Cross-Border Tender Offer, Exchange Offer and Business Combinations: A Comparison between U.S. Takeover Law, the New German Takeover Code and the 13th European Directive

Abstract

This article deals with the latest developments in the regulation of cross-border tender offers in the U.S., in Germany, and in the European Union. In the U.S. the SEC issued a new release concerning Cross-Border Tender and Exchange Offers, Business Combinations and Rights Offerings. The new release aims to solve the problem of exclusion of U.S. investors in foreign tender offers. The reason for the exclusion is the extraterritoriality of the U.S. securities regulation. The article will therefore discuss the problem of extraterritoriality in the U.S. and will show some alternative academic proposals for the application of the U.S. tender offer law. In Germany the new Takeover Code will become effective at the beginning of the year 2002. It is the first binding regulation of Takeovers in Germany. It also deals with the applicability in the cross-border context. This article will therefore compare the different concepts of applicability in Germany and in the U.S. with a view to the conflict of laws rules. In the EU the 13th Directive concerning Takeover Bids break down this summer. This article will discuss the reasons for the breakdown and the effects on the European tender offer market. Furthermore the article will compare the new rules and concepts of the German Takeover Code with the tender offer regulation in the U.S. Especially the modified duty of neutrality in the new Code is of interest.