The Takeovers Panel: A Review
28 Pages Posted: 29 Oct 2010 Last revised: 6 Jan 2011
Date Written: October 29, 2010
This chapter forms part of a book on the Australian Takeovers Panel. It is now almost 20 years since the Takeovers Panel became part of the framework of takeovers regulation in Australia. The key power of the Panel is to declare circumstances to be unacceptable in relation to a takeover. The first half of the Panel’s existence is widely regarded as unsuccessful. It could only act on a referral from the Australian Securities Commission. During the period 1991 to 2000, the Commission referred only four matters to the Panel. When we examine the second half of the Panel’s existence the comparison is stark. In the 10 years since 2000 the Panel has decided more than 300 matters. It is regarded as having made a very important contribution to the effective regulation of takeovers in Australia.
The chapter considers reasons for the change. The reasons discussed include: (1) the independence of the Panel; (2) the government strengthening the role and expanding the jurisdiction of the Panel in takeovers disputes; (3) the decision of the High Court in Alinta confirming the constitutional validity of the Panel; (4) a clearer delineation of the respective roles of the courts and the Panel; (5) the influence of the Panel on market practice; (6) the timeliness of the decision-making process of the Panel; (7) the accessibility of the Panel; (8) the way the Panel has facilitated a shift away from tactical litigation; (9) the Panel’s extensive consultation processes; (10) the Panel’s informal and non-legalistic approach to resolving takeovers disputes; and (11) the Panel’s focus on policy.
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