Common ownership is the talk of the town in antitrust land. The competitive implications of rival firms being partially owned and controlled by a small set of overlapping owners are both fascinating and hotly contested. Could the source of potential harm be minority shareholder control in a setting of widely held companies? Critics question the extent and mechanisms of common owners’ influence driving any pro- or anticompetitive effects. This chapter aims to present a comprehensive account of partial ownership, capturing the incentives and effects of both individual and institutional investors and also cross- and common shareholding. It illustrates the early historical unity between corporate and competition laws in regulating shareholding acquisitions but also their progressive quiet disconnect. Triggered by the contemporary common ownership (hypo)thesis, it puts forward a taxonomy of shareholding types and their control characteristics from a competition law perspective, with emphasis on commonly thought passive and diversified investment holdings. The chapter concludes by urging competition and corporate governance and finance policymakers towards harmonic regulatory solutions to address common ownership. It also offers a quantum theory of the corporate property “atom”, drawing cautionary tales about the dynamic and ambiguous qualities of minority common shareholding for antitrust enforcers.

A stylized fact that lurks in the background of the recent literature on common ownership is the parallel increase in the profitability of oligopolistic industries and common ownership. Some have argued that the growth in common ownership has caused the increase in oligopoly profits and have proposed a variety of policy responses. This paper briefly reviews the available evidence and finds it unconvincing. It then provides an overview of the evidence that concentration and profitability have increased, considers alternative explanations, and suggests that the emergence of “superstar” firms – and not the growth in common ownership – could be a fundamental driver of the parallel increase in concentration and profitability.

During the last decade, discussion on shareholder activism concentrated on hedge funds, some seeing them as agents for passive institutional shareholders, bridging the separation of ownership and control, others believing their short-term value-maximization interests differing fundamentally from those of other shareholders. Some have seen hopes for long-term activism in institutional shareholders such as pension funds. In the European Union, activism is seen positively, encouraging proposals to enhance shareholders’ rights against the boards’ discretion. The purpose of this chapter is to focus on institutional investor activism and its impact on both their ultimate beneficiaries and their target companies, and how investors could be incentivised to more sustainable behaviour in their activism. Albeit the focus is on the European Union, institutional investors are global. A broader perspective including North America and Asia is therefore taken. The most important impact of institutional activism is arguably normative, causing changes in corporate governance. Specific attention is therefore given to governance questions.

Legal means of shareholder engagement in Australia vary considerably, ranging from reliance on shareholder rights conferred under the Corporations Act 2001 (Cth) to reliance on class actions seeking the collective enforcement of legal rights arising from corporate conduct. This chapter offers an introduction to Australia’s corporate governance framework in the context of corporate decision making and the exercise of shareholders voting rights. The balance of power between shareholders and the board of directors, and its legal impact on shareholder engagement, is highlighted. Insights are provided into the legal means of shareholder engagement in Australia and the manner in which votes are exercised. There is growing evidence of shareholder apathy and the dominance of institutional investors and proxy advisors. The chapter charts the recent trend towards active shareholder engagement on ESG and human rights issues at Annual General Meetings, notwithstanding the limited opportunities to propose advisory or non-binding resolutions at meetings.

Institutional investors have traditionally dominated the ownership structure of large publicly traded companies in the United Kingdom. Attention to the role and participation of institutional investors in the corporate governance of British firms has been growing since the late 2000s following regulatory efforts to empower shareholders, for example, through say-on-pay votes, and to promulgate best practices of shareholder voting and engagement via soft law stewardship codes. This chapter presents the state of the art and recent trends in shareholder engagement and voting by institutional investors in the UK. Asset managers affiliated with large fund groups have been taking a more active approach to stewardship, although their efforts generally focus on identifying and promoting best practice corporate governance standards and dealing with global threats such as climate change and social matters. The chapter also discusses the roles of activist shareholders, proxy advisers and the COVID-19 pandemic in shareholder voting and engagement.

Empowerment of minority shareholders has been a central theme of China’s corporate governance movements in the past two decades. Cumulative voting and the majority of the minority rule are exemplary of Chinese reformers’ efforts to strengthen shareholders’ rights to vote. Other shareholders’ rights, such as the right to call a meeting, the right to propose, and the right to information, are also in place and, at least in theory, enable public shareholders to engage the controlling shareholders of their investee companies. The practical effect of these legal rights needs to be evaluated in the context of China’s path-dependent conditions, notably the prevalence of concentrated share ownership, the relatively weaker presence of institutional investors, and the approach to allocating corporate power which centres on the shareholders meeting.

In Canadian corporate law, shareholders occupy a preferential role vis-à-vis other stakeholders. Shareholders are the only stakeholder with statutory rights, such as the right to elect and remove directors. Against this backdrop, this chapter examines the Canadian corporate governance landscape from the perspective of shareholders and examines the legal and market tools that shareholders have available to them. This chapter also explores the limitations and effectiveness of these mechanisms and considers various market actors who influence shareholder behaviour and can facilitate shareholder engagement. The chapter concludes with an analysis of three trends in shareholder engagement in Canada: (i) institutional investor engagement on issues at the core of ESG; (ii) the role of proxy advisory firms and the influence they wield over institutional shareholders; and (iii) the immediate  impact of COVID-19 on shareholder engagement.

This Chapter provides an extensive analysis of the regulatory framework for shareholder voting and engagement in Italy. Despite high levels of ownership concentration of publicly listed companies, institutional investors have grown into prominent players on the Italian corporate governance scene. In particular, the Italian practice of shareholder engagement shows that say-on-pay, related party transaction oversight and slate voting for director elections are all useful for policing institutional investors’ active ownership, but they have to mutually combine in order to be effective. First, say-on-pay is a tool complimentary to minority representation on the board of directors to foster institutional investor stewardship. Second, minority board representation ensured by slate voting can improve self-dealing oversight since ex ante independent scrutiny of related-party transactions is required. Moreover, at Italian listed companies, the presence of minority-elected directors has actually had a positive impact on the adequacy of internal procedures for addressing related-party transactions.

This Chapter outlines the broader Brazilian stewardship framework by assessing both the public and private rules applicable to investment and pension funds considering their fiduciary duties. It analyses the background and rules of the first and only Brazilian Stewardship Code, launched in 2016 by AMEC. Note that the Brazilian companies have historically concentrated ownership amongst a few companies with managerial control and institutional investors are usually minority shareholders, with a limited influence on the investee companies’ corporate governance. The chapter argues that despite the existence of various stewardship initiatives, there is no sound effort by public and private regulators to monitor and to enforce these rules and principles. There is also no clear endeavour from the public and private regulators to align their norms in relation to stewardship related duties.

The nature of stewardship varies based on shareholder structures. In the Nordic region (similar to many Asian jurisdictions), the role of states, sovereign holding companies and wealth funds, other public market actors such as public pension funds, families, family-controlled investment companies and family-based foundations is significant compared to (other) national and international institutional investors. In this chapter, we discuss the peculiarities of Nordic stewardship as a backdrop for our analysis of Norwegian stewardship, which is dominated by the state and the municipalities, but also to some extent by private investors. In Part II we discuss the Nordic stewardship in light of international stewardship discussion, before concentrating on Norway and the current regulatory framework of stewardship there in Part III, reflecting on the Norwegian choices concerning stewardship in light of global challenges. Part IV reflectss on why a stewardship code is not needed in Norway. What Norway does need, is a clear and mandatory regulation to ensure that Norwegian business and finance contribute to the transition to sustainability. A stewardship code would not be a sufficiently strong measure. Conversely, it could hold Norwegian business and finance back in the face of the rapid developments on EU and international level.

Regulators and commentators around the world are increasingly demanding that institutional investors engage in stewardship with respect to their portfolio companies. Further, the demand for stewardship has broadened from an expectation that investors engage to reduce agency costs and promote economic value to a call for investors to demand that companies serve a broader range of societal interests and objectives. This chapter considers calls for stewardship in the context of the U.S. capital markets specifically as applied to index funds. It argues that, irrespective of the merits of institutional stewardship generally, the structure of index funds and the business environment in which they operate limit their ability to engage in effective stewardship. Although index fund sponsors have had a powerful influence on their portfolio companies, well-intentioned calls for them to play a more significant role and, in particular, claims that they should incorporate non-economic objectives more broadly into their engagement strategy, are in tension with the valuable role that index funds serve in the U.S. markets by providing a low-cost diversified investment option for an increasing segment of ordinary citizens. The chapter concludes by considering the possibility of using pass-through voting to enhance the stewardship potential of index funds.

In today’s world, the transfer of laws and regulations between different legal systems is commonplace. The global spread of stewardship codes in recent years presents a promising, but yet untested, terrain to explore the diffusion of such norms. This Chapter aims to fill this gap. Employing the method of content analysis and using information from 41 stewardship codes enacted between 1991 and 2019, we systematically examine the formal diffusion of these stewardship codes. While we find support for the diffusion story of the UK as a stewardship norm exporter, especially in former British colonies in Asia, we also find evidence of diffusion from transnational initiatives, such as the EFAMA and ICGN codes, as well as regional clusters. We also show that the UK Stewardship Code of 2020 now deviates from these current models; thus, it remains to be seen how far a second round of exportation of the revised UK model into the transnational arena will follow.

The chapter analyses the market for stewardship, as it has been developing in the UK. The 2020 UK Stewardship Code more clearly than previous stewardship codes (both in the UK and elsewhere) articulates the concept of a market for stewardship. The UK Code 2020 takes into account the position of end-investors and beneficiaries. The hope is that stewardship will be delivered because those whose money is invested ask for it. We agree that stewardship does start with those who contribute the funds invested in the market. The focus on end-investors and beneficiaries is, however, not enough. By limiting the analysis to these groups, the UK government overlooks the fact that it is itself a financial contributor to the market. A study commissioned by the Competition and Markets Authority (CMA) finds, for example, that 90% of the revenue of investment consultants and fiduciary managers derives from pensions. The government contributes to pension investments through the provision of tax credit. It is a significant financial investor in the market. Tax credit also deprives end-investors and beneficiaries of a financial incentive to oversee asset owners, asset managers and other service providers. We suggest that the UK government should act as a steward in relation to its own investment and tailor tax credit to investments that are stewardship-active.

The United Kingdom’s idea to adopt a stewardship code sparked a global shareholder stewardship movement. Unsurprisingly, Singapore as a corporate governance leader in Asia, adopted a stewardship code. Based on a superficial textual analysis, the Singapore Code appears to be a near carbon copy of the UK Code. However, this Article, which provides the first in-depth comparative analysis of stewardship in Singapore, demonstrates how Singapore has turned the UK model of stewardship on its head. Rather than enhancing the shareholder voice of institutional investors, shareholder stewardship has been used in Singapore as a mechanism for entrenching its successful state-controlled and family-controlled system of corporate governance. This development has been entirely overlooked by prominent international observers and would be beyond the wildest imaginations of the original architects of the UK Code. Viewed through an Anglo–American lens, this use of “stewardship” may suggest that Singapore has engaged in a corporate governance sham. However, this Article argues the opposite: it appears to be a secret to Singapore’s continued corporate governance success and provides a much-needed Asian (as opposed to Anglo–American) model of good corporate governance for Asia.

In 2017 the Kenya Capital Markets Authority (CMA) issued a stewardship code for institutional investors. The code was informed by the need to respond to the changing business environment coupled with the desire to align Kenyan local standards to global best practice focused on promoting institutional strengthening for listed companies. The United Kingdom (UK) Stewardship Code 2010 heavily influences the code. This chapter seeks to analyse the theoretical and contextual issues relating to the stewardship of code in Kenya through functional and practical lenses and what it portends in the governance of publicly listed companies. The study finds that two years after promulgation of the code, none of the licensed fund managers or other institutional investors or asset owners have signed the Code. Not much of institutional investor engagement in management of companies has been reported. The results of the study seem to suggest that amongst the reasons for lack of uptake of the code are that it was issued without any stakeholder participation and sensitisation. As a mechanism for enhancing the awareness on the code, the CMA is planning to launch the code officially within this financial year.

Within less than twenty years the idea of shareholder stewardship has become a global phenomenon. In 2010, the United Kingdom released the world’s first stewardship code to cure what was perceived to be the UK’s primary corporate governance malady: rationally passive institutional investors in a country characterised by a dispersed ownership structure. Today, UK-style stewardship codes exist in 20 jurisdictions, on 6 continents, and are embedded in a panoply of legal systems, shareholder markets, and corporate cultures. This introductory Chapter to the Global Shareholder Stewardship edited book explains why shareholder stewardship around the world is far more complex than the existing literature suggests and how this complexity impacts current theories and existing practices. To explain complexity, the Chapter provides a loose taxonomy of global shareholder stewardship and examines stewardship from multiple perspectives. This complexity, which has largely been overlooked in the literature, creates distinct varieties of stewardship. Based on the distinct varieties of stewardship in jurisdictions around the world, this Chapter concludes by illuminating the challenges and possibilities of global shareholder stewardship. The taxonomy also serves as a useful lens for observing the common themes and points of intersection that make the whole of this Book greater than the sum of its individual Chapters.

This chapter studies the institutional investor’s voice in the Netherlands, focusing on shareholder voting in particular. The Dutch Stewardship Code, developed by institutional investor platform Eumedion, emphasizes the engagement and responsibilities of institutional investors in Dutch listed companies and should further boost engagement with investees. With a new dataset, the authors observe that institutional investors critically consider (non-)current voting items which could negatively affect shareholder rights, like some of the amendments of the articles of association as well as remuneration packages of directors that contain insufficient or inappropriate incentives. Compared to other investors, institutional investors show significantly higher opposition rates. Particularly, Eumedion members show even higher opposition rates than other institutional investors. However, there may still be room for a stronger focus on the activities and outcomes of stewardship, including changing the behaviour of companies, and not just policy statements.

The growth of shareholder stewardship codes around the globe reflects a belief that greater engagement by institutional shareholders improves corporate decision-making and protects against excessive risk-taking. In theory, there is considerable sense in shareholders undertaking their stewardship activities collectively, to leverage their power, pool resources and share costs, making stewardship more feasible and less speculative. This chapter examines collective action in Australia, which constitutes a nuanced corporate governance practice. Evidence indicates that investors do not routinely engage in direct forms of collective action, preferring to leverage their collective influence through intermediary organizations that undertake behind-the-scenes engagement activities for investors. The nuanced image emerging from the Australian experience highlights that collective action by institutional shareholders is by no means a simple governance phenomenon. This chapter explores the implications of this insight for how securities and takeover laws apply to collective action, and how the issuers of stewardship codes frame their codes’ expectations regarding collective action.

Stewardship codes as they originated in the UK focus on the role and function of institutional investors. Yet in Asia, where institutional investors play a much less dominant role, stewardship codes have also become popular. This Chapter explores why and what this means for comparative corporate governance. By showing how stewardship codes perform diverse, jurisdiction-specific functions in Asia, this Chapter reveals the utility of stewardship codes as a malleable vehicle for advancing political agendas and halo signalling. It also shows that, contrary to prevailing assumptions, UK-style stewardship codes have not been ‘transplanted’ in both form and function. Rather, Asia exhibits ‘faux convergence’a distinctive form of functional divergence within superficial formal convergence, and which challenges and adds to scholarly understanding of convergence as a global corporate governance phenomenon.

This Chapter demonstrates that institutional investors have become an important vector in China’s autochthonous corporate governance model, which can no longer be ignored. To accurately understand the role of institutional investors in Chinese corporate governance and how effective they are in improving corporate governance in China, these developments must be understood on their own terms – in China’s unique political-economic context in which the Chinese Communist Party (CCP) has ultimate control. The same is true for understanding how Chinese companies and institutional investors fit into the CCP’s broad-based campaigns to address social inequality and improve the environment. The Chapter concludes that to see these developments as part of a UK-inspired ‘global shareholder stewardship’ movement, would make Western pundits seem like the proverbial woman who only has a hammer and sees everything as a nail. In arriving at this conclusion this Chapter reveals how the CCP has actively and gradually promoted the growth of domestic institutional investors, in terms of types and size, through relaxation of policies and law reforms to improve corporate governance and stabilize the stock market, while limiting the influence of foreign institutional investors. It further analyzes all the Activist Campaigns undertaken by institutional investors in China and maps the network of government bodies, regulations, and tactics that the CCP has developed to directly and indirectly control State-Owned Institutional Investors (SOIIs) and Private-Owned Institutional Investors (POIIs) for the purpose of policy channelling.