机构投资者投票顾问的法律规制——美国与欧盟的探索及借鉴

The Regulation of Proxy Advisors:Experiments and Lessons from the US and the EU

投票顾问是20世纪80年代以来资本市场兴起的新型咨询服务机构,其向机构投资者提供所持股公司股东大会投票建议、治理状况评级等服务以营利,部分投票顾问还同时向上市公司提供公司治理咨询服务。投票顾问的影响力随着机构投资者的壮大及相应监管的完善与日俱增,但来自上市公司管理层等利益相关方的批评也从未停止,近10年来更引起立法者与监管者的关注和介入。美国与欧盟的探索实践表明,以适度信息披露和利益冲突防控为导向的公共监管相较于私人执法而言是规制此类机构的更优路径,表现可衡量性弱、诉讼效果不彰影响了民事诉讼的应用,相关经验亦可为我国所借鉴。

The proxy advisor is a new type of consulting service institution emerging in 1980 s.Such practices are aimed at providing institutional investors with services like voting recommendations and governance ratings on their investee companies.In addition,some of them also provide corporate governance consulting services to the issuers.The influence of proxy advisors has been growing with the development of institutional investors as well as the perfection of corresponding regulations.However,criticism from stakeholders such as the management of public corporations never wanes,rather increasingly attracts the attention and intervention from both lawmakers and regulators of the US and the EU in the past decade.In light of such regulatory experiments overseas,the public regulation oriented towards proper information disclosure and effective management of conflict of interest is a better way to regulate proxy advisors than private actions.The lack of measurability of performance and of incentives for bringing lawsuits limits the use of civil actions at this area.Chinese regulators can draw insights from their American and European counterparts in the context of China’s local market.