Related Party Transactions in Commonwealth Asia: Complexity Revealed

Related Party Transactions in Commonwealth Asia: Complexity Revealed

Dan Puchniak, Umakanth Varottil

Series number :

Serial Number: 
404/2018

Date posted :

May 07 2018

Last revised :

May 07 2018
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Keywords

  • Comparative corporate law and governance • 
  • Related Party Transactions • 
  • Commonwealth Asia • 
  • World Bank Doing Business Report • 
  • legal origins theory

The World Bank’s influential Doing Business Report (DBR) has been a key platform for the American-driven dissemination of global norms of good corporate governance. A prominent part of the DBR is the related party transactions (RPT) index, which ranks 190 jurisdictions from around the world on the quality of their laws regulating RPTs.

According to the RPT Index, the regulation of RPTs in Commonwealth Asia’s most important economies is stellar. In the latest RPT Index, Singapore ranked 1st, Hong Kong 3rd, Malaysia 5th, and India 20th. However, despite the uniformly high RPT Index scores in all of Commonwealth Asia’s most important economies, empirical, case-study, and anecdotal evidence overwhelmingly suggests that there are in practice significant inter-jurisdictional and intra- jurisdictional differences in the actual function and regulation of RPTs in Commonwealth Asia. In this chapter, we assert that the conspicuous gap between what the RPT Index suggests should be occurring and what is actually occurring in Commonwealth Asia exists because it fails to capture the complexity of RPTs in three respects, which we term: (1) regulatory complexity; (2) shareholder complexity; and, (3) normative complexity. First, it appears that the RPT Index overly emphasizes the role played by a jurisdiction’s formal corporate and securities laws in determining the effectiveness of its RPT regulation, and it fails to pay due regard to its corporate culture and rule of law norms in determining the efficiency of its RPT regulation. Second, the RPT Index erroneously assumes that controlling shareholders are a homogeneous group driven by similar incentives. Third, the general assumption that RPTs per se are evidence of defective corporate governance and that stricter regulation of RPTs consequently equates to “good law” is erroneous. Demonstrating the frailties of the RPT Index is important in practice because jurisdictions – especially developing ones – commonly look to the DBR and its indices when reforming their laws. In addition, the intellectual foundation of the RPT Index also makes the findings in our chapter academically significant.
 

Authors

Professor
Real name:
Dan Puchniak
National University of Singapore
Real name:
Umakanth Varottil