Detailed Information

Cited 0 time in webofscience Cited 0 time in scopus
Metadata Downloads

적대적 M&A에 있어 방어행위의 적법요건 - Unocal Corp. v. Mesa Petroleum Co. 사건을 중심으로 -The Legitimacy of a Defense Tactic Against a Hostile Tender Offer chosen by the Target's Board - Primarily Presenting Unocal Corp. v. Mesa Petroleum Co. -

Other Titles
The Legitimacy of a Defense Tactic Against a Hostile Tender Offer chosen by the Target's Board - Primarily Presenting Unocal Corp. v. Mesa Petroleum Co. -
Authors
김정호
Issue Date
2009
Publisher
한국경영법률학회
Keywords
적대적 M& A; 합리성 요건; 비례성 요건; 자기공개매수; 레브론 의무; 중간적 기준; 기업사냥꾼; 그린메일러; hostile M& A; reasonableness test; proportionality test; self tender offer; Revlon Duty; intermediate standard; corporate raider; greenmailer
Citation
경영법률, v.19, no.4, pp.229 - 263
Indexed
KCI
Journal Title
경영법률
Volume
19
Number
4
Start Page
229
End Page
263
URI
https://scholar.korea.ac.kr/handle/2021.sw.korea/121691
ISSN
1229-3261
Abstract
Nowadays there are hot discussions in Korea on the response of the target's boardroom against a hostile tender offer. Korea has opened its takeover-market after the financial crisis in 1997-1998. The possibility of a hostile tender offer was extremely enhanced, since the number of foreign investors and the volume of their investment gradually increase in Korean market. Delaware Chancery and Supreme Court developed through the case of Unocal Corp. v. Mesa Petroleum Co. in 1985 a useful criterion for the legal evaluation of a defensive tactic chosen by the target's board. Those are the "reasonableness test" and the "proportionality test". With these tests, an efficient analysis is guaranteed for almost any public contest for a corporate control through unsolicited tender offer. In Unocal, the Delaware Supreme Court made clear that the board of directors of a target corporation is not a passive one, but an active defender of the corporation and its shareholders. The needed power of the board can be derived from the sections 161(a), 141(a) DGCL and the fundamental duty of directors toward the corporation. Regarding the reasonableness test, the court says, "...directors must show that they had reasonable grounds for believing that a danger to corporate policy and effectiveness existed because of another person's stock ownership." Regarding the proportionality test, the court says, "if a defensive measure is to come within the ambit of the business judgment rule, it must be reasonable in relation to the threat posed." The Unocal is famous also internationally. Japan imported the Unocal tests for its companies. In September 2004, Japan's Ministry of Economy, Trade and Industry convened a group of experts and business representatives - the Corporate Value Study Group - to propose a governmental response to the hostile takeovers. In May 2005 the Japanese Ministry of Justice and Ministry of Economy, Trade and Industry jointly promulgated the "Guidelines Regarding Takeover Defense for the Purpose of Protection and Enhancement of Corporate Value and Shareholders' Common Interest", which follows Delaware case law by allowing Japanese boards to adopt a defense tactic, and requiring that defenses be necessary and reasonable in relation to the threat posed. By using the above tests in Korean courts, it is recommendable, that the special characteristics surrounding the Korean business environment should be considered.
Files in This Item
There are no files associated with this item.
Appears in
Collections
Graduate School > School of Law > 1. Journal Articles

qrcode

Items in ScholarWorks are protected by copyright, with all rights reserved, unless otherwise indicated.

Altmetrics

Total Views & Downloads

BROWSE