The Agency Costs of Sustainable Capitalism

57 Pages Posted: 26 Jan 2021 Last revised: 15 Mar 2021

See all articles by Anna Christie

Anna Christie

University of Edinburgh Law School; University of Cambridge Centre for Business Research; Trinity College, Cambridge; Newnham College, Cambridge

Date Written: January 13, 2021

Abstract

The passive index investing revolution and the demand for bespoke environmental, social, and governance (“ESG”) investment products are the most monumental changes to shape the investor landscape for many years. These developments have been accompanied by an unprecedented concentration of power among BlackRock, Vanguard, and State Street (the “Big Three” asset managers), who are now the biggest shareholders and common owners of the vast majority of globally significant companies. Inevitably, the Big Three are among the most powerful shareholders of the companies that have been identified as major contributors to the climate crisis. Due to the failure of governments to take effective action in the global effort to combat climate change, there has been intense pressure directed at the Big Three to provide investor driven solutions. The Big Three therefore increasingly purport to assume what I call the role of “sustainable capitalists”.

In this Article, I build upon Gilson and Gordon’s “agency capitalism” framework to put forward a new agency-costs theory of sustainable capitalism. In this “sustainable capitalism” framework, I show that the Big Three still exhibit some form of “rational reticence”, especially with regard to firm-specific sustainability activism. I theorize that they may also be inflicted with a second agency problem that I call “rational hypocrisy”. This concept is similar to corporate greenwashing as the Big Three are incentivized to claim that they have a stronger commitment to sustainability than is actually reflected in their voting and engagement records in reality. The combination of “rational reticence” and “rational hypocrisy” results in a dual monitoring shortfall–the “agency costs of sustainable capitalism”.

In the agency capitalism framework, the proposed solution was for specialist activist hedge funds to fill the monitoring shortfall by initiating firm-specific activism as “governance arbitrageurs”. Analogously, in my sustainable capitalism framework, both ESG hedge funds (initiating firm-specific ESG activism) and other “responsible activists” (focusing on portfolio-wide ESG issues) can be thought of as potential candidates for the role of “ESG arbitrageurs”. Successfully mitigating the problem of rational reticence depends on the complementarity of interests between the ESG arbitrageurs (as initiators) and the Big Three (as arbiters). When discussing appropriate strategies for responsible activists, I demonstrate that important lessons can be learned from a close examination of the way activist hedge funds have adapted to fit the role of governance arbitrageurs. Mitigating the problem of rational hypocrisy, however, requires a different approach. Here, I argue that responsible activists may need to focus on, and target their activism at, the Big Three themselves.

Keywords: agency costs, asset managers, big three, climate change, corporate governance, corporate social responsibility, ESG, hedge fund activism, index funds, institutional investors, mutual funds, passive investing, responsible activists, shareholder activism, sustainable capitalism

JEL Classification: G23, G34, K22

Suggested Citation

Christie, Anna, The Agency Costs of Sustainable Capitalism (January 13, 2021). UC Davis Law Review, Vol. 55, No. 2, 2021, Forthcoming, University of Cambridge Faculty of Law Research Paper No. 7/2021, Available at SSRN: https://ssrn.com/abstract=3766478 or http://dx.doi.org/10.2139/ssrn.3766478

Anna Christie (Contact Author)

University of Edinburgh Law School ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

HOME PAGE: http://www.law.ed.ac.uk/people/anna-l-christie

University of Cambridge Centre for Business Research ( email )

Cambridge
United Kingdom

HOME PAGE: http://www.cbr.cam.ac.uk/people/research-associates/anna-christie/

Trinity College, Cambridge ( email )

Trinity Street
Cambridge, CB2 1TQ
United Kingdom

Newnham College, Cambridge ( email )

Sidgwick Ave
Cambridge, CB3 9DF
United Kingdom

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