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PROTECTING INVESTORS 55
national income, compared with 40%. South Africa has
among the strongest protections for equity investors and
a market capitalization rivaling Switzerland’s.
Small investors in Yukos, the second largest Russian
oil company, have been hurt by a lack of pre-emptive
rights.Here is what happened. In 1999 Yukos, the majority
shareholder of Tomskneft, voted to increase the number
of Tomskneft shares by 300%. The new shares were
sold to off-shore companies, allegedly owned by the controlling
shareholder of Yukos,without informing existing
Tomskneft shareholders. The ownership of existing small
shareholders dropped from 49% to 9%, reducing the
payoff to investors by four-fifths. This would have been
impossible in the presence of pre-emptive rights in Russian
company law. At least the investors were allowed to
file a derivative suit, and actually did—in another 20% of
countries even that would have been impossible, including
in Bangladesh, Ecuador, Kuwait and Vietnam.
Enforcement
Good investor protections are the ones a country can enforce.
Even the best rules are useless if enforcement is
weak. Some economies—such as the Kyrgyz Republic,
Moldova and Nigeria—adopted strong company or securities
laws, but no cases of small investors’ abuse have
ever been resolved in the courts.
As in any other commercial dispute, the speed, cost,
and fairness of the judgment determine whether small
investors would use the courts and succeed in getting
compensation. Potential expropriators know this as well
and calculate the risk of being caught and punished.
New Zealand and Norway, where courts perform well,
see less abuse of investors (figure 7.6). Colombia improved
enforcement in 2002 by giving arbitration tribunals
the power to issue binding judgments. A decision
of the tribunal typically takes 6 months.
What to reform?
Start with what’s simple. Increase disclosure. Then, make
it easier for small investors to challenge attempts at expropriation
in the courts. Enforce harsher penalties for
managers or large investors who misbehave.And encourage
investors to be active in identifying bad practices.
It used to be that disclosing ownership and financial
information cost a lot of money. Publishing a newspaper
announcement every time shares change hands, and
printing quarterly financial statements cost money.
Printing annual reports and reaching every small investor
cost even more. The internet has changed that.
Now it is almost costless to disseminate information,
once it has been assembled.21
Many companies and stock exchanges are taking advantage
of this. In Thailand the stock exchange publishes
all ownership changes and quarterly statements on its
website. Egypt increased the disclosure requirements last
year and penalized about 100 companies that did not
meet the higher standard. Chile required listed companies
to publish quarterly financial reports and make them
available electronically. Hungary passed a new Capital
Markets Act, which introduces US-style disclosure of
ownership and financial information. Brazil took a different
path by establishing the Novo Mercado, with more
stringent disclosure requirements. About 40 companies
have already listed.22 And in July 2004 the Indian government
announced intentions to create a separate market
for trading equity in smaller companies, with simpler
disclosure requirements. This would allow the introduction
of stricter disclosure for companies listed on the
main market.
Specialized commercial courts have been shown to
improve the enforcement of debt contracts and speed up
bankruptcy proceedings. They are equally beneficial for
small investors who want to challenge decisions by managers
or boards of directors. Some countries, such as
India, channel shareholder suits into special tribunals,
avoiding the delays in regular courts. Much like bankruptcy,
corporate governance issues require more expertise
so it pays for judges to be specialized in commercial
cases. And even without specialization, cutting the procedures,
time and cost to go through the regular courts
will help.
Disclosure requirements work only if they are
backed by sufficient penalties and enforcement. Often,
penalties are negligible. Two examples. In Indonesia the
penalty for missing the deadline for submitting an annual
report to the securities market regulator is $120.
This is nothing for most companies. Not surprisingly,
more than a third usually miss the deadline.23 In Bulgaria
penalties were increased in a 2003 reform, but their
enforcement is woeful. An estimated 6% of the value of
fines is paid. The remainder is challenged in the courts,
taking years to resolve.24
Reforms in other countries show that disclosure
improves with stronger penalties. Mexico has i