Document Type : Research Paper

Authors

1 M.A. in Criminal Law and Criminology, University of Judicial Sciences and Administrative Services, Tehran, Iran.

2 M.A. in Private Law, Shiraz University, Iran.

3 Assistant Professor of Private Law Department, Faculty of Law and Political Science, University of Tehran, Tehran, Iran

Abstract

The principle of independence versus unity of management and ownership in commercial enterprises represents a foundational debate in corporate governance, reflecting divergent legal philosophies and institutional practices across jurisdictions. This study conducts a comparative legal analysis of Iranian and U.S. corporate law to evaluate the efficacy, structural challenges, and normative implications of these competing paradigms. By adopting a qualitative, analytical-doctrinal methodology, the research examines the historical evolution, conceptual frameworks, and practical outcomes of corporate governance models in both systems, with a focus on their alignment with global governance standards and dynamic capital market demands.
In Iran, corporate governance remains entrenched in the Continental European model, emphasizing the unity of management and ownership. This approach, historically influenced by French commercial law, mandates that directors hold equity stakes in the company, theoretically aligning their interests with shareholders. However, the study identifies critical structural flaws in this model, including concentrated ownership patterns, opaque informational practices, and inadequate accountability mechanisms. These issues exacerbate agency costs, entrench majority shareholder dominance, and marginalize minority stakeholders. Legal provisions requiring directors to hold qualifying shares, intended to incentivize responsible management, paradoxically restrict access to external expertise and create barriers to professional governance. Furthermore, Iran’s regulatory framework lacks robust safeguards against conflicts of interest, enabling managerial opportunism and undermining investor confidence.
By contrast, the U.S. corporate governance system, epitomizing the Anglo-American model, institutionalizes the separation of ownership and control through precise regulatory mechanisms and market-driven accountability. Post-Enron reforms, particularly the Sarbanes-Oxley Act (2002), redefined governance standards by mandating independent director majorities on boards, enhancing audit committee autonomy, and enforcing rigorous disclosure requirements. Stock exchange regulations, such as those by the NYSE and NASDAQ, further operationalize independence by disqualifying directors with material financial or familial ties to the company. These measures mitigate agency problems, promote transparency, and align managerial actions with shareholder welfare. The U.S. system’s adaptability to financial crises—evidenced by iterative reforms after the 2008 global crisis and COVID-19 pandemic—highlights its resilience and capacity to balance stakeholder interests through iterative, evidence-based policymaking.
The study underscores the theoretical underpinnings of these models. Proponents of managerial independence argue that it curtails majority shareholder expropriation, reduces informational asymmetry, and fosters equitable decision-making through impartial oversight. Independent directors, devoid of material ties to the company, are posited to prioritize organizational welfare over factional interests, thereby enhancing board efficacy and financial reporting quality. Conversely, advocates for the unity of ownership and management contend that shared equity stakes align incentives, reduce agency costs, and ensure managerial accountability to residual claimants. However, empirical evidence from Iran reveals that concentrated ownership often perpetuates “tunneling” practices, where controlling shareholders divert resources at the expense of minority investors, while regulatory gaps enable earnings manipulation and suboptimal capital allocation.
The research further analyzes the systemic consequences of each paradigm. In Iran, the fusion of ownership and control stifles market dynamism by deterring external investment and professional management. Restrictions on non-shareholder directors limit access to specialized expertise, hindering strategic innovation and operational efficiency. Conversely, the U.S. emphasis on independent governance, while not without critiques of over-regulation and boardroom inefficiency, correlates with higher investor confidence, liquidity, and market resilience. The study identifies critical disparities in disclosure practices: U.S. mandates for real-time financial reporting and auditor independence contrast sharply with Iran’s fragmented and often retrospective disclosures, which impede stakeholder oversight.
The study concludes with prescriptive recommendations for Iran’s corporate governance reform. Foremost, it advocates institutional separation of management from ownership by abolishing mandatory director shareholding requirements, thereby attracting professional managers and diversifying board expertise. Enhancing transparency through standardized, real-time financial disclosures and independent auditing mechanisms is deemed essential to reducing informational asymmetry. Integrating independent directors into board structures—particularly in audit and nomination committees—would mitigate conflicts of interest and align Iranian practices with global benchmarks. Additionally, fostering shareholder activism through enhanced minority rights and derivative action provisions could counterbalance majority dominance. Legislative reforms should prioritize adopting a principles-based governance framework, akin to the U.S. Model Business Corporation Act, to ensure flexibility and adaptability to market evolution.
In parallel, the study acknowledges contextual challenges. Iran’s economic sanctions, political economy constraints, and underdeveloped capital markets necessitate phased reforms. Hybrid models, blending localized practices with incremental adoption of Anglo-American norms, may offer pragmatic pathways. For instance, the gradual introduction of independent directors in listed companies, coupled with training programs to build governance literacy, could ease transition costs. Strengthening regulatory bodies like the Tehran Stock Exchange to enforce compliance and penalize governance violations is critical to institutionalizing accountability.
Ultimately, this comparative analysis illuminates the dialectic between legal tradition and economic pragmatism in corporate governance. While Iran’s historical preference for unity reflects civil law influences and centralized economic planning, globalization and capital market integration demand convergence toward transparency and accountability. The U.S. experience demonstrates that regulatory rigor, coupled with market discipline, can reconcile shareholder primacy with broader stakeholder welfare. For Iran, systemic reform is not merely a legal imperative but a strategic necessity to attract investment, enhance competitiveness, and participate meaningfully in the global economy.

Keywords

Main Subjects

 
[Accessible online at Retrieved from https: //hemattaraz. ir/]
Translated References into English
Books
Damirchel, Mohammad; Ḥātami, Ali; Qarāʾati, Mohsen. Commercial Law in the Current Legal System. Tehran: Dādestān-Āvā Book, 2020. [In Persian]
Motamedī, Jawād. Comprehensive Textbook of Commercial Law (5th Ed.). Tehran: Andīsheh Arshad, 2023. [In Persian]
Pasban, Mohammad Rezā. Commercial Company Law. Tehran: Ganje Dānesh, 2023. [In Persian]
Tusi, Abbas. Economic Analysis of Corporate Law. Tehran: Shahr-e Dānesh, 2014. [In Persian]
Articles
Ahmadi Sajadi, Seyed Ali. "Agency Theory in the Corporate Governance." Private Law Studies Quarterly, Vol. 39, No. 4 (2010). [In Persian]
Badāvar Nehāndi, Younes; Zārei, Mostafā. "Ownership Structure and Performance of Listed Companies." Business Management, Vol. 1, No. 1 (2010). [In Persian]
Baradaran Hasan‌zādeh, Rasoul; Taqizādeh Khānqāh, Vahid. "The Impact of Agency Costs on Investment Behavior." Financial Accounting and Auditing Researches, Vol. 8, No. 32 (2017). Doi:20.1001.1.23830379.1395.8.32.8.4 [In Persian]
Dastgir, Mohsen; Ḥoseyni, Seyed Ehsān. "A Comprehensive Review of Earnings Management (Part Two)." Accounting and Auditing Studies, Vol. 2, No. 8 (2013). [In Persian]
Esnāʿashari, Hamideh; Javānmard, Shabnam. "The Relation of Upward Earnings Management Incentives and Corporate Governance Mechanism to Asymmetric Expense Behavior." Empirical Research in Accounting, Vol. 7, No. 25 (2017). Doi: 10.22051/jera.2017.8131.1118 [In Persian]
Farazdāghi, Solmāz; Moḥammadi Nudeh, Fāzel; Ṣamadi Lorghāni, Mahmoud. "Effect of Corporate Governance on the Relationship Between Disclosure of Internal Control Weakness and Accruals Quality." Management Accounting, Vol. 13, No. 46 (2020). [In Persian]
Gholiniyā, Rezā; Shāhsavandi, Esmāʿil; Bozorgmehr, Amir‌Abbās; Mashhadizādeh, Alirezā. "Independence of Directors of Commercial Companies from Imagination to Reality (Comparative Studying the United States, England and Iran's Legal System)." Comparative Law Research Quarterly, Vol. 27, No. 4 (2023). [In Persian]
Jalāei, Seyed Abdolmajid; Rahimipoor, Akbar; Mir, Hadieh; Jamālzādeh, Mahmoud. "The Effect of Corporate Governance Quality Index on Limiting Earning Management Using Unusual Transactions with Related Parties in Listed Companies in Tehran Stock Exchange." Financial Management Strategy, Vol. 5, No. 1 (2017). Doi: 10.22051/jfm.2017.12187.1170 [In Persian]
Khodābandeh, Āzar; Rezāi, Farzin. "Information Impact Management in Corporate Financial Reporting." Scientific Journal of Modern Research Approaches in Management and Accounting, Vol. 8 (2018). [In Persian]
Khodādādi, Vali; Ārman, Aziz; Abubakri, Seyed Abdolrahmān. "Investigating the Interrelationship Between Free Cash Flow Agency Costs and Debt and Affecting Factors (Simultaneous Equations Approach)." Modern Theories of Accounting, Vol. 2, No. 4 (2012). [In Persian]
Mahdavi, Gholāmhossein; Monfared Mahallātī, Mohammad. "Board Composition and Agency Costs." Accounting and Auditing Research, Vol. 3, No. 10 (2012). [In Persian]
Marfou, Mohammad; Ḥasanzādeh Divā, Seyed Mostafā. "Earnings Management: An Analysis of Opportunistic Behavior, Monitoring Mechanism and Financial Distress." Financial Accounting and Auditing Researches, Vol. 12, No. 48 (2021). [In Persian]
Mashāyekh, Shahnāz; Arbābi, Zahra; Rahimifar, Masoumeh. "Study of Earnings Management Incentives." Accounting and Social Interests, Vol. 3, No. 2 (2013). Doi:10.22051/ijar.2014.460 [In Persian]
Mashāyekh, Shahnāz; Esmāʿili, Maryam. "Investigating the Relationship Between Earnings Quality and Some Aspects of Governance Principles in Companies Listed on the Tehran Stock Exchange." Accounting and Auditing Reviews, Vol. 5, No. 18 (2021). [In Persian]
Mazriyi Nudeh, Hamid; Abdoli, Mohammad Rezā; Qazel Suflu, Mohammad Ali. "Investigating the Impact of Corporate Governance Mechanisms on the Relationship Between Related Party Transactions and Earnings Management." Scientific Journal of Modern Research Approaches in Management and Accounting, Vol. 5, No. 19 (2021). [In Persian]
Moḥammadi, Mahdi; Pasbān, Mohammad Rezā. "Non-Judicial Solutions to the Abuse of Rights in Commercial Companies." Modern Administrative Law Research, Vol. 4, No. 10 (2022). Doi:10.22034/mral.2021.540224.1204 [In Persian]
Mollānazari, Mahnāz; Karimizand, Sānāz. "Investigating the Relationship Between Income Smoothing with Company Size and Industry Type in Companies Listed on the Tehran Stock Exchange." Accounting and Auditing Reviews, Vol. 14, No. 1 (2007). [In Persian]
Pasbān, Mohammad Rezā; Farhāni, Rasoul. "Foundations and Challenges of Accepting Independent Directors in Corporate Governance." Revue De Recherche Juridique, Vol. 25, No. 98 (2022). Doi: 10.29252/jlr.2021.185176.1676 [In Persian]
Rāei, Rezā; Eivāzlu, Rezā; Abbāszādeh Asl, Amir Ali. "Investigation on Relation Between Information Asymmetry and Liquidity Via Market Microstructures Model in Tehran Stock Exchange." Financial Knowledge of Securities Analysis, Vol. 10, No. 34 (2017). [In Persian]
Rahimiyān, Nezām al-Din; Sālehnejād, Seyed Hasan; Sālki, Ali. "Relationship Between the Some of Corporate Governance Mechanisms and Information Asymmetry in the Firms Listed in Tehran Stock Exchange." Accounting and Auditing Review, Vol. 16, No. 4 (2010). Doi: 20.1001.1.26458020.1388.16.4.5.6 [In Persian]
Sāeedi, Ali; Foroughi, Dāriush; Rasāiyān, Amir. "The Corporate Governance System and Capital Structure: Evidence from Iranian Companies." Journal of Economic Research and Policies, Vol. 19, No. 58 (2011). [In Persian]
Taqavi, Mahdi; Jabārzādeh Kangarloee, Saeed; Khodāyār Yegāneh, Saeed. "The Statement of Relationship Between of Agency Costs and Firm Value and Earnings Management of Listed Companies in Tehran Stock Exchange." Financial Engineering and Securities Management, Vol. 1, No. 3 (2010). [In Persian]
Valipour, Hāshem; Tālabniā, Qodratollāh; Javānmard, Seyed Ali. "The Investigation of Earning Management Effects on Earning Quality in Firms Under Financial Crises." Journal of Accounting Knowledge, Vol. 4, No. 13 (2013). Doi:10.22103/jak.2013.558  [In Persian]
Yahyāpour, Jamshid. "Comparative Study of Corporate Governance Models and Introduction of Suitable Model for Corporate Governance of Iran Stock Companies." Journal of Securities Exchange, Vol. 29, No. 1 (2015). [In Persian]
Legislative and Regulatory Documents
Amendment Bill to the Legal Bill Amending Part of the Commercial Code of 1968 for the Protection of Minority Shareholders (2019)
Approved by: Council of Ministers [In Persian] [Accessible online at https: //dotic. ir/news/6368]
Amendment Bill to the Commercial Code (2024)
Approved by: Islamic Consultative Assembly [In Persian]
Law on Utilizing Specialized and Professional Services of Qualified Accountants as Certified Public Accountants (1993)
Approved by: Islamic Consultative Assembly (Parliament) [In Persian]
Legal Bill Amending Part of the Commercial Code of 1968
Approved by: Islamic Consultative Assembly [In Persian]
Corporate Governance Directive for Listed Companies on the Tehran Stock Exchange and Iran Fara Bourse (2018)
Approved by: Board of Directors of the Securities and Exchange Organization [In Persian]
Corporate Governance Directive for Listed Companies on the Tehran Stock Exchange and Iran Fara Bourse (2018)
Approved by: Board of Directors of the Securities and Exchange Organization [In Persian] [Accessible online at https: //dotic. ir/cat/379]
Audit Committee Charter for Model Public Joint-Stock Companies (2012)
Approved by: Board of Directors of the Securities and Exchange Organization [In Persian] [Accessible online at Retrieved from https: //hemattaraz. ir/]
Corporate Governance Code (2007) Approved by: Tehran Securities and Exchange Organization [In Persian] [Accessible online at https://www.codal.ir/Provisions/dastoramale%20rahbari%20sherkati. Docx]
Corporate Governance Directive for Listed Companies on the Tehran Stock Exchange and Iran Fara Bourse (2018)Approved by: Board of Directors of the Securities and Exchange Organization [In Persian]
References
Books
Dodd Jr, E. Merrick. "Modern Corporation and Private Property, The. By Adolf A. Berle Jr. " (The University of Pennsylvania Law Review,1932).
Institute of Directors. A Handbook on Corporate Governance: Condensed Guide for Corporate Directors and Executive Management. (Institute of Directors IOD India, 2021) , Retrieved from https: //z-lib. io/.
Monks, Robert AG, and Nell Minow. Corporate governance. (John Wiley & Sons, 2011).
Puchniak, Dan W. , Harald Baum, and Luke Nottage, eds. Independent directors in Asia: a historical, contextual and comparative approach. (Cambridge University Press, 2017).
Rezaee, Zabihollah. Business Sustainability Factors of Performance, Risk, and Disclosure. (Business Expert Press, 2021) Retrieved from https: //z-lib. io/
Rezaee, Zabihollah. Corporate governance post-Sarbanes-Oxley: Regulations, requirements, and integrated processes. (John Wiley & Sons, 2007). ‏
Van den Berghe, Lutgart, & De Ridder, Liesbeth. International Standardisation of Good Corporate Governance: Best Practices for the Board of Directors. (Dordrecht: Springer, 1999).
Articles
Abdul Rahman, Rashidah, and Wan Razazila Wan Abdullah. "The new issue puzzle in Malaysia: performance and earnings management." National Accounting Research Journal 3.1 (2005): 91-110.
Fairfax, Lisa M. "The uneasy case for the inside director." Iowa Law Review 96 (2010): 127-193.
Fama, Eugene F., and Michael C. Jensen. "Separation of ownership and control." The Journal of Law and Economics 26.2 (1983): 301-325.
Giove, S. "Corporate Governance and Directors’ Duties. Shearman & Sterling LLP. " (2010) , Retrieved April 15, 2024, from https: //www. shearman. com/en.
Gordon, Jeffrey N. "The rise of independent directors in the United States, 1950-2005: Of shareholder value and stock market prices." Stanford Law Review 59 (2006): 1465-1569.
Jensen, Michael C. "Agency costs of free cash flow, corporate finance, and takeovers." The American Economic Review 76.2 (1986): 323-329.
Jensen, Michael C. "The modern industrial revolution, exit, and the failure of internal control systems." The Journal of Finance 48.3 (1993): 831-880.
Jensen, Michael C., and William H. Meckling. "Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure." Journal of Financial Economics 3.4 (1976): 305-360.
Morck, Randall, Andrei Shleifer, and Robert W. Vishny. "Management ownership and market valuation: An empirical analysis." Journal of Financial Economics 20 (1988): 293-315.
Ncube, Mthuli. "Corporate governance, firm valuation and performance." Paper presented at a Conference on “Can Africa Claim the 21st Century,” Vol. 22 (2006). [Retrieved from www. afdb. org].
Shleifer, Andrei, and Robert W. Vishny. "Large shareholders and corporate control." Journal of Political Economy 94.3, Part 1 (1986): 461-488.
Legislative and Regulatory Documents
American Bar Association (ABA). Model Business Corporation Act. 2023.
American Bar Association. Corporate Laws Committee. Retrieved April 15, 2024, from https://www.americanbar.org/
NASDAQ Stock Market. Manual: Marketplace Rules. 2008.
New York (State). Consolidated Laws. 2013.
NYSE. Listed Company Manual. 2004.
Sarbanes-Oxley Act of 2002.
Securities Act of 1933.
Securities Exchange Act of 1934.