Thèses sur le sujet « Consolidation and merger of corporations – Law and legislation – Brazil »

This Master's Thesis is a comparative study of the regulation of defensive measures in hostile takeovers. It consists of two main parts: In the first, the subject is approached from a theoretical point of view. The relevant factors for the regulation of defensive measures are outlined and analysed, followed by a discussion of the different ways of drafting such rules. This part concludes with a proposition concerning the most favourable form and content of a regulation. The second part describes hostile takeover regulation in the US, the UK, Canada, the EU and Germany, showing the diversity in that field of regulation in practice and the underlying reasons. It highlights and assesses the characteristics of each country and its regulation in the light of the considerations made in the first part, and provides an outlook concerning the future development of the regulation of defensive measures in hostile takeovers.

Theses
The Competition Act no.89 of 1998 coupled with its amendments ushered in a new era in the competition analysis and merger approval process in South Africa. This research paper's purpose is to intimately explore the emergent doctrine of "public interest" institutionalized in this new dispensation of competition legislation. In particular this report places under the spotlight the treatment of public issues in case law jurisprudence as developed in the consideration and determination of large and notifiable mergers under the auspices of the competition tribunal of the Republic of South Africa since the inception of the said new legislative order. The efficacy of the determination of socio-political issues and pure competitive efficiency issues separately but under and by the same entity are also examined. The contrast between the South African approach to the application of the doctrine of the public interest and that of some other competition jurisdictions abroad is also explored.

When the European Commission ultimately blocked the merger between American giant General Electrics and Honeywell in July 2001, this decision triggered a firestorm of criticism. Not only had the Commission just stopped a purely American transaction for the first time since the enactment of European Merger Regulation, but it also contradicted its American Counterpart, the US Department of Justice: The Americans had cleared the deal several months earlier.
In spite of constant cooperative efforts during the investigation, the two antitrust agencies could not reach a common position. When scholars and officials tried to find reasons for the divergence between the American and European decisions, they often criticized the Commission's general approach of focusing on competitors rather than on consumers. They further claimed that the Commission had used dubious economic models to block the merger.
This thesis tries to reinstate the reputation of the European Commission as a professional antitrust institution. The criticisms often left the impression that the Task Force of the Directorate-General for Competition of the European Commission constituted a politically-orientated, rather than economic and legally-orientated, organ. It will be shown that this is actually not the case.
After having analyzed the Commission's decision in detail, and revealing both the strengths and weaknesses of its findings, the thesis will demonstrate that most of the criticisms have to be rejected, and that the Commission had a legal and economic basis in blocking the GE-Honeywell merger.

Takeovers play an important role in the economy as they serve to reallocate economic resources to more efficient uses and replace inefficient management. Unregulated takeover bids pose a threat to the interests of the target company shareholders. The legislature pays special attention to takeover bids to make sure that the bona fide interests of the target company shareholders are duly protected. This is the primary purpose of the takeover bid regulation in Ontario. The regulation is also aimed at ensuring the horizontal equity among target shareholders and the efficient functioning of the capital market. This thesis analyzes the present regulation of takeover bids in Ontario and argues that while the whole system of takeover bid regulation is consistent with the proclaimed purposes, there are two issues that fall out of the coherent structure. The restriction on free transferability of shares and the adoption by boards of directors of shareholder rights plans do not enhance the protection of target company shareholders and do not correspond to the proclaimed purposes.

Thesis (LLM)--University of Stellenbosch, 2005.
ENGLISH ABSTRACT: This thesis compares South African and German Competition Law. The focus is the control of mergers between newspaper enterprises. It has to be asked whether special rules should apply to transactions in this field, considering the importance of an unconcentrated, competitive press from an economic and political point of view. It will be shown that South African and German Competition Law are similar in many respects. Both legal systems follow a flexible, primarily economic approach to the consideration of proposed transactions, taking into account a plurality of factors to determine potential detrimental effects of mergers on competition. Moreover, pro-competitive gains and public interest issues are recognised under South African and German law. When it comes to the control of mergers between newspaper enterprises, though, the two legal systems diverge. Only under German Competition Law, are there specific provisions for press mergers. In view of a recently proposed amendment of the German Competition Law, the appropriate form of regulation that is likely to guarantee a free press, will be investigated. It will also be analysed, whether there is a specific need for press regulation in the South African context. Even though there are no special provisions under South African Competition Law, the South African Constitution leaves space for a broader understanding of the freedom of the press. Hence, it will be examined if the South African Constitution obliges the state to enact particular laws to protect press-plurality. Moreover, it will be analysed if the South African Competition Act should be interpreted in a manner that would promote plurality of the press. In the view of the eminent role of the press for a democratic society, it will be argued in this thesis, that there is a particular need for media regulation. Notably the significant levels of concentration in both German and South African press markets raise concerns as regards the protection of a free and pluralistic press. It will be shown that there are different foreign approaches to maintaining and promoting freedom of the press and it will be suggested that South Africa recognises a need for more press-specific regulation in the future.
AFRIKAANSE OPSOMMING: Hierdie verhandeling vergelyk Suid-Afrikaanse en Duitse mededingingsreg. Dit is gefokus op beheer oor persondernemings. Die vraag word gevra of spesiale reëls van toepassing behoort te wees op transaksies in hierdie sektor, indien die politieke en ekonomiese belang van 'n ongekonsentreerde en mededingende pers in ag geneem word. Dit word uitgewys dat Suid-Afrikaanse en Duitse mededingsreg in vele opsigte soortgelyk is, wat die regulering van samesmeltings betref. Beide regsstelsels volg 'n buigsame, hoofsaaklik ekonomiese benadering tot die oorweging van 'n transaksie. Beide neem 'n veelheid van faktore in ag om te bepaal of 'n transaksie moontlik negatiewe gevolge vir mededinging het. Verder word pro-mededingende en publieke belangsaspekte in beide die Suid- Afrikaanse en Duitse reg in ag geneem. In die geval van 'n samesmelting tussen koerantondernemings verskil die twee sisteme egter. Die Duitse reg het spesiale reëls vir samesmelting van sulke ondernemings. In die lig van wysigings wat onlangs aan die Duitse mededingsreg voorgestel is, word geskikte vlakke van regulering van die pers, wat nodig is om 'n vrye pers te waarborg, ondersoek. Aandag word geskenk aan die vraag of daar'n behoefte is aan regulering van die pers in die Suid-Afrikaanse omgewing. Alhoewel die Suid-Afrikaanse Grondwet nie spesiaal daarvoor voorsiening maak nie, laat die Grondwet plek vir 'n wyer begrip van persvryeid. Dus word vasgestelof daar 'n plig op die staat is om wetgewing in te voer wat die staat dwing om perspluralisme te beskerm. Verder, word bepaal of die Suid-Afrikaanse Mededingingswet op so 'n wyse interpreteer kan word dat dit perspluralisme sal bevorder. In die lig van die sentrale rol vir 'n vrye pers in 'n demokratiese samelewing, word geargumenteer dat, daar 'n spesiale behoefte aan reguleringvan die media is. Die hoë vlakke van konsentrasie in beide die Duitse en Suid- Afrikaanse persmarkte skep besorgheid oor die beskerming van 'n vrye en pluralistiese pers in hierdie lande. Dit word aangetoon dat daar verskillende benaderings tot die beskerming en bevordering van 'n vrye pers in ander lande is en daar word voorgestel dat Suid-Afrika 'n behoefte aan meer spesifieke reëls vir regulering van die pers erken.

This treatise examines the history of private equity as a context in which to understand its role in the economy and specifically, the background for the high profile leveraged buy-outs that have been entered into in the past year. The treatise then focuses specifically on the Brait-Shoprite buy-out, examining its structure and the tax implications. The treatise then reviews the reaction of the South African Revenue Authority (“SARS”) to the buy-out and evaluates whether it was the best approach that could have been taken under the circumstances. As a result of the research, the following conclusions have been reached: Private equity transactions Private equity transactions have a role to play in the business world despite the apprehensions of tax authorities. The perception that these transactions are tax driven as part of an avoidance scheme is not justified. Structure of the Shoprite buy-out transaction: The Shoprite buy-out transaction was structured to obtain deduction for interest. The transaction was also structured to utilise the relief provisions of Part II of Chapter II (Special Provisions Relating to Companies) of the Income Tax Act no.58 of 1962, as amended (“the Act”). The relief was for capital gains tax (“CGT”) on disposal of the Shoprite assets. Finally, the transaction was designed to allow the existing shareholders to exit their investments free of Secondary Tax on Companies (“STC”). The reaction of SARS to the Shoprite buy-out transaction Whereas SARS may have been justified in questioning the structure and its impact on fiscal revenue, the response in the form of withdrawing STC relief from amalgamation transactions in section 44 was not in the best interest of a stable tax system and the majority of tax payers who are not misusing or abusing loopholes in the income tax legislation. It may have been possible for SARS to attack the structure based on the General Anti-Avoidance Rule (GAAR) in part IIA of the Chapter III of the Act.

In his 2012 Budget Review, the Minister of Finance, Pravin Gordhan acknowledged that the introduction of the "new" Companies Act had given rise to certain anomalies in relation to tax and subsequently announced that the South African government would undertake to review the nature of company mergers, acquisitions and other restructurings with the view of possibly amending the Income Tax Act and/or the "new" Companies Act, to bring the two legislations in line with one another. These anomalies give rise to the present research. The literature reviewed in the present research revealed and identified the inconsistencies that exist between the "new" Companies Act, 71 of 2008 and the Income Tax Act, 58 of 1962, specifically the inconsistencies that exist in respect of the newly introduced amalgamation or merger provisions as set out in the "new" Companies Act. Moreover, this research was undertaken to identify the potential tax implications insofar as they relate to amalgamation transactions and, in particular, the potential tax implications where such transactions, because of the anomalies, fall outside the ambit section 44 of the Income Tax Act, which would in normal circumstances provide for tax "rollover relief". In this regard, the present research identified the possible income tax, capital gains tax, value-added tax, transfer duty tax and securities transfer tax affected by an amalgamation transaction, on the assumption that the "rollover relief" in section 44 of the Income Tax Act does not apply.

The purpose of this study was an empirical investigation of the factors considered by the United States Tax Court in determining whether the principal purpose for an acquisition was tax avoidance (or alternatively, given the totality of the surrounding circumstances, whether there was an overriding business purpose for the acquisition).

Defence Date: 05 March 2010
Examining Board: Prof. Heike Schweitzer, European University Institute, Law Department (Supervisor); Prof. Giuliano Amato, European University Institute, Law Department; Prof. Frédéric Jenny, ESSEC Business School, Paris; Juan Antonio Rivière y Matí, European Commission, Brussels
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
The dissertation discusses the development of competition law in the emerging economies. In particular, the research focuses on the systems of merger control, taking Brazil and Argentina as case studies. The core subjects discussed in the dissertation concern the institutional issues undermining the enforcement of competition law in the emerging economies, the features that a system of merger control should have in an emerging economy, and the problems faced by the competition authorities of the emerging economies when they have to review multi-jurisdictional concentrations. Brazil and Argentina have been selected as case studies due to the fact that they have an enforcement record of a system of merger control of ten and fifteen years respectively. Moreover, the number of cross-border competition law cases involving Brazil and Argentina has recently increased, due to the strong trade links that these countries have established within Mercosur. From a methodological point of view, the research is based on the analysis of the Brazilian and Argentinean legislations in the field of competition law, as well as the main merger decisions adopted by the competition authorities and the judgements held by the courts of these countries. In addition, the empirical analysis is based on the interviews conducted by the author between April and July 2008 in Buenos Aires, Brasília and São Paulo with competition lawyers and officers of the competition authorities of these countries. In the final chapter of the thesis the findings concerning Brazil and Argentina have been discussed against the background of the literature concerning the topic of competition law in the emerging economies. The overall objective of the research was to identify a number of policy lessons applicable to other emerging economies which have recently introduced a system of merger control at the internal level.

Defence Date: 07 March 2011
Examining Board: Prof. Dr. Heike Schweitzer, Universität Mannheim/EUI (EUI Supervisor); Prof. Dr. Giorgio Monti, EUI; Prof. Dr. Jules Stuyck, Katholieke Universiteit Leuven; Dr. Ioannis Lianos, University College London
PDF of thesis uploaded from the Library digital archive of EUI PhD theses
This thesis is targeting a complex topic of integration of economic analysis (economic theories and evidence) into the legal framework of EU merger control. Inspired by the calls for a "more economic approach" in EU competition law this work attempts to highlight both the limits and perspectives for incorporation of the economic analysis under the set of legal rules (both substantive and procedural) that govern initial merger assessment of the Commission and the subsequent review of the Commission’s findings exercised by the Courts. The correlation between legal rules and economic analysis is studied on the example of non-horizontal concentrations that should be assessed taking into account both anti-competitive effects stemming from the future conduct of the merged entity and economic efficiencies that can be generated through vertical integration or conglomerate diversification. Application of economic theories and assessment of economic evidence is placed in the context of the applicable legal rules and standards such as standard of proof, standard of judicial review, margin of assessment in complex economic matters, and legal standards governing admission, presentation and assessment of economic evidence. The correlation of the specified legal rules and economic analysis was studied on the examples of unilateral (vertical foreclosure) and coordinated (tacit collusion) effects’ scenarios which are typical for non-horizontal settings. The observed enforcement practices demonstrated the need for further development of functional rules, tests and methodologies, which are pre-requisite for an effective and consistent application of the effects-based assessment.

This thesis addresses two important issues necessary to understand whether insider trading should be prohibited: the effects of insider trading on stock prices and the compensation to insiders for providing information and other related services. This task is accomplished by analyzing stock price changes during corporate takeovers, before and after the regulatory changes in the 1980's that were designed to reduce the level of insider trading. In this thesis, we develop an indirect measure of insider trading that shows how observable stock price movements during takeovers allow one to make inferences about changes in insider trading after regulatory changes. Specifically, we show that when inside information is partially revealed to the market, the effects of regulatory changes on insider trading can be identified by examining the price movements of stocks around takeover announcements. If, however, information is not revealed at all or is fully revealed, it is impossible to identify the effects of regulatory changes on insider trading. We also develop a segmented diffusion model to analyze price movements characterized by cumulative abnormal returns during the period surrounding a takeover announcement. An econometric model is developed to estimate the segmented diffusion model. Naturally, this methodology applies to the study of various events in addition to corporate takeovers and regulatory changes. We conduct empirical analysis to test three hypotheses. With regard to Hypothesis I, we find strong evidence that the tightening of insider trading regulations in the 1980's was effective and that inside information was partially revealed to the market. With regard to Hypothesis II, we find evidence that insider trading regulations have more effect on negotiated takeovers than on takeovers initiated by bidding. With regard to Hypothesis III, we find weak evidence that insiders associated with acquiring firms seek fewer but more profitable takeovers after the introduction of tighter regulations.

Defence date: 1 June 1992
Supervisor: Prof. Christian Joerges ; Co-supervisor: Prof. Barry Hawk
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017

One of the recognised ways through which a firm may increase its market share or reorganise its presence in a market is through a merger. A merger occurs when independent firms combine their businesses. Section 12A of the Competition Act, 1998, provides two grounds in terms of which mergers must be evaluated by competition authorities. These are competition and public interest considerations. The Act is reticent on which, between the two considerations, should take precedence in the event that the two conflict. The anterior purpose of this study is therefore to provide an in-depth analysis on which consideration must take precedence in the event of conflict. On analysis, the majority of case law suggests that the competition considerations must take precedence. This observation is also buttressed by a significant amount of literature, which holds that in merger analysis, the public interests only play a secondary role to the competition inquiry.
Mercantile Law
LL.M. (Mercantile Law)

One of the objectives of the Securities Regulation Code on Takeovers and Mergers ("the Code") was to achieve neutrality of treatment of minority shareholders in takeover situations irrespective of the method employed to effect the takeover. This objective has not yet been achieved despite the inclusion of Rule 29 in the Code. Different levels of minority protection apply depending on the method used to effect a takeover. Asset takeovers are also excluded from the ambit of the Code. It is suggested that capital reductions and security conversions be prohibited to effect a takeover unless the Code is applicable to the transaction. The scheme of arrangement procedure, with certain suggested amendments, should be retained as a takeover method. It is further suggested that section 228 of the Companies Act be amended to ensure greater minority shareholder protection but that asset takeovers not be included within the ambit of the Code at this stage.
Private Law
LL.M.