UK considers tougher approach to foreign takeovers
Wednesday, June 8, 2011
LONDON (AP) — What do Britain’s major airports, most of its utilities, the top drugstore chain, one of its biggest brewers and the maker of the nation’s favorite chocolate bar have in common? All are owned by foreign companies.
They have been snapped up in recent years in a rash of takeovers that is raising concerns about how much of this island nation has fallen to profit-seeking investors from abroad.
While the United States and many European countries have strict regulations barring foreign control of many businesses, Britain has been largely content in the belief it has more to gain than lose from its relaxed takeover rules.
But last year’s controversial $18.5 billion takeover by Kraft Foods Inc. of 195-year-old Cadbury PLC, maker of the Dairy Milk bar, stirred up nationalist sentiment and prompted the government to consider a tightening of the legislation.
With its decision on a so-called Cadbury Law due in just a few weeks, debate is raging about whether Britain should become more protectionist.
On the one hand, unions argue that more foreign takeovers hurt Britons’ job prospects. On the other, businesses and legal experts say that putting up barriers to entry will block crucial investment and encourage tit-for-tat practices.
Britain has consistently attracted more foreign direct investment than any other European country. According to analytics firm Dealogic, foreigners have spent more than $1 trillion on acquiring 5,400 British companies in the past decade. The British, in return, have spent $750 billion on 6,000 companies.
That trend has ratcheted higher in recent years, with overseas buyers attracted by the weak British pound and the country’s comparatively relaxed tax laws.
Last year, foreign purchasers accounted for 54 percent of the 113 takeovers, compared with just 40 percent in 2009, according to London-based law firm Wedlake Bell.
Among the foreign owners are Spanish infrastructure firm Ferrovial, which bought Heathrow Airport owner BAA in 2006 for 10.3 billion pounds, while French utility EDF acquired British Energy in 2008.
Car manufacturer Jaguar Land Rover, meanwhile, is on its third foreign owner, Tata Motors of India.
Potential future targets include banknote printer De La Rue, oil firm BP, food group United Biscuits, the London Stock Exchange, gas company Centrica and software manufacturer Invensys.
“It is an endorsement of the health of our public markets that so many overseas companies are interested in investing in London-listed companies,” said Tim Bird, a partner at law firm Wedlake Bell. “However, we should be concerned that British firms do not have the firepower to be the hunter rather than the hunted as it suggests that U.K. companies are still relatively weak coming out of the financial crisis and the recession.”
Many are worried the country’s liberal takeover regime makes Britain’s companies easy targets to predators from countries — mainly the United States, France, India and China — that do not allow anywhere near the same level of foreign access in return.
In the U.S., poison pill defenses — corporate plans to discourage takeovers — are still legal and many states have laws preventing foreign takeovers. Unlike its relatively easy entry into Britain, Dubai’s DP World’s attempt to buy port management businesses in the U.S. in 2006 was scuppered by a political backlash.
In Europe, Italy’s government joined others this year in considering new rules to thwart unwanted foreign takeovers in sectors deemed strategically important.
Canada, like some developing countries, has been aggressive in warding off foreign bids to use its mineral wealth to strengthen other sectors. Australia’s BHP Billiton last year abandoned its $39 billion bid for PotashCorp after failing to secure government approval.
A major concern is that foreign ownership can have a big impact on jobs.
“While there may be a business sense in some consolidations — for instance British Airways and Iberia — we are always very wary about the underlying rationale for the fusion,” said Len McCluskey, general secretary of leading trade union Unite.
Last year’s Cadbury-Kraft deal appeared to bear out such worries. Both lawmakers and the public were outraged when the U.S. company reneged on a pledge to keep open a British chocolate factory, switching production to Switzerland instead to reduce its tax bill.
A cross-party committee of lawmakers in May said they still have “significant concerns” about the company’s jobs plans, and criticized Kraft’s chief executive Irene Rosenfeld for refusing to appear before parliamentary hearings.
In the feverish climate that followed the deal, Business Secretary Vince Cable, a member of the governing Conservative-led coalition, launched a consultation examining tougher rules for hostile foreign bids.
Proposals under consideration included increasing the threshold for control of a company to 66.6 percent from the current 50 percent and banning hedge funds from voting on offers.
But it appears the government will shy away from any protectionist measures that take into account the nationality of the bidder and instead adopt more measured suggestions from the Takeover Panel.
The panel’s changes include forcing predators to disclose more about their intentions and ensure they cannot lay siege to firms for long periods of time that create uncertainty for employees and shareholders. Break fees and non-solicitation deals will be outlawed, except in case of a friendly rescue takeover, and bidders will also have to stick to any pledges to employees for at least a year.
Patrick Sarch, an M&A partner in the corporate practice at London law firm Clifford Chance, which advised on the Cadbury deal, said the government was right to avoid any kind of public interest test that would potentially politicize takeovers, creating uncertainty for both buyers and sellers.
“Having a political discretion would ultimately be quite arbitrary,” he said.
Sarch is among those who point out that not all foreign takeovers are negative as many bring significant investment. Some have resulted in headquarters — and jobs — being moved to London such as the merger of TUI and Thomas Cook. Jaguar Land Rover, meanwhile, probably wouldn’t exist given the lack of domestic interest.
And regardless of how far the government takes the Cadbury Law, just about everybody agrees that keeping Britain competitive in areas like skills, infrastructure and tax is the only way to ensure a level playing field for both foreign and local buyers.
In the end, Sarch points out, it may be a case of shutting the stable door after the horse has bolted: “It’s a bit late in some ways to start protecting stuff now.”
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