Theory of contractual subordination : insights and challenges imposed by the existence of a shadow controller

The takeover of a company is one of the most important tools to create business groups and gain market power. Therefore, acquiring a business outlines several challenges, not only for the parties involved in the transaction, but also to the market and the economy. Those are some of the reasons for t...

Full description

Autores:
Garzón Sanabria, Juan Pablo
Tipo de recurso:
Trabajo de grado de pregrado
Fecha de publicación:
2022
Institución:
Pontificia Universidad Javeriana
Repositorio:
Repositorio Universidad Javeriana
Idioma:
spa
OAI Identifier:
oai:repository.javeriana.edu.co:10554/59197
Acceso en línea:
http://hdl.handle.net/10554/59197
Palabra clave:
Change of control
Business groups
Shadow controller
Stakeholders
Anti-trust
Derecho - Tesis y disertaciones académicas
Estrategias empresariales - Aspectos jurídicos - Colombia
Monopolios - Aspectos jurídicos - Colombia
Rights
openAccess
License
Atribución-NoComercial-SinDerivadas 4.0 Internacional
Description
Summary:The takeover of a company is one of the most important tools to create business groups and gain market power. Therefore, acquiring a business outlines several challenges, not only for the parties involved in the transaction, but also to the market and the economy. Those are some of the reasons for the existence of anti-trust and business integration regulations. Nonetheless, legal tools created for the protection of the market and stakeholders involved in a change of control transaction, are useless in cases of the so-called “Contractual Subordination Theory” where the controller is unnoticed or, alternatively, is a shadow controller. This research project contrasts the meaning of a “controlled entity” under the United States and Colombia’s legal system. In doing so, this investigation sheds lights on the importance of the concept of “Contractual Subordination” since this theory can be labeled as a takeover method that potentially avoids the enforceability of regulations and procedures that were created in order to protect the market and the parties involved in a change of control transaction. Finally, this research then considers several challenges that the figure imposes with respect to the Colombian law, and some possible legal instruments that can be used by Colombian authorities to address the threats created by the theory.