The Takeovers Panel is the primary forum for resolving disputes about a takeover bid until the bid period has ended. The Panel is a peer review body, with part time members appointed from the active members of Australias takeovers and business communities. The Panel seeks to decide disputes in a speedy manner by focusing primarily on commercial and policy issues.
The Panel was established under section 171 of the Australian Securities and Investments Commission Act (the ASIC Act). It is given powers under Part 6.10 of the Corporations Act (the Corporations Act). The Panel has a full time Executive based in Melbourne to assist members of the Panel and the takeovers community and to draft policy.
Panel and executive
The Panel members (who make the decisions on applications) are specialists in mergers and acquisitions; either as investment bankers, lawyers, company directors or other professionals. They are government appointments under the ASIC Act. For further information, see Panel members and Panel member alumni.
The executive of the Panel consists of 4 Treasury employees (Director, Counsel and 2 support staff) and up to 2 secondees who are usually drawn from law firms.
The Panels executive are not delegates of the Panel and, therefore, do not perform any of its discretionary or adjudicative roles. In other words, the Panel executive does not make decisions in Panel proceedings regarding the merits of an application or circumstances; those decisions are made by sitting Panel members. Advice which the Panel executive may give as to its assessment of any real or hypothetical circumstances discussed with market participants, or parties, is not binding on the Panel or on any sitting Panel.
Role of the Panel
Primary Dispute Resolution Forum
Under s659B of the Corporations Act, private parties to a takeover no longer have the right to commence civil litigation, or seek injunctive relief from the courts in relation to a takeover, while the takeover is current.
The Panel has wide powers. Its primary power is to declare circumstances unacceptable in relation to a takeover or the control of an Australian company or a listed managed investment scheme. However, the Panels jurisdiction to consider these issues is limited to where a person who has standing makes an application to the Panel. Further information on who has standing to make an application and how to make an application to the Panel can be found on the How to Apply page.
There is no definition of unacceptable circumstances. The Panels ability to make a declaration of unacceptable circumstances is broad. Guidance Note 1 provides an overview of the Panels approach to making a declaration of unacceptable circumstances, including the Panels powers and the circumstances in which the Panel may declare circumstances unacceptable. See Guidance Note 1 for further information.
The Panel has the power to make orders to protect the rights of persons or groups (especially target company shareholders) during a takeover bid and to ensure that a takeover bid proceeds (as far as possible) in a way that it would have proceeded if the unacceptable circumstances had not occurred.
Review of some ASIC and Panel Decisions
The Panel also has the power to review decisions of the Australian Securities and Investments Commission (ASIC) regarding whether to grant exemptions or modifications to Chapter 6 or Chapter 6C during the life of a takeover. This function had previously been carried out by the Administrative Appeals Tribunal. These powers are set out in s656A of the Corporations Act.
Under s657EA of the Corporations Act, the Panel also has a function of reviewing its own, first instance, decisions concerning unacceptable circumstances. A Panel reviewing the first instance decision of another Panel consists of different members. There can be only one review of an original Panel decision.
The Panel has an additional review function if a matter is referred from the court, under s657EB of the Corporations Act.
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