Goldilocks (Control) and the Three Bears: Panel on Takeovers and Mergers v. King

Anna L. Christie, J. S. Liptrap*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

Abstract

The UK takeover regulatory landscape must be understood in the context of the interplay between enforcement of the rules and how investors behave in the face of those rules from a corporate governance perspective. From a legal standpoint, the courts have historically never been involved in the regulation of takeover transactions in the UK. However, section 955 of the Companies Act 2006 now enables the Panel on Takeovers and Mergers to seek court enforcement when a party fails to comply with the City Code on Takeovers and Mergers. Although a potentially useful mechanism to support the Panel in its administration of the Code, it was doubted whether the Panel would ever elect to rely on the provision as it involves exposing its regulatory monopoly to judicial scrutiny. The Scottish Court of Session decisions in Panel on Takeover and Mergers v. King mark the first time the Panel has chosen to rely on Section 955, in the context of enforcing the Mandatory Bid Rule. This paper analyses how this important rule is applied and enforced in practice, as well as the relationship between the Panel and the courts. The facts of the decisions also occasion consideration of an investment tactic that can be deployed to avoid triggering the Mandatory Bid Rule, namely what we define as ‘goldilocks control’.

Original languageEnglish
Pages (from-to)591-609
Number of pages19
JournalEuropean Business Organization Law Review
Volume21
Issue number3
Early online date16 Jan 2020
DOIs
Publication statusPublished - 7 Sep 2020

Keywords

  • corporate governance
  • Mandatory Bid Rule
  • Panel on Takeovers and Mergers v. King
  • Section 955 of the Companies Act 2006
  • shareholder activism
  • takeover regulation

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