurtuck and Hahn (2016).
- 46.
North (2015), pp. 205–213.
- 47.
Sarfaty (2013), pp. 609–611.
- 48.
For summaries and analysis of these studies, see North (2015), pp. 32–39.
- 49.
- 50.
- 51.
- 52.
Serafeim (2015a, b), Richardson and Welker (2001), Orlitzky et al. (2003), Porter and Kramer (2011), El Ghoul et al. (2011), Clarkson et al. (2011), Eccles et al. (2011), Eccles and Serafeim (2013), Wu and Shen (2013), Kruger (2015), Qiu et al. (2016) and Plumlee et al. (2015). For an overview, see Clark et al. (2015).
- 53.
Richardson and Welker (2001).
- 54.
Dhaliwal et al. (2011).
- 55.
El Ghoul et al. (2011).
- 56.
Cheng et al. (2014).
- 57.
Cheng et al. (2014).
- 58.
Amel-Zadeh (2015).
- 59.
Liang and Renneborg (2014).
- 60.
Attig et al. (2013).
- 61.
- 62.
Ye and Zhang (2011), p. 104.
- 63.
Ioannou and Serafeim (2014).
- 64.
Eccles et al. (2014).
- 65.
Khan et al. (2016): This study uses the Sustainability Accounting Standards Board (SASB) definition of materiality: information that represents a substantial likelihood that its disclosure will be viewed by a reasonable investor as significantly altering the total mix of available information. This test has three components: evidence of interest, evidence of financial impact, and forward impact adjustment. The issues deemed material and immaterial by the SASB vary by sector. For example, materials sourcing is classified as highly material for technology and communication companies but is categorised as immaterial for financial and service companies.
- 66.
Hess (2008), p. 461.
- 67.
Herremans and Herschovis (2006).
- 68.
Villiers (2009), p. 233.
- 69.
Ruggie (2008), p. 44.
- 70.
KPMG (2013), p. 10.
- 71.
KPMG (2013), p. 11.
- 72.
KPMG (2013), p. 11.
- 73.
Sarfaty (2013) notes [at 581] that the GRI system of grading reports is based on the quantity (rather than quality) of indicators reported on. He states [at 607] that GRI executives acknowledged the low readership of GRI reports in an interview with him in Amsterdam in 2010. See also Comyns et al. (2013); Levy et al. (2010), pp. 90–91, 103; Zinnbauer (2013). Comyns et al. suggest [at 231] that the overall consensus from empirical studies that investigate the quality of sustainability reports is that the number of these reports has increased but reporting quality remains poor. Zinnbauer suggests that current sustainability reporting is limited, uneven and fragmented.
- 74.
- 75.
Soyka and Bateman (2012). See also Serafeim (2015a, b) Integrated Reporting and Investor Clientele citing a survey by Eurosif and the Association of Chartered Certified Accountants (2013) What do investors expect from non-financial reporting? The survey of institutional investors found that 93% of respondents disagreed that sufficient information was provided to assess financial materiality and 73% disagreed that sustainability reporting was linked to business strategy and risks.
- 76.
Report of the Committee on the Financial Aspects of Corporate Governance (2012) The Committee on the Financial Aspects of Corporate Governance was established in 1991 by the Financial Reporting Council, the London Stock Exchange, and the accountancy profession.
- 77.
Report of the Committee on the Financial Aspects of Corporate Governance (2012), 3.6.
- 78.
See New York Stock Exchange Listed Company Manual, s 3 Corporate Responsibility.
- 79.
The definition of independence is outlined in Listing Rule 303A.02 of the New York Stock Exchange Listed Company Manual. The exceptions to this rule are outlined in the introduction to Listing Rule 303A. Section 2 of the New York Stock Exchange Listed Company Manual indicates that one of the objectives of the listing agreement is to ensure ‘timely disclosure of information that may affect security values or influence investment decisions, and in which shareholders, the public and the Exchange have a warrantable interest.’
- 80.
Listing Rule 303A.05 of the New York Stock Exchange Listed Company Manual.
- 81.
- 82.
Gibson (2009), p. 8.
- 83.
North (2015), pp. 235–38.
- 84.
North (2015), pp. 188–89.
- 85.
The Conference Board (2010).
- 86.
Sarfaty (2013).
- 87.
Jenkins and Yakovleva (2006). Clarkson et al. (2008) and Chotruangprasert (2013). Guenter et al. found that companies appeared to ‘pick and choose’ which GRI indicators to report on. Jenkins and Yakovlelva notes there was ‘considerable variation in the maturity of reporting content and styles’. Clarkson found that companies with superior environmental performance disclose on more GRI environmental indicators, while poorer performers are more likely to exclude measures in the hope that the market will view them as average performers.
- 88.
Sarfaty (2013).
- 89.
- 90.
Sarfaty (2013), pp. 616, 621.
- 91.
Soyka and Bateman (2012).
- 92.
Elhauge (2005). Elhauge notes that legal and economic sanctions are inevitably imperfect and need to be supplemented. He argues that to optimise managerial conduct requires a regime of social and moral sanctions that encourages all participants to consider the effect of their conduct on others even when doing so does not increase company profits.
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North, G. (2017). Corporate Sustainability Practices and Regulation: Existing Frameworks and Best Practice Proposals. In: du Plessis, J., Low, C. (eds) Corporate Governance Codes for the 21st Century. Springer, Cham. https://doi.org/10.1007/978-3-319-51868-8_7
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