Advisory Board

  • Cai Hongbin
  • Peking University Guanghua School of Management
  • Peter Clarke
  • Barry Diller
  • IAC/InterActiveCorp
  • Fu Chengyu
  • China National Petrochemical Corporation (Sinopec Group)
  • Richard J. Gnodde
  • Goldman Sachs International
  • Lodewijk Hijmans van den Bergh
  • De Brauw Blackstone Westbroek N.V.
  • Jiang Jianqing
  • Industrial and Commercial Bank of China, Ltd. (ICBC)
  • Handel Lee
  • King & Wood Mallesons
  • Richard Li
  • PCCW Limited
  • Pacific Century Group
  • Liew Mun Leong
  • CapitaLand Limited
  • Martin Lipton
  • New York University
  • Wachtell, Lipton, Rosen & Katz
  • Liu Mingkang
  • China Banking Regulatory Commission (CBRC)
  • Dinesh C. Paliwal
  • Harman International Industries
  • Leon Pasternak
  • Bank of America Merrill Lynch
  • Tim Payne
  • Brunswick Group
  • Joseph R. Perella
  • Perella Weinberg Partners
  • Baron David de Rothschild
  • N M Rothschild & Sons Limited
  • Dilhan Pillay Sandrasegara
  • Temasek Holdings
  • Shao Ning
  • State-owned Assets Supervision and Administration Commission of the State Council of China (SASAC)
  • John W. Snow
  • Cerberus Capital Management, L.P.
  • Former U.S. Secretary of Treasury
  • Bharat Vasani
  • Tata Group
  • Wang Junfeng
  • King & Wood Mallesons
  • Wang Kejin
  • China Banking Regulatory Commission (CBRC)
  • Wei Jiafu
  • China Ocean Shipping Group Company (COSCO)
  • Yang Chao
  • China Life Insurance Co. Ltd.
  • Zhu Min
  • International Monetary Fund

Legal Roundtable

  • Dimitry Afanasiev
  • Egorov Puginsky Afanasiev and Partners (Moscow)
  • William T. Allen
  • NYU Stern School of Business
  • Wachtell, Lipton, Rosen & Katz (New York)
  • Johan Aalto
  • Hannes Snellman Attorneys Ltd (Finland)
  • Nigel P. G. Boardman
  • Slaughter and May (London)
  • Willem J.L. Calkoen
  • NautaDutilh N.V. (Rotterdam)
  • Peter Callens
  • Loyens & Loeff (Brussels)
  • Bertrand Cardi
  • Darrois Villey Maillot & Brochier (Paris)
  • Santiago Carregal
  • Marval, O’Farrell & Mairal (Buenos Aires)
  • Martín Carrizosa
  • Philippi Prietocarrizosa & Uría (Bogotá)
  • Carlos G. Cordero G.
  • Aleman, Cordero, Galindo & Lee (Panama)
  • Ewen Crouch
  • Allens (Sydney)
  • Adam O. Emmerich
  • Wachtell, Lipton, Rosen & Katz (New York)
  • Rachel Eng
  • WongPartnership (Singapore)
  • Sergio Erede
  • BonelliErede (Milan)
  • Kenichi Fujinawa
  • Nagashima Ohno & Tsunematsu (Tokyo)
  • Manuel Galicia Romero
  • Galicia Abogados (Mexico City)
  • Danny Gilbert
  • Gilbert + Tobin (Sydney)
  • Vladimíra Glatzová
  • Glatzová & Co. (Prague)
  • Juan Miguel Goenechea
  • Uría Menéndez (Madrid)
  • Andrey A. Goltsblat
  • Goltsblat BLP (Moscow)
  • Juan Francisco Gutiérrez I.
  • Philippi Prietocarrizosa & Uría (Santiago)
  • Fang He
  • Jun He Law Offices (Beijing)
  • Christian Herbst
  • Schönherr (Vienna)
  • Lodewijk Hijmans van den Bergh
  • Royal Ahold (Amsterdam)
  • Hein Hooghoudt
  • NautaDutilh N.V. (Amsterdam)
  • Sameer Huda
  • Hadef & Partners (Dubai)
  • Masakazu Iwakura
  • Nishimura & Asahi (Tokyo)
  • Christof Jäckle
  • Hengeler Mueller (Frankfurt)
  • Michael Mervyn Katz
  • Edward Nathan Sonnenbergs (Johannesburg)
  • Handel Lee
  • King & Wood Mallesons (Beijing)
  • Martin Lipton
  • Wachtell, Lipton, Rosen & Katz (New York)
  • Alain Maillot
  • Darrois Villey Maillot Brochier (Paris)
  • Antônio Corrêa Meyer
  • Machado, Meyer, Sendacz e Opice (São Paulo)
  • Sergio Michelsen Jaramillo
  • Brigard & Urrutia (Bogotá)
  • Zia Mody
  • AZB & Partners (Mumbai)
  • Christopher Murray
  • Osler (Toronto)
  • Francisco Antunes Maciel Müssnich
  • Barbosa, Müssnich & Aragão (Rio de Janeiro)
  • I. Berl Nadler
  • Davies Ward Phillips & Vineberg LLP (Toronto)
  • Umberto Nicodano
  • BonelliErede (Milan)
  • Brian O'Gorman
  • Arthur Cox (Dublin)
  • Robin Panovka
  • Wachtell, Lipton, Rosen & Katz (New York)
  • Sang-Yeol Park
  • Park & Partners (Seoul)
  • José Antonio Payet Puccio
  • Payet Rey Cauvi (Lima)
  • Kees Peijster
  • COFRA Holding AG (Zug)
  • Juan Martín Perrotto
  • Uría & Menéndez (Madrid/Beijing)
  • Philip Podzebenko
  • Herbert Smith Freehills (Sydney)
  • Geert Potjewijd
  • De Brauw Blackstone Westbroek (Amsterdam/Beijing)
  • Qi Adam Li
  • Jun He Law Offices (Shanghai)
  • Biörn Riese
  • Mannheimer Swartling (Stockholm)
  • Mark Rigotti
  • Herbert Smith Freehills (Sydney)
  • Rafael Robles Miaja
  • Robles Miaja (Mexico City)
  • Alberto Saravalle
  • BonelliErede (Milan)
  • Maximilian Schiessl
  • Hengeler Mueller (Düsseldorf)
  • Cyril S. Shroff
  • Cyril Amarchand Mangaldas (Mumbai)
  • Shardul S. Shroff
  • Shardul Amarchand Mangaldas & Co.(New Delhi)
  • Klaus Søgaard
  • Gorrissen Federspiel (Denmark)
  • Ezekiel Solomon
  • Allens (Sydney)
  • Emanuel P. Strehle
  • Hengeler Mueller (Munich)
  • David E. Tadmor
  • Tadmor & Co. (Tel Aviv)
  • Kevin J. Thomson
  • Barrick Gold Corporation (Toronto)
  • Yu Wakae
  • Nagashima Ohno & Tsunematsu (Tokyo)
  • Wang Junfeng
  • King & Wood Mallesons (Beijing)
  • Tomasz Wardynski
  • Wardynski & Partners (Warsaw)
  • Rolf Watter
  • Bär & Karrer AG (Zürich)
  • Xiao Wei
  • Jun He Law Offices (Beijing)
  • Xu Ping
  • King & Wood Mallesons (Beijing)
  • Shuji Yanase
  • OK Corporation (Tokyo)
  • Alvin Yeo
  • WongPartnership LLP (Singapore)

Founding Directors

  • William T. Allen
  • NYU Stern School of Business
  • Wachtell, Lipton, Rosen & Katz
  • Nigel P.G. Boardman
  • Slaughter and May
  • Cai Hongbin
  • Peking University Guanghua School of Management
  • Adam O. Emmerich
  • Wachtell, Lipton, Rosen & Katz
  • Robin Panovka
  • Wachtell, Lipton, Rosen & Katz
  • Peter Williamson
  • Cambridge Judge Business School
  • Franny Yao
  • Ernst & Young

Monthly Archives: May 2013

Chinese Update – Cross Border Transactions – How Many Hardships does China Need to Overcome?

Editors’ Note:  Susan Ning, a member of XBMA’s Legal Roundtable, contributed this paper.  Ms. Ning heads King & Wood Mallesons’ International Trade and Antitrust and Competition Group and is widely recognized as one of the leading experts in the field, with many years of experience working with MOFCOM to secure merger clearance.  The author, Mr. Rupert Li of King & Wood Mallesons, practices in cross-border M&A, strategic corporate investments, and securities transactions. Mr. Li has been nominated as one of Asia’s leading lawyers for 2008 and 2009 by ALB, and is one of their 2009 Leading 25 Asia M&A Lawyers.

Executive Summary:  This article discusses some of the disadvantages unique to Chinese companies and how such constraints have impeded the momentum of China’s quest for a deserving piece of the international M&A market.

Main Article

People frequently observe the cultural barriers which the Chinese companies find difficult to overcome in relation to China’s nascent outbound investment program. Since China is culturally and politically different from the mainstream trading countries, an attribution of the anguish on both sides of the negotiation table to cultural barriers is indeed tempting but often misplaced. Any professionals operating in places other than in the rule setting non Anglo-American jurisdictions always have war stories to share with their colleagues. The Mexican tycoons prefer to negotiate their deals in the smoking rooms of their vast hacienda guarded by private soldiers. The Indians nod to signify their disapproval and shake their heads for approval, or sometimes vice versa. The Japanese entertain their foreign guests with stylized geisha dance and ocean dainties of whale meat and blow fish. These cultural idiosyncrasies would make our deal process more memorable, but they seldom torpedo deals as our professionals and their principals have rarely retreated from a deal purely on the ground of local habits which repel their sensibilities. Many have spent their formative years in august institutions learning foreign languages or foreign business practices ranging from Sharia law of the Middle East to China’s Labyrinth of approval procedures. Companies have become nimble and adaptive while operating in foreign countries and they have soldiered on to make big profits in spite of occasional cultural clashes with their local partners, local staff and local regulators.

Japan made its massive investment in the US and around the world in the 80’s and 90’s in the last century. US and Europe deployed huge capital across into China in the last two decades. Neither had an easier time to transcend cultural barriers. While no one has come out perfect, few regrets have been heard from either business community. It is safe to infer that cultural barries are problems universal to all investors in foreign countries, but they are surmountable hurdles. If we are trying to debunk the myth of what is frustrating the Chinese companies’ objectives in their pursuit of global reaches, we may have to look beyond the commonality of cultural barriers and ascertain those constraints relevant only to the Chinese companies and how they have impeded the momentum of China’s quest for a deserving piece of the international M&A market.

  1. Unlike India and Japan whose mercantile class survived the vicissitudes of the last century, China abolished its market and implemented a pure planned economy for 30 years prior to its opening in 1979. The cessation of market activities gave rise to the disappearance of a few generations of business elites. Even though the Chinese have caught up faster than many had predicted, it may take another one or two decades to generate the sophisticated corporate governance and the veteran professionals to match the institutional prowess of the Japanese and the individual ingenuity of the Indians. At present, few of the institutions and their executives have the requisite experience to execute cross border deals with ease and confidence.
  2. The US has begun to smart over its two decades’ support of China’s economic growth. An economically prosperous China has not embraced the universal values as predicted and the country seems determined to remain a political outlier. While the US and its allies cannot disentangle themselves economically from China, they are instinctively inclined to create subtle and blatant roadblocks restricting the Chinese from buying strategic assets. The fact that Chinese companies are opaque in their investment motives and decision making process and that they receive unbridled credit support from China’s state banks exacerbates the skepticism of both their Western competitors and the host countries. Nationalist politicians, journalists and competing corporates all find it extremely easy to denigrate, lampoon and second guess the Chinese. Other than local politicians, Wall Street bankers and other service providers, Chinese companies have few cheerleaders on their side.
  3. Most Chinese companies are run vertically with the CEO being the final arbiter for investment decisions. Most of these CEOs however do not have a mature understanding of what is expected of them in an M&A transaction. They habitually abstain from active participation in the process which will lead to an investment decision. Neither do they wish to delegate and devolve their authority to negotiating teams whose lack of authority is often maddeningly frustrating to everybody else involved. In the fast moving deal market, you will see many hapless Chinese executives with little or no authority to improvise any ideas or to make any decisions without headquarter approval.
  4. Many consider the Chinese SOEs as extensions of the Chinese government and sometimes rightfully so. As proxies of the state, the SOEs are seen less a profit seeking enterprises than entities mandated the task to buy resources around the world for the benefit of the country. After having been denied to buy equity of the name brand Western companies (e.g., Unical and Rio Tinto), Chinese companies have developed a jaundiced view about the fairness of the market as manipulated by the Anglo American business community and sometimes equally rightfully so. Their alternative is to invest directly at the assets level which in turn arouses suspicion that China fundamentally distrusts the market and wishes to create alternative supply channels of energy and metal ores which may challenge the existing dynamics. The strategy will not play out well for China. China has no colonial experience and its diplomatic playbook is still stuck in its non alignment past. The odds are poor that they will beat the Shells and Anglo Americans of the world in reaping decent returns in third world countries. In addition, China cannot change the geography and they will have to ship the iron ores or crude oil to China via sea lanes currently patrolled exclusively by the US navy and its allies. China should revisit the feasibility of joining force with the leading Western companies for mining and energy transactions and the West should also refrain from encouraging China to pursue wildcat tactics by denying them again and again the access to equity interests in their leading resources companies.
  5. Chinese companies drew the preponderance of their international experience from the days in the 80’s throughout the 1990’s and earlier 2000’s when many of them negotiated with numerous MNCs for setting up joint ventures and other foreign investment enterprises in China. The Joint Venture Law of China created a modus vivendi whereby Chinese and foreign parties are forced to adopt a quasi-partnership template for their joint operation. In spite of its many ills, this legal regime has done a decent job in protecting or even favouring foreign investment projects. The governments at local level have become particularly beholden to those employment creating and tax paying MNC mega plants. This comfortable matrix sadly never exists elsewhere and the Chinese businessmen are often befuddled by the absence of any substantive protection of their investment in mature jurisdictions where the governments are powerless in interfering in the legal or other administrative process. The Chinese accustomed to the concept of paternalists protection will find rude awakening in both negotiation and operation stages of their overseas projects.
  6. The private companies seem to have a much better understanding of the synergy which their overseas acquisitions are likely to engender in their home market. But they are woefully outcompeted by both SOEs and MNCs in recruiting the top talent to execute their overseas deals. In addition, many founders of the business are still in their most robust deal making years and it is difficult for them to institutionalize and decentralize their empire to fit with the international business ethos. While the Chinese government in fact has given them more support to the private companies operating overseas than it is given credit for, it is still infeasible for the Chinese government, given its remnant ideological misgivings about China’s home grown private sector, to support the replication of a Samsung or a LG under the Korean model.

These six constraints are by no means exhaustive. But each informs a unique disadvantage only applicable to the Chinese companies.

China’s arrival in the landscape of international cross border transactions has been much sooner than anticipated and China once again has reinvented itself and defied the prediction of the pundits that its meaningful participation of global M&A could not have preceded the removal of the duel hurdle of the non-convertibility of RMB and of its closed capital account. While the Chinese companies are on track to become a dominant global M&A players, they still have much distance to cover and many obstacles are beyond their own endeavour to overcome. Only efforts by the Chinese Government to further liberalize its economic governance can facilitate greater progress. The Chinese are however resilient businessmen and the conditions of an extremely populous but resource deprived country dictate that their companies succeed in the realm of global cross border transactions. Hence, they have no choice but to overcome all hardships in this process.

The views expressed herein are solely those of the author and have not been endorsed, confirmed, or approved by XBMA or any of the editors of XBMA Forum, nor by XBMA’s founders, members, contributors, academic partners, advisory board members, or others. No inference to the contrary should be drawn.

Canadian Update – Surprise Investment Canada Proposals for Review of Investments by SOEs

Editors’ Note:   This article was contributed by Christopher Murray, a partner of Osler and leader of Osler’s Asia-Pacific initiative whose practice focuses on public company M&A as well as corporate finance principally involving REIT Income Funds, mining and energy businesses.  This article was authored by Osler partners Michelle Lally, Peter Glossop, Peter Franklyn, Shuli Rodal and associate Matthew Anderson in Osler’s highly regarded Competition and Antitrust group.

 

Highlights:

The Canadian Federal government has introduced proposed (and unanticipated) changes to the Investment Canada Act  (“ICA”) to further scrutinize a wider range of state owned enterprise (“SOE”) investments in Canada.  It is proposed that the black letter ICA review threshold rules be replaced by a control in fact examinations in determining if ICA should apply in investments in Canada involving SOEs.

Unexpectedly, Bill C-60 goes further than anticipated by expanding the definition of SOE in the Investment Canada Act (ICA), and empowering the Minister of Industry to determine that:

  • an otherwise Canadian-controlled entity is controlled in fact by one or more SOEs;
  • an entity is or is not controlled in fact by a SOE; or
  • there has or has not been an acquisition of control in fact of an entity by a SOE.

As a result, for certain investments, the proposed amendments could result in an investor being considered a SOE, and would effectively eliminate the current statutory “safe harbour” that an acquisition of less than one third of the voting shares of a corporation, or less than a majority of the voting interests of a partnership or joint venture, does not result in an acquisition of control. The amendments would give the Minister a new ability to scrutinize all investments in which SOEs are involved including minority investments by SOEs to determine whether they confer control in fact on a SOE, and therefore require a net benefit review under the ICA.

Accordingly, Bill C-60 introduces a new level of uncertainty into the Federal Government’s treatment of proposed investments by SOEs which was not anticipated in December 2012.

Main Article:

On April 29, 2013, the Federal Government introduced its 2013 budget implementation bill, Bill C-60,[1] which would also implement announcements made by the Federal Government on December 7, 2012 concerning investments by non-Canadian state-owned enterprises (SOEs).

Unexpectedly, Bill C-60 goes further than anticipated by expanding the definition of SOE in the Investment Canada Act (ICA), and empowering the Minister of Industry to determine that:

  • an otherwise Canadian-controlled entity is controlled in fact by one or more SOEs;
  • an entity is or is not controlled in fact by a SOE; or
  • there has or has not been an acquisition of control in fact of an entity by a SOE.

As a result, for certain investments, the proposed amendments could result in an investor being considered a SOE, and would effectively eliminate the current statutory “safe harbour” that an acquisition of less than one third of the voting shares of a corporation, or less than a majority of the voting interests of a partnership or joint venture, does not result in an acquisition of control. The amendments would give the Minister a new ability to scrutinize all investments in which SOEs are involved including minority investments by SOEs to determine whether they confer control in fact on a SOE, and therefore require a net benefit review under the ICA.

Accordingly, Bill C-60 introduces a new level of uncertainty into the Federal Government’s treatment of proposed investments by SOEs which was not anticipated in December 2012.

OVERVIEW

As expected, Bill C-60 includes amendments to the ICA to implement previously

announced reforms to:

  • define a SOE, including a foreign government or an entity that is controlled or influenced, directly or indirectly, by a foreign government;
  • implement new thresholds for review of acquisitions of control by non-Canadians, other than SOEs, starting at $600 million and eventually increasing to $1 billion based on “enterprise value”;
  • establish a separate indexed threshold for review of SOE acquisitions of control; and
  • permit potentially significant extensions of the periods for national security review.

In addition to implementing previously announced reforms, Bill C-60 also includes amendments to the ICA which extend the Federal Government’s oversight over SOE investments further by:

  • expanding the definition of SOE to include an individual who is acting under the direction or influence of a foreign government;
  • allowing for Ministerial determinations that an otherwise Canadian-controlled entity is controlled in fact by a SOE; and
  • allowing for Ministerial determinations as to whether an entity is controlled by a SOE or whether there has been an acquisition of control by a SOE.

BACKGROUND

In December 2012, following the extended reviews and, ultimately, approvals of acquisitions by the Chinese SOE CNOOC of Nexen Inc. and the Malaysian SOE PETRONAS of Progress Energy Resources Corp., the Federal Government increased its scrutiny of future investments by SOEs with the release of new State-Owned Investor Guidelines along with several policy statements and promises for reform of its process for reviewing SOE investments. (see Osler Update – New Rules for Foreign Investment by State-Owned Enterprises – Do They Strike the Right Balance?). The new State-Owned Investor Guidelines indicated that:

  • the Federal Government will closely monitor SOE investments in all sectors;
  • future acquisitions of control of a Canadian oil sands business by a SOE will be found to be of net benefit to Canada only in exceptional circumstances;
  • following increase of the general review threshold for investments by non-Canadians, control acquisitions of Canadian businesses by SOEs will continue to be subject to the current, lower threshold;
  • the burden of proof is on foreign investors to demonstrate to the satisfaction of the Minister that proposed investments subject to ICA review are likely to be of net benefit to Canada;
  • SOE investors will be expected to address in their business plans and undertakings that they are susceptible to state influence and to demonstrate their strong commitment to transparent and commercial operations; and
  • in assessing whether a proposed control acquisition is of net benefit to Canada, the Minister will also consider the SOE’s adherence to free market principles and the effect of the investment on the level and nature of economic activity in Canada, including the effect on employment, production and capital levels in Canada.

NEW THRESHOLDS

Bill C-60 confirms the Federal Government’s intention to implement an increase in the general review threshold for acquisitions of control by non-Canadians, other than SOEs, to $600 million based on “enterprise value”, eventually increasing to $1 billion over four years. Once in force, this would replace the current threshold for acquisitions of control by non-Canadians based on book value, which is presently set at $344 million for 2013 and indexed annually to nominal GDP growth. Bill C-60 confirms the increases to the threshold but now carves out acquisitions of control by SOEs, implementing the Federal Government’s December 2012 promise to retain the existing lower review threshold for SOE investments.

The amendments to the review thresholds will not come into force until ordered by the Governor in Council. A key matter still not yet resolved is the definition of “enterprise value”. The most recent draft proposal defined “enterprise value” based on a calculation of market capitalization (plus liabilities minus cash) for publicly listed companies and on purchase price for private companies and asset acquisitions. The draft proposals introduced uncertainty in determining whether the threshold would be exceeded, particularly in multiple bidder scenarios, and potentially captured more transactions than under the current book value threshold (see Osler Update – Proposed Changes to the Investment Canada Act and Foreign Investment Review Process – Benefit or Increased Burden for Foreign Investors?). As a result, the impact of the proposed increased threshold on the reviewability of transactions will depend upon the

prescribed definition of “enterprise value”.

DEFINITION OF SOE

The Federal Government’s December 2012 announcement that the definition of a SOE would be revised to include entities that are “influenced directly or indirectly” by a foreign government will be implemented by Bill C-60. However, Bill C-60 expands the SOE definition to include an individual who is acting under the direction or influence, directly or indirectly, of a foreign government.

It is unclear how the Federal Government will assess direct or indirect influence of an entity, or whether an individual is acting under the direction or influence, directly or indirectly, of a foreign government, though this would likely be a lower threshold than the standard that has been applied under “control in fact” tests. The expanded definition of SOE is likely to create significant uncertainty for investors who are nominally private because they are not controlled in law or fact by foreign governments, but which may have minority government investment, commercial relationships with foreign governments or significant relationships with officials within government. The inclusion of individuals introduces additional uncertainty regarding whether appointments of board members by minority investors or board members’ individual relationships with foreign governments result in an individual acting under the direction or influence of a SOE.

MINISTERIAL DETERMINATIONS OF SOE STATUS AND CONTROL BY SOE

The Federal Government’s December 2012 announcements indicated it would carefully monitor SOE transactions throughout the Canadian economy and closely examine the degree of control or influence a SOE would likely exert on a Canadian business being acquired and the industry in which the Canadian business operates, and the extent to which a foreign state is likely to exercise control or influence over the SOE acquiring the Canadian business.

Bill C-60 includes amendments to the ICA which would provide the Minister with new powers to determine that:

  • an otherwise Canadian-controlled entity is controlled in fact by one or more SOEs;
  • an entity is or is not controlled in fact by a SOE; or
  • there has or has not been an acquisition of control in fact of an entity by a SOE.

The Minister could request from an entity information he considers necessary to make his determination and, if the entity refuses or neglects to provide the requested information within a reasonable time, the Minister could declare that the entity is not Canadian controlled, that the entity is or is not controlled in fact by a SOE, or that there has or has not been an acquisition of control in fact by a SOE.

The proposed control in fact amendments introduce a new level of uncertainty into the Federal Government’s treatment of proposed investments by SOEs. For certain investments, the proposed amendments would effectively eliminate the current statutory “safe harbour” that an acquisition of less than one third of the voting shares of a corporation, or less than a majority of the voting interests of a partnership or joint venture, does not result in an acquisition of control. The amendments would give the Minister a new ability to scrutinize all investments in which SOEs are involved including minority investments by SOEs to determine whether they confer control in fact on a SOE, and therefore require a net benefit review under the ICA.

Similar control in fact provisions exist in relation to cultural businesses. Our experience in this sector suggests that it is possible to successfully implement transactions where control in fact may be an issue, but in some cases additional time and complexity may be involved in order to comply with such provisions.

EXTENSIONS OF NATIONAL SECURITY REVIEW TIMELINES

The Federal Government’s December 2012 announcement referred to amendments to the ICA to provide the Minister with flexibility to extend the time available to conduct national security reviews of proposed foreign investments in exceptional circumstances. At the time of the Federal Government’s December 2012 announcement, it was unclear which timelines the Minister would be seeking to extend.

The ICA sets a number of timelines in relation to national security reviews, including: (i) the time within which the Minister may provide notice of and order a national security review; (ii) if a national security review is ordered, the time within which the Minster is to conduct a national security review and may refer an investment to the Governor in Council if he believes or is unable to determine whether the investment would be injurious to national security; and (iii) the time within which the Governor in Council may take any measures advisable to protect national security.

Bill C-60 proposes amendments to extend a number of relatively short five day periods to 30 days, and enable various timelines to be extended on agreement between the Minister and the non-Canadian investor.

While the proposed extensions to the national security review timelines and the ability to negotiate extensions introduce more flexibility into the process, these proposals may result in a protracted review where an investor may feel obliged to consent to the Minister’s request for an extension, in order to avoid rejection of the transaction.

Overall, Bill C-60 would give the Federal Government greater flexibility to investigate SOE investments from every angle, and to take a thorough, lengthy look at a transaction on national security grounds.

For this article in Chinese please click here.

 


[1] An Act to implement certain provisions of the budget tabled in Parliament on March 31, 2013 and other measures.

Full text of Bill C-60 is accessible at: http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6113748&File=4.

 

The views expressed herein are solely those of the author and have not been endorsed, confirmed, or approved by XBMA or any of the editors of XBMA Forum, nor by XBMA’s founders, members, contributors, academic partners, advisory board members, or others. No inference to the contrary should be drawn.

AUSTRALIAN UPDATE – Protection of Foreign Investment in Australia

Editors’ Note: This report was contributed by Philip Podzebenko, a member of XBMA’s Legal Roundtable and a member of Herbert Smith Freehills’ Corporate Group. The authors are Donald Robertson, partner, Leon Chung, senior associate, and Anne Hoffman, senior legal associate, at Herbert Smith Freehills. Don, Leon and Anne are members of Herbert Smith Freehills’ Litigation Group, specialising in cross-border and investor-state disputes.

Highlights:

  • Australia has entered into a number of investment treaties with other nations to reduce sovereign and political risks for foreign inbound and outbound investments.
  • Typical treaty protections include protection against uncompensated expropriation, rights to fair treatment, protection against physical harm and non-discrimination.
  • Modern investment treaties commonly allow foreign investors to sue the host state directly without the need to apply to their home state to vindicate their rights (investor-state provision). The Australian government has announced that it intends to discontinue this practice and the most recent free trade agreement, concluded by Australia (with Malaysia) signed on 22 May 2012, does not contain such investor-state provisions. Existing investment treaties containing investor-state provisions will continue to be enforceable.
  • Investors may also wish to consider structuring investments through an Australian subsidiary to take advantage of treaty protections for investment into riskier countries e.g. by investing through Australia into Myanmar and taking advantage of the ASEAN Australia-New Zealand Free Trade Agreement.

Main Article:

Investing in a foreign country carries with it a certain amount of sovereign and political risk: the government of the day may change and may introduce measures (regulatory, tax or otherwise) which negatively affect foreign investors’ investments. This is true even where the host state is a sophisticated, “developed” country such as Australia.

In order to protect foreign investors from this sovereign risk and to attract foreign investment, Australia has entered into a number of investment treaties with other states.

Those investment treaties (bilateral investment treaties and other multi-national treaties) provide minimum standards which Australia has to observe when dealing with foreign investments and, in some cases, allow the investor to seek redress directly against the Australian government where a violation of these standards has occurred. Foreign investors can benefit from these rights if they are a national of a state with which Australia has entered into such an investment treaty. (Generally, a national of the foreign state is any natural or legal person (i.e., company) of that other state. The protection is reciprocal, i.e., Australian investors into the other contracting states will be afforded the same protections.)

Australia has entered into bilateral investment treaties with 22 states comprising Argentina, Chile, China, the Czech Republic, Egypt, Hong Kong, Hungary, India, Indonesia, Laos, Lithuania, Mexico, Pakistan, Papua New Guinea, Peru, Philippines, Poland, Romania, Sri Lanka, Turkey, Uruguay and Viet Nam.  In addition, Australia has entered into Free Trade Agreements which include investment protection provisions with the ASEAN countries and New Zealand, the United States of America, Malaysia and Singapore.

Substantive rights of investors into Australia

The minimum standards of protection included in those treaties typically are:

  • Protection against (uncompensated) expropriation.  This includes direct expropriation (ie the taking of investors’ property) by the state, but also includes indirect expropriation where the taking is not outright, but government measures have the indirect effect of rendering the investments useless. This is an absolute right, a standard not dependent on what is given to nationals of the host state;
  • Right to fair and equitable treatment. This is a wide standard providing the investor with a right to be treated with good faith and without abuse of government power. This is also an absolute right;
  • Right to full protection and security. This right requires the host state to exercise due diligence to protect foreign investors and investments from physical harm. This is also an absolute right;
  • Right to national treatment. It prohibits the discrimination of foreigners in favour of nationals of the host state. It is a contingent right dependent on the protection given to national investors of the host state or other foreign investors; and
  • Right to most-favoured nation treatment. This obligation prohibits the discrimination of investors from one foreign country in favour of investors from another country. This is another contingent right dependent on the rights given to other foreign investors.

If there is a breach of a treaty obligation, the standard for compensation and damages is typically ‘prompt, adequate and effective’ compensation.

Assertion of these rights

Obligations imposed on states through international treaties can generally only be enforced against that state by other contracting states. In principle, a state cannot be sued by a private person of another state. To give investment treaties more force and to encourage foreign investment further, modern investment treaties contain provisions which allow foreign investors to sue the host state directly without the need to apply to their home state to vindicate their rights.  This is achieved by including a provision in the investment treaty through which each contracting state submits to the jurisdiction of international arbitral tribunals should an investor seek to make a claim against the host state for breach of any of the treaty obligations.

To assist with the administration of the resulting arbitration cases and ensure the enforceability of arbitral awards rendered against states, the Convention for the Settlement of Investment Disputes Between States and Nationals of Other States (the ICSID Convention) was agreed in 1965. Australia and over 140 other states are signatories to the ICSID Convention to date.  Australia’s bilateral investment treaties of the 1990s and early 2000s contain investor-state-dispute resolution provisions.

Thus, if there is a relevant investment treaty, investors can initiate an arbitration against Australia even where there is no direct contract between the investor and the government of Australia in the underlying transaction. The only prerequisite is that the investor is a national of a state with which Australia has entered into a relevant investment treaty and that there is a relevant ‘investment’ pursuant to that treaty.

Unfortunately, the current government is seeking to put some limits on access to this dispute resolution process. In April 2011 the Gillard Government announced that it will discontinue the practice of including investor-state dispute resolution provisions in trade agreements. As a result, the most recent free trade agreement concluded by Australia (with Malaysia) signed on 22 May 2012 does not contain any investor-state dispute resolution mechanism.

Existing investment treaties containing these provisions will however continue to be enforceable. Hence, foreign investors will still be able to benefit from the investment treaty protections within existing agreements if they are a national of a relevant state. Investors may also want to structure investors through an Australian subsidiary to take advantage of treaty protections for investment into riskier countries e.g. by investing through Australia into Myanmar and taking advantage of the ASEAN Australia-New Zealand Free Trade Agreement.

The views expressed herein are solely those of the author and have not been endorsed, confirmed, or approved by XBMA or any of the editors of XBMA Forum, nor by XBMA’s founders, members, contributors, academic partners, advisory board members, or others. No inference to the contrary should be drawn.

CHINESE UPDATE – The Chinese Economy and Key Reforms

Editors’ Note:  Cai Hongbin, Professor in Economics and Dean of Peking University’s Guanghua School of Management (Ph.D Stanford, 1997), and a member of the XBMA Advisory Board, gave the following presentation at XBMA’s first Legal Roundtable Symposium at New York University on May 7, 2013.  Dean Cai is one of China’s leading economists and the founding president of The Chinese Finance Association (TCFA, overseas).  He serves on the boards of China Unicom and on the board of Sinopec Group as an outside director.

Executive Summary:  Despite the gloomy predictions of foreign economists, the Chinese economy is not near collapse, but actually about to turn around.  The presentation explores the current state of the economy, looking at metrics suggesting the Chinese economic down turn is worse than signaled by its GDP numbers, explains economic growth cycles and suggests key systematic reforms for sustained growth.

Main Article:

U.S. UPDATE – Checklist for Successful Acquisitions in the U.S.

Editors’ Note: This is a Chinese version of a checklist published in English on this Forum on February 20, 2013. This version was prepared jointly by King & Wood Mallesons and Wachtell Lipton.

2012年的全球并购有超过40%的交易涉及不同国家的收购方和目标公司,其中境外收购方在美国进行的并购交易总额达到1700亿美元。由于新兴经济体持续累积美元,很多人预计该趋势将继续保持,因为这些美元将会重新投资于美国本土。自然资源仍将是并购大潮的重要部分,这包括美国,来自境外的大量投资已成为美国并购市场的一个重要趋势,也包括加拿大和澳大利亚这样资源丰富的发达国家,近期来自境外的投资在这些国家备受争议。

尽管美国去年选举年充斥着贸易保护主义论调,社会各方面对境外企业获取本土资源和技术也一直存在担忧,对境外收购方和投资者而言,美国交易市场仍然是全球最友好的市场之一。通过细致的事先准备、周到的战略实施以及对可能出现的各种问题经过深思熟虑的交易结构,在美国的多数并购交易都能够成功完成。导致投资美国的跨境交易失败的原因更多是因为计划不足和执行不力,而并非存在原则性的法律限制或政治限制。

以下是我们更新的在美国进行收购或战略投资之前应认真考虑的要点清单。由于每项跨境交易各不相同,以下所讨论的每个要点的重要性,应根据每个具体项目的特定事实、情况和动态发展而定:

  • 政治和监管因素。尽管境外投资进入美国普遍得到认可,也很少成为一个政治问题,但在具体交易中,收购美国企业或资产的潜在境外并购方应在启动任何收购计划或者项目之前,对美国的政治和监管影响做一个综合分析,特别是目标公司属于敏感行业,或并购方由外国政府设立或出资或设立在普遍认为存在政府强烈干预商业经营的司法辖区。在公开任何收购或投资计划之前,充分考虑并应对(如可能)联邦、州和当地政府机关、员工、客户、供应商、社区和其他利益方可能的担心是非常必要的。在公布一项交易之前,制定全面的沟通计划也至关重要,以便向所有利益相关方传递适当的信息。在策划过程初期引入当地公关公司也可能很有帮助。与政治方面的情况类似,潜在的监管障碍也需要周详的预先计划。除了证券和反垄断监管,并购可能还需经美国外国投资委员会(CFIUS)审查(见下文所述);如果所并购产业受到监管(例如能源、公用事业、博彩、保险、电信和媒体、金融机构、交通运输和国防承包),可能还需经行业监管部门的审批。这些领域的法规通常很复杂,政治对手、不太情愿的目标公司和竞争者可能会利用并购方在消除监管障碍过程中所暴露的任何弱点。随着奥巴马总统连任,预计在可预测的未来,监管机构的领导层可能发生变化,但联邦层面的政策执行仍将保持一定的连续性。此外,根据所涉及产业和劳工的地理分布,工会也将在审查过程中继续扮演重要的角色。
  • 交易结构。境外收购方应考虑各种各样的潜在交易结构,尤其一些战略上或政治上敏感的交易。在特定环境下可能会有帮助的交易结构包括不取得公司控制权的投资、少数股权投资或合资,但可能拥有日后增持更多股权或公司控制权的权利;与美国公司或管理层联手或与美国融资方或共同投资人(例如私募股权)合作进行收购;使用控股或部分控股的在美国设立的专门用于并购的公司,同时其董事会上有几名美国公民并且由一名有影响力的美国公民担任非执行董事长。也可以考虑使用优先股(而非普通股)或结构性债务证券。此外,即使很小的社会问题,例如存续企业的名称及其公司或总部选址,或在并购中的名义并购方,都可能会影响政府和劳工部门官员的观点。
  • CFIUS。根据现行美国联邦法律,美国外国投资委员会(CFIUS)——一个由财政部长担任主席的跨部门政府组织,美国总统有权接受或拒绝其提出的建议——享有自由裁量权来审查境外并购方将取得美国企业“控制权”的交易或境外并购方投资美国基础设施、技术或能源资产的交易。向CFIUS申报是自愿的,CFIUS也有权自行决定是否调查交易,包括已完成交割的交易。对于CFIUS的审查可参考以下三条法则:
    • 首先,如果审查的可能性很高或竞争投标方可能利用潜在调查的不确定性,则一般情况下向CFIUS提起自愿申报是更为审慎的做法;
    • 其次,通常最好在审查过程初期主动建议救济措施,以协助形成最终的救济措施,并避免交易拖延或被否决;以及
    • 第三,在与财政部和其他部门官员以及相关方讨论之前就进行CFIUS申报往往是个错误。在有些情况下,更为谨慎的做法是,在公开发布交易信息之前,即应展开初步联络。CFIUS并非如一些人所担心的那么神秘或不可预测——与美国财政部和其他部门官员(这些官员一般愿意支持并促进对美国经济进行投资)和CFIUS专家进行协商一般会有助于收购方了解如何进行以顺利通过该审查程序。聘请对CFIUS富有研究和经验的顾问通常是成功通过CFIUS审查的关键。对于可能需要进行CFIUS申报的交易,应在潜在交易公开发布或披露之前精心制定一套沟通计划。
  • 并购货币。虽然现金仍然是跨境交易对价的主要(尽管并非唯一)形式,境外并购方应创造性地思考向美国目标公司的股东发行证券的各种途径,以使他们参与并购后形成的跨国企业。例如,公开上市的并购方可以考虑提供现有的普通股或存托凭证(如美国存托凭证(ADR))或特殊证券(比如,或有价值认购权)。如果美国目标公司股东在一家此前未在美国公开上市的存续公司中继续获得权益,其对境外并购方的公司治理和其他所有权和结构安排(包括是否拥有任何控股股东或大股东)的关注度将大为提高,同时也会对任何实际控制人或发起人进行更为严格的审查。创造性的结构,比如境外收购方发行无表决权股份或其他特别证券可能会最小化或减少美国公司治理所可能产生的问题。
  • 并购惯例。理解美国并购交易的习惯和惯例至关重要。例如,理解何时应遵循——以及何时应当挑战——目标公司的出售“程序”会非常关键。了解如何开始磋商以及以何种价格开始磋商通常将决定一项投资意向的成败;在某些情况下,以较低的价格提出要约是明智的;然而在其他情况下,从一开始就报出最高价格也许会达成交易并挫败竞争对手,包括那些可能会提出政治或监管难题的竞争者。在具有战略或政治敏感性的交易中,敌意的策略手段或许是不明智的;然而在其他情况下,外界不请自来的压力却可能成为迫使交易成功的唯一出路。美国并购法规与境外法域的并购法规在很多重大方面存在差异;例如,强制要约收购这样一个在欧洲、印度和其他国家非常普通的概念,在美国实践之中并不存在。美国目标公司可以使用的交易保护结构、定价要求和防御措施与境外并购方在其国内交易中所习惯的那些或许也会存在差异。同时,还需要对美国法下目标公司董事会的诚信义务和决策义务的不同标准予以关注。
  • 美国董事会的惯例。如果目标公司是一家美国公众公司,董事会参与并购过程的习惯和程序,包括法律和财务顾问的参与、提供常规的公平意见以及围绕董事会及财务顾问的活动进行的质询和分析,对于境外交易参与方来说,可能是陌生和令人困惑的,并且可能导致误解并进而扰乱本就微妙的交易谈判过程。境外交易参与方需要充分了解美国公众公司董事会的作用以及能够限制或规制董事会行动的法律、监管和诉讼的框架及风险。这些因素将影响并购程序的策略和时间安排以及与目标公司沟通的方式和内容。
  • 困境企业并购。困境企业并购是一项在美国获得了充分发展的特殊领域,该领域经验丰富的投资者、律师和财务顾问已经形成自己的子文化。在评估陷入困境中的目标公司时,并购者需要考虑各项投资工具,包括但不限于购买预期将通过庭外重组或重整计划变更为公司股权的目标公司支点债券、作为重整计划投资者或发起人、支持发行与重整计划相关的认购权、或作为竞标者参与法庭主持的“363条”拍卖程序。交易确定性对于在“363条”拍卖程序中胜出非常重要,境外交易方因而需要仔细筹划交易结构(尤其是对于如前文所述可能受到CFIUS审查的交易来说),这将为其提供一个与美国参与者之间相对公平的竞争平台。并购者还需要考虑包括银行贷款人、债券持有人、关注困境企业的对冲基金以及结构债券持有人和信用违约保护证券持有人在内的不同利益相关方的利益差别和时而冲突的议程。
  • 融资。当全球信贷市场持续变化使得特定种类的融资“窗口”不断开启又关闭时,总体而言,可用的融资量和融资利率史无前例,并且促进了并购交易,尤其是大型、成熟企业和附属于国家主权的借款人实施的并购交易。需要考虑的重要问题包括哪里能够提供最优惠的融资条款和条件;融资的确定性有多大;哪个贷款人最能理解并购者和目标公司的业务;是否要寻求替代的、非传统的融资渠道和结构,包括卖方票据;是否存在能够实现再融资需求最小化的交易结构;以及融资的条款和条件是否令目标公司感到满意。需要注意的是在美国法下,与其他某些法域下的法律不同,境外并购方并未被禁止向美国贷款人借款,并且他们通常可以使用美国目标公司的资产作为担保(尽管对于使用美国目标公司的股票作为担保存在一些重要的限制)。同样,美国市场上相对宽松的结构性融资应该会有利于境外并购方,在这个市场上资产证券化和其他设计精妙的证券化贷款策略可以相对容易的得以实施,而且也是现成的。
  • 诉讼。每一个涉及美国公众公司的交易都会遇到股东诉讼,但是股东诉讼通常并不需要太过担忧。事实上几乎没有哪个并购美国公众公司的大型交易是因股东诉讼而受到阻碍或被阻止,也不会因此而实质上增加并购方的交易成本(例外是竞争性投标,在这种情况下,诉讼将会在对抗中扮演重要角色;还有由控股股东或管理层发起的私有化交易,这类交易属于一个单独的门类,需要特别的考量和规划)。在大多数情况下,如果交易在依赖双方律师和投行建议的前提下进行了妥善规划和执行,诉讼会被驳回或者以相对较小的金额或其他让步获得和解,并且会给公司带来消除未来索赔以及避免未来责任的正面效应。有经验的顾问通常能够大致预测诉讼的结果或和解成本的范围,这些应视为交易成本的一部分。在任何情形下,并购方及其董事、股东和境外媒体及监管者应当(尽可能的)预料到会出现诉讼,并且不要将其视为麻烦的信号。此外,理解美国的证据交换程序非常重要,该程序与其他司法辖区的程序非常不同,即使在和解程序中,美国证据交换程序仍要求收购方向原告提供应对信息和文件(包括电子邮件)。
  • 税务因素。在美国,影响目标公司股东或集团的税务问题对设计交易结构来说非常重要。美国目标公司的股东在获得境外并购方的股份时通常是免税的,但前提是需满足美国法下对免税交易的要求和反“反向交易”的特殊规则。境外并购方经常需要考虑:是直接从其司法辖区进行投资还是通过其在美国或美国境外的子公司进行投资、交易对美国目标公司税务事项的影响(例如亏损递延)、并购债务产生的利息支出的可抵扣程度、以及在美国相关税务条约下对跨境支付的利息、分红和费用进行预提时是否适用较低的税率。由于美国并没有一个“参与免税”制度来豁免美国境外的子公司的分红收入的税金,并购一个有境外子公司的美国目标公司时,境外并购方可能会分析从美国目标公司中剥离这些境外子公司的税务成本。
  • 披露义务。并购方应谨慎控制并考虑如何以及何时公开披露并购方在目标公司中的权益,随时关注在联邦证券法第13D条项下以及监管机关规则(如美国联邦储备委员会、联邦能源管理委员会(FERC)和联邦通信委员会(FCC)的规则)项下对各类股东权益达到一定门槛时的强制性披露要求。虽然罗迪诺反垄断改进法案(Hart-Scott-Rodino Antitrust Improvements Act)并没有向公众披露的要求,但是该法案要求在达到相对较低的股东权益之前应向目标公司的管理层披露。境外并购方也应考虑其本国关于跨境投资和并购交易的披露规范和时间要求。在很多情况下,与其他司法辖区中严格的披露要求相比,美国披露制度存在更多的人为判断和分析。对于证券衍生物和其他目标公司中的金钱类权益(普通股除外)是否需要披露,在不同的司法辖区可能不同;该类型的投资最近受到监管机构的广泛关注。
  • 股东批准。因为美国上市公司很少存在一个或多个控股股东,如何获得公众股东的批准就成为美国交易中的一个关键问题。事先了解套利者、对冲基金、机构投资者、私募基金、代理表决顾问和其他重要的市场参与者所分别扮演的角色,他们对于拟议并购的态度以及他们出现和退出的时间对于交易的成败非常重要。建议聘用一个代理权征集公司在交易公告前提供建议,这样可有助于实施有效策略以期获得股东批准。
  • 整合计划。有时交易失败的一个原因是并购后的整合不利,特别是在跨境交易中,不同的文化、语言和历史商业模式可能导致摩擦。若有可能,负责整合的高管人员和顾问应在交易早期就参与交易,这样他们可以协助起草和“量身订做”将要执行的整合方案。经常出现的情况是,交易团队和整合/执行团队的分离造成计划执行力度不足,而新的团队事后认为计划不切实际或过于激进。但是,整合计划也需要把握时间节点,因为其只能在取得监管机关的事先批准后方可实施。
  • 公司治理和证券法。美国证券和公司治理规则对准备在并购后发行在美国公开交易的证券的境外并购方来说比较麻烦。应审慎评估美国证监会规则、萨班-奥西利和多德-弗兰克法案(Sarbanes-Oxley and Dodd-Frank Acts)以及证券交易所要求来确保其与本国规则的兼容性,以及境外并购方遵守相关规定的能力。其中,在董事独立性、内控报告和董事/高管贷款的规则方面,在美国上市的境外公司可能会遇到重重问题。此外,境外并购方应注意,如果美国人持有境外公司的证券,美国证券规则也可能适用于涉及这类境外公司的并购和其他企业合并行为。
  • 反垄断问题。如果境外并购方直接或间接与目标公司竞争、或者在与目标公司有同业竞争关系的公司中持有股权,联邦政府机构或州检察官层面可能会提出反垄断问题。尽管并不常见,但是有时境外并购者在目标公司的上游或下游市场有竞争关系,这也可能会导致反垄断问题。如上所述,交割前的整合工作也应考虑到反垄断要求,因为反垄断要求会限制整合工作。并购方本国的竞争法也可能会有一系列的要求,因此有必要与律师一起对此做仔细分析。美国反垄断法由高度专业的机构在体例完善的分析框架基础上施行。绝大部分交易的结果都可以得到准确度较高的预计。对于有争议的案例,虽不能确切预计此类交易的结果,但仍可以预计其是否会被反垄断审查机构视为产生实质性的反垄断问题的可能性以及解决争议点的难易程度。在涉及真正或潜在的实质问题时,详细的计划非常必要,并且应积极与反垄断审查政府机构沟通。
  • 尽职调查。将并购方所在地尽职调查的标准整套搬用于目标公司所在司法辖区将可能会延迟交易、浪费时间和资源或遗漏问题。尽职调查的方法必须考虑目标公司所在司法辖区的法律制度,尤其在竞价收购的情况下,当地规范显得更为重要。与直接向目标公司提出尽职调查要求相比,通过法律或财务中介进行尽职调查的渠道会更为畅通。如果在尽职调查中提出在目标公司看来非同寻常或不合理的尽职调查要求(在跨境交易中这种情况并不少见)可能很容易使得收购方失去信誉。同样,因为不具备当地的法律知识而遗漏重大问题可能会导致重大的麻烦和损失。
  • 协作。并购者与当地的利益一致者进行合作是解决交易中许多障碍的最好办法。若有可能,应在交易前与目标公司的管理层和当地其他有关机构建立良好关系,以便共同解决政治和其他方面的问题,并且可以以持续稳定的合作方式与所有政治人物、决策者和其他利益相关方沟通。

全球并购市场将在2013年一如既往包含不少意外。富有经验的市场参与者需要根据全球和当地投资环境的发展,不断调整他们的战略和策略。但是,尽管全球政治经济环境仍处在动荡之中,在美国成功进行并购交易的规则仍是清晰明了,全球各地的并购者们在认真准备和审慎咨询的情况下仍然可以很快掌握其精髓。

The views expressed herein are solely those of the author and have not been endorsed, confirmed, or approved by XBMA or any of the editors of XBMA Forum, nor by XBMA’s founders, members, contributors, academic partners, advisory board members, or others. No inference to the contrary should be drawn.

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