By now, the law must have developed a distinct body of company law. The fact that two institutions have the same origin should not per se lead to the conclusion that the same body of principles applies. Brothers, despite their common parents, are not twins automatically. Directors’ duties, despite their origin in the trust, are not trustees’ duties. Latham CJ stated that ‘the power [to alter articles] must be exercised bona fide for the benefit of the company as a whole‘. Malcom CJ said: ‘It cannot be said that the alteration was made otherwise than bona fide for the benefit of the unitholders as a whole.’ The apparent similarity of these two formulations is deceptive. If the unitholders are not associating, as Smith v. Anderson has suggested, is it right to look at all unitholders as a whole? Read the rest of this entry »
Unitholders cannot be characterized as partners. Actions done and decisions made by them through meetings can be regarded as the acts of owners of the rights constituted by the units. They are analogous to assents by beneficiaries of trusts.
Of course, as in companies, in order for actions to be taken by a large aggregate of individuals, meetings and rules for majority decisions are necessary. Voting rights simply are parts of the rights constituting units. Once the majority in a meeting is given the power to bind the minority, there emerges the tension between voting powers as property rights and the notion of fairness in the exercise of those powers. Read the rest of this entry »
In crude terms, in a unit trust, the manager performs all the functions of management of the trust assets that would have been carried out by the trustee if the trust were a private trust used as a means of disposition of properties. This leads to the question whether the manager can be considered as a trustee, by analogy to the statutory scheme contained in the Public Trustee Act 1906 that allows the simultaneous appointment of a custodian trustee and a managing trustee. A custodian trustee under this Act is one who gets in and holds the title to the trust property. The management of the trust property and the exercise of any power or discretion are vested in the managing trustee. As between the custodian trustee and the managing trustee, a custodian trustee has the custody of all securities and documents of title relating to the trust property, but the managing trustee is permitted free access to them and is entitled to take copies or extracts. A custodian has to concur in and perform all acts.’” Read the rest of this entry »
B. Baker v. Archer-Shee in Unit Trusts
So far, the position is this. With regard to the number of beneficiaries, the effect of Nelson v. Adamson and New Zealand Insurance Co. Ltd. v. CPD is that Baker is not limited to trusts with one beneficiary and the existence of a number of beneficiaries, whether in successionor concurrently, does not affect their respective claims to proprietary interests in the subject matter of a trust. Ironically, the expansive application of Baker was achieved in New Zealand Insurance only at the price of admitting that a beneficiary may not have a proprietary interest in the trust assets in some fixed trust situations, such as where the beneficial interest is ‘a specified sum to be provided out of an unidentified part of a body of assets‘. Read the rest of this entry »
The trust is by nature a relationship fastened upon the properties of the trust. Considerable debate has been focused upon the rights of a beneficiary in the trust properties.5 In a private trust, the trust is a means of disposition of properties by way of gift. The trust corpus in the private trust, even when the settlor is one of the beneficiaries, is the subject matter of a gift. In this sense, the trust has a distributive character that makes use of equity’s recognition of a multiplicity of interests within a trust. A beneficiary’s interest is an interest in a gift. His interest is a matter of degree of ownership. If he is a beneficiary under a discretionary trust, he has nothing more than a right to be considered as a beneficiary. Read the rest of this entry »
The swap terms available to the insurance company are as follows:
- Every six months the life insurance company will pay LIBOR.
- Every six months the life insurance company will receive 8.40%.
What has this interest-rate contract done for the bank and the life insurance company? Consider first the bank. For every six-month period for the life of the swap agreement, the interest-rate spread will be as follows: Read the rest of this entry »
So far we have merely described an interest-rate swap and looked at its characteristics. Here we illustrate how they can be used in asset/liability management. Other types of interest-rate swaps have been developed that go beyond the generic or “plain vanilla” swap described and we describe these later.
An interest-rate swap can be used to alter the cash flow characteristics of an institution’s assets so as to provide a better match between assets and liabilities. The two institutions we use for illustration are a commercial bank and a life insurance company. Read the rest of this entry »
Valuing Caps and Floors
The arbitrage-free binomial model can be used to value a cap and a floor. This is because, as previously explained, a cap and a floor are nothing more than a package or strip of options. More specifically, they are a strip of European options on interest rates. Thus to value a cap the value of each period’s cap, called a caplet, is found and all the caplets are then summed. The same can be done for a floor.
To illustrate how this is done, we will once again use the binomial interest-rate tree to value an interest rate option. Consider first a 5.2%, three-year cap with a notional amount of $10 million. The reference rate is the one-year rates in the binomial tree. The payoff for the cap is annual.
Exhibit 25-12 shows how this cap is valued by valuing the three caplets. The value for the caplet for any year, say year X, is found as follows. First, calculate the payoff in year X at each node as either zero if the one-year rate at the node is less than or equal to 5.2%, or the notional principal amount of $10 million times the difference between the one-year rate at the node and 5.2% if the one-year rate at the node is greater than 5.2%
Then, the backward induction method is used to determine the value of the year X caplet. Read the rest of this entry »
In an industry that has seen its share of fads, Vanguard has long stood as a symbol of low costs and plain-vanilla products. Founded by John Bogle in 1975, the Vanguard Group is now the second largest mutual fund complex in the United States and has inspired a loyal following among many of its shareholders.
Low-cost funds have been Vanguard’s hallmark— and one of its main rallying cries within the industry. Its ability to provide funds with low expense ratios depends on the company’s unusual business model. In the Vanguard Group, the management company is actually owned by shareholders of its member funds. Read the rest of this entry »
Over the past few years, the merger activity in the mutual fund industry has sharply accelerated. Some of the mergers involved fund companies trying to fill out their line of products. An illustration is the acquisition of Templeton’s management company, which has a strong reputation for international stock funds, by Franklin’s management company, with its heavy emphasis on bond funds. Other mergers involved institutionally oriented securities firms seeking more distribution to retail investors. An illustration is the acquisition of Dean Witter, a retail wire house, by Morgan Stanley, with its institutional client base. Still others involve banks that want to gain a foothold in the mutual fund industry. An illustration is the acquisition of Dreyfus, an investment manager for a broad line of mutual funds, by Mellon National Bank. The following case study discusses several mergers in the mutual fund industry and the early results of the consolidations. Read the rest of this entry »
Underlying the policy debate about merits of institutional activism is the empirical question: Does such activism have a significant impact on corporations that are the target of that activism? The short answer is that it’s unclear.
In an attempt to provide an intermediate-level answer, let us review a few points that emerge from this debate on the impact of institutional activism. To begin, the studies do not usually include proxy fights or takeover bids since these are rare events for institutional investors. In addition, these studies are all premised on the efficient markets theory, so they assume that the impact from shareholder activism can be measured by looking at a change in stock price after a specific event, such as a pension fund’s submission of a stockholder proposal.
These economic studies tend to show no or little positive price effects from proposals to change general governance procedures, such as the introduction of confidential voting or the appointment of an external board chairman (separate from the CEO). Read the rest of this entry »
The presence of dominant local shareholders characterizes the governance structure of many foreign companies.The dominant shareholders typically seek to preserve their influence by relying on a variety of structures designed to frustrate the exercise of rights by minority shareholders and “outside” investors.
France, for example, has a strong tradition of government involvement in the economy. Accordingly, the state maintains several devices to influence corporate decision making, which undermine minority shareholder rights. Read the rest of this entry »
In addition to the influence of dominant local shareholders, the legal relationship between a company board and its shareholders may limit the rights of the minority shareholders. In general, under U.S. state corporate law, a company’s directors owe a fiduciary duty primarily to its shareholders. By contrast, in many non-U.S. legal systems, the board may be required to consider the interests of other stakeholders in the enterprise, including the company’s labor unions and local suppliers, as well as community groups and local government.The interests of these groups may, on occasion, come into conflict with the interests of minority shareholders. Read the rest of this entry »
In most cases, mutual fund advisers vote to support the recommendations of company management. This is true not only for management’s proposed slate of directors, which routinely receive the support of 99% of those voting, but also for management proposals on other subjects. For instance, during the 2000 proxy season, management proposals on proxy statements were supported on average by 85% of the stockholders who voted; proposals opposed by management were opposed on average by 74% of the stockholders who voted. This high level of consensus between stockholders and management is not surprising, at least for actively managed mutual funds. Owning the stock of a company ordinarily indicates a belief in the ability of the company’s management; supporting management’s position in voting matters often follows as a matter of course. Read the rest of this entry »
Despite the absence of SEC rules on fund participation in the governance process of publicly traded companies, mutual fund complexes routinely vote their proxies on items submitted to stockholders for approval. (Such proxy voting should be considered part of the normal exercise of fiduciary duties, as distinct from institutional activism, discussed below.) In voting proxies, fund advisers generally follow written guidelines that have been approved by the independent directors of the funds. The fund adviser typically processes and votes all proxies for shares held by the funds in accordance with these guidelines. On an annual basis, the fund adviser usually submits a report on proxy voting matters to the board of directors of the funds or a committee of the board. Read the rest of this entry »
The SEC heavily regulates mutual funds and their advisers with respect to most aspects of their business. In their role as investors, mutual funds are subject to a variety of restrictions on how much stock of a particular company or industry they may own and how liquid their aggregate holdings must be. Every fund must disclose its complete holdings twice a year in reports to fund stockholders, and any fund adviser managing more than $100 million in the aggregate from all accounts must disclose quarterly a total list of equity securities owned by the funds and other accounts managed by the adviser. In addition, if the funds and other accounts managed by the investment adviser hold more than 5% of the voting securities of a publicly traded company, the adviser must file periodic disclosure reports with the SEC on such holdings. These filings are a source of valuable information on mutual fund holdings for participants in takeovers and proxy fights. Read the rest of this entry »
The SEC heavily regulates mutual funds and their advisers with respect to most aspects of their business. In their role as investors, mutual funds are subject to a variety of restrictions on how much stock of a particular company or industry they may own and how liquid their aggregate holdings must be. Every fund must disclose its complete holdings twice a year in reports to fund stockholders, and any fund adviser managing more than $100 million in the aggregate from all accounts must disclose quarterly a total list of equity securities owned by the funds and other accounts managed by the adviser. Read the rest of this entry »
Investment advisers to actively managed funds devote tremendous resources to researching companies and industries. As part of that research, employees of such fund advisers meet regularly with company executives to discuss business results and trends. The analyst assigned to a company usually has detailed knowledge about the company’s business strategy and financial performance, as well as the quality of its management. Read the rest of this entry »
Institutional activists can be divided into three groups: those who seek to implement sound corporate governance, those who target underperforming companies and those who advocate a social or political agenda. In practice, the first two groups tend to converge on companies that have substantially underperformed their peers or a market index. The last group focuses on companies whose businesses or corporate policies are viewed as detrimental to the social welfare in some fashion. Read the rest of this entry »
As illustrated by the above discussion, mutual fund advisers usually play an important, although often passive, role in corporate governance, evaluating management and stockholder proposals and voting in accordance with policies designed to further the interests of their funds. In recent years, however, mutual fund advisers have encountered an increasing number of proposals from stockholder activists, and in limited circumstances they have been among the activists pushing for such proposals. Read the rest of this entry »
