Xie Jilong, Board Secretary, CRRC Corporation Ltd, discusses the role of the board secretary. He stresses that board secretaries must fulfil their roles, be accountable and be able to communicate well to protect the interests of various parties.

It is said that the board secretary is a labourer who survives between the cracks, a chivalrous swordsman dancing on the edge of a sword, a diplomat who has to please various parties, and a lubricant that maintains good relations on various fronts. Having been a board secretary for eight years, I have mixed feelings about this role. In my opinion, the ultimate status of the board secretary should start with the recognition of the roles of the board secretary in the laws of China.

The board secretary was first legally recognised in China by the Special Provisions of the State Council Concerning the Floatation and Listing Abroad of Stocks by Limited Stock Companies (1994) made by the State Council pursuant to Articles 85 and 155 of the Company Law. Article 15 of the Provisions makes it clear that the senior management personnel of a company includes the board secretary. It was not until the promulgation of the Guidelines for Articles of Association of Listed Companies by the China Securities Regulatory Commission on 16 December 1997, with a special chapter on the ‘board secretary’ requiring the setting up of a board secretary position in all listed companies, that the status and function of the board secretary in a listed company was established. Subsequently, stock exchanges formulated and amended rules on the specific duties of the board secretary. I believe the purpose of specifying the duties and roles of board secretaries in rules and regulations is to affirm their position in listed companies and allow them to perform their duties smoothly, adhere to professional standards and ensure compliance of listed companies. From this perspective, the board secretary should be the gatekeeper of compliance of listed companies.

Know your role and duties

The board secretary is in the midst of a host of relationships among the regulators, the board of directors, the management team and shareholders. As a gatekeeper, board secretaries should stick to their principles and uphold rules and regulations. To do this well, not only do board secretaries need the support of the law, rules and regulations, they should also be able to balance various types of relationships. They should provide good support to at least three bridges of relationships.

1. Bridging the company and management

This bridge is between the three bodies of the company (that is the shareholders, the board of directors and the board of supervisors) and the management team. A properly functioning governance structure of a listed company is made up of the body of company power, the decision-making body and the supervisory body with clear delineation of powers and responsibilities, each performing their respective duties, resulting in effective checks and balances, rational decisions and well-coordinated operations. The decisions of the three bodies have to be executed by the management team ultimately, while matters beyond the scope of decision of the management team that come up during daily operations have to be duly submitted to the three bodies for discussion and decision. This forms an execution lane and a reporting lane. To ensure that these lanes on the bridge between the three bodies and the management team are unobstructed, the board secretary should function well as support to this bridge. In the first place, board secretaries should participate in important meetings of the management team and keep abreast of major issues. They should monitor the execution and progress of implementation of board decisions, and keep an eye on major emerging issues that require decisions by the three bodies. Good communication should be maintained by reporting problems and difficulties faced by the management team to the board of directors in a timely manner.

2. Bridging the company and regulators

From the point of view of the regulators, board secretaries are responsible for monitoring a listed company’s compliance with the law and regulations. They help publicise the policies, rules and regulations in relation to listed companies promulgated by regulators, and have the duty to explain laws, rules and regulations relevant to the operations of the company to the board of directors, the board of supervisors, the management team and controlling shareholders, educating them on the legal basis of decisions. In this way, they will enhance the knowledge of the decision making and executing departments about relevant law, standardise individual actions in the operations of the company, and raise individuals’ awareness of the need and their ability to conform to standards. In respect of major undertakings of the company such as financing, share incentives, mergers, acquisitions and reorganisations, the board secretary should ensure good communication with the regulators and solicit regulators’ recognition of and support for the company’s development.

3. Bridging the company and investors

Board secretaries of an A+H company have to tell general investors a good story about the company, and tell overseas investors a good story about China. They should explain to investors the operations, developments and strategies of the company, and solicit investors’ support and facilitate a long-lasting, stable and interactive relationship between investors and the company.

Be steadfast and accountable

As the gatekeeper of compliance, the board secretary should focus on three basic areas of work.

1. Ensuring due process as the basis of rational decisions

A clear and fair decision-making process must be backed by a proper system. A sound system ensures the lawful operations of a listed company. With the development of the capital market, regulatory policies are continuously refined and the mode of regulation is changing. This places new demands on listed companies to adapt changes in regulatory policies in order to raise the governance standards of the companies and adapt to the development of the capital market. Rational and efficient decisions can only come about through the establishment of comprehensive systems and procedures in the company, continuous improvement to the systems in compliance with relevant laws, rules and regulations, and monitoring by the board secretary of the implementation of the company’s decisions.

2. Ensuring true, accurate and complete disclosure of information as the basis of compliance

Information disclosure is a window of the company to the capital market, a platform to showcase the company’s governance standards, as well as a risky area for compliance. The breach cases attracting penalties imposed by regulators in recent years are mostly related to delayed disclosure or leakage of inside information. In this regard, the board secretary must be prudent in his words and actions when speaking to investors or the media, and remind directors, supervisors and senior management to keep inside information confidential and prevent its leakage. In this media age where information thrives, the role of board secretaries as diplomats is highly challenging. They must be ready to be accountable before they can handle information disclosure well. The internal management of the company should be transparent, and disclosure of information should be timely and accurate and compliant with the law, rules and regulations. When facing investors, the board secretary should be open while having a clear understanding of the limit to disclosure, tactfully declining the release of information that is not disclosable.

3. Ensuring proper connected transactions as the basis of fair treatment of all shareholders

Connected transactions should be a fair and normal market activity between equal legal entities. Owing to the special relation between connected parties, however, one party to the transaction may influence or control the other party and render the transaction unfair. In recent years, some listed companies made use of connected transactions to boost their results and channel profits to specific parties, seriously undermining the interests of medium-sized and small shareholders. So connected transactions have been the focus of attention in the securities market and are the target of enhanced supervision by regulators. As the compliance gatekeeper of listed companies, the board secretary should ensure that connected transactions are conducted properly and at arm’s length. This forms the basis of protection for medium-sized and small shareholders, and is the root of compliance of listed companies. In the daily operations of the company, the board secretary should constantly remind the company to reduce and avoid connected transactions through various means and, where connected transactions cannot be avoided, to follow a stringent decision and approval process and to make proper disclosure.

Communicate well and frequently

Communication is an art that requires knowledge and skills. It is important that the board secretary, as a link and a bridge among various parties, possesses good communication skills. The board of directors makes decisions on major issues, and the management team is tasked with implementing these important decisions. If there are difficulties in implementation, the board secretary must facilitate communication between the board of directors and the management team. Sometimes there appears to be conflicts between the operations of the company and the law, rules and regulations. This may be due to different interpretations of the rules, and sometimes it is out of an intention to protect the interests of the company. To tactfully communicate with the directors on the relevant legal provisions and rules and convince the directors requires very strong communication skills on the part of the board secretary. In the dialogue between the management team and the shareholders and investors, the board secretary has to communicate frequently and communicate well. Investors and the management team share common interests and do not have fundamental conflicts. Timely communication serves to enhance investors’ trust in the management. Meanwhile, collecting and collating the views of investors and reporting regularly to the management is conducive to the healthy development of the company.

The role of the board secretary seems to be more diverse than that of other positions. While board secretaries may have broad functions, the key is to ensure that the company complies with and follows relevant laws, rules, regulations and requirements. It is only when the listed company is compliant, that the interests of various parties are not impaired, whether they be the interests of the regulators, board of directors, board of supervisors, senior management or those of the shareholders. Therefore, every board secretary should become the gatekeeper of compliance of listed companies.

Xie Jilong
Board Secretary
CRRC Corporation Ltd

 

董秘是上市公司規范運作的堅守者

中國中車股份有限公司董事會秘書謝紀龍談論董事會秘書的定位,強調董事會秘書必須堅守職責,敢於擔當,善於溝通,才可保障各方利益。

有人說,董秘是在夾縫裡生存的勞动者,刀尖上起舞的俠劍客,需要左右逢源的外交官,也是維繫各種關係的潤滑劑。本人擔任董秘8年來,對董秘工作的體會也是五味雜陳,酸甜苦辣。本人認為董秘的最終定位,應該從董秘職位在中國法律認可說起。

董事會秘書在中國得到有關法律、法規上的認同,最早起源於國務院根據《公司法》第85條及155條而製定的《關於股份有限公司境外募集股份及上市的特別規定》(1994),該規定第15條明確了董事會秘書為公司的高級管理人員。直到1997年12月16日,證監會發布《上市公司章程指引》,專門列出一章“董事會秘書”條款,要求所有上市公司都必須配備董秘,這才真正確立了董秘在上市公司中的地位和作用,其後交易所又陸續頒布和修訂了董秘的具體職責。本人認為,之所以把董秘的職責和定位寫進法律、法規,就是要保證董秘在上市公司中的地位,確保董秘能順利履職,堅守職業要求,保證上市公司依法運作,從這個角度講,董秘應該是上市公司合規運作的堅守者。

定位準確、堅守職責

董秘介於監管機構、董事會、管理層、股東等一系列關係之中,身為堅守者,就應堅持原則,守護法規,這不僅需要法律法規的支持,也需要在錯綜複雜的關係中尋找平衡點。董秘至少要做好三座關係橋樑的支點:

1. 公司三會(注:股東大會、董事會和監事會)運作和管理層的支點
上市公司中的三會如果能夠真正發揮作用,就可以形成公司中權力機構、決策機構、監督機構之間權責分明、各司其職、有效制衡、合理決策、協調運作的法人治理結構。三會運作最終形成的決議需要管理層去落實和執行,同樣,管理層在日常經營中碰到的超越管理層決策的事項,也要按程序提交三會討論決定,這就形成了執行和上報的兩條通道,如何保證三會運作和管理層之間的這兩條橋樑通道暢通無阻,就需要董秘做好橋樑的支點。董秘首先要參與公司管理層的重大會議和重大事項,一方面關注董事會決策的執行進展和落實情況,同時也關注是否出現新的重大事項需要提交三會決策。對於管理層遇到的問題和困難及時向董事會報送,做好信息的傳遞工作。

2. 公司日常運作與監管機構的支點
從監管機構的角度,董秘是保證上市公司合法、合規運作的監管員,負責宣傳監管部門下發的相關製度、政策和上市公司規章制度,有義務向董事會、監事會,經營層及控股股東的成員進行公司運作相關法律、法規的介紹,為其提供完整的法律依據,以此來加強決策層、執行層對相關法律的深入認識,對公司運作的個人行為進行規範,提高其規范運作意識和能力。公司發展過程中,在重大融資、股權激勵、併購重組等重大事項上,董秘也必須做好監管機構的溝通,上下通達,確保公司的發展得到監管機構的認可和支持。

3. 公司日常經營與投資者關係的支點

作為一個A+H公司的董秘,既要向廣大投資者講好公司的故事,又要向境外的投資者講好中國的故事。既要把公司的經營發展開誠佈公地介紹給投資者,傳播公司戰略,又要爭取投資者的支持、促進投資者與公司之間建立長期穩定的良性互動關係。

勇於堅守,敢於擔當

董秘作為公司合規運作的堅守者,應該緊密圍繞三大基礎開展工作:

1. 確保程序公正是合理決策的基礎
決策程序的清晰公正離不開制度的支持,完備的製度建設保證了上市公司依法運作。隨著資本市場的發展,監管層不斷深化、細化監管政策,監管方式也在發生變化,這對上市公司就提出新的要求,要不斷適應監管政策的變化,才能不斷提高公司治理水平,適應資本市場的發展。建立好全面細緻的製度流程,同時結合相關方面的法律、法規內容的規定對公司的製度進行不斷的完善,董秘在公司日常決策程序中做好監督落實,才能獲得合理、高效的決策結果。

2. 確保信息披露真實準確完整是合規運作的基礎
信息披露是公司對資本市場的一個窗口,是展示公司治理水平的一個平台,同時也是上市公司觸發違規事件的“雷區”。從近幾年監管機構對上市公司的處罰來看,多數情況是信息披露不及時或者內幕信息洩露等違規行為。在這方面董秘自身要謹言慎行,在接待投資者或者媒體採訪中,要掌握好分寸,同時要提醒董監高注意內幕信息的保密,防止信息洩露。在資訊如此發達的全媒體時代,董秘的外交官身份充滿了挑戰,要勇於擔當才能做好信息披露工作。公司內部透明管理,信息披露及時準確,依法合規,面對投資者坦承佈公,明確信息披露的底線,無法告知投資者的信息婉言謝絕。

3. 理清關连交易是大中小股東公平對待的基礎
關连交易原本是平等法律主體進行的平等的正常市場行為的交易,但是由於關连方之間的特殊關係,交易的一方可能會影響或者控制另一方從而使交易不平等。近年有些上市公司通過關连交易粉飾業績和輸送利潤,嚴重危害了中小股東利益,因此關连交易一直以來是證券市場的焦點,也是監管機構加強管理的重中之重。所以作為上市公司合規運作的堅守者,董秘必須理清關连交易,確保交易的公允性,是保護中小股東利益的基礎,也是上市公司合規運作的根本。董秘在參與公司日常經營的過程中,要不斷的提示公司通過各種途徑減少和避免關连交易,同時在無法避免的關连交易中做好嚴格的決策審批流程以及信息披露工作。

善於溝通,勤於溝通

溝通是一門學問,董秘作為各種關係之間的接口、紐帶以及橋樑,溝通的藝術和技巧,是董秘素質的重要體現。董事會是重大事項的決策機構,管理層要落實這些重大決策,面對管理層的落實困難或者落實不到位,董秘必須做好上傳下達的溝通角色。當出現公司經營和法律法規衝突的時候,由於理解不一樣,有的甚至是保護公司利益,但是如何藝術地把有關條文、規則和公司領導溝通,說服領導,讓他們信服,這要求董秘具備非常強的溝通技巧。在公司管理層和股東投資者之間相互傳遞訴求,董秘需要勤於溝通和善於溝通,投資者和管理層是利益的共同體,不存在根本的衝突,及時的溝通交流,傳遞信息,能增加投資者對管理層的信任,同時董秘把投資者的訴求收集匯總定期匯報給管理層,也是促進公司健康發展的一種途徑。

關於董秘的定位似乎比其他職位更加多元,相比於其他職位更加小眾,但是董秘面對的世界卻更加寬廣。董秘職位的多元定位,其根本就是要維護上市公司的合規運作,合,遵從,依從,遵守,堅守;規,法律,規章,制度,規定。無論從監管機構、董監高、股東等多方來說,只有上市公司合規運作,才能確保各方利益都不受侵害,因此,我們每一名董秘都應成為上市公司合規運作的堅守者。

謝紀龍
中國中車股份有限公司董事會秘書

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