주주권 보호 차원에서 의결권자문사의 역할 개선을 위한 규제 방향에 관한 소고 - 미국과 EU의 규제 경험을 중심으로 -

초록

For years controversy surrounding the role of the proxy advisory industry, which is in essence a duopoly by Institutional Shareholder Services(ISS) and Glass Lweis(GL) globally, has grown as the influence of proxy advisors recommendations has grown. This Article analyses the regulatory experiences in the U.S. and EU to examine the choice alternatives for whether and how to regulate the industry with an agenda, that is, an improvement of the role of the proxy advisors for the protection of shareholders rights. The author finds that there exists significant divide between the regulatory approaches taken by the U.S. and EU, even though they have common policy agenda on this issue. The U.S. experiences has shown a framework based upon direct involvement by the government authorities with mandatory rule and enforcement mechanism. In a closer look, she found back and forth in the direction of the government actions. Once legislative efforts failed in 2017, SEC introduced regulations to govern the proxy advisory industry by way of amendments to the proxy rules under the Securities and Exchange Act of 1934 in 2020, a core element of which were subsequently reversed in 2022. The validity of the agency actions have been severely litigated over a number of cases by the ISS with respect to the 2020 action and by the representatives of the enterprises for the 2022 action. In February 2024, the D.C. Federal District Court vacated the SEC’s 2020 rule. Then, circuits collide on the 2022 amendments as the 6th Circuit ruled in favor of the SEC in September in clear opposition to the decision of the 5th Circuit in June this year. It is worth keeping on eye not only to the Supreme Court’s standing under this circuit spilt situation, but also to the new Administration’s next step toward the policy change on this issue, especially because both ISS and GL have headquartered in the U.S. Unlike the experiences in the U.S. the EU has taken “the monitored self-regulation” approach consistently. Starting from the self-regulation initiated by the regulator(ESMA) in 2014, the EU has encompassed the regulations on the proxy advisory industry into the EU legislative system through the amendments to the Shareholders Rights Directive in 2017(SRD II). Nonetheless the SRD II frame did not change the fundamental framework based upon the self-regulation and disclosure of material information regarding the proxy advisor recommendations. Meanwhile ESMA has continuously monitored the implementation of the self-regulatory mechanism and endeavored to enhance the system. Given the regulatory experiences of the U.S. and the EU, she concludes that we should explore and adopt the regulatory frame that suits our unique environments rather than pursue a precedent customized for another market or country. While leaning on the EU approach in terms of the characteristics of the proxy advisory industry such as the scale of economics’ and the duopoly by two American companies, she emphasizes the local factors including feasibility of the application to and/or the active participation from the part of the global proxy advisors as well as the respective role and influences of the Korean and foreign institutional investors in the corporate governance context, the immature stage of the local proxy advisory industry and the differences in the corporate law and practices regarding the corporate governance and shareholders meetings.

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