Institutional Investors in Corporate Governance

This chapter of the Oxford Handbook on Corporate Law and Governance examines the role of institutional investors in corporate governance and the role of regulation in encouraging institutional investors to become active stewards. I approach these topics through asking what lessons we can draw from the U.S. experience for the E.U.’s 2014 proposed amendments to the Shareholder Rights Directive. I begin by defining the institutional investor category, and summarizing the growth of institutional investors’ equity holdings over time. I then briefly survey how institutional investors themselves are governed and how they organize share voting. This leads me to two central questions: (a) why, over the last twenty five years, have institutional investors not fulfilled the optimists’ hopes?; and (b) can the core incentive problems that subvert Institutional Investor activism be cured by regulation? The U.S. experience, in which substantial deregulation has led to only modest increases in shareholder activism, suggests that a key explanation for institutional investors’ relative passivity is a fundamental lack of incentives. In considering whether imposing positive obligations on institutional investors is likely to succeed, I examine the disappointing results of the S.E.C.’s long experiment with incentivizing mutual funds to vote their shares. The U.S. experience suggests that the E.U. efforts are likely to be similarly disappointing. I then examine the important role that hedge funds now play in catalyzing institutional shareholders, and consider some of the risks in relying on such highly incentivized actors