Research On The Legal System Relevant To The International M&A In Australia

Cross-border Merger and Acquisition (M&A) refers to acts by which some enterprise located within one country purchases all or parts of assets owned by another enterprise or stocks possessed by stockholders of the mentioned enterprise in another economy. Unlike pure domestic M&A, cross-border M&A transaction is international in nature, it shall be placed under overlapped regulations by both the home state of foreign investor and the host state in order to offset potential adverse effects on the two states and help to safeguard overall economic and social strategy respectively. Australia is the main host state for Chinese overseas investor because of its rich mineral and energy resources with high quality. Therefore, conducting systematic research on Chinese and Australian regulatory regimes relating to cross-border M&A transaction carried out by Chinese enterprises can effectively further cross-border M&A transaction, prevent possible risks brought about by it and safeguard significant eco-social strategy of both states.This article is divided into six chapters.The first chapter "General introduction to cross-border M&A" briefly describes the concepts of M&A and cross-border M&A, the classifications of cross-border M&A and its legal features, outlines the situation of cross-border M&A in Australia in general. Cross-border is not only the transfer of productive elements among state, but the transformation and innovation of enterprise inner organization. It can be categorized into assets M&A and shares M&A based on the objects, horizontal, vertical, and mixed, according to industrial value chains, and so forth. On account of its huge scale and international nature, it shall be under overlapped regulations imposed by the home state of foreign investor and the host in the meantime. In recent years, cross-border M&A has been very active in Australia as Australia is rich in mineral and energy resources with high quality and Australia has become one the most important objecting state for Chinese enterprises.The second chapter titled the screening regime for cross-border M&A in Australia introduces the key substantial and procedural regimes of cross-border M&A including the screening authorities, screening scopes, screening standards and procedures, analyzes the possible legal risks and the corresponding countermeasures arising out of cross-border M&A in Australia by Chinese enterprises. Since the middle70s in last century, Australia adopted the Act on Cross-Border M&A and other bills aiming to enhance the control of foreign investment and establishing the regulatory framework comprising the reviewing committee for foreign investment, the scopes of preliminary screening and the immunity from reviewing, the standards of national interest and the furtherance of economic development and the judicial safeguard system which strengthens the effectiveness of the decisions made by those screening authorities.The third chapter mainly discussed the screening system of anti-monopoly in Australia. Australia has set up systematic legal framework for screening the effect of cross-border M&A on domestic competition order. The cross-border M&A transaction shall be denied if it can be categorized into restrictive business practices, the misuse of dominant market position and the substantial lessening competition. However, the reviewing authorities shall be entitled to give a permit of cross-border M&A in consideration of public interest.The fourth chapter "the legal control of cross-border M&A conducted by public company in Australia". Generally, the cross-border M&A conducted by public company shall be regulated by the security laws and competition law. In this part, the author discusses the different modes of cross-border M&A conducted by public company in Australia and theirs advantages and disadvantage, furthermore, the author analyzes the dilemmas the public company faces when conducting cross-border M&A and resolutions.The fifth chapter’the taxation of cross-border M&A in Australia" specifically focuses on the taxation issues arising from cross-border M&A. the legal regime of taxation relating to cross-border M&A determines the choose of transaction manners and realizing tools, by observing the latest tax legislations, the author makes a comparative study on the burden of tax and its impaction on the choose of realizing tools by taking mineral industry as an example.The sixth chapter "some key legal issues relating to cross-border M&A in Australia by Chinese enterprises discusses some important regulatory regimes for cross-border M&A by Chinese enterprises from China’s perspective, including the screening system for outflow of capital, anti-monopoly, the control of foreign exchange and the supervision of state-owned assets and stocks as well.