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Asian Corporate Governance Association (ACGA)

New Developments in Corporate Governance Reform in Asia: Northern Chills, Southern Warmth
Presentation by:
Jamie Allen, Secretary General

ACGA Members Briefing Sydney, March 25, 2013 Melbourne, March 28, 2013
ACGA Members Briefing Australia, March 2013 1

Agenda
1.
2. 3.

4.
5. 6.

7.
8.

Overview of 11 Asian markets in CG Watch 2012 North Asia What are the impediments? Southeast Asia What is driving reform? Singapore vs Hong Kong Underperforming leaders Survey categories and trends Country summaries Culture, custom, law and standards Conclusion

ACGA Members Briefing Australia, March 2013

1. Overview of 11 Asian Markets


Rankings from CG Watch 2012
CG Watch total market scores: 2007 to 2012 (%) Change 2007 2010 2012
1. Singapore 2. Hong Kong 65 67 67 65 69 66
2012 vs 2010 (ppt)

Trend of CG reform
Improving, but culture needs to open more Static, but reinvigorated regulator positive

(+2) (+1)

3. Thailand
4. = Japan 4. = Malaysia 6. Taiwan 7. India

47
52 49 54 56

55
57 52 55 48

58
55 55 53 51

(+3)
(-2) (+3) (-2) (+3)

Improving, but corruption a major issue


Government stalling, companies opening Culture at last showing signs of openness Rules improving, but still behind the curve Enforcement up, Delhi an obstacle

8. Korea
9. China 10. Philippines 11. Indonesia

49
45 41 37

45
49 37 40

49
45 41 37

(+4)
(-4) (+4) (-3)

Government more open, chaebols closed


Rules improve, but culture still weak Improving, but will it be sustained? Regressing, but new regulator may help

Source: CG Watch surveys, Asian Corporate Governance Association & CLSA Asia-Pacific Markets

2. North Asia What are the impediments?


Legacy issuesindustrial success, size and culture of self-reliance
= complacency and insularity?

We believe Japan, Korea and Taiwan share certain cultural, legal


and political similarities that, in combination, impede and undermine fundamental corporate governance reform.

Hierarchical and relatively more closed corporate cultures. An ongoing battle between regulators, conservative business

interests and legal scholars over company law / board reforms. Weak governments that lack consensus on corporate governance reform and show little leadership. China in a separate category: issues are more political. Caveat: Leading firms in Japan and Taiwan are starting to open up for sound business reasons. But the basic critique above still applies to the country.
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3. Southeast Asia What is driving reform?

We do not believe the average company is more enthusiastic about governance than their Northern counterparts, and overall market scores are not high.
But: More exposure to competitive forces + smaller economies + Asean integration = more national focus on CG? Also some substantive differences between the Asean 3 (Singapore, Malaysia, Thailand) and North Asia:
Clearer policies on basic aspects of corporate governance, particularly board reform and shareholder rights. Fairly well-established eco-systems supporting director training and board development. Stronger governments with clearer, more consistent CG policies. Leading the way on the development of independent audit regulators.

Aside: Governments in Southeast Asia are less in thrall to legal scholars.

ACGA Members Briefing Australia, March 2013

4. Singapore vs Hong Kong: Underperforming leaders


Both have had their share of scandals, frauds and poor IPOs. Neither has a world-class system of corporate governance. Singapores total score higher in 2012 because:
Government focussed greater attention on reform over 2011-12. Improved regulations and regulatory enforcement. Retail shareholder participation maturing. It has had an independent audit regulator for many years.

Although Hong Kong outflanks Singapore in the quality of its regulatory enforcement, and scores higher on some rules and regulations, it suffers from the following: No clear government strategy on corporate governance. Excessive tycoon influence on regulatory policy. No properly independent audit regulator. No organisation representing minority shareholders.
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5. Survey categories & trends


CG Watch 2012 market category scores
(%) 1. Singapore 2. Hong Kong Total CG Rules & Practices Enforcement Political & Regulatory IGAAP CG Culture

3. Thailand
4. = Japan

4. = Malaysia
6. Taiwan 7. India 8. Korea 9. China 10. Philippines 11. Indonesia

69 66 58 55 55 53 51 49 45 41 37

68 62 62 45 52 50 49 43 43 35 35

64 68 44 57 39 35 42 39 33 25 22

73 71 54 52 63 56 56 56 46 44 33

87 75 80 70 80 77 63 75 70 73 62

54 53 50 53 38 46 43 34 30 29 33

Source: Asian Corporate Governance Association

ACGA Members Briefing Australia, March 2013

CG Rules & Practices

Scores for most markets have been quite unstable in this category. Scores are better for rules relating to the timeliness and frequency of financial reporting, disclosure of director share transactions, disclosure of substantial ownership stakes (5% and above ) and whether audit committees are mandatory. Worse for non-financial reporting, voting by poll, legal remedies for shareholders, definitions of independent director, quality of CG Codes, and pre-emption rights.

CG rules and practice: 2007 to 2012


80 70 60 50 40 30 20 10 0

(%)

2007

2010

2012

ACGA Members Briefing Australia, March 2013

Enforcement

Higher scores in eight of 11 markets. Five of eight show a rising trend. In two of the three markets whose score fell in 2010 before bouncing back this yearnamely India and the Philippinesthe latest score is higher than its previous high in 2007. China and Indonesia fell because data is limited and no clear improvement against major securities crimes. Also doubts about the regulatory systems fairness and consistency. Taiwans score fell in large part due to a lack of updated enforcement data. (Also an unfortunate confusion over questions we had sent the regulator.)

Enforcement: 2007 to 2012


80 70 60 50 40 30 20 10 0

(%)

2007

2010

2012

ACGA Members Briefing Australia, March 2013

CG Culture

Few markets stand out for making progress on their overall corporate governance culture. Six of the 11 are either flat or declining, while three of the remainder recorded only minimal increases. CG Culture = voluntary efforts by companies, investors, professional groups, institutes of directors, the media and other stakeholders to promote improvements. While efforts of some listed companies and business associations are growing, all market scores held down by a lack of interest and involvement of the investment industry. (Other than ACGA members, of course!)

CG Culture: 2007 to 2012


70

(%)

60

50

40

30

20

10

2007

2010

2012

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Corporate responses to CG reform


CG Watch 2012 (CLSA survey)
Max/min

Dispersion of company CG scores


100 90 80 70 60 (%) Median Upper/lower quartile

50
40 30 20

10
0
Hong kong Australia Indonesia Philippines Malaysia Thailand India Korea Singapore Taiwan China Japan

Source: CLSA Asia-Pacific Markets

ACGA Members Briefing Australia, March 2013

Corporate scores Slippage


CG Watch 2012 (CLSA survey)
70 (%)

Average company CG scores

On average CG scores of 464 companies scored in 2010 and 2012 down 1.1-points (comparable questions)
Better markets, eg Singapore, scores held up Greater decline in scores for weaker CG markets

Average CG score SG, HK MY, IN, TW, TH, CN, KR PH, ID

60

50

40

30

20

10

0 2001 2002 2003 2004 2005 2007 2010 2012

ACGA Members Briefing Australia, March 2013

Source: Bloomberg, CLSA Asia-Pacific Markets

CG stocks performance and risk appetite


CG Watch 2012 (CLSA survey)

Lower quality CG stocks tend to outperform when markets are rising


Performance of high quality CG stocks inversely related to risk appetite Therefore, most investors driven by trading strategies rather than corporate governance Very hard to value good CG, although the better ones do incorporate it in their investment process
ACGA Members Briefing Australia, March 2013

Performance of upper-half CG stocks to lower half versus MSCI Asia


15 Upper-half CG stocks to lower-half CG stocks MSCI Asia Pacific (RHS) (%) (ppts) 50 40 10 30 20 10 0 0 (10) (5) (20) (30) (40) (15)
2010
2002 2003 2004 2005 2006 2007 2008 2009 2011

(10)

(50)

Source: Bloomberg, CLSA Asia-Pacific Markets

6. Country summaries

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Japan Good news, bad news


Japan ranked joint 4th in 2012 (down from 3rd in 2010)
Main findings (with updates):
The DPJ government ambivalent about CG reform, especially board independence. LDP promised a new departure before its election win in December 2012, including mandatory independent directors. But much uncertainty around the new Abe administration. A spate of corporate and insider trading scandals over 2011-12 prompted tougher enforcement from Japanese authorities. (Olympus, Daio Paper, AIJ Investment and others.)

Political leaders lack consensus on CG reform. Regulatory bodies underfunded and too cautious. Media often biased.
Corporate scandals exposed serious deficiencies in accounting and auditing practices. Regulation of auditors quite weak. CG culture improving due to bottom-up corporate board reform Hitachi, Shiseido, Sumitomo Chemical and many others. Now Toyota, which dropped a bombshell in early March 2013appointing first outside directors. But institutional investors remain disappointing.
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Shinzo Abe, New LDP Prime Minister


Liberal Democratic Party (LDP) election manifesto promised surprisingly accelerated reforms, including:

Tighter definition of outside director Mandatory multiple independent directors More effective whistleblower system Review of auditing firms Tougher regulations on insider trading

However, reform depends partly on whether the LDP gains control of the upper house of Parliament in July 2013. The partys close ties to the conservative Keidanren business lobby raise doubts as to what it can achieve.
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Japan Entrenched Obstacles


1. 2. 3.

No definition of independent director in company law. No requirement for listed companies to have independent directors. No requirement for proper audit committees (statutory auditors are not a substitute in our view). Boards dominated by insiders / management.

4.

5.

Boards often act more like operational committees than strategic decision-makers. They meet too often, make too many decisions.
Companies locked into a rigid rules-based approach to governance. Dont take soft law seriously (eg, good practice guidelines). Regulations on insider trading are weak. Capital raising exercises are often unfair to minority shareholders.

6.

7. 8.

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Japan Areas of Progress


Regulatory reform has been piecemeal in Japan, but not non-existent as some would contend:
1.
2. 3.

Disclosure of AGM voting results*


Declustering of AGM meeting dates / earlier release of agendas* Disclosure of executive remuneration above 100m.

4.
5. 6.

New rule limiting short selling around public offerings*


New rule on fairer allocation of shares in public offerings* Introduction (finally) of concept of independent director in TSE rules*

7.

Plans to strengthen regulation of auditing and reporting of fraud*

* Linked to recommendations made in ACGA advocacy papers and reports.

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Korea Waking up from hibernation


Korea ranked 8th in 2012 (up from 9th in 2010)
Main findings (with updates):
The government implemented several new CG rules to curb chaebol abuse and enhance board independence. Not clear what the new government of President Park Geun-hye will do. Regulatory enforcement became tougher: government went after chaebol tycoons for corporate crimes and threatened to unleash the voting power of the National Pension System (NPS). NPS recently voted against low dividends at a company AGM.

In reaction to growing anti-chaebol mood, politicians of all stripes focussed more on CG reform. But regulatory capacity still an issue.
Doubts about the effectiveness of audit practices, given repeated corporate embezzlement cases and savings bank scandal. Some potential problems with Koreas full adoption of IFRS. Most Korean companies remain indifferent to good CG culture and see it as a compliance issue. Domestic fund managers silent. Lack of director training. Media often biased and chaebol-controlled.
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Corporate crime in Korea


Korea has a history of corporate leaders going to jail and being pardoned by the President. Some are repeat offenders:
Kim Seung-youn, Chairman, Hanwha Group (# 10) Convicted in 2007 of abduction and assault of a barman. Given 18-month prison sentence, served two, then court suspended it in lieu of community service. Presidential pardon in 2008. Convicted in 2012 of major embezzlement, fined and sentenced to four years. Immediately sent to prison, but temporarily released in January 2013 on health grounds.
Chey Tae-won, Chairman, SK Group (# 3) Convicted in 2003 of major accounting fraud, sent to prison for three years, released after three months. Pardoned in 2008. Convicted in 2013 of embezzling $50m and sentenced to four years. Sent to prison.

Huge pressure on new president not to give any more pardons.

China A complicated state of play


China ranked 9th in 2012 (down from joint 7th in 2010)
Main findings (with updates):
China Securities Regulatory Commission (CSRC) continues to amend regulations (eg, IPO valuations), but core CG rules not keeping pace with regional or global best practices. Not all reforms or actions of regulator are positive (eg, IPOs suspended in Oct 2012). Much enforcement still involves fines and warnings for disclosure breaches. Limited progress against insider trading (and disclosure of the latter problematic). Individual government agencies working to improve CG, but efforts undermined by lack of coordination and controls on the flow of information. CSRC and SASAC not always coordinated. Argument over role of state enterprises. Quality of audits and audit regulation hard to assess. No concerted effort to address reputational damage from US listings. PCAOB spat with Beijing. Communication with shareholders seems to be improving, but disclosure of CG practices remains heavily formulaic and, at worst, misleading. Details on implications of state ownership lacking. Private sector CG not great. Domestic institutional investors starting to stir.
SASAC = State-owned Assets Supervision and Administration Commission
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Musical chairs March 2013


Recent leadership changes under new President Xi Jinping:
Guo Shuqing Chairman, CSRC to become Deputy CPC Secretary of Shandong Province Xiao Gang Chairman, Bank of China to take over as CSRC head.

Wang Yong Chairman, SASAC to become a State Councilor.

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Jiang Jiemin Chairman, CNPC to take over as SASAC head.

Hong Kong Accountability & audit slide


Hong Kong ranked 2nd in 2012 (same as in 2010)
Main findings (with updates):
A robust revised Code of Corporate Governance and new PSI legislation, but otherwise CG reform was quite muted over 2011-12. Local tycoons have inordinate influence over government. Regulators recently getting more active new IPO due-diligence regime and plans for an investor stewardship code. Securities & Futures Commission (SFC) enforcement still vigorous. HKEx still painfully slow. No major change in private enforcement by investors. Still no sign of any long-term government strategy on corporate governance. Bribery cases tarnished HKs reputation for clean government. IPO system remains deeply flawed in some respects. Still no independent audit regulator. Auditor resignations from troubled companies a positive. But financial irregularities at many HK-listed mainland firms raise questions about accounting integrity. China Forestry. Real Gold.

Corruption scandal at Sun Hung Kai, a property blue-chip, and the jailing of some ICAC officers overshadowed CG culture. Hong Kong has a reputation to rebuild. HSBC money laundering in Mexico a big embarrassment.

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Singapore Government lead


Singapore ranked 1st in 2012 (same as in 2010)
Main findings (with updates):
Significant regulatory changes over 2011-12, but still fails to embrace international best practices in all areas (eg, AGMs, reporting deadlines, communication with shareholders). Stock exchange, SGX, improved enforcement over 2011 (but slackened in 2012). Retail shareholders more active. Monetary Authority of Singapore (MAS) could be tougher on insider trading.

A clearer and more consistent government policy on reform than Hong Kong, but could be more transparent. Media more confident.
Impressive independent audit regulator, ACRA, but questions remain about HR capacity issues at audit firms.

Still a compliance culture among companies; few business champions for CG. More voluntary voting by poll by listed companies. Institutional investors largely silent and disengaged.
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Thailand Quiet achiever


Thailand ranked 3rd in 2012 (up from joint 4th in 2010)
Main findings (with updates):
Relatively strong rules for financial reporting (eg, speed of audited annual results) and transparency around AGMs, but much weaker non-financial reporting practices. Stock exchange, SET, revised code of best practice. Gradual improvement in SEC enforcement: some progress on market manipulation and insider trading. But criminal prosecutions remain inefficient and corrupt. Judiciary and police both part of the problem. Change of government in 2011 had less of a negative impact than many feared. Not a lot of new CG reform, but regulatory bodies quite well coordinated. SEC pushing for a wider range of powers. Improvements in accounting standards and new independent audit regulator. Questions remain about variation in audit quality. Thailand sets the benchmark in Asia for director training and some NGO work. New private sector coalition against corruption. But CG culture tarnished by public-sector corruption, which appears to be out of hand.

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Malaysia Culture rising


Malaysia ranked joint 4th in 2012 (up from 6th in 2010)
Main findings (with updates):
Regulations improved (eg, takeovers, disclosure) and new CG Code in 2012. But some standards continue to keep Malaysia down (eg, slow reporting deadlines, limited poll voting, lack of MD&A). Delays in enforcement a continuing challenge. Regulator has trouble getting support from courts. Perceptions of favouritism. Government vision on CG reform provided by five-year Corporate Governance Blueprint in 2011. Stronger policy focus, but we are now looking for solid implementation and less PR! Audit Oversight Board proving to be a useful independent audit regulator: raising important questions on audit quality and capabilities of audit firms. Companies showing more awareness on CG practices. Domestic retail investors engaged through MSWG. Institutional investors have little profile on corporate governance in Malaysia, although Khazanah Nasional doing its part to improve the governance of investee companies.
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Differences in CG standards in Asean


60-day Reporting? Effective disclosure of 5% stakes? Robust definition of INED? Strong preemption rights? AGM agendas at 28 days?

Indonesia
Malaysia Philippines

Marginally

Largely
Marginally

Somewhat

Largely

Singapore
Thailand

Somewhat
Somewhat

Somewhat
Marginally

Somewhat

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7. Culture, custom, law and standards

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A byproduct of 19th century Western colonialism / influence


Historic basis of company law China Hong Kong India Indonesia Japan Korea Malaysia
German English English Dutch German German / Japanese English

Historic basis of regulation

Board structure
Dual (two boards) + Party Committee Single Single Two-tier Dual (two boards) Single or quasi dual Single

Philippines Singapore
Taiwan Thailand

American English
German / Japanese French / mixed

Single Single
Single or quasi dual Single

*Majority suggested only if the chairman is non-independent. Not a mandatory rule.

ISA refers to an independent statutory auditor (kansayaku).

Source: ACGA research

Corporate ownership and culture


Dominant form of corporate ownership China Hong Kong India Indonesia Japan Korea Malaysia Philippines Singapore Taiwan Thailand Concentrated Concentrated Concentrated Concentrated Dispersed, but control by management State control of large caps? Extensive Minimal Some Some Some Some Some Some Extensive Some Some Strength of family business culture Emerging Strong Strong Strong Weaker, but strong groups Strong Strong Strong Strong among non-state firms Strong Strong

Forces of resistance

Dispersed, but control by families


Concentrated Concentrated Concentrated Dispersed, but control by families Concentrated

ACGA Members Briefing Australia, March 2013

Source: ACGA research

Before the Asian Financial Crisis, 1997-98:


Modern corporate governance in Asia was limited
CG Code on board governance? No
Minuscule

Country China Hong Kong India Indonesia Japan Korea Malaysia Philippines Singapore Taiwan Thailand

Independent directors required? No No No No No No No No No No No 31

Audit committees required? No No No No No No No No No No No


Source: ACGA research

No No No No No No No No No

ACGA Members Briefing Australia, March 2013

Convergence towards international standards


Country China Hong Kong India Indonesia Japan CG Code on board governance? 2002 1993/2004/2012 1999 2001 Still no consensus Independent directors required? Yes Yes Yes Yes Still optional Minimum # of INEDs One-third One-third 33-50% 30% One INED or ISA Audit committees required? Yes Yes Yes Yes Still optional

After the Asian Financial Crisis:

Korea
Malaysia Philippines Singapore Taiwan Thailand

1999/2003
2000/2007/2012 2002/2009 2001/2005/2012 2002/2011 1999/2006

Yes
Yes Yes Yes For IPOs and larger firms Yes

25-50%
Majority* Two/20%

Yes (large firms)


Yes Yes Yes Soon mandatory for larger firms Yes
Source: ACGA research

One third to majority*


Two for certain companies Three/one-third

*Majority suggested only if the chairman is non-independent. Not a mandatory rule.

ISA refers to an independent statutory auditor (kansayaku).

Asia: A stir fry of new and old standards

Most new CG reform ideas are borrowed, to varying degrees, from outside. There is little regulatory innovation to date in Asia.
North Asian regulators tend to dismiss good ideas from within the region (eg, Hong Kongs rules on related-party transactions; Thailands tougher approach on corporate criminals.) They want to base their rules on the US or Europe. Southeast Asia is witnessing more cross-border regulatory cooperation and some degree of innovation. Part of its Asian Economic Community integration.

Much glib admonition against one size doesnt fit all on board governance. But all new reforms look largely the same!
Most countries have boards of directors shaped from a mix of legacy and colonial regulation with diluted versions of new international standards.

For investors, the concept of Asia is not a meaningful analytical tool in corporate governance.
You need to look at countries and then companies, not regional generalities.

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Corporate governance in Asia is moving on two tracks


1. International rules dominate in areas where common standards are needed, expected and implementable. For example:
Accounting and financial reporting standards Shareholder meetings / voting Regulation of external auditors

Reality check:

2. Local norms dominate where corporate ownership / culture is most powerful and regulatory / shareholder influence is limited. For example:
Functioning of boards and board committees (as opposed to their structure) Dialogue with shareholders Decisions on related-party transactions Capital-raising exercises

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Asian countries and regulators do some things differently


Are any of the following a substitute for international standards? China: The presence of Party Committees in companies. Hong Kong: Stronger regime for control of related-party transactions. India: Considering allowing retail shareholders to elect one independent director. Indonesia: Allows non-commissioners to sit on audit committees. Japan: Kansayaku (statutory auditor) boards. Malaysia: Allows independent fund managers with more than a 10% stake to be considered independent (ie, not connected). Philippines: Early disclosure of detailed and final AGM agendas. Singapore: Strong role of state in many listed companies. Taiwan: Pre- and post-disclosure of director trades. Thailand: Concept of untrustworthy character for corporate crooks.

Asian ideas:

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8. Conclusion Questions to ask

Rules: Why dont Asian markets have better and more uniform rules? Do shareholders in one market deserve less protection than another? (A competitiveness issue.) Enforcement: Do regulators have the capacity to enforce rules? Are stewardship codes needed to push investors?

Political / Regulatory: Are regulatory and legal systems fit for purpose? Does the judiciary know what it is doing? Is the media fair?
Accounting / Auditing: Is there an effective independent audit regulator? Do CPA firms have sufficient personnel? How can we encourage dialogue between auditors and investors? Culture: How can we encourage less boilerplate disclosure? How can we encourage better board composition? How can we encourage international investors to beef up their travel budgets?!
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Key issues for institutional investors in Asia


Quantitative Financial reporting that is detailed and has integrity. No surprises. Immediate disclosure of material events. Clarity and controls on related-party transactionsthe CG issue. Strong shareholder rights (eg, approval of major transactions). Fair systems of capital raising (ie, no excessive dilution). Transparent shareholder meetings, including voting by poll. Clarity on executive compensation policies. A policy/strategy on sustainability and disclosure of material risks. Qualitative Independent and well-balanced boards. Meaningful non-financial reporting on internal governance. Open shareholder communications.
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Appendix:

Contact details
Jamie Allen Secretary General Asian Corporate Governance Association Ltd
Room 1801, 18th Floor, Wilson House 19-27 Wyndham Street, Central, Hong Kong Tel: (852) 2160 1789 (D) Fax: (852) 2147 3818 Email: jamie@acga-asia.org Website: www.acga-asia.org

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