Evolving role of shareholders and the future of director primacy theory

Abstract

Over the last two decades, US corporate governance has witnessed a significant increase in the incidence and influence of shareholder activism. Shareholder activism, however, has been found to be inconsistent with US corporate governance which is framed within director primacy theory. In this theory, the board is able to carry out a unique combination of managerial and monitoring roles effectively, and shareholders are only capital providers to companies. Shareholder activism is normatively found inimical to effective and efficient decision-making, i.e. the board’s authority, and to the long-term interests of public companies. The increasing willingness of institutional shareholders to participate into the decision-making processes of their portfolio companies is at odds with US corporate governance. Therefore, the aim of this thesis is to examine whether director primacy theory should be softened to accommodate greater shareholder activism in US corporate governance. This thesis presents an analysis of the legal rules that reflect director primacy theory. In this respect, US shareholders have traditionally had limited participatory power. The way in which the courts perceived the board’s authority also stymied shareholder participation. This thesis considers not only legal and regulatory developments in the wake of the 2007-2008 financial crisis, but also the governance developments through by-law amendments which could potentially make an overall change in the balance of power between shareholders and the board. Shareholders are slowly moving to the centre of corporate governance in the US. History has shown that the board of directors often failed to prevent manager-induced corporate governance failures. This thesis argues that shareholder activism is necessary for improving the web of monitoring mechanisms and for a well-functioning director primacy model. Shareholder activism forces the board to more critical about management, which is a prerequisite for the director primacy model. Therefore, this thesis argues that shareholder activism should therefore be accommodated into US corporate governance. The proposed approach addresses accountability problems more effectively than the current director primacy model while recognising the board authority and enhances decision-making processes of public companies. In this regard, it makes several recommendations to soften the current director primacy model: establishing a level playing for private ordering, adopting the proxy access default regime, the majority voting rule, the universal proxy rules, and enhancing the disclosure requirements of shareholders. The present research also demonstrates that contemporary shareholder activism involves many complexities. It contains different types of shareholder activism, which differ by objectives, tools, and motives. It could be used for purely financial purposes or non-financial purposes or both. Furthermore, the concept of stewardship has been developed to address public interest concerns, namely short-termism in the market and pressures by activist funds through shareholder activism. In this way, this thesis develops a complete positive theory about shareholder activism rather than focussing on a specific type of activism. This complete analytical framework constitutes more reliable basis to draw normative conclusions rather than focussing on a particular type of activism.