How to Write a Law Essay Introduction (Sample 1 Class Law Essay)
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“The proposed takeover of Cadbury highlights the importance of UK takeover regulation.” Discuss.
The rise of Hostile Takeovers and Market for Corporate Control
The rise of the hostile takeovers
The mechanism of hostile takeovers was the product of “the changes in share ownership that occurred in the 20th century combined with minor changes that were made to company law”. The process was aided by continual increase of institutional shareholders on the shareholder registers of public companies and their willingness to sell their shares to hostile bidders. These takeovers or their mere threat proved to “create the perfect microcosm for agency problems to proliferate” but to those pioneering Market for Corporate Control (MCC)  they were also seen as providing “solutions to agency problems generally”. The professional class of management which had emerged from the separation of ownership and control made agency costs more of a concern than had previously been the case and heightened the need for a system that ensured management was accountable to the now dispersed often passive shareholders. In this respect MCC was said to address these issues, providing an alternative disciplinary mechanism to internal and external mechanisms, which were ineffective and slow to respond to mismanagement in large public companies.
Market for corporate control
The UK takeover regime has a pro-MCC approach. The question arising from the Cadbury Takeover is whether MCC can still be said to be an efficient disciplinary mechanism for management or whether it is actually destructive to our economy and is merely mechanism which enables the transfer of wealth from one group to another. In relation to this question, John Coffee illustrates four alternative hypotheses to MCC: the disciplinary, synergy, empire building and exploitation hypothesis. The first two hypotheses see takeovers as efficient wealth generating mechanisms whilst the last two represent a more skeptical approach to MCC seeing it in terms of wealth transfer. As such, one’s assessment of the UK takeover regime and idea of what a takeover regime should aim to achieve will depends on which of the hypothesis they chose to adopted.
Key to the function of MCC is the idea that the price of shares acts as an indicator to management inefficiency. The orthodox view is therefore “that the most effective method of preventing a bid is an efficient company with a high share price” as it places an economic restraint on a bidder’s ability to offer a premium. The presence of hostile takeovers is not indispensable to a properly functioning MCC, the mere threat of being taken over compels management to be efficient. Upon this assessment an active MCC is good for the economy as it increases efficiency and reduces agency costs in publicly listed corporations. However, this theory is not without its limitations. As “recouping a sufficient reward depends first on the cost of the company reflecting its under-performance and not being inflated in other ways” it may well be the case that MCC as a remedy for mismanagement only applies to the limited number of cases where there are enormous managerial failures.
The synergies hypothesis on the other hand is broader and not just applicable to hostile takeovers but also recommended takeovers and mergers. Under this theory, value can be exploited by the target management by taking advantage of specialised resources, economies of scale or cost reductions by other means. Under this theory there is a strong positive dynamic behind takeovers and the resulting wealth leads to overall improvement in both companies; benefiting not only the target and bidder shareholders but also the overall economy.
The disciplinary and synergy hypothesis highlight a shareholder orientation and thus tend to be adopted by contractarians who have consistently supported the existence of an active MCC and the idea that of shareholder value as a primary consideration above all else. However MCC is not without its critics. The general objection are illustrated in the empire building and exploitation hypothesis highly supported by those who chose to take a stakeholder approach to corporate governance. 
The empire-building hypothesis represents the idea that in engaging in takeovers management is primarily motivated by the desire to be in charge of something bigger as this leads to greater remuneration. Another issue which is left unexplained by MCC theory is succinctly put by Galbraith who notes that: “the danger of hostile takeovers is negligible in the management calculations of the large firm and diminishes with growth and dispersal of stock ownership”. The point here is that management engages in takeovers because the bigger a company gets the more immune it is to a hostile bid. Consequently, a flexible takeover regime such as the UK’s will end up thwarting MCC. Upon this assessment of MCC the winners are always target shareholders, hedge funds and bidder management who benefit at the expense of all other stakeholders.
The last of Coffee’s hypothesis is the exploitation theory, which states that MCC theory is “not easily reconcilable with cyclical-industry-specific takeovers” and in reality instead of continual monitoring of the market for mismanaged companies, what we have is opportunists consistently watching market for unnatural dip in a particular company’s share price or temporary depression in the market. This clearly cannot be said to be MCC operating properly and those adopting this hypothesis see an open market that facilitates takeovers an undesirable approach to takeover regulation.
Main features of the UK Takeover Regulation
In contrast to jurisdictions the United Kingdom takeover regulation has come in the form of self-regulation. The first attempt at self-regulation was through the Notes on the Amalgamation drawn up in 1959 by British Businesses at the instance of the Bank of England. However, the notes proved ineffective in the face of the take-over wave in 1960s and neither was common law able to deal with the worrying responses of conflicted management.  In number of cases, management’ s right to issue shares in an attempt to change balance of power was challenged before the courts and a typical response from the courts was that this was management exceeding their powers and allotment was to be set aside. Business judgment rule or primary purposes rules underlined the court’s approach but the inevitable consequence of this case-by-case approach was delay and uncertainty, which proved undesirable to institutional investors. It was obvious that better regulation was needed if intervention from a pro-union government was to be avoided. The choice to was privatize the matter and a Takeover Code was instituted in the late 1960s. Further a panel stuffed by the City’ s own representatives was established in order to administer and oversee the operation of the code.
Since its inception in 1968 the code has been updated on several occasions but has remained the same in terms of substance: indeed it remains divided into rules and principles. Perhaps the main change has been the statutory footing upon which the panel has been placed fallowing the implementation of the EC Takeover Directive. The main requirements by this directive were that takeovers in the EU “be subject to regulation by supervisory authority, timetables, transparency requirements and sharing of control premium”, these requirements are now reflected mainly in the Takeover Code and the Companies Act 2006. Further the Panel’s sanctions are now enforceable by courts whereas before it only operated on reputational sanctions albeit with the supported with other financial institutions.
The Code applies to takeover bids for all public companies resident in the UK, whether listed or not and the panel assumes full jurisdiction or none at all when dealing with a takeover. It comprises of 38 detailed rules and 6 general principles. The overall aim is to ensure fair and equal treatment of all shareholders and that they are not denied the opportunity to decide on the merits of a particular takeover offer. This is done through an orderly framework and timetables laid down by the Code, designed to prevent shareholders from being pressured into accepting the offer without first consulting their advisors. The Code places great emphasis on the equality and high standard of information both in offer documents and announcement.
Desire for equality in the treatment of all shareholders, their supremacy, and importance of time efficiency are evident in provisions such as mandatory bid, squeeze out, Rule 10 and 14. The most controversial and most important provision of the code is Rule 2, which states that where a hostile bid is imminent or known to management they are prohibited from taking any frustrating actions without the approval of shareholders. The effect of this provision is that the decision is left in the hands of shareholders and although shareholders and the controversy is whether it is prudent to put them in the driving seat when they are often unaware of the direction of the company is or should be going in. In this case management’s only defense is to issue their shareholders with reports and interim accounts promising a brighter future but even then the tone and quality of such documents is controlled by the code. Managers at the risk of an unsolicited bid therefore, as well illustrated by the Cadbury Takeover, find themselves faced with an “unbridgeable gap of credibility”when a high premium is offered to their shareholders.
Further it is important to note that the Panel is largely immune from review, although its decision may be subject to judicial review, this is of very limited scope and in any case such a decision will not make any difference to the outcome of the bid.
Comparative Perspective and the merits of MCC
Agency costs is a problem whether dispersed or concentrated ownership is prominent, and differences in the substances of takeover regulatory regimes tend to lead to differences in takeover practices. It is therefore important to evaluate how other jurisdictions deal with this important issue before looking at the merits of the UK’s regulatory regime.
In comparison, both the UK and US systems have dispersed ownership and hostile takeover are thought to provide a disciplinary mechanism although the rules in both countries are different procedurally and substantively. In contrast to the UK system where the decision is left in the hands of shareholders, in the US managers are given more discretion to defend unwanted bids. US takeover regulation is said to be “the domain of courts and regulators” with judges and lawyers playing a key role in the outcome of a contested bid.
The claim that the “difference in substance flows from the mode of regulation” rather than the “existence of regulatory competition in the United states is reinforced by the common law duties of directors’ UK, which is much closer to the substance of the US model than it is to the takeover code”. Critics of US system have accounted for “the difference as flawing from the dynamics of competitive federalism.”
The result from the difference approach to the regulation of takeovers in UK and US is threefold: time, lawyers and flexibility. To this effect, the Takeover Panel has been praised for the speed with which it deals with a takeover bid. Further the flexibility of its approach “allows it to adjust its regulatory responses both to the particular parties before it and to the changing dynamics of business within the city of London” contrasts with the reactive approach of Delaware courts. The influence that insitututonal shareholders seem to have had in the UK is clearly not present in the US, where the this class of shareholders has only become strong in the last few decades. As such our the code needs reconsidered in order to take into consideration the rising influence of hedge funds in the involvement of takeovers and their influence in making a bid a self fulfilling prophesy as evidence with the Cadbury/Kraft takeover.
At the European level a more stakeholder-oriented approach is evident, particularly from France and Germany. The French government in takeovers, for example, attains assurances from bidders with regards to employment, something that the UK government failed to do with Kraft.
Potential for Reform:
In the event of a takeover the interest of shareholders and employees are conflicted and there is powerful arguments from those arguing that the interest of the community should prevail and those arguing in favor of shareholders supremacy. Two theories are given: Agency and stakeholder theory approach. The agency theory has continuously acted as a powerful ideological tool to justifying the pursuit of shareholder value. Despite it being successfully argued, the idea of managers are agents of shareholder, cannot be encapsulated by company law. however it has an appealing simplicity and it seems more informative of things like agency costs.
The stakeholder theory on the other hand argues that a regulatory regime, which is shareholder oriented harms the relationship the company has with other stakeholders. The thrusts of this argument is that an open market has the effect of making managers focus on the short term shareholder value rather than the long term benefits of the company which includes employees. Although evidence in this area is ambiguous, and often deemed inaccurate, it is generally accepted that the threat of hostile takeovers makes the management focus on short term investments as the UK capital markets only incorporates short term investments in the share price. With different countries preferring a market more receptive to takeover than others it is clear that efficiency means different things to different people. Takeovers do not always enhance efficiency and where “purely redistributional or value-decreasing motives predominate, then it may be desirable to restrict” their activity. Armour 52- Although there seem to be a lack of accurate empirical evidence on the use of hostile takeovers any share price increase post-takeover is a gradual process and thus difficult to measure empirically. 
In the face of the Cadbury takeover, there has been calls to reform the Code with CEO’s like Roger Carr arguing for the reductions of hedge fund influence on the outcome of takeovers. For example taking away their voting rights when they attain shares during a hostile takeover bid. Some have argued for employee representation on the Panel and Rule 24 seems completely inadequate in protecting their interests. This was previously represented by a public interest test in the enterprise which some argue should be reinstated. However one may argue that the incorporation of a company is to bring value to shareholder investment and to survive as a going concern rather than redistribute wealth ,which is the job of the government. 
What the Takeover Code and in particular Rule 21 seems to do is to undermine the general management discretion underlining company law by forcing management to turn their focus on the generation of short term shareholder value”.  The UK strategy is not invariably the best regime to adopt but it seems to be the correct one for the UK. It is clear that the UK open market has played a key role in attracting foreign investment into the country and an overhauling of the system is unnecessary. Legal rules tend to favor the interest of those exerting the greatest influence over the rule making process. As such the UK takeover regime still reflects the interest of shareholder and perhaps, at the best, what is needed is consideration of the interest of stakeholders.
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Online Resources & Newspaper Articles
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The Times Online – Business. (25 February 2010), “MPs blast ‘ridiculous’ pay in RBS bonus row”, per Vince Cable [Liberal Democrat Treasury spokesman]. (URL: http://business.timesonline.co.uk/tol/business/industry_sectors/banking_and_finance/article7040788.ece)
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Cases & Legislation
Howard Smith Ltd v Ampol Petroleum Ltd  A.C. 821
Moran v Household (1985)
R v Panel on Takeovers, ex parte Datafin plc  QB 815
Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc. (Del.1986)
Smith v Van Gorkom
Unocal Corporation v Mesa Petroleum Co (Del 1985)
Companies Act 2006, c.46
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Cadbury, A. (1992), “The Cadbury Report”, The Committee on the Financial Aspects of Corporate Governance and Gee and Co. Ltd. First published December 1992
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Greenbury, R. (1995), “The Greenbury Report”, Study Group on Directors’ Remuneration. First Published July 1995
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Mergers, acquisitions and takeovers: the takeover of Cadbury by Kraft
Takeover Panel Code:
London Evening Standard ‘Kraft deal shows buyout rules need change, says City Minister Lord Myners’ March 9, 2010 (Website: http://www.thisislondon.co.uk/standard-business/article-23813261-cadbury-deal-shows-takeover-code-needs-change-says-city-minister.do )
The Times Online ‘Cadbury boss calls for curbs on hedge funds’ February 10, 2010 (Website: http://business.timesonline.co.uk/tol/business/industry_sectors/consumer_goods/article7021203.ece)
Epolitix.com ‘MPs call for new regulations after Cadbury takeover’ January 27, 2010 (Website: http://www.epolitix.com/latestnews/article-detail/newsarticle/mps-call-for-new-regulations-after-cadbury-takeover/)
The Independent ‘Margareta Pagano: Is our shareholder democracy all it’s cracked up to be? The Kraft-Cadbury takeover battle raises questions’ 22 November 2009 (Website: http://www.independent.co.uk/news/business/comment/margareta-pagano/margareta-pagano-is-our-shareholder-democracy-all-its-cracked-up-to-be-1825261.html)
Takeovers: Their Causes and Consequences by Michael C. Jensen
Source: The Journal of Economic Perspectives, Vol. 2, No. 1 (Winter 1988), pp. 21-48
Published by: American Economic Association
 Curtis J. Milhaupt, “In the Shadow of Delaware? The Rise of the Hostile Takeover in Japan” (2005) 105 Colum. L. Rev. 2171-2197, at 2175
 Ibid n1
 Pettet, B. (2009) Company Law- Company and Capital Markets. Pearson Education Ltd.
 The Economist. March 27th – April 2nd 2010, pg 73-75
 The first hostile takeover is generally considered to be Charles Clore's bid for J. Sears & Co: see R. Roberts, “Regulatory Responses to the Rise of the Market for Corporate Control in Britain in the 1950s” (1992) 34 Business History 183, 185- 7 post WW1 some mergers but were friendly- lack of information and prevailing view that should listen to incumbent management, so remained friendly even in the face of dispersed ownership. Its rapid growth of the from 1960s led the beginning of systemic regulation both in UK and US. Further along with changes in tax law, the requirement for companies to make their current earning public and the introduction of more stringent accounting standards have been pointed to for the rise of this phenomenon.
 Johnston, A. “Takeover Regulation: Historical and theoretical Perspective on the City Code”, (2007) CLJ. 422, at 423
 Ibid n6
 Carke, B, “Articles 9 and 11 of the Takeover Directive (2004/25) and the market forcorporate control” (2006) J.B.L 355, at 355
 Carke, B, Ibid n8
 OECD Definition: In an economic system where the voting stock (shares) of companies are publicly bought and sold through the mechanism of a stock exchange, the term "market for corporate control" refers to the process by which ownership and control of companies is transferred from one group of investors and managers to another.
 Carke, B, Ibid n8, at 355
 Carke, B, Ibid n8, , at 359
 Pettet, B. Ibid n3, at 431
 Ibid n13
 Armour.J and Skeel, D Jr. “Corporate Governance: Who writes the rules for hostile takeovers, and why? The Divergence of U.S. and U.K. Takeover Regulation” Regulation Fall 2007 50-59.
 Carke, B, Ibid n8, at 360
 T. Jenkinson and C. Mayer (1994), Hostile Takeovers. McGraw-Hill; Their studies seek to show that the majority of hostile takeovers in the UK appear to be motivated by the bidder company’s strategic objectives rather than the desire redress mismanagement of public companies.
 Pettet, B. Ibid n3, at 423
 Deakin .S. and Slinger. G. “Hostile Takeovers , Corporate Law, and the Theory of the Firm” (1997) 24 Journal of Law and Society 124
 J. Galbraith, “A Review of a Review” (1967) The Public Interest 114
 ABN takeover good example of where this ends up in disaster; in relation to Cadbury assertions where made that Craft needed to take over another company in order to ensure its security from being taken over itself: further in the process of doing so Rosenfield increased her remuneration by 40%.
 Clarke 360 J Sears in history para: EC article and to an extent market by Cadbury [ return of mergers] - gives rise to a number of unresolved issues:
 Regulation is in the form of: the Takeover code, the CA ( encompasses much of the code and also implements much of the 2004 Directive). The Financial Services Market and to a certain extent the second 2004 directive on transparency.
 Savoy Scandal; see Johnston, A. “Takeover Regulation: Historical and theoretical Perspective on the City Code”, (2007) CLJ. 422
 Now note pre-emptive rights
 2004 directive on European takeovers
 In main articles are enshrined essence of an open MCC – Art 9 now Rule 21; and Art 11- ss966-72 Companies Act 2006 [optional]
 Camanies Act 2006, ss.945-955
 Pettet, B. (2009) Company Law- Company and Capital Markets. Pearson Education Ltd.at 426
 Example: Campanies Act s947
 Rule 9 (art 5) offer for all target shares must be made: where person/co. acquires 30% or more of voting share rights or: where person holding not less than 30% but not more than 50% of voting rights acquires additional shares which increase his/her percentage of the voting rights
 Structure of ownership of Cadbury: from last September 49% of its shares were already American owned and only 28% were British. Short term trader’ s holding however rose from 5% to 31% ( mainly by hedge funds ) in the hope of benefiting from buy outs
 Rule 19 of the Takeover Code
 Pettet,B, Ibid n3 Cadbury for instance tried to explain that the share prices were going to go up before it was sold. institutional shareholder in whom the decision seems to rests are often said to be only concerned with their exit strategy- however it seems that not all of them are passive and there is a significant percentage of them are quite active.
 R v Panel on Takeovers, ex parte Datafin plc  QB 815: the court will only look at the case once the bid has been completed and so any judgment is merely declaratory of the position in the future.
 Carke, B, “Articles 9 and 11 of the Takeover Directive (2004/25) and the market forcorporate control” (2006) J.B.L 355 -In continental Europe for example the majority of listed company shares are owned in large blocks by families or institutions closely linked to management”. There the agency problem is not the need to align management and shareholder interest but in ensuring that those block holders do not act in a manner contrary to the interest of remaining shareholders
 Mark Roe: politics path dependency. See Pettet
 Armour.J and Skeel, D Jr.Ibid n15. at 53
Armour.J and SkeelIbid n15 , at 53: a shareholder bidder who believes that target managers are “improperly resisting its bid” can generally file suit in Deaware Chancery court “The tender offer is itself regulated principally by the Securities and Exchange Commission, which assesses compliance with the disclosure and process rules.
 Howard Smith Ltd v Ampol Petroleum Ltd  A.C. 821
 Armour, Ibid n15, at 59
 Armour, Ibid n15, at 54 Political explanation to the divergence of US and UK takeover regulation. In the US “federalism has amplified the voice of corporate managers”- state lawmakers have incentive to keep them happy because they are worried that they will otherwise go elsewhere suggesting that managers will often get what they want in Delaware and elsewhere. Without this “federalist structure”, managers in the UK exert far less influence.
 “lawyers play relatively little role in the Takeover Panel oversight”- armour 53.] the principal benefit of this is that litigation costs are reduced –notes same cannot be said for lawyers so can say that the US system is considerably more expensive for parties to a takeover”-
 Johnston, A. “Takeover Regulation: Historical and theoretical Perspective on the City Code”, (2007) CLJ. 422
 Armour. Ibid n15, at 53-
 Example: The French and German state intervened when there was in attempt to take over Danone and Volkswagen. No similar attempt, at least none that is effective, is seen from the British government.
 Cadbury: most people in summerset worked for Cadbury: the newpapers create an images of a company that is very much integrated in the community- however also clear that it would have been inefficient to keep it open.
 Under such theory shareholders are the principle and the management is the agent- it therefore fallows that as in normal agent/ principle relationships the management have to represent the interest of the shareholders.
 Kershaw, d. “The Illusion of Importance: Reconsidering the Uk’s takeover defence prohibition” (2007) International & Comparative Law Quarterly 267-307
 Armour, Ibid n15
 illusion article- some which share taken in small space of time etc-
 Cadbury, A. (1992), “The Cadbury Report”, The Committee on the Financial Aspects of Corporate Governance and Gee and Co. Ltd. First published December 1992, the Cadbury committee was also of the view that employment did not have a place in takeover law.
 Johnston, A. “Takeover Regulation: Historical and theoretical Perspective on the City Code”, (2007) CLJ. 422, at 422- An important thing to note is that share price cannot always be said to be a superficial measurement. It is important to acknowledge that a lot of things feed into the share price of a company, indeed share price often reflects present value of future returns often things like. Against this argument it can be said that there is an ongoing process of having to meet the market’s expectations and if the management fails to do so share prices will be affected as a result. Ie. There is ongoing checks and balances ensuring effective management of companies.
 The Economist. March 27th – April 2nd 2010, pg 73