In global perspective, Delaware’s heavy reliance on fiduciary duties and judicial case-by-case scrutiny is an outlier. Some countries are more takeover friendly, others less. Almost all, however, are more rule-centric than Delaware.
As a counterpoint to Delaware, the UK is particularly interesting. Like the U.S., the UK is a common law country with very developed financial markets and dispersed ownership of most large corporations. You might, therefore, expect UK takeover law to resemble Delaware’s. You would be quite wrong.
Please read the following excerpts of the Takeover Code, the Companies Act 2006, and the FCA Disclosure Rules and Transparency Rules. Do these rules have analogues in Delaware law or U.S. federal securities law? In particular, consider the following:
1. Would the poison pill be legal in the UK?
2. Would other takeover defenses that we have encountered (think Unocal, Revlon) be legal in the UK?
3. If not, what other rules, if any, protect UK shareholders?
4. Who makes the rules?
5. What is the role of the courts?
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December 07, 2017
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