Table of Contents

Research Handbook on Insider Trading

Research Handbook on Insider Trading

Research Handbooks in Corporate Law and Governance series

Edited by Stephen M. Bainbridge

In most capital markets, insider trading is the most common violation of securities law. It is also the most well known, inspiring countless movie plots and attracting scholars with a broad range of backgrounds and interests, from pure legal doctrine to empirical analysis to complex economic theory. This volume brings together original cutting-edge research in these and other areas written by leading experts in insider trading law and economics.

Chapter 23: Takeover bids and insider trading

Matthijs Nelemans and Michael Schouten

Subjects: economics and finance, economic crime and corruption, law - academic, company and insolvency law, corporate law and governance, corruption and economic crime


No information is as price sensitive as information on pending takeover bids, rendering takeover bids a prime context within which insider trading occurs. The sentencing of former Goldman Sachs board member Rajat Gupta and of Raj Rajaratnam, the hedge fund manager, for example, was partly based on illicit trading on information regarding pending takeover bids. This chapter offers a positive analysis of the European regulatory framework with respect to insider trading in the context of takeover bids. We distinguish between trading by the bidder, by the target and by classical insiders such as officers and employees. Where relevant, we draw a comparison between EU law and US federal securities laws. The analysis suggests that European insider trading laws are insufficiently tailored for corporations, and that significant uncertainty remains as to the precise scope of the prohibition on insider trading in the context of takeover bids. We start by addressing the issue of precisely when information about potential takeover bids qualifies as inside information (section 2). From that particular moment onwards, the prohibition on insider trading applies and an obligation to disclose the information without delay is triggered. Those who are in possession of inside information are generally prohibited from selectively sharing this information with others or giving recommendations (tipping), causing difficulties for potential bidders who wish to reach out to major shareholders of the target to obtain irrevocable undertakings or to their own shareholders to gauge whether they are willing to support the bid.

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