Corporate Governance of Banks and Financial Institutions: Economic Theory, Supervisory Practice, Evidence and Policy

36 Pages Posted: 13 Mar 2020 Last revised: 19 Mar 2020

See all articles by Klaus J. Hopt

Klaus J. Hopt

Max Planck Institute for Comparative and International Private Law; European Corporate Governance Institute (ECGI)

Date Written: March 13, 2020

Abstract

Banks are special, and so is the corporate governance of banks and other financial institutions as compared with the general corporate governance of non-banks. Empirical evidence, mostly gathered after the financial crisis, confirms this. Banks practicing good corporate governance in the traditional, shareholder-oriented style fared less well than banks having less shareholder-prone boards and less shareholder influence. The special governance of banks and other financial institutions is firmly embedded in bank supervisory law and regulation. Most recently there has been intense discussion on the purpose of (non-bank) corporations. Shareholder governance and stakeholder governance have been and still are the two different prevailing regimes in the United States and in Europe, particularly in Germany. Yet for banks this difference has given way to stakeholder and, more particularly, creditor or debtholder governance, certainly in bank supervision and regulation. The implications of this for research and reform are still uncertain and controversial. The regulatory core issues for the corporate governance of banks are manifold. A key problem is the composition and qualification of the (one tier or two tier) board. The legislative task is to enhance independent as well as qualified control. Yet the proposal of giving creditors a special seat in the board disregards the reality of labor codetermination. Giving bank supervisors a permanent seat in the board would create serious conflicts of interest since they would have to supervise themselves. There are many other important special issues of bank governance, for example the duties and liabilities of bank directors in particular as far as risk and compliance are concerned, but also the remuneration paid to bank directors and senior managers or key function holders. Claw-back provisions, either imposed by law or introduced by banks themselves, exist already in certain countries and are beneficial. Much depends on enforcement, an understudied topic.

Keywords: corporate governance, economics of bank governance, debtholder governance, purpose of the (bank) corporation, financial institutions, bank regulation, bank supervision

JEL Classification: G3, G21, G28, K23

Suggested Citation

Hopt, Klaus J., Corporate Governance of Banks and Financial Institutions: Economic Theory, Supervisory Practice, Evidence and Policy (March 13, 2020). European Corporate Governance Institute - Law Working Paper No. 507/2020, Available at SSRN: https://ssrn.com/abstract=3553780 or http://dx.doi.org/10.2139/ssrn.3553780

Klaus J. Hopt (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

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European Corporate Governance Institute (ECGI)

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