Second, it depends on whether Ma Yun, as a member of the board of directors, has violated the "duty of care" of diligence and the "duty of loyalty" to shareholders in all the activities of Alibaba Group. The only shareholders who have the most say in the "duty of loyalty" are Sun Zhengyi and Yang Zhiyuan.
Ma Yun's transfer of Alipay was accused of violating the "spirit of contract", and public opinion was everywhere, causing an uproar. Alipay, although there are many details that outsiders will never know, my guess is probably understandable. Perfection or not, in my opinion, is just a commercial behavior within the enterprise. What I don't understand is to use the "spirit of contract" to say things. Since ancient times, equity disputes have always looked at the "contract terms" to see if the parties have violated the "terms", rather than the illusory "contract spirit." Talking about "contractual spirit" is not only unprofessional, but also misleading the public.
Abiding by the contract is the most basic principle in business activities. The contract includes not only the investment agreement when the enterprise is established, or the shareholders' agreement between shareholders, but also the articles of association of the company, and also the documents agreed and signed by all stakeholders at any time during the operation of the company. The contract is negotiated, including not only the initial negotiation, but also the renegotiation later because of the previous agreement. If there is any "contract spirit", it is to follow the principle of freedom of contract in the negotiation process and abide by the "contract terms" after reaching a contract. However, commercial activities should ultimately follow the "contract terms", not the so-called "contract spirit". Talking about spirit and abstraction is easy to misunderstand, but talking about terminology will be more specific and easier to grasp. Therefore, in business, every investor has the obligation to make clear the terms of the contract, what can and can't be done.
The reason why I talk about "the spirit of contract" will mislead the public is because a common cooperation problem among enterprises in China is that they are careless beforehand and do not pay attention to the agreed process, and they are all "almost" gentlemen, so they always say who is a villain and who is a rogue afterwards. This is a problem for entrepreneurs in China, and they must be urged to learn through some major business events. Business cooperation has always been about interests, and only about personal interests. From a professional point of view, you can't give the decision to your partner without thinking clearly beforehand, and then blame others.
During 1970 and 1980s, several great economists wrote a series of papers, expounding the theory of "contractual nature of enterprises" initiated by Coase. Since then, enterprises are generally regarded as "nodes of a set of contracts", which is called nexus of contracts in English. That is to say, all the people who provide the factors of production to the enterprise are actually the contracting parties of the enterprise. They have the responsibility and obligation to state their own interests as much as possible in the contract and make an agreement on how to protect their own interests. At first, economists thought these contracts were complete. But then people gradually realized that it is impossible for human beings to write a "complete" or "perfect" contract. One is because human beings are bounded rationality, the other is because of human egoism.
First of all, people don't have the ability to fully foresee the future, and they don't know what will happen to future enterprises. Secondly, people don't have super computing power to calculate how much they will gain and how much they will lose when a certain situation happens. Just like this Alipay transfer, no one outside can say clearly how much it should be priced, and no one can judge what benefits it will bring to Alibaba Group in the future. Perhaps it will bring more benefits to all shareholders, even the minority shareholders of listed companies, to accept less transfer fees today and get the license smoothly as soon as possible. As a result, economists began to have a * * * understanding of "incompleteness of contract" in the 1990s.
Let's talk about people's self-interest, which is the most fundamental driving force of business activities. Businessmen can talk about social responsibility, but it is their nature to fight for an inch of land and pursue interests. The process of reaching an agreement on a business contract is not a case discussion in class. Everyone knows everything and says everything. On the contrary, everyone should strive for the greatest interests and the largest space for activities afterwards. Although the interests of shareholders are the same, there are contradictions in profit distribution between them. It is natural and understandable to pursue the maximization of personal interests on the premise of ensuring the consistency of interests. It is precisely because of this that each shareholder's investment team hopes to have more experts and more professionals to participate in the negotiation process beforehand. The purpose of doing this is simple: think everything you can think of in advance and strive for the greatest benefit for yourself; For those details that cannot be agreed in advance in any case, it is necessary to design a "governance structure" and possible "relief clauses". This process is "the villain first, then the gentleman". The success of the villain is the most important part of the "contract spirit".
This process mainly includes two things: one is the distribution of "residual control rights"; The second is the design of "renegotiation" mechanism.
Residual control right is relative to "contractual right". The contractual right is the right to negotiate clearly in advance, but because the contract is incomplete, we can't make it clear in advance what to do and how big everyone's decision-making power is, so we leave a lot of "residual control rights". Residual control rights are generally shareholders' rights. In a Sino-foreign joint venture company like Alibaba Group, the residual control right should belong to the board of directors, that is, it is jointly owned by Sun Zhengyi, Yang Zhiyuan, Ma Yun and Cai Chongxin. Because if it is a company registered in accordance with the Sino-foreign Joint Venture Law, there is no need to set up a general meeting of shareholders, but only a board of directors, and the board of directors will be voted by the person in charge in the negotiation. So theoretically, this four-member board of directors is very strange in itself, because it is easy to form a voting deadlock. But from this structure, we can see Ma Yun's actual strength in the board of directors. I believe this is also approved by Sun Zhengyi and Yang Zhiyuan in advance, because after all, Alibaba was made by Ma Yun. Money is necessary, but it is not the most important thing. To put it more directly, Ma Yun is an entrepreneur and the other two are capitalists, also known as "risk managers" professionally. Risk management here includes not only commercial risks, but also risks controlled by companies.
According to current media reports, at the board meeting on July 24, 2009, in order to obtain the license, the remaining control rights transferred by Alipay were handed over to the management and handed over to Ma Yun for decision-making. I haven't seen the text of the authorization agreement, but according to all kinds of hearsay information, my understanding is that all "residual control rights", in fact, are handed over to the management with Ma Yun as the core, provided that the license of the central bank is approved in a way that maximizes the company's interests. This is a bit "will be outside, your life will not be affected." The reason for this is very simple, because Alipay business is very important to the group, and we must get Alipay license as soon as possible.
Ma Yun made two equity transfers according to this authorization, making Alipay a pure domestic financial service enterprise. Then, after obtaining the qualification to apply for a license, Ma Yun submitted an application to the People's Bank of China on 20 10. At this point, I don't think there is anything wrong with Ma Yun, and I don't see any objection from the shareholders of Softbank and Yahoo. What is controversial now is that Ma Yun took the initiative to cancel the "protocol control" in order to achieve maximum compliance. This is the focus of whether Ma Yun has violated the so-called "spirit of contract".
Let's put ourselves in others' shoes. If we are Ma Yun, what should we do at this moment? First, according to the "discretion" granted, enter the application procedure as soon as possible under the policy space of the central bank. Second, convene a board meeting to discuss related matters again. So far, we don't know how the details of the authorization agreement were agreed at the board meeting on July 24. I think that if Ma Yun is authorized with "discretionary power", his fundamental goal is to obtain the license issued by the People's Bank of China as soon as possible on the premise of ensuring the overall income of Alibaba Group, and if there is no "contract clause" in all previous contracts that stipulates that Ma Yun cannot do this, then it is legal for him to adopt the first option. Then, everyone will sit down and renegotiate "compensation". If so, Ma Yun is using the "residual control" or "discretion" he legally enjoys.
Of course, Ma Yun can also take the second road, or some kind of middle road. In this way, people will not accuse him of violating the so-called "contract spirit", but the existence of this road is more "perfect" in theory, which does not prove that he chose the first road in reality and violated the "contract spirit".
Of course, what Ma Yun can't explain is that Alipay is the blood system of the whole Alibaba Group, and its buyer is the company controlled by Ma Yun himself. Therefore, how to compensate the price difference after Alipay is completely cut is a very difficult problem. We also need to wait and see the process of "renegotiation" afterwards. Of course, as a non-listed company, Ma Yun does not need to explain anything about this process to the public. It's just that this matter has become a public event. It seems that Ma Yun should give everyone an explanation at an appropriate time, which is also a kind of social responsibility. I believe they have the wisdom to solve this thorny problem when they sit down. "renegotiation" is an important way to solve the incomplete contract, an effective means to discuss the distribution of shareholders' rights, and an important content of the evolution of corporate governance mechanism. I think that after Alipay, the three parties should sit down and discuss calmly, not only the compensation price for the company to cancel the control right of the agreement, but also the distribution mechanism of the company's "residual control right".
In short, to judge whether Ma Yun violated the so-called "contractual spirit", we should first look at whether Ma Yun violated the "contractual terms" between shareholders and whether he violated national policies and regulations during Alipay transfer; Second, it depends on whether Ma Yun, as a member of the board of directors, has violated the "duty of care" of diligence and the "duty of loyalty" to shareholders in all the activities of Alibaba Group. The only shareholders who have the most say in the "duty of loyalty" are Sun Zhengyi and Yang Zhiyuan. According to the business practice at home and abroad, if the shareholders accept the debt, it means that no matter how low the compensation fee paid by Ma Yun to cancel the "agreement control" and no matter how harsh the conditions of Ma Yun at the negotiating table, it is understandable as long as the fair negotiations of business partners are respected. And if Ma Yun doesn't have the spirit of contract, what will really punish him will be his trust in the capital market. In the future, if he issues additional shares or cooperates with capitalists, others will not give him such a high capital premium. This is the rule of the game in the business world.
In other words, as long as Softbank and Yahoo don't go to court to sue the board of directors or management, we shouldn't give others a big hat that violates the spirit of contract. This hat is too heavy and unfair to hard-working entrepreneurs. Just one day, Ma Yun or the board of directors of Alibaba Group was sued by shareholders to the court, and the evidence was conclusive. The court also found which "contract terms" Ma Yun had violated. At that time, it was not too late for us to say "Ma Yun was wrong".
China Entrepreneur Network