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‘
ABSTRACT
Due to the large-scale reforms implemented in recent years in our country, the command-and-control
system of management in the economy has been completely abandoned, and clear and purposeful
work is being done to widely introduce the mechanisms of a free market economy. On February 7,
2017, the Decree "On the Actions Strategy for the further development of the Republic of Uzbekistan"
was approved as a basic program to ensure the implementation of these reforms . The decree
identifies activities in the field of "Priorities for further development and liberalization of the
economy" as one of the five main areas. It was noted that one of the main tasks in this direction is the
introduction of modern standards and methods of corporate governance, strengthening the role of
shareholders in the strategic management of enterprises.
KEYWORDS
Corporate Control, Governance, OECD, Rights And Interests.
INTRODUCTION
In this Strategy, it is defined that the functions
of the owner (shareholder, participant,
founder) on behalf of the state are performed
only using the methods of corporate
governance. It is planned to introduce modern
methods of corporate governance such as the
election (appointment) of members of the
governing bodies on a competitive basis,
increasing
their
responsibility
and
accountability through evaluation of their
activities,
the
transition
to
market
mechanisms, the involvement of professional
The Role Of Corporate Control In Protection Of The Rights
And Interests Of Shareholders
Bekzod Umarov
Senior Lecturer Department Of Business Law, Tashkent State University Of Law, Uzbekistan
Atajanov Khamdambek
Lecturer Department Of Business Law, Tashkent State University Of Law,, Uzbekistan
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 12-2021
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Pages:
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independent members in the supervisory
board, the establishment of committees under
it, the introduction of fiduciary obligations to
the members of the supervisory board, as well
as improving the functioning of regulatory
bodies
and strategic
human
resource
management. This, in turn, highlights the
urgency of introducing modern corporate
governance and oversight mechanisms in our
national legal system today.
Also, the Decree of the President of the
Republic of Uzbekistan dated April 13, 2021
No. 6207 "On measures to further develop
the capital market"
1
is a major step in the
development of the capital market on the
basis of modern standards, in particular,
improving corporate governance. The decree
sets the task of improving corporate
governance in joint-stock companies in
accordance with international standards
As a result of measures taken to improve the
legal framework, the country increased its
ranking by 51 points compared to 2016 in the
World Bank's Doing Business ranking for 2020
in the category “Protection of the rights of
minority shareholders”, which reflects the
conditions for doing business.
2
The system of corporate control is becoming
an issue in our country that requires active
development
and
improvement
within
corporations. As a result of socio-economic
changes and reforms in recent years, in
addition
to
small
and
medium-sized
businesses, a number of large corporations
have been formed in our country. By itself,
such changes require the task of improving
effective
corporate
governance
and
supervision in corporations.
1
O‘zbekiston Respublikasi Prezidentining “Kapital
bozorini
yanada
rivojlantirish
chora-tadbirlari
to‘g‘risida”gi Farmoni // O‘zbekiston Respublikasi
Qonun hujjatlari milliy bazasining rasmiy veb-sayti –
www.lex.uz.
Effective corporate governance and oversight
systems help companies and countries attract
foreign
investment,
strengthen
the
foundations
for
long-term
economic
development, and ensure competitiveness in a
variety of areas.
Depending on the nature of the functions
performed, the bodies of the legal entity are
divided into governing bodies (supervisory and
executive) and controlling bodies. Therefore,
in order to more clearly show the essence of
the topic and to fully define the legal nature of
"Corporate Control", as well as the specifics of
its processes, it is necessary to determine the
relationship of this concept with the concept of
"Corporate Governance".
First of all, it should be noted that the terms
"management" and "control" do not mean the
same thing. Issues related to the relationship
between control and management of
corporations are also reflected in the work of
legal theorists.
The etymology of the term "corporate
governance" goes back to ancient Greek and
Latin. The term "corporate" is derived from the
Latin word "corpus", which means "div", and
corporate
governance
means
a
div
consisting of people authorized to form a
single organization. “Governance” is derived
from the Latin-Greek word “gubernatio”,
which means “governance” and “leadership”.
According to D.Kotua, management refers to
the actions taken to guide the production
process, taking into account the coordination
of the company's activities and decision-
making. Supervision
(including
financial
control) is the ability to determine the results
2
http://documents1.worldbank.org/curated/en/6887
61571934946384/pdf/Doing-Business-2020-
Comparing-Business-Regulation-in-190-
Economies.pdf.
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of management activities related to the
development of corporate policy.
3
In the opinion of national theorists, however,
the concepts are mainly defined within the
economic category. According to them, the
question of the difference between the
concepts of "corporate governance" and
"corporate control" is interesting. Corporate
control is considered as an opportunity for the
subjects of joint-stock relations to constantly
influence the strategic decisions made. In a
broad sense, corporate control is a set of
opportunities that are closely related to the
concept of "corporate interest"
4
and can
generate revenue from corporate activities.
Corporate governance, on the other hand, is
characterized
by
a
corporate
control
relationship that involves ensuring a consistent
and consistent corporate interest. In other
words, corporate governance means the
formation and introduction of corporate
control mechanisms in order to best meet the
interests of corporate owners. Hence,
corporate control is a tool in the corporate
governance system.
There is no single definition of “corporate
governance”. According to the World Bank,
corporate governance is a combination of
legislation, standards and good practices of the
private sector that enable the company to
attract financial and human resources, operate
effectively and, as a result, shareholders, other
stakeholders and the public. ensures its
survival by increasing its long-term economic
value to its shareholders while pursuing its
interests.
5
3
Котуа Д. Банковский контроль над крупными
корпорациями в США. – М., - С.33.
4
Corporate interest is a common interest for a
corporation, a company, an organization. This
benefit can be in the form of entering the markets
of goods or services together, finding a niche in it,
strengthening its position, winning in a competitive
struggle, increasing profits or the volume of
However, there are definitions of "corporate
governance" that indicate that corporate
control
is
a
management
tool.
The
Organization for Economic Co-operation and
Development (OECD) defines corporate
governance as “a set of relationships between
corporate
bodies,
owners
and
other
stakeholders”
6
. At the same time, in other
foreign literatures, corporate governance is
described as a system that manages and
controls business corporations. It is therefore
closer to the truth that corporate control is an
aspect of corporate governance.
Corporate control is the process of controlling
a corporation, as well as controlling the
internal activities of the corporation. These
corporate control mechanisms are designed to
ensure that the planned goals are achieved. It
also reduces and corrects any deviations and
inefficiencies caused by agency problems in
different countries. The problem of agency is a
common
phenomenon,
especially
in
companies
separated
from
property
management,
and
corporate
control
mechanisms are needed. In such companies,
the management agent and the shareholders
in principle pursue different goals, and there is
an information asymmetry between the
principal and the agent. The company can use
corporate control mechanisms to reduce the
agency problem and strengthen control within
the company.
When it comes to corporate control
mechanisms, we can divide them into internal
and external control systems. Internal control
systems include activities such as recounting
and monitoring by shareholders and the board
production of products, dramatically improving the
quality of products. .
5
The World Bank Report (2005), Corporate
Governance Report on the Observance of
Standards and Codes.
6
https://www.oecd.org/corporate/ca/Corporate-
Governance-Principles-ENG.pdf.
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of directors. Internal control mechanisms
combine control and company activities with
its objectives.
External monitoring helps reduce information
asymmetries in markets such as the managed
labor market and the corporate control
market. Such measures will improve the
performance
of
these
markets
and
consequently help reduce the agency
problem
7
.
Joint-stock
companies
of
economically
developed foreign countries have their own
management philosophy, which reflects the
agreed rules to be followed by all shareholders,
managers,
employees.
A
number
of
mechanisms for effective corporate control
have been developed. Established product
markets emerge as the first of such control
mechanisms. At the same time, in the face of
the constant threat of bankruptcy, corrupt
managers of corporations begin to work
effectively in the interests of the entire group
of corporations. The second mechanism of
control is the financial market. This allows
property owners who have lost interest in the
company to sell their shares and thus receive
their share of the company's capital. The threat
of mass exodus of property owners who have
previously invested in the company affects the
behavior of managers who have to look for
another source of capital and risk losing their
jobs
8
.
By economic category, corporate control is a
mechanism by which shareholders, financial
institutions, and management pursue their
own interests, primarily to maintain existing
governance and neutralize competitors. This is
done using corporate governance tools, so it is
not appropriate to view control as the same.
7
Douma, S. and Schreuder, H. (2013): Economic
Approaches to Organisations, London, p.364.
8
H.R.Rahmonqulov, S.S.Gulyamov. Korporativ
huquq. –T.: TDYI nashriyoti, 2008. 255-bet.
In our opinion, the concepts of corporate
governance and control do not mean the same
thing, but one is inextricably linked with the
other. In our view, corporate control is part of
the corporate governance system. Oversight
of a corporation is the process of selecting
long-term goals in different countries, defining
its strategy and policy (financial, production,
etc.), forming proposals on the composition of
the board of directors (in the Anglo-Saxon legal
system) and governing bodies. It was first
proposed in the 1930s to define the nature of
oversight as an opportunity to select or reject
candidates for the company’s board of
directors.
Modern large corporations have a whole
system of control over the financial and
economic activities of the company, the
purpose of which is to ensure the rights of
shareholders (participants) and potential
investors of the company. In addition to the
traditional control mechanisms in the form of
audit commissions and external audits, this
system may include the activities of the audit
committee under the board of directors and
the establishment of an audit service as a
separate unit of society.
9
In our national legal system, corporate control
is basically the control over the financial and
economic activities of a society. We don't
consider it necessary to comment on such
assumptions. This is because control over the
financial and economic activities of a society is
one of the types of corporate control. As a
whole
system
of
corporate
control,
mechanisms should be created to control the
internal and external activities of the company,
including shareholders and corporate bodies,
as well as its structural units.
9
Claessens S. Corporate Governance and
Development // World Bank Research Observer. –
2006. – № 1. – p. 91-122.
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The concept of corporate control was first
developed in the early 1930s by American
economists and introduced by Berle and G.
Means
10
. They believed that corporate control
should be understood as the ability of a
company to select or reject candidates for the
board of directors. If oversight was based
solely on the activities of boards of directors,
we could accept this definition. However,
practice has shown that in addition to the
control exercised by the board of directors,
there are other entities that have the ability to
exercise control over the company. As a result,
the doctrine has been the subject of much
controversy in recent years.
For example, the American economist D. Kotz
gave a slightly different definition of control.
According to him, the ability of corporate
governance to formulate general policy is
considered corporate control.
Of course, all the definitions directly depend on
which theory of corporate control the joint-
stock company applies to its authors. So far,
three such theories have been referred to in
the legal literature.
1)
The theory of shareholder control;
2)
Theory
of supervision
of
financial
institutions;
3)
Management theory.
In short, according to the theory of joint-stock
control, control in a joint-stock company is
carried out by shareholders who have an
appropriate number of shares. The basis for
such control is the right to "own shares", in
particular the right to elect a board of
directors.
Implementation of corporate control, first of
all, joint-stock control allows to simplify the
10
Berle A.A, Means G.C. The modern Corporation
and Private Property. New York: Macmillan, 1932.
11
Л.Н. Тепман. Корпоративное_управление. - М.:
ЮНИТИНИ-ДАНА, 2015. - 182 с.
investment process as much as possible
without the involvement of credit institutions,
but the development of direct forms of
investment complicates individual investment
selection, forces potential investor to search
for qualified consultants and additional
information
11
. Therefore, the history of the
corporation is constantly associated with, on
the one hand, the maximum democratization
of investment forms, on the other hand, the
increase
in
the
number
of
financial
intermediaries
provided
by
financial
institutions. In turn, shareholder control
provides management and financial control.
Management control is the ability of individuals
and legal entities to manage the business
activities of the enterprise, to ensure the
continuity of management decisions and
structure. This is a form of stock control.
Financial control is the ability to influence the
decisions of a joint stock company using
financial instruments and special tools. So, the
primary task of credit and financial institutions
is to provide funds to society. Financial control
is formed on the basis of credit relations
12
.
Therefore, financial control seems to be
opposed to joint-stock control, as it is formed
in the process of choosing its own and external
sources of financing for the company. The
dependence of a joint-stock company on
external sources of financing, as well as the
expansion of such sources, increases the
importance of financial control.
The development of credit and financial
institutions and organizations, as well as the
expansion of their role in financing businesses,
will lead to the development of control
relations.
Secondly, the formation of majority and
minority shareholder control based on
shareholder control.
12
Ибрагимова
А.
Р.
Систематизация
законодательства
внешней
торговли-залог
успешного осуществления бизнес-деятельности
//Молодой ученый. – 2019. – №. 20. – С. 312-315.
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Majority control is the control of a company by
shareholders who own more than half of the
shares. That is, the level of control provided by
the majority stake.
Minority control is the control over the
company's activities by shareholders who own
less than half of the shares of a given
company.
13
In our view, a minority shareholder, unlike
most shareholders, owns a small number of
shares and does not have a decisive influence
on
the
company’s
operations.
Major
shareholders, on the other hand, have a
relatively greater influence. Development of
majoritarian and minority systems of corporate
control in joint-stock companies will increase
the efficiency of the company's activities.
Based on the above, the charter requires the
holders of ordinary shares of the joint-stock
company not less than 1% to convene a meeting
of the Supervisory Board and the agenda,
distribution of profits, the possibility of
replacing their candidacy for membership in
the governing div (before the general
meeting).
14
It is also necessary to strengthen
the right of minority shareholders to act on the
basis of a committee or mutual agreement.
This will strengthen the monitoring of
shareholders' activities by shareholders.
Thirdly, the issue of improving internal and
external control in joint stock companies. The
purpose of internal control is to provide
corporate governance with the information
needed to make decisions. Its scope is the
economic and financial operations of the
company, which are examined in order to
determine the legitimacy, reliability and
expediency, the security of material and
financial resources, an objective assessment of
14
Aksiyadorlik jamiyatlari faoliyati samaradorligini
oshirish
va
korporativ
boshqaruv
tizimini
takomillashtirish bo'yicha komissiya Majlisining
the company's internal resources to improve
efficiency.
Internal control includes audit control
performed by internal audit services and audit
committees of supervisory boards. The
presence of a specialized internal control
service within the company is determined by
the scope of activities, the specifics of doing
business and the composition of the
company's charter capital.
At present, an important resource of
enterprises, such as internal audit, is
underestimated, although its proper use
increases the efficiency of enterprises. World
practice shows that if the external audit
institute leads to serious shortcomings, it can
lead to the bankruptcy of even large
enterprises, which occupy strong positions.
High-level corporate governance is a positive
sign for prospective investors and lenders,
which serves to increase the investment
attractiveness of the enterprise. An integral
part of such corporate governance is internal
audit.
A number of comprehensive programs are
being
implemented
to
reduce
state
participation in the economy, develop public-
private partnerships, intensify investment
policy, expand export potential and foreign
economic relations, and remove bureaucratic
barriers to the development of free enterprise.
At the same time, the number of enterprises
operating in the country has grown
significantly. In particular, the number of
enterprises and organizations registered in
Uzbekistan in 2001 (excluding farmers) was
151,765, and as of January 1, 2021, this figure
reached 503,538
15
. Of these, 475,197 are active,
28,341 are inactive, 95,311 are newly
2015-yil 31-dekabrdagi 9-son bayonnomasi bilan
tasdiqlangan Korporativ boshqaruv kodeksi.
15
Prepared on the basis of data from the state
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established and 11,547 are closed. In particular,
the number of joint-stock companies has
reached more than 600 in the country (240
with a state share). This has created the task of
improving the effective system of corporate
control in our country. But nowadays some
forms of corporations are not developed yet
16
.
In order to improve the system of corporate
control in Uzbekistan, we offer the following,
studying the scope of work in this area in our
country, as well as the situation of the institute
in developed countries, their experience in this
field:
The first is to impose fiduciary obligations on
the members of the supervisory board in joint
stock companies. It is necessary to include
relevant articles of the Law "On Joint Stock
Companies and Protection of Shareholders'
Rights". In turn, the fiduciary obligations of the
members of the supervisory board oblige the
members of the supervisory board to make
decisions independently, to act conscientiously
and diligently in the interests of the enterprise,
as well as to be cautious in making decisions.
Also, when improving the current legislation, it
is impossible to bypass these historical,
fundamental principles of bankruptcy and
ignore them.
17
For example, in the German experience,
directors (CEOs) are obliged to protect the
company from financial penalties and losses
under the German Joint Stock Company Act
(Aktiengesetz)
18
. As trustees of the company's
assets, the company's directors assume
fiduciary
obligations.
Under
the
term
"Treuepflicht",
directors
perform
their
fiduciary duties, do not intend to enrich
16
Jumagulov, A. E. "STAGES OF DEVELOPMENT OF
THE LEGISLATION ON INVESTMENT FUNDS IN
UZBEKISTAN." Herald pedagogiki. Nauka i Praktyka
1.5 (2021).
17
Худайбергенов,
Бехзод
Бахтиёрович.
"ПРАВОВЫЕ АСПЕКТЫ ВЫЯВЛЕНИЯ ПРИЗНАКОВ
НЕПЛАТЕЖЕСПОСОБНОСТИ: CASH FLOW И
BALANCE SHEET." Review of law sciences 4 (2020).
themselves at the expense of the company by
using their positions, and perform their duties
conscientiously.
Secondly, to optimise the composition of the
supervisory boards of joint stock companies. In
particular, based on the best practices of
foreign countries, it is necessary to include in
the composition of the supervisory board an
acceptable numbers of independent members.
According to internationally accepted norms,
the company's board of directors gives
independent directors the power to oversee
the company's activities and make decisions on
key issues. They have no material interest in the
board, exercise control on behalf of many
minority shareholders who do not participate
in the board, and are their representatives.
In our opinion, the number of members of the
Supervisory Board from 5 to 9 is acceptable to
our national joint-stock companies. We also
consider it permissible to include up to 3 (30%)
independent members on the supervisory
board. According to the current law "On joint-
stock
companies
and
protection
of
shareholders'
rights",
the
company's
supervisory board must include at least one
independent member, whose shares are
included in the stock exchange quotation list of
the stock exchange possible. In societies
where the share of the state and (or) business
association is predominant, nomination and
voting for an independent member of the
supervisory board shall be carried out by
representatives of the state and (or) business
association.
19
18
Aktiengesetz
von
Sept.
6,
1965
(Bundesgesetzblatt).
19
O‘zbekiston Respublikasining “Aksiyadorlik
jamiyatlari va aksiyadorlarning huquqlarini himoya
qilish to‘g‘risida”gi Qonuni (yangi tahriri) //
O‘zbekiston Respublikasi Qonun hujjatlari milliy
bazasining rasmiy veb-sayti – www.lex.uz.
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It is proposed to change the above norm in the
following
interpretation:
“In
joint-stock
companies, the company's supervisory board
must include up to three independent
members (members), who can be re-elected
for up to three years. Nomination and voting
for independent members (members) are
carried out by the company's shareholders or
their representatives.”
In our opinion, the independent members
(members) of the Supervisory Board are not
considered independent after three years of
service. After three years, they can become
members of the supervisory board, but not as
independent members.
Thirdly, the abolition of the audit commission
in joint stock companies. According to the
above law, an audit commission (auditor) is
elected by the general meeting of shareholders
for a term of one year in accordance with the
company's charter to oversee the financial and
economic activities of the company
20
. In
addition, the audit organization in accordance
with the contract with the company in the
manner prescribed by law, audits the financial
and economic activities of the company and
provides it with an audit opinion. The
company's internal audit firm also monitors
financial statements and business operations.
21
From the above three norms, we can
understand that internal and external audit
controls the financial activities of the company.
In this regard, we believe that there is no need
for an audit committee in joint stock
companies. In particular, in the practice of
foreign countries, joint-stock companies do
not have an audit commission (except for
some CIS countries), whose functions are
performed by the audit committee on the basis
20
O‘zbekiston Respublikasining “Aksiyadorlik
jamiyatlari va aksiyadorlarning huquqlarini himoya
qilish to‘g‘risida”gi Qonuni (yangi tahriri) //
O‘zbekiston Respublikasi Qonun hujjatlari milliy
bazasining rasmiy veb-sayti – www.lex.uz
of the board of directors and internal audit
departments. Therefore, we propose to
remove Article 107 from the Law "On Joint
Stock
Companies
and
Protection
of
Shareholders' Rights".
Fourth, the establishment of an audit
committee within the supervisory boards. The
Audit Committee is primarily responsible for
coordinating internal and external audits.
Ensuring the independence of internal and
external audits is important in corporate
control. They should be overseen by a
committee. In foreign legal systems, an
independent member of the board of directors
chairs the audit committee. We believe that
this practice should be introduced in our
country as well.
It is important to ensure that internal and
external audits are independent of each other.
But there must be an exchange of information.
These actions are provided by the Audit
Committee.
The audit committee should also engage
qualified auditors on a contractual basis for
annual mandatory audits to increase the
effectiveness of corporate oversight.
Fifth, improving the legal status of corporate
consultants in joint stock companies. In our
opinion, the Government should approve the
Regulation on Corporate Advisors in Joint
Stock Companies in order to expand the legal
framework for corporate consultants in joint
stock companies. It is advisable to have a draft
model charter on the activities of corporate
consultants in joint-stock companies. Under
this charter, it is effective for the supervisory
boards to approve their charters on the
activities of the corporate advisor.
21
O‘zbekiston Respublikasining “Aksiyadorlik
jamiyatlari va aksiyadorlarning huquqlarini himoya
qilish to‘g‘risida”gi Qonuni (yangi tahriri) //
O‘zbekiston Respublikasi Qonun hujjatlari milliy
bazasining rasmiy veb-sayti – www.lex.uz
The USA Journals Volume 03 Issue 12-2021
40
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
December 21, 2021 |
Pages:
32-41
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue12-06
I
MPACT
F
ACTOR
2021:
5.
952
If the supervisory boards of joint-stock
companies formed a charter on the basis of this
draft charter, the rights and obligations, duties
and functions of a corporate consultant would
be defined more clearly and on a general basis.
Sixth, the establishment of corporate control
by minority shareholders. At the same time,
first of all, we believe that the legislation
should clearly define what percentage of the
company's
shareholders
are
minority
shareholders.
It is advisable to establish a minority
shareholders' committee in each joint-stock
company. We also suggest that minority
shareholders enter into a minority shareholder
agreement to establish corporate control over
the company. The agreement ensures the co-
operation of minority shareholders in oversight
activities and strengthens their unified position
in the voting process.
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(ISSN
–
2693-0803)
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December 21, 2021 |
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32-41
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https://doi.org/10.37547/tajpslc/Volume03Issue12-06
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