In the case of real property owned by an Austrian target the change of ownership may trigger real estate transfer tax.
As it regards certain industries (eg banking sector) the applicable regulations may provide additional notification obligations. In certain events (eg acquisition of a qualified participation (Qualifizierte Beteiligung) a transaction may also require a respective approval by the authorities or be subject to certain conditions.
Access to the Chinese market still remains highly regulated. Investment access restrictions (e.g. applicable negative lists), regulatory consents or registrations, and license requirements need to be carefully evaluated upfront and may affect the acquisition structure. Language and bureaucratic requirements can increase the deal complexity and may prolong the timeline up to closing.
Cultural differences also need to be carefully managed to avoid surprises.
There are special regulatory requirements in fields such as energy, health care, insurance, banking, etc. where it is necessary to notify and/or to get prior approval from the authorities. Therefore, we would generally advise to consult such matters with a lawyer in advance.
In case of asset deals public licenses do not transfer to a new legal entity; they have to be requested in advance for the new entity to be operational.
England & Wales
English law is often used for cross-border deals and English style M&A documentation will be quite similar to that used in some other jurisdictions, such as the US.
Pension deficits require substantial due diligence in view of huge potential liabilities to be made good.
In certain circumstances, the transaction may be subject to:
- prior approval from the French Ministry in charge of Economy and Finance if the activities of the French target are considered as sensitive regarding the French public order or if there is one contract concluded with the French authorities, and
- consultation/information of the employees’ representatives.
Acquisitions in Germany are traditionally made by private agreements. Large scale takeover battles of the kind witnessed in the US and the UK have few equivalents in the German market. The vast majority of transactions are related to the acquisition of medium-sized, mostly family-owned businesses (so-called Mittelstand). Germany has a very liberal attitude toward foreign investors. For cross-border deals, German style M&A documentation is often aligned to the extent possible with international standards. The acquisition of a direct or indirect interest of 10% of the voting rights in a German enterprise is subject to review by the Federal Ministry of Economy if the acquirer is either resident
- outside the EFTA or
- within the EFTA but has a shareholder resident outside the EFTA who holds 25% or more of the acquirer’s voting rights.
Generally, no legal, regulatory or governmental restrictions on transfer of shares in a Hong Kong incorporated company unless the target business belongs to the following sectors:
- Banking (regulated by the Banking Ordinance (Cap 155));
- Insurance (regulated by the Insurance Companies Ordinance (Cap 41));
- Securities and futures (regulated by the Securities and Futures Ordinance (Cap 571));
- Provident fund (regulated by the Mandatory Provident Fund Schemes (General) Regulation (Cap 458A));
- Telecommunications (regulated by the Telecommunications Ordinance (Cap 106) and the Competition Ordinance (Cap 619) (see above)); or
- Broadcasting (regulated by the Broadcasting Ordinance Cap 562).
The Transfer of Businesses (Protection of Creditors) Ordinance (Cap 49) (TBO) provides that whenever a business is transferred, the purchaser shall become liable, notwithstanding any agreement to the contrary, for all the debts and obligations arising out of the carrying on of business by the seller, unless the parties publishes a notice of transfer within the time limit specified under the TBO. The purchaser will only cease to be liable for all obligations of the seller on the date which the notice of transfer becomes complete, which is one month after the date of the last publication of the notice, unless within that period a creditor commences proceedings against the seller in respect of any liability of the seller arising out of its carrying on of the business.
Banking - The National Bank of Hungary is involved in the authorisation to merge financial institutions, but its authorisation is not a substitute for the authorisation of the Economic Competition Office.
Media/broadcasting - The Economic Competition Office shall obtain the opinion of the Media Council for the approval of concentration of such enterprises which are bearing editorial responsibility and the primary objective of which is to distribute media content to the general public via an electronic communications network or a printed press product. As a main rule, the Media Council shall not have the right to refuse granting official approval, when the level of merger between independent sources of opinion after the merger will ensure the right for diversity of information within the relevant market for the media content service. As a main rule, the amount of the administrative service fee payable to the Media Council for its procedure as administrative authority shall be two million forints (approximately EUR 6.153,-), payable to the Economic Competition Office together with the procedural fee.
Electricity and natural gas utility: approval of the Hungarian Energy and Public Utility Regulatory Authority for the merger of electricity and natural gas utility companies operating under licences issued by the same authority.
M&A documentation will be quite similar to that used in some other jurisdictions, such as the UK and US. Regulatory consents may be required depending on the nature of the deal eg. Central Bank of Ireland approval is needed for certain banking and insurance transcations. Pension deficits require substantial due diligence in view of huge potential liabilities to be made good.
Dutch style M&A documentation is partly “leaner” compared to, for example, US style documentation. This is because statutory Dutch law already provides for many of the definitions of contractual terms and concepts, e.g. definition of damages etc., so that fewer contractual details are needed.
For cross-border deals, Dutch style M&A documentation is often aligned to the extent possible with international standards.
In general, Dutch M&A is relatively foreign investor friendly.
When an individual from outside the EEA acquires shares in a Polish company which owns a real property, a permit for a transaction has to be obtained from the Minister of Internal Affairs.
Certain business activities are regulated and may be subject to licensing, permits or authorisations. The licences may contain provisions requiring prior consent or approval from the relevant governmental or regulatory authority for any change of ownership of the licence. Certain public M&A transactions may require obtaining consents or approvals from the relevant personnel, governmental or regulatory authorities. If the M&A transaction comes within the scope of the Competition Act (Chapter 50B of Singapore), parties may wish to consult the Competition Commission of Singapore to ensure compliance with the competition laws in Singapore.
Similar to other countries, special sector regulation applies to companies being active in the particular sector (e.g. merger of banks requires prior approval of the regulatory authority). Apart from this “sector” requirements, there are generally no issues to be considered. In most of the transactions, M&A documentation is similar to international standards and Slovakia is friendly to foreign investors.
United Arab Emirates
In the UAE, almost every share transfer requires the pre-approval of the concerned Company Registrar (DED or free zone registrar), and if the activity conducted by the target company is regulated and subject to a third party authority approval requirement, a no objection certificate from such third party authority is typically required in relation to a share transfer to a new shareholder.
In some cases (depending on the concerned registration authority and/or the details of the transaction) official newspaper publications need to be arranged prior to the share transfer.