Wednesday, March 18, 2009
Posted by D. Daniel Sokol
Francisco Marcos of Instituto de Empresa Business School (and a judge of the Tribunal de Defensa de la Competencia de la Comunidad de Madrid) discusses Tender Offer Merger and Regulatory Review in Spanish Law.
ABSTRACT: The interface and coordination of securities regulation of tender offers, merger review proceedings set up by competition law and any other bodies of sectoral regulation potentially applicable to a given transaction is a key issue in governing modern markets. Indeed, Securities Regulation, Competition Law and Regulation impose mandatory conditions and bureaucratic procedures on mergers and acquisitions - which are inspired in different objectives and with disparate aims - that may delay the execution of these transactions and, in some cases, even lead to the introduction of substantial changes in their terms. In comparison with the pre-existing legal rules, as this paper analyzes in detail, the new regulation of merger review and tender offer proceedings - both of 2007 - make compatible the satisfaction of private business interests with the adequate protection of investors' interests and the public interest in maintaining effective competition in the market, as well as the diverse objectives sought by other regulations, sensibly reducing the delays in tender offers that may distort the working of securities markets. However, several doubts and some problematic issues remain in the overlap of these different regulatory bodies (securities/competition/regulation) that require further reflections, which constitute the focus of the present article.