In whose interests?

Description

Pension funds in North America and the United Kingdom are substantial shareholders in corporations. For the most part, these shares are the result of the investment of pension plan contributions made by or on behalf of the sponsoring employer's employees. As substantial shareholders, pension funds have the ability to exercise voting and other rights attached to their shares to influence or control certain corporate decisions. Collectively, pension funds often have legal or de facto voting control of the corporation.My thesis is that the corporate governance decisions of pension funds ought to be made by the beneficiaries of those funds and/or their directly elected representatives because the beneficiaries' interests are not being served by the present decision-making structure. The present structure rests these decisions in the hands of the employer's management or those answerable directly to that management. The investment and corporate governance decisions of pension fund managers affect the interests of the beneficiaries through their impact on their future retirement security and the social, economic and political environment in which they will live. Thus, the grant of this power to pension fund managers by widely dispersed beneficiaries raises issues of legitimacy and the legitimate use of this power, and in particular, how the interests of the beneficiaries and the society in which they live are defined and taken account of in the decision-making process. My claim is that the present system fails to adequately define these interests and take them into account because it does not provide appropriate mechanisms of accountability to the beneficiaries.Both normative and prudential grounds are offered for my thesis. The normative grounds are rooted in the collectivization of property in the pension fund allowing beneficiaries to democratically determine the process by which their bonds with the community will be defined and agreed on in the context of corporate policy. The prudential grounds combine two factors: first, fund managers' conflicts of interest where corporate governance activity critical of corporate management is involved; second, the increasingly contested connections between long-term shareholder interests or the fundamental value of a corporation and share prices in securities markets. These factors provide justification for treating a pension fund's corporate governance policies as matters for democratic determination by the beneficiaries, rather than as matters of managerial expertise, especially since that expertise can also be provided as advice. After reviewing the implications of the thesis for pension and trust law, corporation law and securities regulation, the thesis presents a number of recommendations for changes in the law in order to empower pension plan beneficiaries with respect to the corporate governance policy of their pension fund.

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