Договори M&A: досвід правового регулювання в Європейському Союзі та Швейцарії

Abstract

The article is devoted to researching of European Union and Swiss peculiarities of M&A transactions legal regulation. As a result the most progressive development vectors of both legislations were highlighted and proposals for improvement of existing national legislative provisions were outlined. It is accented that Ukraine is taking coherent steps in direction of national corporate legislation adoption to EU standards. Particularly, the newest Law of Ukraine «On Joint Stock Companies» in part that regulates reorganization process duplicates provisions of Directive (EU) 1132/2017. It was found that mentioned Law of Ukraine contains the article, which prohibits to apply rules stipulated by it for termination of legal entities through their reorganization during the procedure of insolvency (bancruptcy procedure). Such prohibition has established a legal vacuum in case of necessity to apply an enterprise restructuring in a rehabilitation procedure. The Code of Ukraine on Bankruptcy Procedures does not include a special order for legal entity termination during bancruptcy procedures, so a legislator has deprived a debtor an effective method of it’s solvence restoring and put a creditor under the risk of a duty non-repayment. To overcome the mentioned legislative disadvantage advise to amend the art. 114 of Law of Ukraine «On Joint Stock Companies». The authors have analized a Swiss corporate reform. The changes include implementation of interim dividends, payment of which is based on interim balance sheet; legal fixation of «capital band» institute – in accordance with such rules the general meeting of shareholders can authorise the board to increase or decrease the share capital within a certain range; and cancelation of acquisition in kind norms. It was constituted that all mentioned amendments are aimed to provide M&A participants with instruments of transactions stucturing, hostile takeovers opposition and take into consideration M&A market trends. The authors have concluded that Ukrainian legislator has a necessity to turn to the Swiss experience for more effective consideration of the latest M&A market trends during a lawmaking process.