Адвокат Киев Лабунский В.В. Юридические услуги когда необходим адвокат в Киеве.



Владимир Викторович


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Russian (CIS)Ukrainian (UA)English (United Kingdom)

1. Ukrainian legislation on mergers and acquisitions (M&A) on the path of European development.

The dynamics of the development of relations in the market for corporate control is necessary to study the various trends to understand the phenomenon of mergers and acquisitions. Despite the fact that this research takes a lot of scientists, a common approach to the process of M&A has not been found. Thus, in the Anglo-American doctrine of the term "mergers and acquisitions" has a uniform value for the acquisition, by purchase, primarily controlling stake. In the legal system of post-Soviet countries, this phenomenon is associated with the reorganization, which resulted in the company, which was acquired ceases to exist. This is due to the different legal systems and traditions that have been established for a long time in the Anglo-American doctrine, and most recently in Ukraine. Imperfection of the legal regulation of this phenomenon in Ukraine led to the proliferation of illegal, so-called hostile takeovers of enterprises that had negative consequences for the economy as a whole-. This caused the need to find legal ways to acquire companies, taking into account the interests of all participants without exception. Separation of acquisitions on illegal and legal was due to certain loopholes in the law. Companies have begun to analyze options for legal ways to achieve the objectives for the acquisition of assets, holdings of shares of the share capital with a view to its effective operation. Again, the discrepancy approaches to understanding the phenomenon of mergers and acquisitions due to the fact that the existing methods for M&A in the post-Soviet doctrine include the reorganization, which in some cases is only a consequence of the absorption.

In the absorption before you purchase a certain company to analyze the economic benefits of the transaction. Question Research Company in connection with the threat of possible be outside the law requires a full legal analysis of its activities. Based on the results of such an analysis, which was named «due diligence», already at the first stage, to determine the absorption. Procedure «due diligence» is a complex action and covers not only the legal scope of the study, but also the financial, environmental, accounting, etc., and only qualitative its implementation can provide an objective picture of what is happening in the company. Market for corporate control plays a crucial role in the operations of mergers and acquisitions. Its development is evidence of the existence of a market economy to the competitive environment. National legislation, the term "corporate control" is covered by the definition of the terms "control" and "controlling stake", namely as an opportunity to monitor the activities of a business entity.

In corporate law degree of control is determined through the ownership of a certain stake. In Ukraine, a controlling stake of 50%. Ability to establish control over the joint-stock companies held as usual buying stocks, but with certain features provided by Articles 64, 65 of the Law of Ukraine "On Joint Stock Companies". These features include the need for disclosure of its intention to purchase a significant stake (10% or more), as well as compulsory direction offer to all shareholders on the acquisition of a controlling stake (50%). However, the legislation does not stipulate the conditions for the indication of prices of shares in the public intention to acquire shares. Thus, in order to carry out the absorption of the buyer need to negotiate with the beneficial owner of a controlling stake or buy from minority shareholders of their shares at different prices, which can lead to violations of the rights of shareholders. Operations of mergers and acquisitions in relation to other economic entities, except for joint-stock companies, have no legal regulation. Thus, the alienation of shares in a limited liability company going by the decision of the general meeting, by way of sale or assignment of corporate rights to the subsequent approval of amendments to the statute. In competition law the M&A are called concentration and provide prior authorization AMC of Ukraine if they fit certain criteria, which are defined in the law. It is necessary to distinguish between the concentrations in the portfolio investment in which there is no need to get permission to concentration of investments on which gains control over the activities of the company. Control in this case is considered in terms of the opportunity to participate in the management of the company, because, even without having a controlling stake, a person can exercise control over the executive body of the business entity. Obtaining a permit due to the need to create an effective competitive environment in order to prevent monopolization of the market.

In Ukraine, major mergers and acquisitions, irrespective of jurisdictional accessories, mainly consist of English law. Examining the benefits of English law can come to the conclusion that this is a number of reasons. First of all, the English company law is dispositive, flexible. His basic industry standards regulated by Acts of Parliament - all others are private nature of regulation, including the process of absorption. Also, the English company law has come a long way of development, has a developed system of law-making with rich experience in dealing with legal disputes in this area. Compared with the Ukrainian, English company law has more tools for resolving disputes between the shareholders, as well as the broad scope of the mechanisms for reliable operations on the absorption. Therefore, it is not surprising that as a basis for the adoption of the Directive 2004/25/EC takeover was elected English City Code on Takeovers and Mergers. Thus, the legislation in the field of M&A in Ukraine in relation to private enterprise must be set with the imperative of state regulation of the plane of private law relations, since these activities are, in practice the application of English law in M&A transactions in Ukraine is based on freedom and equality of parties to the contract. With regard to the European Community in-general, the processes of absorption are important for the development of an efficient European economy, so the development of the Directive 2004/25/EC was aimed at the creation of the European space market integrity, which would be equally protected the interests of all parties in the distribution of corporate control . This was achieved through the consolidation of Directive 2004/25/EC of the principle of information transparency of the process of absorption for the shareholders, as well as by constructing a system of checks and balances to protect the interests of all parties involved.

Ukraine with the adoption of the Law of Ukraine "On Joint Stock Companies" in 2008, tried to bring the legislation in the area of absorption with the EU legislation. The basis of law is the principle of protection of minority shareholders on the acquisition of a controlling stake, but remained undeveloped in many important issues. Because of the advantages of the use of English law in the field of mergers and acquisitions and disadvantages of national investment policy, Ukrainian companies are structured under the offshore or low-tax jurisdictions with the creation of foreign holdings. Accordingly, significant investment funds are outside Ukraine and do not participate in the strengthening of the national economy, while the majority of the world are trying to recover the funds in their own country. Processes of mergers and acquisitions, at the macroeconomic level is one of the ways to develop an effective market economy, which allow to attract foreign investment and modernize domestic companies on the European level. In addition, foreign direct investment contributes to the improvement of the investment climate, promote entrepreneurship and improve working conditions. This may be achieved through harmonization of Ukrainian legislation on takeovers with EU legislation. So, when the unresolved legal distribution of control leads to a lack of an effective system of checks and balances that protect equally the company and of the offeror in respect of which it is planned absorption, which in turn leads to negative economic consequences for the country as a whole. Thus, in the course of European integration Ukrainian legislation should take a sample of Directive 2004/25/EC on the absorption and implement its rules in the Law of Ukraine "On Joint Stock Companies", as well as on the basis of this Directive to adopt a separate legal act to regulate these processes in Ukraine.


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