Author Name:   pallavi ghorpade

Competitive business environment and appropriate good corporate governance have a nexus, the former fuelling, influencing and impacting the latter and the latter seeking to meet the challenge of the former. For corporate governance, inhering competition principles in policy making would appear sine qua non...

 Competition And Corporate Governance

Competitive business environment and appropriate good corporate governance have a nexus, the former fuelling, influencing and impacting the latter and the latter seeking to meet the challenge of the former. For corporate governance, inhering competition principles in policy making would appear sine qua non. Competition has a strong correlation with economic development. Corporate governance (designed to home in corporate performance leading to economic development), consequently needs to fashion itself to meet competition and to steer clear of indulging in (inadvertently or otherwise) anti-competitive practices. Corporate governance needs to inhere the interests of consumers and economic development

Competition is a dynamic concept with no unique definition, except what is understood in common parlance in the context of Market and Trade. In a manner of speaking, competition can be likened to what is anti-thetical to monopoly. While monopoly is pernicious to consumer interest and free and fair trade, competition affords wide ranging benefits to consumers. Adam Smith (1776) captured this altruism in his famous book "Wealth of Nations", when he observed :

By a perpetual monopoly, all the other subjects of the State are taxed very absurdly in two different ways, first by the high price of goods, which, in the case of a free trade, could be bought at much cheaper rates and secondly, by their total exclusion from a branch of business, which it might be both convenient and profitable for many of them to carry on.

There is and can be no perfect competition in the real world. What one notices in the market is a set of imperfectly competitive markets, where firms engage in strategic behaviour to maximise their profits and to restrict the opportunities available to their competitors. This kind of behaviour results in distortion of competition, exploitation of consumers and imposition of various economic and social costs on society, adversely affecting its welfare in general.

What is needed is appropriate behaviour on the part of manufacturers/suppliers and service renderers, a significant proportion of whom constitute corporate entities not only in terms of complying with the applicable laws and regulations and, in particular, complying with Corporate Laws and Competition Law but also in terms of sub-serving the large societal interest, namely, public and consumer interest.

This article addresses the relevance of competition to corporate governance, which, in turn, impacts economic and social development of the countries where the corporates are situated.

Competition policy or competition regime seeks to maintain and encourage the competitive process with a view to promoting economic efficiency and consumer welfare. Its objective is to spur firms and individual players in the market to compete with each other to secure the patronage of customers in terms of, inter alia, competitive prices, good quality and greater choice for them.

The contours of competition regime vary significantly from country to country. The differences are, by and large, reflected in the stated objectives of competition legislation across the countries. The most common objectives, applied with varying emphasis in different countries are economic efficiency, consumer welfare and public interest. In his analysis of new concepts for competition policy and economic development, Singh (2002) has suggested that standard objectives of competition regime should be reconsidered to bring in notions, such as, inter alia, an optimal degree of competition as opposed to maximum competition, an optimal combination of competition and cooperation between firms, dynamic rather than static efficiency and consistency between competition and industrial policies. For corporate governance, therefore, inhering competition principles in policy making would appear sine qua non.

Competition-A Dynamic Concept
Professor J.M. Clark in his paper on "Workable Competition" conceived competition as an amalgam of factors that stimulate economic rivalry. He referred to competition as a dynamic concept, as it attempts to judge forms of industrial organisation and the policies of firms by reference to the extent to which they promote or hamper this rivalry. Competition according to him, describes the kind of market pressure, which must be exerted to penalise laggards and to reward the enterprising, and in this way to promote economic progress (Clark 1940).

Prof. Schumpeter on the other hand has noted that the ordinary forms of price competition favoured by economists and Anti-trust Bodies can at best only protect consumers against being charged excessive prices in relation to current levels of cost. He goes on to say that only the very large organisations which are protected from the full impact of competition are capable of laying their hands on resources which permit them to bring innovations to fruition as well as to meet the risks of introducing them. Without the high profits, which their monopoly or dominance enables them to earn, the incentives and the means to innovate would be lacking (Schumpeter 1942).

LPG Paradigm
LPG in pre-reform regime would generally mean Licensing, Planning and Government Control. In the post-reform regime, LPG would mean Liberalisation, Privatisation and Globalisation. LPG paradigm pervades the approach of many a country now. Consequently, at the micro level, for firms to remain competitive, they are now required to adopt global strategies. As the number, size and scope of activities of multi-national companies, corporations and firms (MNCs) increases, more and more of them are forging and operating strategic alliances and their commercial practices are having an increasing international dimension than ever before. These processes are resulting in increased cross-border trade and at times anti-competitive practices. Such practices tend to undermine the benefits of liberalisation by countries.

The preamble to the WTO clearly stipulates that the "relations in field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income ...... in a manner consistent with their respective needs and concerns at different levels of economic development." The basic tenet of the competition policies is the inherent interest and welfare of the consumers and the efficient allocation of scarce resources. Therefore, while it is necessary to ensure that Liberalisation, Privatisation and Globalisation (LPG paradigm) lead to enhancement of competition, it is equally necessary to establish a mechanism that ensures a healthy competition in a globalised economy.

Corporate governance needs to in-here the interests of consumers and economic development and is thus very closely related to competition policy.

Corporate Governance and Consumer Interest
All corporate activities ultimately have at their consummating point, the consumer. Consumer welfare and interest aim at the charter of economic liberty designed for preserving free and unaffected competition as the rule of corporate governance. The premises on which the charter rests are unrestrained interaction of competitive forces, maximum material progress through rational allocation of economic resources, availability of goods and services of acceptable and good quality at reasonable prices and finally a just and fair deal to the consumers. Corporate governance has to factor these, if it has to live up to its responsibilities by the country and its subjects.

At the micro level, for firms to remain competitive, they are now required to adopt global strategies as a part of corporate governance. As the number, size and scope of activities of multi-national companies, corporations and firms (MNCs) increase, more andmore of them are forging and operating strategic alliances and their commercial practices are having an increasing international dimension than ever before. These processes are resulting in increased cross-border trade and at times anti-competitive practices. Suchpractices tend to undermine the benefits of liberalisation in most countries. Corporate sector is not only made up of MNCs but also is mostly constituting of small and medium industries. Corporate governance, therefore, would mean more of governance in the small and medium industries. This does not imply that corporate governance in MNCs is not a candidate for sub-serving competition principles. All corporates need to in-here competition principles in their governance, be they big, medium or small in size and operations. But one distinction is worth reckoning in the discussions in this article that MNCs by virtue of their size, clout and sweep in their activities and presence in many countries could inject anti-competitive practices into the market to the detriment of consumers and the interests of the countries concerned. The thrust of this article is that corporate governance needs to be moulded in such a way that the markets are driven by competition and that consumer interests are protected.

Role of Corporate Governance
Corporate governance is generally perceived to be focusing on shareholders' rights, conduct and output of managers and performance of directors. Most companies lay stress on encouraging investor confidence, on improving the quality of investment decisions, on preventing idle capacity and even preventing a build-up of excess capacity and generally on fostering their resiliency. In other words, corporates tend to fashion their governance on one or more or all of the above objectives. But many corporates are prone to give inadequate attention to the environment in which business is conducted. Environment includes the degree of competition among firms, extant level of competition in the market, entry and exit rules and the openness of the economy. With competition regime being ushered in or strengthened in many countries, there is an increasing appreciation of the need to factor in the competition principles in corporate governance. Business environment in its broadest sense has a significant impact on the corporates' incentives to seek out and implement competitive practices and strategies.

Competitive business environment and appropriate good corporate governance have a nexus, the former fuelling, influencing and impacting the latter and the latter seeking to meet the challenge of the former.

Challenges of Business Environment
Business or market environment is often vitiated by the conduct and behaviour of a few incumbent firms, which usually account for a very large share of the market for goods and services. Consolidation and worse, concentration, leads to monopoly or oligopoly or dominance. These few incumbent firms are able to act independent of the competitors in the market, particularly in fixing prices, in limiting production and in cartelizing. Such action is detrimental to consumers and the countries, where they operate. Ownership of such corporates is in the hands of a small group of large shareholders, thus affording them effective control of their affairs. Effective control of the affairs of the corporates and ownership concentration result in rents accruing to the set of large shareholders and their nominees in Management. They sometimes siphon off the revenues and assets of the corporate bodies. Despite standards prevalent in accounting and auditing areas, monitoring the performance of corporates leaves very much to be desired because of inadequate or lack of disclosure of vital information on the part of the corporates. The case of Enron and more recently of Satyam illustrate this phenomenon. One needs to pierce the veil of the corporates to reach the reality. Many developing countries and even developed countries suffer from pervasive corruption and unpredictable judiciary. In such a milieu of business environment, there is a big need for good corporate governance. Many corporates miss out on appreciating the deleterious consequences of the constellation of business factors constituting the environment and on the imperatives of good corporate governance.

Competition Correlates with Economic Development
There is empirical evidence of the benefits of competition regime vis-á-vis economic development, greater efficiency in international trade and consumer welfare listed in a report (UNCTAD1997). The evidence, albeit referring to experiences of developed countries, indicates substantial benefits from the strengthening of the application of competition policy principles in terms of "greater production, allocative and dynamic efficiency, welfare and growth." It further concludes that the consumer and producer welfare and economic growth and competitiveness in international trade have all flowed out of competition policies, deregulation and surveillance over Restrictive Business and Trade Practices. Noting that competition rewards good performance, encourages entrepreneurial activity, catalyses entry of new firms, promotes greater efficiency on the part of enterprises, reduces cost of production, improves competitiveness of enterprises and sanctions poor performance by producers, the empirical evidence in the report suggests that competition ensures product quality, cheaper prices and passing on of cost savings to consumers. The report also observes that competition promotes two types of efficiencies, namely, static efficiency (optimum utilisation of existing resources at least cost) and dynamic efficiency (optimal introduction of new products, more efficient production processes and superior organisational structures over time) (UNCTAD, 1997). Analysing the empirical evidence, the UNCTAD report has the following to say :

In the Netherlands, it has been calculated that the average annual consumer loss arising from collusive practices or restrictive regulations in several service sectors amounts to 4,330-5,430 million guilders (around $2.1-2.7 billion) (Hendrik P. van Dalen 1995). Data relating to the United States show that a bid rigging conspiracy for the sale of frozen seafood which was eventually prosecuted had an average mark-up over the competitive price over a one year period of 23 per cent (LukeM.Froeb et al. 1993) and the break down of price-fixing conspiracies in some industries has led to steep declines in manufacturing costs (Scherer and David Ross 1990). It is true that cartels may sometimes facilitate adjustment, but vigorous competition may sometime be as or more effective in forcing rationalisation of industries, particularly in larger markets (Scherer and David Ross 1990). An examination of some exempted rationalisation cartels in Germany (several different types of cartels are allowed under the German competition law, subject to certain conditions) found that they had promoted the viability of the producers in the industries concerned, but there was little evidence that they had contributed to productivity and efficiency improvements, while they had resulted in higher prices and less output (David B. Audretsch 1989).

There is enough testimony to underscore the benefits that flow from redesigned Government policies in favour of competition. For instance, in the European Union, the implementation of the policy of removal of barriers to trade is estimated to have increased income by 1.1-1.5 per cent over the period 1987-93 and to have created 30,000-90,000 jobs and to have decreased inflation by 1.0-1.5 per cent. Around half of this is attributed to increases in competition and efficiency improvements (Commission of the European Communities 1996).

Competition therefore has a strong correlation with economic development. Corporate governance (designed to home in corporate performance leading to economic development), consequently needs to fashion itself to meet competition and to steer clear of indulging in (inadvertently or otherwise) anti-competitive practices.

Restricted Competition Impedes Good Corporate Governance
As noted earlier, competition influences and impacts corporate governance. TheLPG paradigm drives markets for goods and services to be competition driven. But dominance, oligopoly and monopoly prejudice competition. Ownership concentration, market concentration and consolidation add to the prejudice. Compounding these are regulatory barriers (brought about by the State) and firm-level practices limiting competition in takeovers, divestiture and privatisation. The above said prejudice occurs in both developing and developed countries. In this scenario, corporate governance is the causality because of the fact that the corporates dominating the market are getting their rents and excessive profits in the sub-optimal competitive environment. If the business environment is reasonably competitive, corporate governance cannot afford to be slack or to be unmindful of competitors and potential competition. Corporate governance manifests itself in terms of supervision and timely decision-making by the Board of Directors or the Management. Where competition is inadequate or sub-optimal, corporate governance tends to become loose and slack, with decision-making in business matters by corporates delayed or postponed.

Jensen (1993) has noted that slack governance by a corporate, even if dominant, results in decline in corporate performance impacting consumers and shareholders adversely. This was based on an analysis of the corporates in the US during the late 1980's, when stringent anti-takeover regulations impeded control transactions resulting in a large number of dominant and market leading corporates failing to add economic value for their capital and R&D expenditure. The business environment suffered from sub-optimal competition and consequently, the return on capital was unsatisfactory.

Restricted competition in the market for goods and services in developing countries can injure the interests of consumers and retard economic development. State sponsored policies may place restrictions on ownership and entry. Restrictions of this kind are driven by politics or pressure groups or vested interests. They are generally justified in the name of "public interest". Incumbent firms could enlarge their presence and interests taking advantage of the protectionist policies of the State. In the process, such firms could well become monopolistic or dominant. They may be enabled in this environment to make usurious profits in excess of competitive returns. In the competition-lacking market environment, prices are likely to get distorted and while incumbent dominant corporates take advantage of their market power and reap profits, it is the consumer whose interest is prejudiced by way of higher prices etc.

State sponsored policies, particularly those which create entry barriers and which are protectionist in nature afford easy profits for incumbent firms, who therefore have little or no incentive to utilise their resources efficiently. Being insulated from competition, their production costs are likely to be higher than if they had not been. Where competition is present in ample measure, the firms, even if dominant, would be forced to cut costs, innovate and improve quality of their goods and services by adopting the best technical and managerial practices. Sans competition, the incumbent firms may make poor investment decisions or delay addressing business problems. Distorted prices, misallocation of resources and poor or delayed decisions may all lead to consumer interest prejudice and to a resulting burden on the society.

Ownership concentration and consolidation get aggravated, if there is no competition or there is sub-optimal competition in the market. The predilection of incumbent firms to be major market players and preferably to be dominant cannot be gain-said. If they are private firms, they would like to continue to be so. Even if they would like to go public, they would not like to give up control by retaining a controlling stake. A study by the World Bank (1999) shows that in less competitive markets, a higher share of the leading firms remain private and that a higher proportion of closely held firms are observed among publicly traded companies. In closely held corporates and ownership concentration, there is always the possibility of corporate insiders committing abuses using confidential information privy to the corporate. Such a possibility may shy away minority shareholders and lead to the undermining of the development of securities and capital markets.

LPG, Competition and Politics
Large and dominant firms, though few in number, have a significant influence in shaping the legislative and regulatory agenda of the Government. This is so in both the developed and the developing countries. In the developed countries, one would normally countenance powerful press, informed opinions and independent media. These in combination are likely to dement the influence over the Government of the powerful corporate entities, who dominate the market. In the developing countries, however, informed opinions may be less prevalent, the media may be less and not totally independent but under some control of Government and the press less powerful than in the developed countries. Ergo, the influence of the dominant corporate entities in developing countries may be able to shape the legislative and regulatory agenda of the Government.

Illustratively, the privatisation policies under the LPG paradigm are generally opposed by not only the political parties left of centre but also by public enterprises driven by a sense of survival. The pressure applied by public enterprises on the Government on its policies of privatisation is however, usually countered by a strong pressure in support of such policies from the private corporate sector, particularly from monopolistic or dominant firms. Government tends to heed and give in to the pressure of the private corporate sector, which more often than not finances the political parties constituting the Government. Incumbent domestic banks attempt to entrench their position in the country by opposing policies that would permit foreign banks to compete with them. Likewise, opening certain sectors to foreign competition is met with opposition from domestic players, particularly the dominant ones in the sectors. One could generalise and say that there is a strong nexus between market power and its political influence on Government decision-making.

Yet another phenomenon that one comes across frequently is the predilection of incumbent firms for entrenching their position and power in the market. Major shareholders in a company eliminate the small and minority shareholders by buying them out and reducing the latter's voting power. This is also achieved by issuing new shares in private placements. Firms which succeed in entrenching their position and power apply pressure on the Government, before crucial decisions are taken which impact them. The pressure is riveted to sub-serve their own interest and to dilute or prevent competition in the market against them. They seek to resist policies that would adversely affect their interests.

Having said this, it is a matter of concern that by limiting competition, small and new businesses are made to face entry barriers like access to capital. Lenders, investors and even banks are prone to support loan and equity demands from large, dominant and entrenched firms rather than from small and new firms. This further entrenches incumbent firms and leaves the weak and small ones from accessing capital for survival and growth. Entrenchment of monopoly and dominant firms has another deleterious effect. Prices are fixed at higher than competitive levels with profits and rents enriching incumbent firms. Besides being prejudicial to consumers, high prices are detrimental to social welfare.

Pressure groups can seriously undermine reforms constituting the LPG paradigm. For LPG paradigm to succeed there is a strong necessary condition that effective competition should drive the market. Politics and pressure groups are likely to result in stifling competition, thereby stifling the LPG reform process and consequently impeding economic development of the country.

Good corporate governance essentially involves eschewing entrenchment, pressure groups and undermining of the reform process. The last mentioned dimension-the reform process-includes fostering of competition in the market.

Corporate Governance and Competition
It has been noted earlier that large and dominant firms seek to entrench themselves and further their interests. Because of their size, dominance and financial clout, they are in a position to call the shots regarding prices, quality and output. By forming cartels, they could limit the output, create scarcity of goods and services in the market and increase the prices beyond competitive levels. Excessive profits and rents are earned by dominant and monopolistic firms leaving the consumers poorer and at their mercy. In a competitive environment, incumbent firms may not be cornering excessive profits and usurious rents. While profit making is justified and should be allowed, profiteering should be prevented. Reasonable profit making will allow new parties into the market resulting in more supplies (perhaps, better supplies in terms of quality) and lower prices driving down profitability. In a market driven by competition, there is always an incentive to bring about technological advances and innovations thereby providing the consumers with better quality products and new products.

The arguments above bring into focus the need for good corporate governance. Good corporate governance does not lie in eliminating competition by seeking Government intervention and policies of protectionist nature but lies in meeting competition headlong. Meeting competition means enhanced operational efficiency, cutting costs, keeping down administrative expenses and affording quality products at reasonable prices to the consumers etc. Market power should be used constructively to sub-serve consumer interest and the national interest. It should not be misused to merely entrench oneself in the market and to make unreasonable profits. It is the responsibility of corporate governance to ensure the constructive use of market power.

Corporate governance should ensure that the corporates do not indulge in anti-competitive practices. Despite the temptation to cartelise and fix prices, a corporate entity or firm should not lend itself to join other firms in the same line of production or service with the object of colluding with them and drive the market with higher prices and lower output. In particular, corporates should avoid colluding with competitors to the detriment of consumers. Collusive practices include cartelisation, price fixing, limiting outputs, bid-rigging, market allocation by territories or customers, limiting technical development etc. Enlightened corporate management will steer clear of such collusive practices and will condemn them by bringing action against colluding offenders responsible for adversely affecting competition in the market.

The objective of competition is a free and fair market. It will lead to enhancement of economic freedom and lower barriers to entry for new firms and competitors. In the long run, firms which believe in good corporate governance are likely to succeed in the market and also to foster a healthy competition in the market.

Good corporate governance in a competitive milieu is likely to serve the interests of consumers and the society. LPG paradigm, if effectively implemented will have to focus on competition principles, which should inform legislative and executive policies. While LPG can stand on its own, it will stand better, if buttressed with effective domestic competition. For buttressing domestic competition, every country needs to have a sound competition policy and an appropriate competition law to enforce the policy. The competition policy to be posited by the Government has therefore an important responsibility to ensure that the corporate sector plays a just and equitable role through good governance. Governmental policies should allow free play to market forces and promote a competition driven market. At the same time, no corporate body should be allowed to abuse its position in the market, particularly, its size, dominance and financial clout. Cartelisation and abuse of dominance need to be frowned upon by the Competition Tribunal or Agency. Offenders should be brought to book with deterrent punishments. Having said this, it is incumbent on the corporates not only to follow the rule book on competition but meet competition by way of being competitive and not by way of seeking rent and protectionist policies. Competition Tribunals should be independent, transparent, accountable and free of political influences. They should play the role of competition advocate and inculcate competition culture in the market.

Competition, Development and Corporate Governance are inter-linked and any break of the link is only at the peril of the society.

The  author can be reached at: pallavighorpade@legalserviceindia.com

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