Regions

AUSTRALIAN UPDATE – Australian Regulatory Response to Chinese Investment Opportunities and Challenges

Highlights: Chinese state owned enterprise investment into Australia’s resources sector is helping create unprecedented high-levels of M&A activity. In recent years, Australia’s Foreign Investment Review Board has taken steps to balance the benefits and risks created by this influx by successive revisions or elaborations of the foreign investment policy, amendments to the regulatory framework and … Continued

Editors’ Note:  This paper was co-authored by Jeremy Low, Partner, and Andrew Wong, Senior Associate, at Allens Arthur Robinson.  Mr. Low specialises in mergers and acquisitions, corporate restructurings and corporate governance.  Mr. Low was based in the Allens Shanghai office from 2002 to 2006.  It was contributed by Ezekiel Solomon and Guy Alexander of Allens.  Mr. Solomon, who is a member of XBMA’s Legal Roundtable, has long-ranging global M&A experience and his expertise is in high demand from Australian, United States, Korean and Japanese corporations seeking his advice on the structuring, negotiation, financing and documenting of major energy and resource development projects, joint ventures and acquisitions, as well as negotiations with governments in Australia and Asia.  Mr. Alexander is the National Co-Head of Allens' M&A and Equity Capital Markets practice and has been a member of the Takeovers Panel (established under Australian corporations and securities law to consider disputes in relation to takeovers and other acquisitions of substantial interests in, Australian companies) since 2004.

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RUSSIAN UPDATE – English Law Still Dominates in Russian M&A Transactions; a Comparison Shows Why…

This paper is the first in a series of papers on the choice of law in international M&A transactions. We invite further papers on this topic. Highlights: Despite developments in Russian corporate legislation, the mergers and acquisitions and international finance markets in Russia still heavily rely on English law. Business partners in Russia often choose … Continued

Editors’ Note: This paper was co-authored by Goltsblat BLP (the Russian practice of Berwin Leighton Paisner) partners Ian Ivory and Anton Rogoza. Mr. Ivory is Head of English Law - Corporate Finance at Goltsblat BLP, where he and Mr. Rogoza focus on mergers and acquisitions, private equity, joint ventures and corporate restructuring projects. They often represent international companies in connection with their investments in Russia. This paper is a summary of a report entitled “Use of English law in Russian transactions – a comparative review” which was recently published by the authors.

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AUSTRIAN UPDATE – New Approval Requirement for Austrian Foreign Investment by Non-EU, Non-EEA and Non-Swiss Investors

Executive Summary/Highlights: An amendment to the Austrian Foreign Trade Act (FTA), in force since 8 December 2011 subjects the acquisition of certain interests in enterprises in specific industries (including telecoms and energy) by non-EU, non-EEA and non-Swiss persons, to review and approval by the Austrian Ministry of Economic Affairs Approval must be sought before entering … Continued

Editors’ Note:   Christian Herbst is a partner of Schönherr and a member of XBMA’s Legal Roundtable.  He is one of the leading Austrian specialists in cross-border M&A, takeovers and joint ventures, representing mostly foreign clients with respect to investments in Austria and Central Eastern Europe.

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SINGAPOREAN UPDATE – Court Held That Terminology “Subject to contract” Indicated Intent Not to Be Bound Until a Formal Agreement Was Negotiated and Executed

Highlights: Offer and acceptance letters’ inclusion of phrase “subject to contract” was , in the context of the factual matrix, found to make clear the intent of the parties that they were not to be contractually bound until a formal agreement was negotiated and executed. While the Court in this case found that no contract … Continued

Editors’ Note:  This paper was contributed by Rachel Eng, Managing Partner of WongPartnership and a member of XBMA’s Legal Roundtable. It was authored by Andrew Ang, Deputy Head of WongPartnership’s Corporate/Mergers & Acquisitions Practice. Ms. Eng and Mr. Ang are leading experts in both domestic and cross-border M&A in Singapore and other jurisdictions in Southeast Asia.

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RUSSIAN UPDATE – Amendments to Antitrust Laws Designed to Liberalize Prohibitions and Reduce Liability of Filers

Highlights: On November 22, 2011 the State Duma of theRussian Federationpassed a new package of amendments to the antitrust laws in the third reading. The proposed “Third Antitrust Package”, which still has to be approved by the Council of Federation and then signed by the President, changes antitrust regulation significantly. In expectation of the innovations, … Continued

Editors’ Note:  This paper was co-authored by Evgeny Bolshakov of the Competition Law Practice at Egorov Puginsky Afanasiev & Partners.  Mr. Bolshakov specialises in antitrust regulation, corporate and civil law and has been involved in numerous projects related to representing clients in antitrust proceedings, designing a business structure in line with antitrust requirements and contesting FAS (Federal Antimonopoly Service) decisions in courts.

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CANADIAN UPDATE – Canadian Government Reaches Settlement with U.S. Steel in Investment Canada Act Proceedings, Sending Message that Foreign Investors Must Comply with Commitments to Promote Economic Activity and Employment in Canada

Highlights:  The U.S. Steel settlement allows the Canadian government to avoid protracted litigation while underscoring its intended message, namely that foreign investors must take their Investment Canada Act undertakings seriously. It also comes against the backdrop of recent statements by the Prime Minister and Minister of Industry Paradis that while the Canadian government continues to … Continued

Editors’ Note:   This update was co-authored by Mark Katz and Erika Douglas of Davies Ward Phillips & Vineberg in Toronto.  Mr. Katz is a partner in the Competition & Foreign Investment Review practice of Davies Ward and has advised domestic and international clients on a wide variety of competition law matters such as mergers and acquisitions, distribution and pricing practices, misleading advertising and compliance and other legislation governing foreign investment in Canada.  He also provides advice with respect to the application of the Investment Canada Act.

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BRAZILIAN UPDATE – Tax Rates Applicable to Foreign Investments in the Brazilian Financial and Capital Markets Reduced to Encourage Investment

MAIN ARTICLE The Tax on Financial Transactions (“IOF”) is a Brazilian umbrella-type tax comprising different tax modalities, each levied on a different type of financial transaction that is carried out in Brazil. The IOF taxes are regarded as “extrafiscal”, meaning that they have economic and financial purposes other than those strictly related to the collection … Continued

Editor’s Note:  This update comes from Francisco Antunes Maciel Müssnich, founding partner of Barbosa, Müssnich & Aragão Advogados.  Francisco Müssnich is a member of XBMA’s Legal Roundtable, and a leading expert on Brazilian corporate and M&A matters. This paper was authored by Debora Bacellar, partner, José Otavio Faloppa, partner, and Daniel Abraham Loria, associate, from Barbosa, Müssnich & Aragão – Consultoria Tributária.

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SOUTH AFRICAN UPDATE – Investing in South Africa’s Mining Industry

Highlights: The calls by the Youth League of the African National Congress for the nationalisation of mines has been much talked about but on balance is very unlikely to occur. Most of the recovery and growth in global steel production is attributable to China’s phenomenal growth with non-Chinese production not yet recovering to pre-crisis levels. … Continued

Editors’ Note:  This paper was contributed by Michael Katz, chairman and senior partner of Edward Nathan Sonnenbergs and a member of XBMA’s Legal Roundtable.  It was authored by Otsile Matlou, head of Edward Nathan Sonnenbergs’ Mining and Resources Department and an expert in the field.

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DANISH UPDATE – Danish Disclosure Obligations Potentially Broader Than Other European Countries in M&A Context

Highlights:  Under Section 27 of the Danish Securities Trading Act, inside information must be disclosed by an issuer at the earlier of (i) the coming into existence of the relevant circumstances or occurrence, albeit not yet formalised, (ii) the disclosure of the inside information to a third party, or (iii) a leakage of the inside … Continued

Editors’ Note: Dan Moalem is a founding partner of Moalem Weitemeyer Bendtsen Advokatpart­ner­sel­skab in Denmark.  He is an expert on M&A and capital markets transactions in Denmark, including representation of foreign acquirors and investors entering the Danish market.  This paper was co-authored by Lennart Meyer Østenfjeld, a Senior Associate at Moalem Weitemeyer Bendtsen Advokatpartnerselskab.

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AUSTRALIAN UPDATE – Deal Landscape, Deal Structures and Origin of Bidders in Australian Public M&A in 2011

Highlights:  The market for Australian public mergers & acquisitions (M&A) has seen a strong resurgence in the two financial years since the GFC, both in terms of the number of deals being done but also in terms of their value. Success rates are also on the increase, with 70% of announced deals ultimately resulting a … Continued

Editors’ Note:  Mark Rigotti, Freehills’ managing partner and a member of XBMA’s Legal Roundtable, is one of Australia’s leading international legal advisors.  This paper was authored by Simon Reed, Partner, and Mark Tyler, Senior Associate, at Freehills.  Mr. Reed advises on general corporate matters including public company takeovers and private mergers and acquisitions and is a member of Freehills’ Corporate Group which is at the forefront of developments shaping Australia's corporate landscape.

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