“Fair M&A Guidelines” and Freezeout Transactions(4)

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Other Title
  • 「公正なM&A の在り方に関する指針」と支配株主による少数株主の締出し（4）

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Abstract

On June 28, 2019, the Ministry of Economy, Trade and Industry（METI）formulated the “Fair M&A Guidelines : Enhancing Corporate Value and Securing Shareholders’ Interests”（“Guidelines”）. The substantive law in Japan applied to freezeout transactions does not sufficiently protect the interests of the minority shareholders of the target corporations. The Guidelines are formulated to improve their interests in freezeout transactions by supplementing the deficiencies of Japanese substantive law in the freezeout context with various practical and procedural measures, which are called “Practical Specific Measures（ Measures to Ensure Transaction Fairness）” and voluntarily adopted by the parties of the transactions. The measures proposed by the Guidelines would not be sufficient to secure substantive fairness of the transactions, because their measures are designed to solve controlling shareholders’ conflict of interests in that context by resorting to the efforts of independent outside directors of the target corporations and special committees composed of them, not restricting the controlling power of controlling shareholders. The proposal of the Guidelines has structural difficulties and the productive outcome could hardly be expected. Judicial and/or legislative restrictions on controlling shareholders, including fiduciary duty of controlling shareholders, should be required to ensure substantive fairness of freezeout transactions.

Journal

  • 一橋法学

    一橋法学 23 (1), 1-58, 2024-04

    一橋大学大学院法学研究科

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