Protecting Societal Interests in Corporate Takeovers: A Comparative Analysis of the Regulatory Framework in the U.K., Germany and China

304 Pages·2022·5.11 MB·English

by  Huizi Ai

Huizi Ai
Protecting
Societal Interests
in Corporate
Takeovers
A Comparative Analysis
of the Regulatory Framework in
the U.K., Germany and China
Protecting Societal Interests in Corporate Takeovers
Huizi Ai
Protecting Societal Interests
in Corporate Takeovers
A Comparative Analysis of the Regulatory
Framework in the U.K., Germany and China
Huizi Ai
Law School
Beijing Normal University
Beijing, China
This work was supported by China Scholarship Council (CSC) grant number is 201707070042.
ISBN 978-981-19-7545-5 ISBN 978-981-19-7546-2 (eBook)
https://doi.org/10.1007/978-981-19-7546-2
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Acknowledgements
I started my Ph.D. research in Maastricht in September 2017 with the support of the
China Scholarship Council. I really enjoyed the attractive journey in the past 4 years
and there are many people to whom I owe my sincere gratitude.
First and foremost, I want to give my utmost gratitude to my two supervisors
of the Ph.D. research, Prof. Niels Philipsen and Prof. Mieke Olaerts. I met Niels
first in 2015 when I was a student at the China-EU School of Law (CESL) at China
University of Political Science and Law (CUPL), and Niels was one member of the
“flying faculty” of CESL and gave us the course “Competition Law”. He provided us
with a thorough and interesting introduction to the EU competition law. After class,
whenever my classmates and I had questions, he was always glad and patient to
discuss with us. Several months after I met Niels, I had a chance to go to Maastricht
University to attend the elective course “Comparative Corporate Governance”, which
was given by Mieke. Mieke’s course was very interesting and enlightening. It was
also my first time to go abroad and I was really excited to find out how lovely the
city of Maastricht is. Later, when I decided to pursue a doctorate abroad, Maastricht
University became my first choice, and I was very lucky to have Niels and Mieke
as my supervisors. During the past 4 years, they gave consistent support to me. This
research would never be accomplished without their encouragement and guidance.
I also want to give my sincere gratitude to Prof. Michael Faure, for providing me
with the opportunities to meet many thoughtful researchers through the Ius Commune
Research School, and for giving me encouragement and suggestions on my research.
I owe my gratitude to two professors from CUPL. Prof. Hongyao Wu was the first
one to encourage me to pursue my doctorate abroad. He gave me a lot of guidance
when I was confused about my career. My appreciation also goes to Dr. Jun Wang, the
supervisor of my master’s thesis in CESL. During the past 4 years, he gave me many
suggestions on my research when I came back to China and visited him. Prof. Wu
and Dr. Wang’s devotion and dedication to work and their humble attitude towards
students set me a good role model.
Last but certainly not least, my deepest gratitude goes to my family, especially
my beloved mother and my husband. Thank you for all the love, care, respect and
support you give me in my life.
v
Abbreviations
Regulations and Self-Regulatory Rules
Of the EU
Directive (EU) 2017/828 Directive (EU) 2017/828 of the European Parlia-
ment and of the Council of 17 May 2017
amending Directive 2007/36/EC as regards the
encouragement of long-term shareholder engage-
ment [2017] OJ L 132/1
Directive 2007/36/EC Directive 2007/36/EC of the European Parlia-
ment and of the Council of 11 July 2007 on the
exercise of certain rights of shareholders in listed
companies [2007] OJ L 184/17
TFEU Consolidated version of the Treaty on the Func-
tioning of the European Union (TFEU) [2016] OJ
C 202/1
The EC Merger Regulation Council Regulation (EC) No 139/2004 of 20
January 2004 on the control of concentrations
between undertakings [2004] OJ L 24/1
The EU FDI Screening Regula- Regulation (EU) 2019/452 of the European
tion Parliament and of the Council of 19 March 2019
establishing a framework for the screening of
foreign direct investments into the Union [2019]
OJ L 79 I/1
The EU Non-financial Reporting Directive 2014/95/EU of the European Parlia-
Directive ment and of the Council of 22 October 2014
amending Directive 2013/34/EU as regards
vii
viii Abbreviations
disclosure of non-financial and diversity infor-
mation by certain large undertakings and groups
Text with EEA relevance [2014] OJ L 330/1
The EU Takeover Directive Directive 2004/25/EC of the European Parlia-
ment and of the Council of 21 April 2004 on
takeover bids [2004] OJ L 142/12
Of the U.K.
CA 2006 Companies Act 2006
EA 2002 Enterprise Act 2002
Media Merger Guidance Guidance on the Operation of the Public Interest
Provisions relating to Newspaper and Other Media
Mergers
The Cadbury Report Report on Financial Aspects of Corporate Governance
The City Code The City Code on Takeovers and Mergers
The U.K. Security Act 2021 National Security and Investment Act 2021
The U.K. Security Bill 2020 National Security and Investment Bill 2020
The 2017 Green Paper National Security and Infrastructure Investment
Review—The Government’s review of the national
security implications of foreign ownership or control
The 2018 U.K. CG Code The 2018 U.K. Corporate Governance Code
The 2018 U.K. Guidance The 2018 Guidance on Board Effectiveness
The 2018 White Paper Security and Investment—A consultation on proposed
legislative reforms
Of Germany
AktG The Stock Corporation Act
AWG The Foreign Trade and Payments Act
AWV The Foreign Trade and Payments Ordinance
BHO The Federal Budget Code
GWB Act against Restraints of Competition
HGB The German Commercial Code
The First Amendment to the The First Law to amend the Foreign Trade Act and
AWG other Laws
The 2020 German CG Code The 2020 German Corporate Governance Code
WpÜG The Securities Acquisition and Takeover Act
Abbreviations ix
Of China
AML The Anti-Monopoly Law
Amendment 2022 Amendment to the Anti-Monopoly Law (2022)
Catalogue of Industries Catalogue of Industries for Guiding Foreign
Investment
Implementing Regulation Regulation on Implementing the Foreign
Investment Law
Interim Provisions on Assessing The Interim Provisions on Assessing the
the Impact Impact of Concentration of Undertakings on
Competition
Measures for Foreign Strategic Measures for the Administration of Strategic
Investment Investment in Listed Companies by Foreign
Investor
Measures for the Security Review Measures for the Security Review of Foreign
Investment
Notice 2011 Notice of the General Office of the State
Council on the Establishment of the Security
Review System for Mergers and Acquisitions of
Domestic Enterprises by Foreign Investors
Provisions on Foreign Mergers Provisions on Mergers and Acquisitions of
and Acquisitions (2009) Domestic Enterprises by Foreign Investors)
(2009 Revision)
Provisions 2011 Provisions of the Ministry of Commerce on the
Implementation of the Security Review System
for Mergers and Acquisitions of Domestic
Enterprises by Foreign Investors
The Company Law 2005 PRC Company Law
The Securities Law 2005 PRC Securities Law
The 2006 Takeover Measures Measures for the Administration of the Takeover
of Listed Companies
The 2018 Chinese CG Code Corporate Governance Code for Listed
Companies
The 2018 FI Negative List Special Administrative Measures for the Access
of Foreign Investment (2018)
The 2019 FI Negative List Special Administrative Measures for the Access
of Foreign Investment (2019)
The 2020 FI Negative List Special Administrative Measures for the Access
of Foreign Investment (2020)
The 2021 FI Negative List Special Administrative Measures for the Access
of Foreign Investment (2021)
x Abbreviations
Institutions
Of the EU
CJEU European Court of Justice
The EC The European Commission
Of the U.K.
FRC Financial Reporting Council
MMC Monopolies and Mergers Commission
MOD Ministry of Defence
OFT Office of Fair Trading
The CMA Competition and Markets Authority
The Panel The Panel on Takeovers and Mergers
Of Germany
BaFin The Federal Financial Supervisory Authority
BKartA Federal Cartel Office
BMWi (Renamed as BMWK after Federal Ministry for Economic Affairs and
December 2021) Energy
BMWK Federal Ministry for Economic Affairs and
Climate Action
GCGC Commission Government Commission on the German
Corporate Governance Code
The Minister The Minister of the Federal Ministry for
Economic Affairs and Energy
Of China
CC Competition Commission
CPC The Communist Party of China
CSRC China Securities Regulatory Commission
Enforcement Department II The Anti-monopoly Enforcement Department II
Joint Conference Joint Ministerial Conference of China
MOFCOM The Ministry of Commerce of China
Abbreviations xi
National Bureau The National Anti-monopoly Bureau
NDRC The National Development and Reform Commission
of China
SAIC The State Administration for Industry and Commerce
of China
SAMR The State Administration for Market Regulation of
China
SAMR Bureau The Anti-monopoly Bureau of the State Administra-
tion for Market Regulation
SASAC State-owned Assets Supervision and Administration
Commission of the State Council
Security Review Office The Office of the Foreign Investment Security Review
Working Mechanism
SSE Shanghai Stock Exchange
SZSE Shenzhen Stock Exchange
Others
AG The stock corporation
China CSR China South Locomotive & Rolling Stock Corporation Limited
CNR China CNR Corporation Limited
CRRC China CRRC Corporation Limited
CSR Corporate social responsibilities
EIN European intervention notice
ESG Environmental, Social and Governance
FDI Foreign direct investment
I&C Information and consultation
PIIN Public Interest Intervention Notice
R&D Research and Development
SPIN Special public interest intervention notice
SRA Self-regulatory agencies
UN PRI Principles for Responsible Investment launched by the United Nations