The Future as History: The Prospects for Global Convergence in Corporate Governance and its Implications

Abstract

Comparative research has shown that, even at the level of the largest firms, corporate ownership structure tends to be highly concentrated, with dispersed ownership structures characterizing only the Anglo/American context. What explains these national boundaries between dispersed and concentrated ownership structures? Earlier in this decade, several authors (most notably, Mark Roe) proposed "political" theories of corporate finance under which dispersed ownership was viewed as largely the result (in the U.S.) of regulatory constraints imposed on the development of financial intermediaries. Under this view, a deep-rooted American political ideology disfavored concentrated financial power, with the alleged result that the Berle/Means model of the firm (with its characteristic "separation of ownership and control") became dominant in the U.S. (but not elsewhere). More recently, economists working on the privatization of transitional economies have focused on the difficulties in establishing viable securities markets. Based on survey data, they have concluded that common law regimes vastly outperform civil law regimes in fostering the development of equity markets. Even if this research is still at a preliminary stage, this data suggests an alternative "legal" hypothesis for the observed dichotomy between concentrated and dispersed ownership: namely, only those legal systems that provide significant protections for minority shareholders can sustain active equity markets. This "legal" hypothesis is the mirror image of the earlier noted "political" theory of corporate finance: under the "legal" hypothesis, dispersed ownership evidences not the overregulation of institutional investors, but the law?s success in encouraging investors to accept the status of minority owners. Similarly, financial intermediaries fail to grow to the scale observed in Japan and Germany, because individuals do not need to rely upon them as collective investment vehicles. These two contrasting theories yield very different predictions about the likelihood that globalization will produce significant convergence in corporate governance. Emphasizing the inertial impact of path dependency, proponents of the former political theory have focused on the barriers to formal convergence and been skeptical of the prospects for legislative change. Proponents of the "legal" hypothesis have yet advanced no logical corollary to their arguments, but this article examines an alternative and more likely route to significance convergence in corporate governance: namely, functional convergence attained, first, through the migration of foreign issuers to the U.S. securities markets and, second, through international harmonization of securities regulation and disclosure standards. Empirically, the migration of foreign issuers to the U.S. markets has accelerated in this decade, and this article examines several hypotheses for this trend, including (i) the possibility that a U.S. listing is a bonding mechanism by which issuers assure minority shareholders that they will not be exploited; (2) the existence of network externalities associated with securities exchange that attract issuers even in the face of high regulatory costs; and (3) the possibility that the "strong" position of management in the Berle/Means corporate structure protects minority shareholders from the danger that the subsequent formation of a control block will permit a new controlling shareholder to expropriate value from them. Finally, this article argues that convergence in corporate governance will occur not at the level of corporate laws, but at the level of securities regulation. In particular, it emphasizes the critical, but often overlooked, role for securities regulation in reducing agency costs. In this regard, developments in the United States may foreshadow future international corporate convergence, as, it is argued, the predominance of federal securities law has largely overshadowed variations in state corporate laws and rendered unimportant the competition among American states for corporate charters. Similarly, on the international level, securities harmonization may trivialize path dependent variations in national law.