challenges in takeovers panel simon mckeon president simon mckeon president 2001
DESCRIPTION
Takeovers Panel Consistency The Panel’s consistency in decision making and policy will be one of the main drivers for increased certainty and confidence for the market We will continue to work diligently in 2001/2002 to maintain our consistency, especially with the increased number of Panel membersTRANSCRIPT
Challenges inChallenges in
Takeovers Panel
Simon McKeonPresident
20012001
TakeoversPanel
RelationshipsLegalPolicy
ProcessConsistencyTimelinessCommercialityInformalityEfficiency
RulingsCostMembers, Interested Parties, ExecutivePost Mortems
Challenges for the Panel
TakeoversPanel
ConsistencyThe Panel’s consistency in decision making and policy will be one of the main drivers for increased certainty and confidence for the market
We will continue to work diligently in 2001/2002 to maintain our consistency, especially with the increased number of Panel members
TakeoversPanel
ConsistencyPanel’s tools to aid consistency
Role of ExecutivePanel DaysPolicy Sub-committees Published ReasonsPost MortemsMarket Liaison / Feedback
TakeoversPanel
TimelinessThe Panel will not be a success unless it delivers timely decisions
Often, 90% right in a rapid time frame is preferable to being perfectly correct in a long time frameChallenges
Finding time to fit proceedings into part-time members’ schedulesManaging information flows from combatantsManaging work load peaks for Executive staffDelivering reasons
TakeoversPanel
Commerciality
Has not been a significant problem
Challengesinherent legalism of Chapter 6parties mainly converse with Panel through lawyers, rather than investment bankshigh population of lawyers on Panel
TakeoversPanel
Informality
Similar challenges to “Commerciality”
Assisted by positive attitudes of Panel members
Assisted by informal nature of Executive
Challenged by legalism of some parties, especially adversarial litigators
TakeoversPanel
EfficiencyAssisted by:
need of part-time members to get back to day jobscommercial lawyers of parties adapting to new environmentmembers’ commerciality/ informality
Hindered by: :encroachment of part-time members’ day jobsadversarial approach by some parties
TakeoversPanel
Relationships
The Panel is a body which operates in a necessarily complex legal and regulatory environment. Its success as an organisation and as a public regulator depends very much on the quality of its relations with other regulators (including offshore), market participants, the Courts and other stakeholders.
TakeoversPanel
RelationshipsRelationship with ASIC: As part of this programme, the Panel has entered into a Memorandum of Understanding with ASIC
Relationship with Courts: The Panel will be working very hard to ensure that we have a co-operative and effective relationship with the Federal and Supreme Courts. The privative clause in section 659B of the Law and its interpretation is clearly very important for the Panel’s future
TakeoversPanel
Relationships
Relationship with marketMembers come from, and are, the marketOpenness of process Publication of reasons Post mortemsConsultation on rules and policiesPublication of policies Market liaison seminars
TakeoversPanel
Relationships
Relationship with GovernmentMinister FSR
Treasury
Opposition
TakeoversPanel
Legal Privative clause - s659B
Possibility of constitutional challengeDraftsman has worked hard to avoid constitutional problemGovernment would be heavily involved if challenge eventuated if and when it happens
TakeoversPanel
Legal - Scope
Is there a role for further uses of the Panel?
Review of other ASIC Ch. 6 discretions (e.g. consent to withdrawal of bid)Chapter 6 exemption and modification
Listing Rule waivers
Listing Rule breaches
Financial penalties for Listing Rule breaches
TakeoversPanel
PolicyProactive
will continue being pro-active in providing guidance on difficult issues through Panel policy documents before they get to the Panel as applicationsdeal with emerging market practices - break fees etcprovide guidance in areas of uncertainty - eg forecasts
Market’s viewswill continue to seek the market’s views on which issues are important and are generating uncertainty
TakeoversPanel
PolicyPublished(Final)1 Unacceptable Circs
(reviewing)2 Review of Decisions3 Making Rules4 Remedies & Enforcement5 Restraining Documents
Current WorkForecastsFrustrating TransactionsRulingsClasses of Shares (internal advice)CostsConflicts
(Draft)1 Procedural Rules2 Break Fees
TakeoversPanel
Advance RulingsSome demand from the market
Strictly, no power:devices to “construct”an applicationExecutive may give non-binding “views” based on experience and previous Panels
Very difficult on hypothetical, ex-parte or no-names bases
Significant legislative change if proposed
ASIC exemption power
TakeoversPanel
Costs - FundingCosts
should not generate a special focus on costs/taxationamend s657D(2) to order costs where circumstances are not unacceptable Panel’s costs (related to funding)
Fundingnot related to work loadnot funded by applicationsoverseas models
TakeoversPanel
MembersWe look forward to working with the new members of the takeovers and business community who have been appointed to the Panel to deal with our increasing workload
In Australia’s small business community, conflicts are always likely to restrict the number of members of the Panel who are available to sit on any particular matter, so our wider Panel membership is necessary
TakeoversPanel
Challenges re membersConsistency with 43 membersAchieving single view with 43 members
that is not merely motherhoodthat can be accepted by all
example is Break Fees Policy
Servicing the needs of members having a diverse range of takeovers experiences and geographyMaintaining interest with 43 membersMaintaining collegiality
TakeoversPanel
Challenges re membersChallenges we have NOT had
dealing with egos
enthusiasm of members
commitment of members
availability of members• sitting on Panels • travelling to/sitting in conferences• sitting on policy sub-committees• attending Panel Days
TakeoversPanel
Challenges for Members
ConsistencyTimeliness - fitting in to day jobsCommerciality of decisions
Hearings - practical difficultiesCostsExercising quite strong powers
TakeoversPanel
Challenges for PartiesApplications
discharging burden of persuasionraising actionable grounds (i.e. how are the circumstances unacceptable)
Commercial negotiation - not Court
Addressing business people - not judges
Timing
TakeoversPanel
Challenges for Executive
Maintain the goodwill of Australia’s law firms and investment banks to continue to supply the Panel with excellent quality secondees
Maintain the Panel as a most desirable place for secondees to come for experience
Manage the issue of conflicts where secondees’ firms act for parties
TakeoversPanel
Post-MortemsPart of standard procedure with every matterExecutive discusses with parties (usually parties’ advisers)Pro-forma works through all aspects of process, decision, reasonsFeedback
Sitting PanelWider Panel
TakeoversPanel
Processis assisting in fast-tracking dispute resolutionsubmissions in writing disturbs tactics of aggressive litigators
ConferencesPanel is controlling proceedings wellquestioning seems appropriatehelp to speed up the process highlight Panel’s focus
BriefsBriefs are clear, easy to understand and demonstrate a good understanding of the issuesappropriately ‘vetted’ the applications and focused on key issueswhere new facts/submissions after Panel sets picture, a revised brief may be necessary to keep process on track
Positive Feedback
TakeoversPanel
Deadlinestight but not unreasonable, but watch impact on small firms and parties from West - 12 noon is ideal
Decisions and Orderson the whole, fair and reasonable commercially focusedorders have been practical and commercial
Reasonsexplain the Panel’s decision well well considered and thoroughbut sometimes too slow
Positive Feedback
TakeoversPanel
Keeping parties “in the loop” – ensuring: parties have copies of all documents, including applications etcparties are adequately notified of Panel’s decision and publication of reasonsparties are kept apprised of the timetable
Conferencessome parties still want more conferences - they want ability to test other parties’ evidence
Major Issues
TakeoversPanel
Breach of confidentialityPanel rules aren’t preventing dissemination of information from Panel proceedingsPanel needs to consider how it can enforce its rule
Adverse comments about parties in reasons
parties have opportunity to comment on errors of fact or unfair references
Major IssuesMembers
need for more expertise in specific areas?
TakeoversPanel
ASICparties confused over role of ASIC v role of Panel in giving exemptions/orders re: dispatch of documentsPanel v ASIC re: investigations - who is responsible?different approaches by different Regional Offices
Major Issues
Multiple applicationsPanel continually considers whether it can do anything to avoid multiple applicationscosts might be a useful deterrent, but Panel only has limited powers
TakeoversPanel
Challenges inChallenges in
Takeovers Panel
Simon McKeonPresident
20012001