Equivalence: Form and Substance in Business Acquisitions

Abstract

This is a chapter in a forthcoming Research Handbook on Mergers and Acquisitions. It asks to what extent should law and regulation treat business transactions — that differ in form, but are economically equivalent — in the same way? And what justifies the imposition of different costs across different transactional forms?

The chapter considers equivalence by assessing the effect of different business acquisition forms on corporate stakeholders. It sets out factors that may be used to determine equivalence, as well as considering the extent to which different forms merit the same or different legal and regulatory treatment. There very well may be reasons to impose different requirements on different transactional forms — for example, based on differences in statutes, stakeholders, and judicial scrutiny, as well as the practical realities that make legal or regulatory equivalence difficult to achieve — but by starting with equivalence, we can begin to assess the relative merits of those differences. The chapter also begins to explore the limits of equivalence, suggesting that the computational skills needed to fully assess equivalence around business acquisitions have not yet caught up with the business lawyers’ ability to use different forms to achieve the same substantive results.

Keywords: Mergers, Acquisitions, M&A, form and substance, equivalence

JEL Classification: K20, K22