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The Takeover Panel is set to study schemes of arrangement and will clarify its position later this year.
The panel only has two references to schemes of arrangement in the Takeover Code, and according to City lawyers there is a ‘shoehorning’ of rules, but that will end with the implementation of explicit rules.
A spokesperson at the panel told The Lawyer that one-third of takeovers now employ schemes as a tool, despite no official stance from the panel.
He confirmed that the panel is planning to send out a consultation paper to help clear up the ambiguity. Arrangements are not subject to normal City codes, but are in fact approved by the High Court.
The recent £6.7bn battle for Anglo-Dutch steelmaker Corus also broke new ground in the area, as both bidders, Indian conglomerate Tata and Brazil’s Companhia Siderúrgica Nacional (CSN), entered into arrangements. This is highly unusual in hostile or competitive bids.
Macfarlanes advised CSN on a second arrangement (after Herbert Smith client Tata’s original offer) on the precondition that the Tata bid had to fail.