BERMUDA Law and Practice Contributed by: Natalie Neto, Rachel Nightingale and Marah Smith, Walkers
3. Recent Legal Developments 3.1 Significant Court Decisions or Legal Developments In the matter of Nkwe Platinum Limited v Glendi - na Pty Limited & Others 2021, the Supreme Court of Bermuda considered the following three issues: • the legal effect of an amalgamation under Sections 104–109 of the Companies Act; • whether the amalgamation of two previous entities is ipso facto a new entity; and • whether the amalgamation resulted in “trans- fer” of the property from the amalgamating companies to the amalgamated company. The Court ruled that the amalgamating com - panies continue to exist as one amalgamated company and the property and assets of each company becomes the property of the amalga - mated company by operation of law and not by way of transfer or by operation of contract. From a legal developments standpoint, the Ber - muda Court has seen a significant increase in shareholder appraisal actions under Section 106 of the Companies Act. This section of the Companies Act allows shareholders’ to seek an appraisal of the fair value of their shares upon a merger or amalgamation being approved by the shareholders of the company, for which such shareholder did not vote in favour. Until recently, appraisal cases under Section 106 of the Companies Act were rare, but sharehold - ers have become more active in seeking the remedy following a merger, particularly (though not exclusively) in take-private transactions. A significant amount of this activity has been gen - erated by arbitrage hedge funds that purchase shares in the company with the express purpose
has granted a general permission (eg, if shares are listed on an appointed stock exchange). 2.4 Antitrust Regulations There are no specific antitrust regulations that apply to business combinations in Bermuda. However, a change of shareholder controller of any target that is regulated by the BMA or the Regulatory Authority would be subject to regula - tory scrutiny, which may include a consideration of the impact of the transaction on the Bermuda market. 2.5 Labour Law Regulations In Bermuda there are four main statutes govern - ing employment rights: • the Employment Act 2000; • the Occupational Safety and Health Act 1982; • the Workers’ Compensation Act 1965; and • the Human Rights Act 1981. The following statutes are also relevant and should be considered: • the Bermuda Immigration and Protection Act 1956; • the National Pension Scheme (Occupational Pensions) Act 1998; • the Payroll Tax Act 1995; and • the Personal Information and Protection Act 2016. 2.6 National Security Review There are no national security reviews of acquisi - tions in Bermuda.
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