DEMYSTIFYING THE CONCEPT OF „CONTROL‟ IN THE TAKEOVER REGIME: OF HARMONISATION AND WHITEWASH PROVISIONS -

Abstract

The extant Takeover Regulations are mired in ambiguity and indeterminacy with respect to the acquisition of control in a target company, has led to scholars debating on various, conflicting approaches to determine the meaning of the term „control‟. This paper argues for definitional clarity vis-à-vis „control‟ and the need to re-introduce the whitewash provisions in the Takeover Regulations, specifically in the backdrop of SEBI scrapping the idea of a Brightline Test. Part I provides contextual clarity to the paper, by tracing the history of the „control‟ regime in India. Part II goes on to highlight the response of the judiciary to the notion of control, one that has left the status of „control‟ shrouded in ambiguity. Part III then examines the problematic nature of the oft mooted „Brightline Test‟ for control, given the dynamism of „control‟. Part IV then proceeds to outline two possible suggestions in refining the process for determining acquisition of control under Regulations 2(e), 3 and 4 of the Takeover Regulations, 2011.