Foreign solutions for local problems? The use of US-style fiduciary duties to regulate agreed takeovers in China

Abstract:

The private sale of corporate control, or agreed takeover, of listed companies has been the primary form of control transactions in China. However, such takeovers have, in many cases, presented an opportunity for the control buyer and seller to extract value from the company at the expense of the target company's non-insider minority shareholders. One key legal development that attempts to address this issue is the imposition of US-style fiduciary duties on both incumbent and new controllers. This article argues that placing controllers under fiduciary duties has largely failed to protect the minority shareholders of Chinese listed companies from the exploitation of both the seller and buyer of corporate control. The failure is partly due to the weakness of the requisite complementary legal institutions, and partly due to the absence of a supporting social context.

Keywords: fiduciary duty; corporate control transactions; company law; China

Document Type: Research article

DOI: 10.1080/14765280802431779

Affiliations: 1: Faculty of Law, the Chinese University of Hong Kong, Hong Kong