Abstract
One can conclude from Chap. 5 that the Chinese mandatory bid rule has been largely ineffective in protecting shareholders. However, it is too hasty to conclude that the whole Chinese takeover law provides insufficient shareholder protection. This chapter summarises and evaluates four types of shareholder protection rules in the Chinese takeover law: (1) the regulation of acting in concert and indirect takeovers, (2) the disclosure obligations on share acquisitions below 30 %, (3) the regulation of MBOs, and (4) the general and specific obligations imposed on controlling shareholders and acquirers in negotiated takeovers. These rules preserve openness, fairness, and impartiality in Chinese takeover transactions, as suggested by the principle of shareholder protection.
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Notes
- 1.
- 2.
- 3.
See Adolf A. Berle, ‘The Price of Power: Sale of Corporate Control’ (1964) 50 Cornell Law Quarterly 628; Robert. W. Hamilton, ‘Private Sale of Control Transactions: Where We Stand Today’ (1985) 36 Case Western Reserve Law Review 248; A. Hill, ‘The Sale of Controlling Shares’ (1956) 70 Harvard Law Review 986.
- 4.
Takeover Regulation 2006, art. 24.
- 5.
Takeover Regulation 2002 only provided that the shareholdings of persons acting in concert should be consolidated in calculating the number of shares held by these persons. However, Takeover Regulation 2002 did not define ‘acting in concert’. Takeover Regulation 2002, art. 60.
- 6.
Takeover Regulation 2006, art. 83.
- 7.
The Chinese law does not define ‘investor’. Judged by the legislative provisions, the concept should include both natural persons and business organisations.
- 8.
Takeover Regulation 2006, art. 83.
- 9.
The Codes on Takeovers and Mergers and Share Repurchases 2002 (HK) (the Hong Kong Takeover Code) provides ‘acting in concert’ as follows:
Persons acting in concert comprise persons who, pursuant to an agreement or understanding (whether formal or informal), actively cooperate to obtain or consolidate “control” (as defined below) of a company through the acquisition by any of them of voting rights of the company.
Without prejudice to the general application of this definition, persons falling within each of the following classes will be presumed to be acting in concert with others in the same class unless the contrary is established:
-
(1)
a company, its parent, its subsidiaries, its fellow subsidiaries, associated companies of any of the foregoing, and companies of which such companies are associated companies;
-
(2)
a company with any directors (together with their close relatives, related trusts and companies controlled by any of the directors, their close relatives or related trusts) of it or of its parent;
-
(3)
a company with any of its pension funds, provident funds and employee share schemes;
-
(4)
a fund manager (including an exempt fund manager) with any investment company, mutual fund, unit trust or other person, whose investments such fund manager manages on a discretionary basis, in respect of the relevant investment accounts;
-
(5)
a financial or other professional adviser (including a stockbroker) with its client in respect of the shareholdings of the adviser and persons controlling, controlled by or under the same control as the adviser (except in the capacity of an exempt principal trader);
-
(6)
directors of a company (together with their close relatives, related trusts and companies controlled by such directors, their close relatives and related trusts) which is subject to an offer or where the directors have reason to believe a bona fide offer for their company may be imminent;
-
(7)
partners;
-
(8)
an individual (including any person who is accustomed to act in accordance with the instructions of the individual) with his close relatives, related trusts and companies controlled by him, his close relatives or related trusts; and
-
(9)
a person, other than an authorised institution within the meaning of the Banking Ordinance (Cap. 155) lending money in the ordinary course of business, providing finance or financial assistance (directly or indirectly) to any person (or a person acting in concert with such a person) in connection with an acquisition of voting rights (including any direct or indirect refinancing of the funding of the acquisition).
-
(1)
- 10.
Takeover Regulation 2006, art. 83(12).
- 11.
‘Associate relationship’ is defined as relationships that may bias the company’s interests in the general company law.中华人民共和国公司法 [Company Law of People’s Republic of China] (People’s Republic of China), the Standing Committee of National People’s Congress, Dec 29, 1993, lastly revised on Oct 27, 2005 (Company Law 2005), art. 217.
However, it is not clear whether the definition applies to the ‘associate relationship’ used in the rebuttable list of persons acting in concert. If so, the definition will greatly extend the coverage of the Chinese rebuttable list.
- 12.
Above note 9.
- 13.
The Chinese definition of ‘acting in concert’ runs as follows: the act or fact that investors acting together with other investors, through agreements or other arrangements, to expand the voting rights in a listed company controlled by them.
- 14.
陈一木 [Yimu Chen], ‘银泰系承认杭州卓和为一致行动人 [Yintai Admitted Zhuohe Hangzhou as Concert Parties]’, 证券时报 [Securities Daily] Sept 16, 2006.
- 15.
The contemplated transaction was eventually abandoned after receiving wide criticisms in the media.
- 16.
何军 [Jun He], ‘飞乐音响收购案羊毛出在羊身上? [Feile Music Shougou a Payment Made by the Taget?]’, 上海证券报 [Shanghai Securities News] (Shanghai), Jun 01, 2005.
- 17.
沈城 [Cheng Shen], ‘一致行动渐成趋势 [The Gradual Tendency of Acting in Concert]’, 新财富 [New Fortune] Nov 15, 2006.
- 18.
Ibid.
- 19.
陈建军 [Jianjun Chen], ‘持股 S 明星电国盛隐身一致行动人 [Acquiring S Mingxing Dian, Guosheng Become Invisible through Concert Parties]’, 上海证券报 [Shanghai Securities News] Oct 26, 2006.
- 20.
W. K. Chung and G. Hamilton, ‘Social Logic as Business Logic. Guanxi, Trustworthiness and the Embeddedness of Chinese Business Practices’ (2001); D. Y. Lee and P. L. Dawes, ‘Guanxi, Trust, and Long-Term Orientation in Chinese Business Markets’ (2005) Journal of International Marketing 28; Y. L. So and A. Walker, Explaining Guanxi: The Chinese Business network (Taylor & Francis, 2006); C. Su and J. E. Littlefield, ‘Entering Guanxi: A Business Ethical Dilemma in Mainland China?’ (2001) 33(3) Journal of Business Ethics 199.
- 21.
Lucian W. Pye, Chinese Negotiating style: Commercial Approaches and Cultural Principles (Quorum Books, 1992).
- 22.
Takeover Regulation 2006, art. 83 (6), (9)–(12).
- 23.
Texasgulf, Inc. v. Canada Development Corp. 366 F. Supp. 374, at 403.
- 24.
M. A. Weinberg, M. V. Blank and A. L. Greystoke, Weinberg and Blank on Takeovers and Mergers (Sweet and Maxwell., 4th ed, 1979), 122.
- 25.
Takeover Regulation 2006, art. 84.
- 26.
The City Code on Takeovers and Mergers 2011 (UK), definition, Control.
- 27.
For an introduction of this regulatory history, see M. A. Weinberg, M. V. Blank and A. L. Greystoke, Weinberg and Blank on Takeovers and Mergers (Sweet and Maxwell., 4 ed, 1979), 122.
- 28.
John Green, ‘“Fuzzy Law”—A Better Way to Stop “Snouts at the Trough”?’ (1991) 9(3) Company and Securities Law Journal. The article argues that company legislation should be drafted according to broad statements of general principles.
- 29.
M. A. Weinberg, M. V. Blank and A. L. Greystoke, Weinberg and Blank on Takeovers and Mergers (Sweet and Maxwell., 4th ed, 1979), 122.
- 30.
Takeover Regulation 2006, art. 16, 17 and 47.
- 31.
Takeover Regulation 2006, art. 84 (3) and (4).
- 32.
Some scholars claim that ‘the degree of vagueness [in statutory language is greater in the PRC than in any other legal system’. C. Ross and L. Ross, ‘Language and Law: Sources of Systemic Vagueness and Ambiguous Authority in Chinese Statutory Language’ (1997) 31 University of British Columbia Law Review 205, 207; D. L. Hall and R. T. Ames, Anticipating China: Thinking through the Narratives of Chinese and Western culture (State University of New York Press, 1995), 165–175; Karen G. Turner, James V. Feinerman and R. Kent Guy, The Limits of the Rule of Law in China (University of Washington Press, 2000), 132–221.
- 33.
中华人民共和国证券法 [Securities Law of the People’s Republic of China] (People’s Republic of China) the Standing Committee of National People’s Congress, Dec 29, 1998, lastly revised on Oct 27, 2005 (Securities Law), art. 10, 77, 191 and 227.
- 34.
Takeover Regulation 2006, Chap. 2.
- 35.
- 36.
Takeover Regulation 2006, art. 56 and 83.
- 37.
Takeover Regulation 2006, art. 16. The information includes (1) background and identity, (2) purpose of the share acquisition, (3) current shareholding, (4) trading records of the company shares within 6 months, and (5) any plans for acquiring further target company shares in the next 12 months.
- 38.
Restricting illegitimate related-party transactions is an important consideration for maintaining the independence of the takeover target company and the acquirer.
- 39.
Takeover Regulation 2006, art. 17.
- 40.
Financial advisors are takeover experts working in private sectors such as investment banks. According to the Chinese takeover law, the target company should hire its own financial advisor, who is independent from the one hired by the acquirer. The target company’s financial advisor provides a separate report on the acquirer’s aim, capacity, source of takeover funding, together with the possible influences of the contemplated takeover on the target company. Takeover Regulation 2006, art. 17 and 67.
- 41.
Takeover Regulation 2006, art. 17.
- 42.
Corporations Act 2001 (Cth), s671B.
- 43.
Ibid. s671B(3). Wicks explained what documents are necessary in fulfilling the obligation of ‘disclosing substantial shareholding’. ‘All there has to be is a reasonable nexus between the agreement on the one hand and the relevant interest on the other’. Relevant interest is the holding, controlling of voting or the disposal of securities. Corporations Act (Cth), s608.
- 44.
关于公开征求 《上市公司收购管理办法(征求意见稿)》 意见的通知,附件1 修订说明 [Notice on Publicly Soliciting Opinions on ‘Measures for the Administration of the Takeover of Listed Companies (Exposure Draft)’, Attachment 1 Explanation of the Amendments, ] (People’s Republic of China) CSRC May 22, 2006, art. 3(1).
- 45.
The disclosure requirements under the two sets of rules are largely the same except for items that are exclusive to the takeover bid process (such as the bid price). For the disclosure requirements of share acquisitions between 20 and 30 % and the disclosure requirements of takeover bids, see art. 17 and art. 29 of Takeover Regulation 2006.
- 46.
陈晋平 [Jinping Chen], ‘上市公司控制权转移的实证研究 [Empirical Studies on Control Transactions of Listed Companies]’ (2005) 12 证券市场导报 [Securities Market Herald] 35.
- 47.
China Securities Regulatory Commission, China Capital Market Development Report (2008), Chapter 3, s 5 and 6.
- 48.
方铁雷 [Tielei Fang], ‘我国管理层收购主体资格法律制度探讨 [The Identity of Acquirer in Management Buyouts]’ (2005) 6(1) 长沙铁道学院学报(社会科学版) [Journal of Railway Institute of Changsha (Social Science)]. The author summarises that MBOs in China can take three different forms based on the identity of the acquirer: MBOs conducted by management, MBOs conducted by a company set up by management, MBOs conducted an Employee Stock Ownership Trust.
- 49.
For more discussions on the features of self-dealing, see Robert Charles Clark, Corporate Law (Little, Brown and Company, 1986), 147–148.
- 50.
Takeover Regulation 2006, art. 51. In addition to takeover law, MBOs may be subject to the regulation of other laws. For instance, MBOs of listed SOEs and large scale SOEs are prohibited by 企业国有产权向管理层转让暂行规定 [Interim Regulation on Transfer State Ownership to Management] (People’s Republic of China) State Asset Supervision and Administration Commission and Ministry of Finance, Apr 21, 2005.
- 51.
The City Code, Notes On Rule 3.1.1.
- 52.
The City Code, Notes On Rule 25. 4, 5.
- 53.
A ‘participating insider’ for the purposes of the Guidance Note is an insider who enters, or proposes to enter, into an agreement with a potential bidder to gain or benefit from the bidder making a successful bid. See Takeover Panel, Insider Participation in Control Transactions, Guidance Note 19, Jun 7, 2007 (Guidance Note 19), 11, 12.
- 54.
Guidance Note 19, 14.
- 55.
Guidance Note 19, 14, 19, 26.
- 56.
See text surrounding note 2.
- 57.
Before the regulatory reform in 2005, the majority of MBOs were targeted at SOEs. It is estimated that until 2009 over 100,000 small and medium-sized SOEs had been taken over by the existing management. 上海证券交易所研究中心 [Research Center of Shanghai Stock Exchange], 中国上市公司治理报告:控制权市场与公司治理 [Annual Report on Corporate Governance of Chinese Companies: Corporate Control Market and Corporate Governance] (Fudan University Press, 2009), pp. 81–82. However, as will be discussed later, the number of MBOs targeted at SOEs was significantly reduced after regulatory reform in 2005.
- 58.
- 59.
China Securities Regulatory Commission, China Capital Market Development Report (2008), Chapter 3.
- 60.
The case was influential as it involved the privatisation of Zhangyu Group (the target company), the leader in China’s wine-making industry. Meanwhile, it also involved the indirect takeover of a Chinese listed company. Zhangyu Group was the parent company of listed company Zhangyu Ltd. The factual information of this case is summarised in徐艳芳 [Yanfang Xu], ‘管理层收购中的非伦理行为基于张裕集团管理层收购的案例分析 [Unethical Behaviours in Management Buyouts: Case Study on the MBO of Zhangyu Group]’ (2006) 4 财务与会计 [Finance and Accounting] (Case Study on the MBO of Zhangyu Group), 35–37.
- 61.
Management directly and indirectly held 62.2 % shares in Yuhua, ibid., 35.
- 62.
Ibid., 36.
- 63.
Ibid., p. 36.
- 64.
Ibid., p. 36.
- 65.
It is common to see SOEs that offer better employee benefits than average private companies, above note 81. See also Tao Rong, ‘Employee’s Property Rights in China’s State-Owned Enterprise Reorganization’ (1999) 13 Columbia Journal of Asian Law, 166–170.
- 66.
徐艳芳 [Yanfang Xu], ‘管理层收购中的非伦理行为基于张裕集团管理层收购的案例分析 [Unethical Behaviours in Management Buyouts: Case Study on the MBO of Zhangyu Group]’ (2006) 4 财务与会计 [Finance and Accounting], 37.
- 67.
Ibid., 37.
- 68.
Xianpin Lang, ‘格林柯尔在国退民进的盛宴中狂欢 [Greencool: Ludicrous Asset Stripping in the Process of “State Retreating” and Private Marching in’], (Aug 9, 2004), Shanghai’. (Paper presented at the Speech at Fudan University, Shanghai, Aug 9, 2004).
- 69.
企业国有产权向管理层转让暂行规定 [Interim Regulation on Transfer State Ownership to Management] (People’s Republic of China) State Asset Supervision and Administration Commission and Ministry of Finance, Apr 21, 2005, art. 3.
- 70.
毛程连 [Chenglian Mao], ‘上市公司控制权转让的市场因应: 1995–2009 样本 [Market Responses to Corporate Control Transactions in China’s Listed Companies 1995–2009]’ (2010) (5) Capital Market, 29.
- 71.
The 40 takeover bids are calculated by the author through the information disclosed on the websites of China’s two stock exchanges. http://www.szse.cn/main/disclosure/news/yysg/ and http://www.sse.com.cn/sseportal/webapp/listcompany/aolist (accessed on Mar 30, 2012).
- 72.
Examples of minority shareholder oppression discussed in this section can be viewed in the US cases discussed in this part.
- 73.
Takeover Regulation 2006, art. 7. It should be mentioned that the article is prescribed as a general principle of Takeover Regulation 2006. In addition to applying to negotiated takeovers, the rule therefore applies to takeover bids and on-market acquisition of shares as well.
- 74.
Takeover Regulation 2006, art. 53(1).
- 75.
Takeover Regulation 2006, art. 52.
- 76.
As an overview of the controlling shareholder’s obligations, see Robert W. Hamilton, ‘Private Sale of Control Transactions: Where We Stand Today’ (1985) 36 Case Western Reserve Law Review 248; See also Robert Charles Clark, Corporate Law (Little, Brown and Company, 1986), 478–491.
- 77.
For an overview of the theoretical contestation, see Einer Elhauge, ‘The Triggering Function of Sale of Control Doctrine’ (1992) 59(4) The University of Chicago Law Review 1465, 1481.
- 78.
Insuranshares Corp. v. Northern Fiscal Corp., 35 F. Supp. 22 (E.D. Pa. 1940) at 6, 7.
- 79.
Hooper’s Estate v. Government of Virgin Islands, 427 F.2d 45, 48 (3d Cir. 1970) at 5.
- 80.
Einer Elhauge, ‘The Triggering Function of Sale of Control Doctrine’ (1992) 59(4) The University of Chicago Law Review 1465, p. 1469, note 10 ‘Compare Clagett, 583 F2d at 1262 (holding that 300 % premium was not enough to trigger duty); Levy, 265 AD at 218 (same for 200 % premium); and McDaniel v Painter, 418 F2d 545, 548 (10th Cir 1969) (premium not grounds for suspicion) with Dale v Thomas H. Temple Co., 186 Tenn 69, 208 SW2d 344, 352 (1948) (concluding that 180 % premium was a “badge of fraud”)’.
- 81.
Einer Elhauge, ‘The Triggering Function of Sale of Control Doctrine’ (1992) 59(4) The University of Chicago Law Review 1465, note 6. The two examples include Northway, Inc. v TSC Industries, Inc., 512 F2d 324, 342 (7th Cir. 1975), and Estate of Hooper v Government of Virgin Islands, 427 F2d 45, 47 (3d Cir. 1970).
- 82.
McClure v. Law, 161 N.Y. 78, 55. N.E 388 (1899).
- 83.
Strictly, the agreement was entered into between an attorney who is under the directions of the president and the control seeker. That fact does not alter that, substantively, the agreement was between the existing directors and the control seeker.
- 84.
‘The rationale of differentiating the sale of corporate office accompanied by insufficient stock and a majority shareholding is the most fundamental principle of corporate democracy, that management must represent and be chosen by, or at least with the consent of, those who own the corporation. McClure v. Law, 161 N.Y. 78, 55. N.E 388 (1899) at 9 cite Ballantine v. Ferretti, 28 N.Y.S.2d 668, 678–680 (N.Y. County Sup.Ct.1941).
- 85.
Essex Universal Corp. v. Yates, 305 F.2d 572 (2d Cir. 1962).
- 86.
Ibid., at 22.
- 87.
Einer Elhauge, ‘The Triggering Function of Sale of Control Doctrine’ (1992) 59(4) The University of Chicago Law Review 1465, 1470–1472.
- 88.
Perlman v. Feldmann 219 F.2d 173 (2d Cir. 1955).
- 89.
Ibid., at 5. The fiduciary relationship is an important factor that justifies the close judicial scrutiny used in this case. The case is absent from fraud, misuse of confidential information, or outright looting.
- 90.
Note 110, at 176.
- 91.
Brown V. Halbert, 271 Cal. App. 2d 252(1969).
- 92.
The acquirer later made an offer to buy shares from minority shareholders at the price of $300 per share.
- 93.
Note 113, at 34.
- 94.
Emphasis added. Note 110, at 177. The corporate opportunities need not have been an absolute certainty in order to support this action against Feldmann.
- 95.
Tryon V. Smith 229 P.2d 251(Or. 1951). The acquirer Transamerica made an offer to Smith, the controlling shareholder, president and director, to purchase from Smith all of the outstanding capital stock of the company. Smith refused the offer and told Transamerica that he would like to sell the controlling interest of the stock owned by himself and his family. After entering into an agreement with the controlling shareholder, Transamerica then proceeded to deal with the minority stockholders and offered them $220.00 per share for their stock. Smith or his associates did not ever suggest to the minority stockholders that they should sell their stock. Smith and his associates received $460.00 per share from Transamerica for their stock against the $220.00 per share that the plaintiffs received for their stock.
- 96.
Ibid., at 9.
- 97.
Takeover Regulation 2006, art. 52 and 53. Strictly speaking, the Chinese regulation on sale-of-office transactions is imposed on the acquirer rather than the existing management. Nonetheless, the difference is not as significant as it looks. The existing management and acquirer are two parties of sale-of-office transactions. Regulating the buying party from improperly seizing office has a similar effect as imposing obligations on the selling party management from improperly selling office.
- 98.
Takeover Regulation 2006, art. 7.
- 99.
Takeover Regulation 2006, art. 7.
- 100.
Takeover Regulation 2006, art. 53.
- 101.
Takeover Regulation 2006, art. 52.
- 102.
Takeover Regulation 2006, art. 53.
- 103.
Takeover Regulation 2006, art. 52.
- 104.
Note 88.
- 105.
The author however considers that it is generally difficult to prescribe in legislation what constitutes a corporate opportunity in simple terms.
- 106.
中华人民共和国刑法 [Criminal Law of People’s Republic of China] People’s Republic of China, National People’s Congress, Mar 14, 1997, last revised on Feb 28, 2009, Chapter 3, Section 3 and 4.
- 107.
中华人民共和国刑法 [Criminal Law of People’s Republic of China] People’s Republic of China, National People’s Congress, Mar 14, 1997, last revised on Feb 28, 2009 art. 161, 180, 181 and 182.
- 108.
In contrast, both civil liability and criminal liability are provided in general securities law and criminal law.
- 109.
Takeover Regulation 2006, art. 75–82.
- 110.
中华人民共和国证券法 [Securities Law of the People’s Republic of China] (People’s Republic of China) the Standing Committee of National People’s Congress, Dec 29, 1998, lastly revised on Oct 27, 2005 (Securities Law 2005), art. 180; Takeover Regulation 2006, art. 75–82.
- 111.
Takeover Regulation 2006, art. 75–82.
- 112.
All the above five circumstances can appear in the takeover context. To start with, the controlling shareholders’ illicit conduct in item (5) is directly relevant to the takeover context. False disclosure and insider trading provided in items (1) and (2) also exist in takeover transactions. Moreover, market manipulation and fraud provided in items (3) and item (4) can be used to reduce the costs of takeovers and to conduct on-market acquisition of shares.
- 113.
Securities Law 2005, art. 69.
- 114.
Securities Law 2005, art. 76.
- 115.
Securities Law 2005, art. 77.
- 116.
Securities Law 2005, art. 79.
- 117.
Securities Law 2005, art. 214.
- 118.
Takeover Regulation 2006, art. 7.
- 119.
For instance, Article 170 of 中华人民共和国物权法 [Property Law of the People’s Republic of China] (People’s Republic of China) National People’s Congress promulgated on Mar 16, 2007 provides that ‘Unless otherwise stipulated by laws, a holder of security interest shall have priority in satisfying its claim if a debtor defaults in its obligations’.
- 120.
关于涉及证券民事赔偿案件暂不予受理的通知 [The Circular of the Supreme People’s Court on Temporary Refusal to lodgement of Civil Compensation Cases Concerning Securities] (People’s Republic of China), SPC, Sept 21, 2001.
- 121.
关于受理证券市场因虚假陈述引发的民事侵权纠纷案件的有关问题的通知 [The Circular of the Supreme People’s Court on Issues Concerning Filing of Tort Cases Resulting From False Statement on the Securities Market] (People’s Republic of China) SPC, Jan 15, 2002; 最高人民法院关于审理证券市场因虚假陈述引发的民事赔偿案件的若干规定 [Certain Provisions of the Supreme People’s Court on Hearing Civil Compensation Cases Arising From False Statement on the Securities Market] (People’s Republic of China) SPC, Jan 09, 2003 (Hearing Civil Compensation Cases 2003).
- 122.
As suggested by the name of the Supreme Court’s circular ‘Certain Provisions of the Supreme People’s Court on Hearing Civil Compensation Cases Arising From False Statement on the Securities Market’ (emphasis added).
- 123.
陈荣 [Rong Chen], ‘如何开启内幕交易民事赔偿诉讼之门 [How to Open the Access of Civil Litigation]’, 证券时报 [Securities Times] Nov 19, 2010. The article concludes that whether civil litigations against insider trading and market manipulation can be accepted by courts still depend on the Supreme Court’s further opinions.
The author’s own search of two case databases—Chinalawinfo and Lawyee—also finds that civil litigation against insider trading and fraud are likely to fail.
- 124.
Hearing Civil Compensation Cases 2003, art. 6.
- 125.
Hearing Civil Compensation Cases 2003, art. 18.
- 126.
For an overview of the relevant criticisms, see Sanzhu Zhu, Securities Dispute Resolution in China (Ashgate Pub Co, 2007), 185–187.
- 127.
Hearing Civil Compensation Cases 2003, art. 12–15.
- 128.
最高人民法院关于审理证券市场因虚假陈述引发的民事赔偿案件的若干规定 [Certain Provisions of the Supreme People’s Court on Hearing Civil Compensation Cases Arising From False Statement on the Securities Market] (People’s Republic of China) SPC, Jan 9, 2003; Securities Law 2005, art. 54 and 55.
- 129.
徐艳芳 [Yanfang Xu], ‘管理层收购中的非伦理行为基于张裕集团管理层收购的案例分析 [Unethical Behaviours in Management Buyouts: Case Study on the MBO of Zhangyu Group]’ (2006) 4 财务与会计 [Finance and Accounting], 117.
- 130.
罗斌 [Bin Luo], ‘我国证券群体诉讼实践形式的理论分析—“大庆联谊案”、“银广夏案”、“东方电子案”诉讼形式比较 [Theoretical Analysis about the Practical Mode for China’s Securities-related Group Litigation]’ (2010) 5 法学杂志 [Law Science Magazine], 118.
- 131.
William M. Evan, ‘Law as an Instrument of Social Change’ in Alvin W. Gounidner and S. M. Miller (eds), Applied Sociology: Opportunities and Problems (1965) 285, 287.
- 132.
The Australian takeover panel, the adjudicator of the Australian takeover law, seeks that adjudicating takeover-related disputes will put transactions on track. Takeover Panel, Role of the Panel (2011) http://www.takeovers.gov.au/content/DisplayDoc.aspx?doc=about/about_the_panel.htm.
- 133.
SPC issued a judicial opinion in 2001 instructing courts temporarily not to accept cases involving civil compensation for misbehaviours in capital markets. 关于涉及证券民事赔偿案件暂不予受理的通知 [the Circular of the Supreme People’s Court on Temporary Refusal to lodgement of Civil Compensation Cases Concerning Securities] (People’s Republic of China), SPC, Sept 21, 2001.
- 134.
冯志文 [Zhiwen Feng], ‘以优良素质捍卫法律尊严 [Protect the Integrity of Law through Competence]’ (2002) (Aug 25, 2002) 解放军报 [Chinese People’s Liberation Army Daily]. The article reports that 2,841 judges are retired military officers, who constitute 28 % of the judges within the court system of Shanxi Province.
- 135.
For instance, the Australian law delays commencement of court proceeding until after the end of the bid period, s659.
- 136.
The powers allocated to the Australian Takeover Panel and its procedures can be viewed at Part 6.10, Division 2, Corporations Act 2001 (Cth).
- 137.
The UK’s Takeover Panel is viewed as an ‘efficient and effective system for the regulation of takeovers’ and ‘an inspiration for others’. House of Lords Select Committee on the European Communities, 13th Report, Takeover Bids, Jul 9, 1996, paragraphs 91 and 125.
- 138.
Nicole Calleja, The New Takeovers Panel—A Better Way? (2002) http://cclsr.law.unimelb.edu.au/files/1079-Law_Mono3.pdf, 5.
- 139.
Rowen Cross, ‘The Takeovers Panel Three Years on: Should We ever Go back to the Courts?’ (2003) 21 The Company and Securities Law Journal, 369–371.
- 140.
Nicole Calleja, The New Takeovers Panel—A Better Way? (2002) http://cclsr.law.unimelb.edu.au/files/1079-Law_Mono3.pdf, pp. 2–4.
- 141.
Chant Link & Associates, ‘A Report on Stakeholder Assessment of The Takeovers Panel’ (2006) http://www.takeovers.gov.au/content/resources/reports/stakeholder_assessment_of_the_TP.aspx.
- 142.
For researches that highlight the independence of the Takeover Panel and use the Panel as a major forum for solving civil disputes, see Nicole Calleja, The New Takeovers Panel—A Better Way? (2002) http://cclsr.law.unimelb.edu.au/files/1079-Law_Mono3.pdf, pp. 41–44, Emma Armson, ‘Models for Takeover Dispute Resolution: Australia and the UK’ (2005) 5 Journal of Corporate Law Studies 401, 423.
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Nicole Calleja, The New Takeovers Panel—A Better Way? (2002) http://cclsr.law.unimelb.edu.au/files/1079-Law_Mono3.pdf, 2–4.
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Hui Huang, ‘The New Takeover Regulation in China: Evolution and Enhancement’ (2008) 42(1) International Lawyer 153,173–174.
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Chen, J. (2014). Miscellaneous Shareholder Protection Rules: The Influence of Legal Culture, Local Demand and Institutional Capacity in Transplantation. In: Regulating the Takeover of Chinese Listed Companies. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-54508-5_6
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