Global Disruption and Uncertain Horizons: How Can Boards Navigate New Risks?
GLOBAL DISRUPTION AND UNCERTAIN HORIZONS: HOW CAN BOARDS NAVIGATE NEW RISKS?
REPORT AUTHOR
Zach Mollengarden is an Attorney Advisor in the U.S. Department of the Treasury’s Office of the Assistant General Counsel for International Affairs. In this capacity, he advises on a broad range of international economic issues, with concentrations in sovereign debt, international financial regulation, and investment law. Prior to joining Treasury, Zach worked in the Washington, D.C. and Singapore offices of Three Crowns LLP, a specialist international arbitration firm, where he focused on financial services disputes. Zach holds a J.D. from Yale Law School, where he served as an articles editor for the Yale Law Journal and submissions editor for the Yale Journal of International Law. He received an M.Phil in International Relations from the University of Cambridge and graduated from Middlebury College with a B.A. degree in political science and religion, summa cum laude, Phi Beta Kappa.
STAFF
Benjamin Glahn Deputy CEO and Managing Director, Programs
Aurore Heugas Communications Manager
Tatsiana Lintouskaya Program Director, Corporate Governance Forum
Antonio Riolino Program Manager
Nancy Smith Director of Development and Philanthropy
INTRODUCTION
The “post-COVID” world has proven to be as tumultuous as its predecessor. On the heels of an existential threat to health and wellbeing, corporations today face risks—military, climactic, social, financial, and political—that only promise continued instability. The “new normal” features the old uncertainty.
From October 13 to 15, 2022, the Salzburg Global Corporate Governance Forum (the Forum), convened to discuss how corporate directors can and should respond. An intergenerational group of stakeholders, hailing from five continents, and drawing from deep expertise in finance, law, academia, and civil society, gathered to address the theme: Global Disruption and Uncertain Horizons: How Can Boards Navigate New Risks?
The attendees set out not just to distinguish the new risks from the evergreen, but also to ask whether the familiar tools of corporate governance still apply.
• What does a corporation’s commitment to environmental, social, and governance (ESG) initiatives entail, or perhaps demand, in a time of war?
• How should a corporate director reconcile traditional notions of shareholder primacy with the oftenconflicting interests of stakeholders?
• How does a corporation foster and inculcate its purpose in an increasingly digital office environment?
• Is it possible to achieve a corporation’s ambitions with respect to diversity, equity, and inclusion (DEI) holistically, or are there unavoidable tradeoffs?
The 8th annual Salzburg Global Corporate Governance Forum consisted of a series of plenary and breakout sessions. Unlike a conference setting, the Forum prioritizes decentralized and unstructured interactions. A broad theme sets the agenda for each discussion, but that aside, the conversation and analysis that ensues is of the attendees’ making.
This report is also of the attendees’ making. It provides a glimpse into the intimate, provocative, and often challenging conversations that took place in the halls and gardens of Schloss Leopoldskron. The report also contains a series of conversations with the attendees which allow them to speak in their own words.
The Forum is held under the Chatham House Rule, whereby participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed. This report reflects its authors’ reflections on the discussions during the Forum. None of the views or opinions expressed in the report should be attributed to individual attendees or the organizations with whom they are affiliated.
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GOVERNANCE AND PURPOSE
Unprecedented socioeconomic and geopolitical volatility has brought with it a renewed interest in identifying and strengthening those aspects of a corporation that can provide a ballast. Among the most prominent is the corporation’s purpose. The Fellows addressed this topic from a definitional and pragmatic perspective.
The definitional work comes first: Before a corporation can operationalize its purpose, there must first be a common understanding of what it is. The approach taken by Colin Mayer, a professor of management at the University of Oxford’s Saïd Business School, gained considerable traction in 2022: “The purpose of the business is to produce profitable solutions to the problems of people and planet, not profiting from producing problems.”
Breaking that adage into its parts, the Fellows considered purpose through the lenses of profitability, problem solving, and production.
Profitability
Profitability involved a cross-jurisdictional discussion of how rules and regulations in the Fellows’ home jurisdictions define the legitimate aims of a corporation. Shareholder primacy and profit maximization may be the most prominent model, but it is not the only one. Not even in the United States, where jurists in prominent jurisdictions such as Delaware are increasingly wrestling with how to reconcile these traditional features of corporate law with new models and new demands from civil society. What does it mean, to take a prominent example from 2022, for the founder of the outdoor-wear company, Patagonia, to dedicate the firm’s profits to combatting climate change and protecting undeveloped land by transferring his voting shares to a trust? Does this amount to an abandonment of profitability as a core component of Patagonia’s purpose, or merely a different understanding of the ends to which Patagonia’s profits are dedicated? Not surprisingly, no firm states that its purpose is to place as much money as possible under the mattress. So framed at the appropriate level of generality, Patagonia seems little different than any other firm. Goldman Sachs, for example, describes its purpose as “advance[ing] sustainable economic growth and financial opportunity.” Setting aside clothing versus banking, how different is that from Patagonia?
Problem Solving
Problem solving entails asking how a board should ensure that the corporation not only selects the right problems to solve, but also does so in the right way. Again, tradition was the starting point for the Fellows’ analysis, and as traditionally conceived, corporations are in the business of providing solutions to consumers’ problems: The Smith family needs a table, so IKEA provides one. The rise of ESG—as both an investing model and a framework for understanding the role of the corporation in society—may bring with it a new paradigm. In addition to meeting the Smith family’s need for a table, IKEA’s directors, management, and staff must consider (for starters):
• Where and how IKEA acquires the source materials for the table (E);
• Who IKEA’s sourcing, production, and recycling activities affect, in each of the communities in which IKEA operates (S);
• Whether IKEA has in place the internal rules and procedures required to ensure that IKEA can successfully pursue its corporate purpose (G).
It comes as no surprise that “the IKEA vision” does not mention furniture: “To create a better everyday life for the many people.” What’s not to like? In weighing that question, the Fellows asked whether ESG was old wine in new bottles— “impact investing” with better marketing—or instead a truly novel framework that compelled corporations to think in fundamentally different ways. They divided ESG into its component parts of environmental, social, and governance.
Environmental
Environmental considerations have dominated the discourse around ESG, particularly in the financial services industry. Fellows recognized that this is a product of supply and demand. On the supply side, as compared to “social” and “governance” factors, environmental considerations are quantifiable: counting the number of trees planted is easier than tallying the benefits of a robust whistleblower policy. On the demand side, while the remarkable growth of environmentally-focused investment products in 2022 suggests that there was previously unmet demand from investors to align their capital allocations with their ecological values, those values are neither universally held nor uncontroversial to operationalize. Can a pension fund not invest in an oil producer that has consistently outperformed the market if that means not being able to meet its annual distribution requirements? What becomes of the fund’s environmental priorities if the oil production its investment would have made possible would have provided much-needed heat to the homes of its beneficiaries? The Fellows also noted that the financial services industry has yet to coalesce around a single accounting framework to distinguish “green” investments, and the Fellows did not anticipate one emerging in the near term. Thus debates over whether, for example, “green” funds that primarily invest in technology companies (whose data centers consume vast amounts of electricity) merit that moniker will continue for the foreseeable future. The Fellows emphasized that whatever their outcome, these are debates that Boards must be having.
Social
Social factors are even more difficult to define, and often inherently contentious. Fellows observed that one time-honored approach is to keep the firm’s head below the parapet. But neutrality may not be consistent with the firm’s purpose. Nor is neutrality always an option, as the hostilities in Ukraine have made clear to many companies with exposure to Russia in 2022. Social variables of a different form also confront companies in countries such as the United States. The Fellows discussed Disney’s recent experience responding to a controversial bill in Florida which sought to restrict classroom instruction on sexual orientation and gender identity. Pressure from Disney’s LGBTQ staff eventually led its CEO to take a public stance against the bill and apologize for Disney’s “painful silence.” A month later, the Florida legislature revoked Disney’s self-governing status, and Florida’s governor accused Disney of “martial[ling] [its] economic might to attack the parents of my state,” promising “we’re going to fight back.” No single prescription for companies follows from this incident. What is does highlight is the necessity for boards to engage in a robust and nuanced analysis of the firm’s public and private stakeholders, and their potentially conflicting interests.
Governance
Governance is the component of ESG that falls squarely within the Board’s competence and expertise. It is also the aspect of ESG that receives the least attention. It is neither as quantifiable as environmental initiatives, nor as resonant with the public as social considerations. Governance is also distinct from environmental and social factors in that governance is generally understood as a means, while social and environmental matters are often approached as ends. For example, without an effective audit function, it may be impossible for a firm to guarantee that its supply chain relies exclusively on sustainable materials. Yet drawing a connection between an audit function and a final product can be complicated, leaving even those stakeholders that prioritize sustainability unimpressed. Fellows considered the various ways in which a Board can ensure that the unglamorous but essential functions of the company receive adequate attention.
Fellows emphasized that companies hoping to identify, define, and live up to their ESG commitments should measure less, but measure better. As the high-profile prosecution of the investment manager, DWS, for mislabeling investment funds “green” made clear, it is incumbent on boards to look beyond the packaging. Granular reporting on key metrics should be preferred to relying on third-party tools that define ESG as a binary “yes” or “no.” The question for boards is not whether an initiative is “green” or not, because such matters are rarely black or white. Boards should have enough data to see a different color: the gray.
Production
Production entails asking what are the necessary conditions for a company to realize its purpose, and how can a board go about ensuring that those conditions are in place? Fellows noted that some conditions will not be in the board’s control. Take macroeconomics: Central banks in developed and developing economies began raising interest rates in 2022. Investors confronting relatively attractive risk-free rates for the first time in decades have become less interested in sending their funds to riskier and developing economies. As one Fellow observed, an entrepreneur in a developing economy can be as “green” as any investor might want, but when sovereign bonds in stable jurisdictions are offering double digit returns, she is not going to be receiving capital. Noting the unprecedented flooding in Pakistan, the Fellows observed that nor are climactic weather events within the board’s control. Given the universe of factors that are, at least in the short term, impervious to a company’s influence, the process of production becomes that much more important. This goes for the good or service that the company produces—e.g., supply chain resiliency, adequate staffing, and contingency planning—but also for the board’s decision-making processes. There may be little that Unilever can do to stop the flooding in Pakistan, but it does control how it responds—in this instance, with in-kind donations of several tons of emergency supplies from Unilever’s Pakistani subsidiary.
GOVERNANCE AND GEOPOLITICS
Russian President Vladimir Putin announced his decision to begin a “special military operation” in Ukraine on February 24, 2022. The repercussions of that decision have been widespread, and long-lasting. Foreign Affairs magazine captured the prevailing mood in the cover of its centennial issue. Against a backdrop of darkness and driving rain, a lone figure stands with a lamp. The headline: “The Age of Uncertainty.”
In response, the Fellows asked, “What follows?” If the precariousness of recent years is not a passing phenomenon, what light can boards provide?
Focusing on the Russia-Ukraine conflict, the Fellows considered corporations’ positive obligation to provide support for victims, their negative obligation to avoid supporting perpetrators, and what lessons this crisis might have for those to come. The Fellows explored these questions through an extended case study involving a company whose board had, over decades, overseen an increasing exposure to an increasingly bellicose state.
The Initial Investment
Many boards have spent the latter half of 2022 considering whether (and in which cases) hope may have prevailed over reason in their decisions to invest in the Russian market. The Fellows recognized that the risk-reward calculations companies must make at the outset of an investment will only be as good as the data that informs it. Boards should ask, of themselves and of management, whether adequate expertise exists in house, or whether external consultants are necessary; whether the information management is providing the board is pertinent and robust; and to what extent the risk/reward calculation could be impacted by exogenous factors, the “known unknowns.”
From this perspective, “What went wrong?” may be the wrong way of framing the retrospective assessments taking place in many board rooms. In an age of uncertainty, “wrong” should be the baseline assumption. The question might instead be what plans and procedures the company has in place for when its expectations are challenged.
In Operation
The maxim “don’t fall in love with your business” applies to corporate directors as much as to ownership and management. A healthy degree of skepticism is essential if boards are to effectively exercise their supervisory function, asking the right questions of management at the right time. Once a firm has decided to enter a high-risk jurisdiction, some of the questions boards should pose prior to entering the country remain relevant, others will be new:
• Is the Board receiving regular updates regarding social, political, and economic developments in the jurisdiction?
• Does this analysis cover the full timeline of the investment, or is the board relying on near-term data and analysis to make decisions regarding a longterm engagement?
• What are the worst, best, and most-likely outcomes in the short, medium, and long term?
• What is the likelihood of the worst-case scenario coming to pass, and is that outcome tolerable? Can it be mitigated?
• How close are the firm’s ties to the local community or government, and with what implications?
• How have the firm’s shareholders and stakeholders responded to the investment? Have those responses changed or stayed the same?
• How have the firm’s competitors responded? Are they operating in the jurisdiction as well?
• Which of the assumptions that guided the initial investment decision proved correct, and which wrong? Why, and with what implications?
The Investment Sours: Exit, Voice, and Loyalty
Albert O. Hirschman’s classic Exit, Voice, and Loyalty explores three different ways of responding to dissatisfaction with a product or service. The framework has proven its utility in business, politics, and economics, and the Fellows’ discussion of how a corporate director should respond when the worst-case scenario comes to pass touched on each model.
• Exit: One response to a deterioration in conditions is to leave. Fellows emphasized that while the choice to exit a jurisdiction must be a holistic one—taking into account all circumstances and drawing intelligence from a wide a range of sources—firms may benefit from a relatively rigid set of pre-established trigger points. Recognizing the power of the sunk cost fallacy, boards and management will benefit in the midst of crisis from prior efforts to establish clear decision-making processes informed by reliable data. Boards should ask, at a minimum:
• What are the implications for local employees and other local stakeholders?
• How do those implications differ for nationals versus expatriate staff?
• What are the implications for the firm in the other jurisdictions where it operates?
• Is management in dialogue with regulatory and political authorities in those jurisdictions?
• How will the firm communicate its decisions? To whom?
• What are the firm’s competitors or allies doing? Are there opportunities for synergies or unified action?
• Voice: A second response to a deterioration in conditions is voice or agitating for change from within. Assume that the firm enjoys a virtual monopoly in a key sector in the jurisdiction, or that its expertise is essential to the production and sale of a key resource. Stakeholders will ask, and boards must consider, whether such a position creates affirmative obligations on the firm to leverage its position. The Fellows recognized that voice and exit are not mutually exclusive. A firm can express its disapproval for the government’s actions in clear terms, and exercise what influence it can, while at the same time acting prudently to protect its interests. The Fellows also recognized that a single voice is weaker than a chorus. Opportunities for collaboration and concerted responses should be sought out in conjunction with unilateral actions.
• Loyalty: A company can also respond to deteriorating conditions in the jurisdiction with loyalty, which in this context amounts to attempting to weather the storm. In other words, a company can stay in place, and continue operations as before, to the extent possible. The board and management will focus on mitigating the adverse consequences of this decision, both operationally and for the firm’s standing abroad. The retreat from Russia has been neither uniform nor universal, even among firms headquartered in the United States and Western Europe. Indeed, some 8 months after the invasion began, several major firms remain in the jurisdiction or are, for the most part quietly, still weighing their options.
Stepping back from the Russia-Ukraine conflict and this extended hypothetical, the Fellows agreed that globalization’s demise was not imminent. That is not to say that the relative stability of the pre-Covid status quo will return, much less the optimism that followed the collapse of the Soviet Union. Corporations will consider regionalization and localization—“friendshoring,” as US Treasury Secretary Janet Yellen has put it—as a function of political as much as economic imperatives.
Among the political factors is the potential for a reprisal of the great power conflicts of the early and mid- twentieth century, including the formation of rival blocks around China and the United States. The Biden Administration’s reluctance to withdraw tariffs and implementation of unprecedented restrictions on Chinese access to semiconductors only underscores the need for boards to weigh the agility and resiliency of supply chains. At the same time, due respect for geopolitical hazards must not paralyze companies from affirmatively seeking new challenges. Boards should act as a check on managerial overreach, but equally, should serve as a catalyst when excessive conservatism takes hold.
As for economic trends, it is trite to note that rising interest rates will present challenges as well as opportunities. It is also true. Prudence is compatible with growth, and the most effective boards will be those that assist management in finding the appropriate balance between retrenchment to core competencies and continued innovation.
GOVERNANCE AND CULTURE
The Boards of S&P 100 firms met an average of approximately eight times in 2019. That rate rose to 10 meetings during the COVID-19 pandemic and has begun to decline toward its pre-pandemic trend in 2022. In their discussions concerning the development, inculcation, and preservation of corporate culture, Fellows appreciated the difficulty this poses for boards. The intermittent and top-down nature of a board’s influence may seem inconsistent with the organic and bottom-up qualities typically associated with the development of a culture.
Yet culture is essential. The Fellows cited a series of high-profile scandals in recent years. Although multiple causes were always in play, both the public and insiders tended to identify the root of the problem in the firm’s culture. Too aggressive, too profit-centric, too short-term oriented, too confident—a series of case studies in which what was once a firm’s virtue became its undoing.
Fellows considered the role of the board in fostering corporate culture from two vantage points: inside out and outside in.
Inside Out
This perspective addresses the various tools that boards can use to measure and influence corporate culture. The Fellows recognized that while a company’s culture may develop through day-to-day activities and interactions, this neither prevents nor excuses boards from shaping its path. Much like a gardener trellising a climbing vine, a board can put in place the structures and processes that will ensure the firm’s culture grows in the right direction. Some of the tools that boards employ are familiar:
• The audit function is both a diagnostic and a remedial tool. Although audits are most often associated with measuring the health of a firm’s balance sheet, that need not be the case. Regardless of whether the firm has its own audit function or relies on external resources, boards should consider whether auditors can serve as a source for quantitative and qualitative data. “What gets measured,” famously, “gets managed,” and there are increasingly reliable mechanisms that can assist boards in understanding the firm’s culture as readily as its income statement.
• Whistleblowing procedures, when done right, serve a homeopathic function. Fellows discussed whistleblowing as part of a broader analysis of feedback mechanisms within a firm. Regardless of whether those information flows ultimately reach senior management or the Board, the accuracy, ease, and rapidity with which such information moves through a firm should be squarely on the board’s agenda. Maximizing all three variables will not just mitigate the risk of public scandal. It will also aid in instilling a culture in which feedback moves in multiple dimensions: top to bottom and bottom to top; horizontally among peers; positive and behavior-reinforcing as much as negative and behavior-restricting.
Other tools for shaping culture are more conceptual. The Fellows focused on the role of DEI in instilling and developing a firm’s culture.
• The debate over diversity’s influence on the bottom line is, for the most part, over. The question facing corporate directors today is not whether to diversify but how. An increasing number of public authorities are answering that question on the private sector’s behalf by mandating that private sector employers, typically above a certain size, meet or exceed diversity thresholds among the firms’ senior ranks. The Fellows also recognized that numbers alone do not resolve the matter. Diversity, whether measured with respect to race, gender, ideology, or any other attribute, must also be valorized for its intrinsic worth and harnessed to advance the firm’s purpose. Put differently, diversity toward what end? Doing so requires a degree of thoughtfulness and empathy that no public sector mandate can achieve.
• Much like diversity, equality can and has been quantified, tested, and regulated, most often via metrics such as pay gaps, representation among senior executives, and remuneration ratios. The Fellows noted that such exercises are a valuable start but must be treated as a means rather than an end. As with diversity, a board should ask, “Equality toward what end?” Doing so will allow the board to differentiate between initiatives with superficial appeal and those that are likely to have deep and enduring effects on the firm’s culture.
• Inclusion is the catalyst without which diversity and equality would have little impact. Inclusion not only requires ensuring that staff can bring their whole self to work, but also that they can bring these unique features to bear on their day-to-day tasks. Inclusion is also, as a consequence, the least amenable to measurement. Surveys are a start but insufficient. Oneto-one conversations, in which a board seeks out a cross-section of the employee population and hears from them, unfiltered by management, can provide a more robust and narrative-driven approach to acquiring such information, subject to the caveat that anecdotes may not be representative. Ideally, boards will combine general and anonymous data with in-depth engagement with staff members’ lived experiences.
Outside In
Along with exploring the ways in which a board can influence corporate culture from the inside, Fellows weighed how a firm’ culture can be shaped by external factors. American Senator Mitt Romney famously responded to a heckler during his presidential campaign by pointing out that “corporations are people, my friend.” While one might debate that point as a matter of law or biology, there is no question that corporations are composed of people, including citizens, moms, volunteers, and comic book enthusiasts who all live in a world that extends far beyond the four walls of the firm.
And as the introduction to this Report suggested, that the world is anything but stable, with unavoidable implications for what goes on inside the corporation and the development of its culture. Opening a newspaper on any given day in 2022, a corporate director might have been forced to consider how, if at all, the company should respond to:
• Widespread protests over police brutality in the wake of George Floyd’s death?
• Uncertainty over staff’s ability to heat their homes in the wake of the RussiaUkraine conflict?
• The inability of staff to access abortion services in the wake of the U.S. Supreme Court’s Dobbs decision?
• Hostility from several jurisdictions to LGBTQ rights?
• Caste-based discrimination inside the firm?
• Staff’s desire to work principally in one language versus another?
Fellows emphasized that a company’s answers to those questions cannot come solely from the marketing department. Instead, the answers will follow organically if firms have a robust and resilient culture in place. There are certain social developments that will be so core to the corporation’s culture that a public response will be essential, others, less so. In devising that response, the Fellows recognized that the bar has been raised in recent years. A public statement may be all that is appropriate in certain circumstances, but more often, a firm’s stakeholders will expect words to be accompanied by actions. And in formulating those actions, corporate directors should begin by looking internally to the company’s values, priorities, and expertise.
The National Basketball Association’s response to the George Floyd incident has proven to be among the robust and enduring—traversing donations, education, and lobbying for public policy reform, and driven by players and league executives acting in conjunction. By way of comparison, recall that it was in the 1990 U.S. Senate race in North Carolina that Michael Jordan observed that “Republicans buy sneakers, too.” Would Jordan’s response attract a boycott of Nike today? Has the NBA’s response to the George Floyd incident undermined its brand with certain consumers, and if so, does that matter if it has resonated with the league’s other fans? These are difficult questions, but the Fellows’ discussion made clear that their answer is unlikely to be found just by consulting the NBA’s income statement.
NEXT STEPS
This report began by asking whether, given the likelihood that the new risks corporations are facing would not just endure but multiply, the familiar tools of corporate governance still apply? Drawing on the case studies, preparatory readings, and interactive discussions that took place over the course of the Forum, Fellows reached, appropriately, no single response.
Instead of a single conclusion, Fellows left Schloss Leopoldskron with a set of sharpened and entirely new tools for tackling the risks that will inevitably reach the board in the coming months and years. Some of these tools are analytical, a reframing of a potential risk or a novel way of thinking about a familiar challenge. Others are procedural, taking the form of concrete and proven modes of operation that can be adapted and applied across industries to sharpen a Board’s oversight and recommendations. Others still are interpersonal, tools that are the fruit of the conversations and partnerships that can be forged when a diverse, engaged group of individuals come together around a common purpose.
Another group will come together in Salzburg from October 4 to 6, 2023. More information about the Salzburg Global Corporate Governance Forum is available online: www.salzburgglobal.org/multi-year-series/corporate-governance.
SALZBURG GLOBAL SEMINAR IS GRATEFUL TO THE FOLLOWING ORGANIZATIONS FOR THEIR SUPPORT FOR THIS PROGRAM:
CONTACT
For more information, please contact:
Benjamin Glahn, Deputy CEO and Managing Director, Programs bglahn@SalzburgGlobal.org
Antonio Riolino, Program Manager ariolino@SalzburgGlobal.org
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SALZBURG GLOBAL CORPORATE GOVERNANCE FORUM
The Salzburg Global Corporate Governance Forum enables critical thinking on the changing roles and responsibilities of directors across jurisdictions and cultures. Launched in 2015, its annual meeting explores how corporations can pursue both profit and public good in a fast-moving global environment, taking account of growing risks, disruptions, regulation, public scrutiny and consumer pressure.
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