Contribution to the study of takeover bids in French and American law: The attribution of decision-making power in the light of the economic analysis of law.

Summary The challenges facing the regulation of takeover bids are multiple. While they are related to the issues specific to this type of transaction, they are also closely linked to the regulation of stock markets. Moreover, these operations are often controversial. Of an economic as well as a social nature, the interests at stake, whether they be those of the directors, the shareholders or the employees, are indeed considerable and often prove to be antagonistic, necessarily implying an arbitration. Lawyers from Common Law countries first, and then from Civil Law countries, have been examining the different issues raised by these transactions. In the United States, where the debate is lively and abundant, they have been approached more particularly through the prism of the economic analysis of law. Among the questions they raise, however, there is one that precedes them all: that of the attribution of the power to decide their outcome. This question is functional in nature and is decisive because the development of these operations, desired by the proponents of the economic analysis of law, is directly dependent on the category of persons likely to decide on the rejection or acceptance of the offer. Naturally, the shareholders of the target company, the addressees of the bid, but also its managers are approached to assume this role. For the proponents of the economic analysis of the law, the decision-making power must imperatively return to the former. The purpose of this study is to determine to which category of persons the French and American regulations intend to confer the right to decide on the outcome of the bid and thus to evaluate in this respect the capacity of these rights to promote the development of takeover bids.