Competition and Corporate Governance: Teaming Up to Police Tunneling

35 Pages Posted: 24 Jul 2015 Last revised: 27 Jun 2018

See all articles by Yong Lim

Yong Lim

Seoul National University, School of Law

Geeyoung Min

Columbia Law School

Date Written: July 23, 2015

Abstract

Is the extraction of private benefits by the firm’s controllers only an issue for minority or non-controlling shareholders? Korea’s treatment of such conduct (often called “tunneling”) provides useful insights to this question. Tunneling by controlling shareholders, which has traditionally been the concern of corporate governance law and policy in the U.S., is further subject to scrutiny under competition law (Undue Support Clause) in Korea. This paper discusses a real world example of an intersection between competition law and corporate governance policy from a comparative perspective. The history of the Undue Support Clause challenges the common perception that a corporate governance malady has nothing to do with competition law (or vice versa). Although this is not a complete survey of all the intricacies that can arise when competition and corporate governance intersect with one another, Korea’s experience with the Undue Support Clause provides an invaluable opportunity to reevaluate the relationship between the two policies and draw valuable insights for other jurisdictions, including the U.S., that tend to turn a blind eye towards harm inflicted outside of the firm by tunneling.

Keywords: Tunneling, Related Party Transactions, Conflicts of Interest, Competition, Corporate Governance, Antitrust

JEL Classification: K21, K22

Suggested Citation

Lim, Yong and Min, Geeyoung, Competition and Corporate Governance: Teaming Up to Police Tunneling (July 23, 2015). 36 Northwestern Journal of International Law & Business 267 (2016); Virginia Law and Economics Research Paper No. 21. Available at SSRN: https://ssrn.com/abstract=2635075

Yong Lim

Seoul National University, School of Law ( email )

Seoul National University, School of Law,
Bldg. 72, Room 617, 1 Kwanak-ro, Kwanak-gu
Seoul, 08826
Korea, Republic of (South Korea)

Geeyoung Min (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10027
United States

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