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Who Writes the Rules for Hostile Takeovers,
and Why?—The Peculiar Divergence of US
and UK Takeover Regulation
John Armour
University of Cambridge
David A. Skeel, Jr.
University of Pennsylvania
Abstract
Hostile takeovers are commonly thought to play a key role in rendering managers
accountable to dispersed shareholders in the “Anglo-American” system of corporate
governance. Yet surprisingly little attention has been paid to the very signifi cant
differences in takeover regulation between the two most prominent jurisdictions. In the
UK, defensive tactics by target managers are prohibited, whereas Delaware law gives
US managers a good deal of room to maneuver. Existing accounts of this difference
focus on alleged pathologies in competitive federalism in the US. In contrast, we
focus on the “supply-side” of rule production, by examining the evolution of the two
regimes from a public choice perspective. We suggest that the content of the rules
has been crucially infl uenced by differences in the mode of regulation. In the UK,
self-regulation of takeovers has led to a regime largely driven by the interests of
institutional investors, whereas the dynamics of judicial law-making in the US have
benefi ted managers by making it relatively diffi cult for shareholders to infl uence the
rules. Moreover, it was never possible for Wall Street to “privatize” takeovers in the
same way as the City of London, because US federal regulation in the 1930s both preempted
self-regulation and restricted the ability of institutional investors to coordinate.
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