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• W2621531164 abstract "The Australian Takeovers Panel (‘the Panel’) became the primary forum for resolving takeover disputes in the context of corporate law on 13 March 2000. This resulted from the implementation of the reforms in the Corporate Law Economic Reform Program Act 1999 (Cth) (‘CLERP reforms’). In replacing the previous role of the courts with the Panel, the CLERP reforms sought to inject legal and commercial specialist expertise into takeover dispute resolution, provide ‘speed, informality and uniformity’ in decision-making, minimise ‘tactical litigation’ and free up court resources. The Panel on Takeovers and Mergers in the United Kingdom (‘UK Panel’) was the key overseas body cited in support of the CLERP reforms based on its ‘reputation of resolving takeover disputes promptly and effectively’. Notwithstanding the differences in the way in which the two Panels operate, it has been concluded that the criteria of speed, flexibility and certainty can be applied to the Australian Panel in determining whether the CLERP reform aims have been achieved. As a result of the CLERP reforms, parties are required to apply to the Australian Panel instead of the courts in relation to takeover disputes during the bid period. The Panel can then exercise its power to make a declaration of unacceptable circumstances under section 657A(2) of the Corporations Act 2001 (Cth) (‘Corporations Act’) on three alternative grounds. These grounds are where it appears to the Panel that the circumstances are unacceptable either (a) having regard to their effect on the control of, or an acquisition of a substantial interest in, a company, (b) in relation to a company in light of the purposes of the takeover provisions, or (c) because they are likely to give rise to a contravention of the provisions on takeovers, compulsory acquisitions, takeover rights and liabilities, substantial shareholdings or tracing beneficial ownership. The Panel’s power must be exercised having regard to the underlying purposes or ‘spirit’ of the takeover provisions. These purposes are to ensure that acquisitions take place in an ‘efficient, competitive and informed market’, target shareholders have enough information, reasonable time to make a decision and are afforded a ‘reasonable and equal opportunity to participate in any benefits’ under a takeover bid, and an appropriate procedure is followed prior to the use of the compulsory acquisition provisions. With the exception of orders directing a person to comply with the legislation, the Panel can make the same broad range of orders as a court including restraining the exercise of voting rights, directing the disposal of shares, and vesting shares in the corporate regulator, the Australian Securities and Investments Commission (‘ASIC’). The Panel also has the power to review certain ASIC decisions, namely those relating to the exercise of ASIC’s exemption and modification powers concerning the Corporations Act provisions on takeovers, substantial shareholdings and beneficial ownership. Flexibility in decision-making is one of the key advantages of using administrative tribunals in place of courts. This is important particularly in the context of takeovers in light of the need to respond to changes in the market. Indeed, the Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on Takeover Bids emphasised that ‘in order to be effective, takeover regulation should be flexible and capable of dealing with new circumstances as they arise’. Consistent with this, it has been observed that one of the significant features of the UK Panel has been its ability to respond to developments that would otherwise have led to legislative intervention. This flexibility results from the fact that the UK Panel can apply its takeover rules according to their ‘spirit’, in addition to having informal procedures and staffing by market participants. It has also been observed that pragmatism is an important feature of UK Panel decision-making. There are a number of factors that impact upon a Panel’s ability to provide flexibility in its decision-making. A key factor is the Panel’s ability to make decisions taking into account broad-based principles and policy considerations, rather than being limited to applying prescribed legislative provisions. This is reflected in the takeover bodies’ role to ensure that the ‘spirit’ of the takeover rules is upheld as well as their substance. Another significant factor affecting the way in which takeover panels and like bodies approach their decision-making is the qualifications of their members. In contrast to judges who are chosen according to their legal expertise, members of the Australian Panel are appointed in light of their experience in a range of different fields (including law, business, financial markets, economics and accounting). These factors combine to produce a different approach to decision-making compared to court decisions enforcing legislative provisions. Consequently, it was pointed out in Australian Parliamentary debate in the 1980s that one of the key benefits of adopting a panel-based model is to adopt a ‘commercial approach’ in contrast to the technical and legalistic techniques adopted historically by the courts. This article addresses the question whether there has been flexibility in relation to Australian Panel decision-making since the CLERP reforms. Flexibility can be divided into two elements, namely procedural and substantive flexibility. These both reflect the CLERP reform aim of ‘informality’ in decision-making. Procedural flexibility is shaped by the design features of the Panel system. In particular, it is determined by the powers of the Panel, its processes and the expertise of its members. These are set out in the regulatory framework and the procedural rules adopted by the Panel in order to discharge its responsibilities (‘Procedural Rules’). Procedural flexibility reflects the CLERP reforms’ aims to allow the Panel to ‘bring greater understanding and expertise to takeover disputes’, with its proceedings to be conducted ‘as informally as is consistent with providing parties with a fair hearing and the expeditious resolution of the matter’. Substantive flexibility is more difficult to assess, as it involves an analysis of the extent to which the Panel has demonstrated flexibility in exercising its decision-making powers. There are a number of factors that are relevant to substantive flexibility. These relate to the extent to which the Panel adopts policies that are based on discretions rather than narrow rules, whether it uses a commercial or pragmatic approach to decision-making rather than a legalistic one, and the extent to which decision outcomes are based on negotiation rather than orders. This reflects the CLERP reforms’ aim of avoiding ‘excessive legalism’ in Panel proceedings. The article is divided into five parts. Part II examines how to measure both procedural and substantive flexibility in relation to decision-making by the Australian Panel. Part III assesses the first element of procedural flexibility. This assessment is conducted by analysing the powers given to the Panel, its procedures and the expertise of its members. Part IV focuses on the second element relating to substantive flexibility in Panel decision-making. This element is assessed based on a case study examining the Panel’s development of its frustrating action policy up to 30 June 2016. In particular, it analyses the nature of the policy as it was established, the extent to which it developed, the approach adopted by the Panel in applying the policy and the outcomes in response to matters raising the policy. Part V concludes with an assessment of the extent to which decision-making by the Australian Panel satisfies the criterion of flexibility." @default.
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• W2621531164 date "2016-01-01" @default.
• W2621531164 modified "2023-09-27" @default.
• W2621531164 title "Certainty in Decision-Making: An Assessment of the Australian Takeovers Panel" @default.
• W2621531164 doi "https://doi.org/10.2139/ssrn.2981488" @default.
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