Zulässigkeit von Abwehrmaßnahmen gegen die feindliche Übernahme einer börsennotierten Gesellschaft im japanischen und schweizerischen Recht

Abstract

A comparison of anti-takeover defenses in Japan and Switzerland shows that Japanese boards of directors have a greater array of more effective defensive measures at their disposal than their Swiss counterparts. Seen against the background of the two jurisdictions’ very different regulations regarding the mandatory bid and acquisition of control rules, this does not come as a surprise. The defensive measures available to a stock company depend, furthermore, on how the authority of the shareholders’ meeting is construed in the context of a takeover. Even if the shareholders ultimately decide on a change of control by selling their shares, it is the board of directors, as the highest executive body of the company, that sets the course in this regard. If the board of directors has sufficient means to fend off a hostile bid without relying on the shareholders’ approval, the shareholders’ decision is effectively preempted. In this regard, the board of directors in Japan need not show as much consideration for shareholders’ rights of participation as a Swiss board must. Switzerland protects these rights more comprehensively. In Japan, the separation of ownership and control seems to be more pronounced. Nonetheless, in implementing defensive measures, and especially in issuing shares and share options, boards of directors in Japan still do not seem to be completely free from shareholder participation.