적대적 M&A에 있어 방어행위의 적법요건 － Unocal Corp. v. Mesa Petroleum Co. 사건을 중심으로 －

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.