On Issues Of Validity Of Value Adjustment Term

In 2012,the final judgement of “Haifu Case” made by Supreme People's Court built up the game rules for the business of PE and VC that the Value Adjustment Term can be concluded and signed with shareholder of the company and shall not be concluded and signed with the company;In 2014,a reversal arbitral decision(“Case of CIETAC”)made by arbitrators of China International Economic and Trade Arbitration Commission recognized the opinion that the investor can conclude and sign the Value Adjustment Term with the shareholder as well as with the company the aforesaid shareholder holding.The Case of CIETAC stirred up a new wave of discussion on Value Adjustment Term.Under the conditions that the details of the cases of “Haifu Case” and “Case of CIETAC” are similar,the mutually contradictory views of Court and Arbitration made it urgent to carry out the research on Value Adjustment Term.The methods of Empirical analysis,case study and comparison are all applied to this essay,and the theories of contract law and corporation law are used to carry out the research and discussion on the issues under this essay deeply.As the starting point,subject to the theory of contract invalidation under contract law and the theory of corporation capital under corporation law,combining with the rules analyzing,I carry out the discussion on some specific issues of the disputing of Value Adjustment Term.Then,I,subject to the concept of Autonomy of Privat Law,Liberty of Contract and Company Autonomy,discuss some of my opinions so as to prove that the judging opinions of “Haifu Case” is false.Through the comparative analysis between “Haifu Case” and “Case of CIETAC” and the analysis to other case,it is considered that the Value Adjustment Term between investor and invested company shall not be invalid inevitably,the validity of Value Adjustment Term shall be judged under the specific condition,environment and the state of the parties and the commercial judgement rule shall also be considered.For the judging of VAM term,the judge shall not select the “validity” as the sole approach in order to avoid the leading of path dependence.