The Separation of Investments and Management

The Harvard Law School Forum on Corporate Governance and Financial Regulation 2013-04-29


Editor’s Note: The following post come to us from John Morley, Associate Professor of Law at University of Virginia School of Law.

This paper suggests that the essence of these funds and their regulation lies not just in the nature of their investments, as is widely supposed, but also—and more importantly—in the nature of their organization.

Specifically, every enterprise that we commonly think of as an investment fund adopts a pattern of organization that I am calling the “separation of investments and management.” These enterprises place their securities, currency and other investment assets and liabilities into one entity (a “fund”) with one set of owners, and their managers, workers, office space and other operational assets and liabilities into a different entity (a “management company” or “adviser”) with a different set of owners. Investment enterprises also radically limit fund investors’ control. A typical hedge fund, for example, cannot fire and replace its management company or its employees—not even by unanimous vote of the fund’s board and equity holders.

I explain this pattern of organization and explore its costs and benefits. I argue, paradoxically, that the separation of investments and management benefits fund investors by limiting their control over managers and their exposure to managers’ profits and liabilities.

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June Rhee, Co-editor, HLS Forum on Corporate Governance and Financial Regulation,

Date tagged:

04/29/2013, 12:41

Date published:

04/29/2013, 09:28