Takeover Law Reforms in Australia and in China

Takeover Law Reforms in Australia and in China Both Australian company law and Chinese company law have been dramatically changed in the last decade and are still being changed. The CLERP Act 1999, which came into force on 13th March 2000, made significant changes to the Corporations Law (CL). While the Securities Law of China, which commenced on 1st July 1999, is a milestone in the development of Chinese company law. Both the CLERP Act of Australia and the Securities Law of China changed the takeover provisions in respective jurisdictions. This short essay is to outline these changes and their impacts and interactions. CLERP Act 1999: takeover law reform and its impacts in Australia The takeover legislation in Australia can be traced back to the takeovers code introduced by the Uniform Companies Code in 1961. This legislation was significantly revised in 1971 with the introduction of the Eggleston Principles. The Eggleston Principles was subsequently carried forward into the Companies (Acquisition of Shares) Act 1980, and the provisions of this legislation were largely re-enacted in CL. Before the CLERP Act was enacted, CL had been changed more than a dozen of times, but takeover provisions were almost the same although the Simplification Task Force had planned to reform them relating to relevant interests, associate relationships and entitlements.(1) After the CLERP replaced the Corporate Law Simplification Program, the endeavour to reform the takeover provisions continued, and the emphasis was moved to facilitate a more efficient market for corporate control because the objective of the CLERP was "to ensure that business regulation is consistent with promoting a strong and vibrant economy and provides a framework which assists business in adapting to change".(2) The CLERP brings an economic focus to corporate law reform. As a part of the CLERP, takeover law reforms accordingly were designed to achieve an appropriate balance between facilitating efficient corporate control while ensuring a sound investor protection regime, particularly for minority investors. The CLERP Act has repealed the whole of Chapter 6 of CL, and inserted new Chapter 6 together with Chapters 6A, 6B, 6C and 6D, of which Chapter 6 deals with the acquisition of shares and takeovers, Chapter 6A deals with compulsory acquisitions and buy-outs. Chapter 6 begins with the purposes of the takeover rules with Eggleston Principles incorporated. It also extends takeover regulation to listed managed investment schemes and listed bodies. The main reforms are summarised as follows. The CLERP Act makes the Corporations and Securities Panel the primary forum for the resolution of takeover disputes during the bid period. All interested parties may bring matters before the Panel, not just the ASC. Any aggrieved party has a right of appeal from a Panel decision to an appeal division of the Panel. The Panel is empowered to make a declaration of unacceptable circumstances having regard to the public interest, and to review ASIC's administrative decisions. Before the reform, the courts were the principal forums for resolving takeover disputes. Targets in hostile takeover bids often resorted to litigation that can result in bids being delayed, sometimes for tactical reasons. And the court proceedings arguably were used as a method of creating financial disincentives for takeovers to proceed. The advantages of an effective panel for dispute resolution are obvious. A Panel comprised of experts in the field will make decisions quickly and efficiently. The removal of the capacity of the court to grant injunctions other than on the application of the ASC will remove the major source of current tactical litigation. And the Panel applying a single standard instead of the different approaches taken by different judges also can minimise tactical litigation. Before the reform, a compulsory acquisition is available only when 75% by number of the outstandin