The Non-Frustration Rule and the Mandatory Bid Rule – Cornerstones of European Takeover Law?

36 Pages Posted: 27 Jun 2017

See all articles by Mathias Habersack

Mathias Habersack

London School of Economics - Law Department; Ludwig Maximilian University of Munich

Date Written: June 4, 2017

Abstract

With the non-frustration rule (“NFR”) and the mandatory bid rule, the Takeover Bid Directive contains two principles which have strongly influenced British takeover law for approximately 50 years. However, the changes of the economic and legal framework of the market for corporate control which have occurred since the adoption of the Directive call into question the legitimacy of both principles. Although the NFR is capable of disciplining board members, it generates misguided incentives and is, at the most, suitable as a disciplining tool of last resort. The idea that in the alternative we would rely on increasing shareholder activism and of trusting the shareholders to discipline the board (also in a company with dispersed ownership) is compelling in principle; however, as active shareholders often seek the short-term maximisation of returns, misguided incentives cannot be avoided in this context either. In view of these findings, the article explores the ways of structuring NFR optionality. It submits that only the shareholders should be given the option of opting out of the strict NFR – which would continue to serve as the default rule – and that such an opt out should only be possible for a limited period of time. With respect to the mandatory bid rule, its justification is becoming increasingly difficult since the exploitation of the offeree company by the controlling shareholder is more or less excluded by obligations to disclose information, by shareholder activism and by the reform of the Shareholder Rights Directive. In view of the foregoing, this paper argues for reform of the Directive’s mandatory bid rule, making it a mere default rule.

Suggested Citation

Habersack, Mathias, The Non-Frustration Rule and the Mandatory Bid Rule – Cornerstones of European Takeover Law? (June 4, 2017). LSE Legal Studies Working Paper No. 9/2017. Available at SSRN: https://ssrn.com/abstract=2980321 or http://dx.doi.org/10.2139/ssrn.2980321

Mathias Habersack (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

Ludwig Maximilian University of Munich ( email )

Geschwister-Scholl-Platz 1
Munich, Bavaria 80539
Germany

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