Takeover Law Reforms in Australia and in China [4]
论文作者:Chambers Yang论文属性:课程作业 Coursework登出时间:2007-01-12编辑:点击率:19787
论文字数:1800论文编号:org200701122208173060语种:英语 English地区:澳大利亚价格:免费论文
关键词:Takeover Law ReformsAustraliaChina
is especially about takeover by agreement, that a purchaser can conclude shares transfer agreements with the shareholders of a listed company. After the agreements are made, the purchaser should report to CSRC and the stock exchange and make a public disclosure within 3 days. The agreements shall not be carried out before the disclosure. This provision makes takeover much easier. But it is criticised for little transparency, and unfair to minority shareholders. In practice, if a person wants to take over a listed company by agreement, the person has to negotiate with the controlling shareholders; it is almost impossible to negotiate with thousands of minority shareholders.
The takeover threshold in China is 30%,(10) but it does not mean that a person can trade shares freely before he possesses 30% shares of a listed company. Under Article 79, if a person possesses 5% shares of a listed company on market, he should report to CSRC, the stock exchange and the company, and should make a public disclosure within 3 days. He is prohibited from trading the company's shares in the prescribed period. The rule also applies whenever the person increases or decreases his share possession by 5% point of the total shares in the company. When the person possesses 30% shares of the company, he should make a takeover bid if he wants to make more purchase on market, except that it is exempted by CSRC.(11) A proportional bid is allowed under Article 82.
This provision is similar to the substantial holding provision in section 671B CL. The limitation is loosened greatly compared to the Interim Provisions. In the Interim Provisions, if a person possesses 5% shares of a listed company, he should stop trading within 3 days to report and disclose whenever his possession is increased or decreased by 2% of the total shares in the company.
Article 87 provides that if a bidder has held more than 90% shares in a company when the bid period is expired,(12) other shareholders who did not accept the offer are entitled to sell their shares to the bidder with the same conditions stated in the bid. It is similar to the compulsory buy-out provisions in sections 662C CL, but there is no compulsory acquisition in the Securities Law. In practice, it is almost impossible that a person holds 90%, because according to Article 86, if a bidder holds more than 75% shares of the total, the listed company shall stop listing. In order to keep the company listed, a bidder will not hold more than 75% shares.
In China, there was a committee under CSRC to deal with disputes arising from the securities market. But it was criticised because only judges and arbitrators have the right make a judgement over civil disputes. So the committee was dissolved and the power was returned to the courts.
Conclusion
Legal changes are always accompanied with the growth in the size of markets and the increase in corporate activity. Compared to the securities markets in Australia and other developed countries, the securities market is very young in China, and compared to the complex CL, the Securities Law is also very simple.(13) The Company Law and the Securities Law of China is just like summaries of CL. On one hand, because the market is not mature, it is necessary that the Securities Law leave more space to CSRC to develop the market rules to adapt to the changing circumstances. On the other hand, too simple rules cause more uncertainty that will impede the market development.
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