优先购买权的再思考【外文翻译】.doc

优先购买权的再思考【外文翻译】
外文翻译
RETHINKING RIGHTS OF FIRST REFUSAL
David I. Walker*
Among the many provisions of the incorpoispute and negotiation costs. Rights of first refusal discourage potentially high-valuing third-party bidders from entering a contest to purchase, and thus the instrument reduces a seller!s expected realization. For this reason the right of first refusal proves to be costly for the contracting parties, in aggregate.
2. Rebut the idea that rights of first refusal provide efficient insurance against bargaining breakdown.
Although the right of first refusal is demonstrated to create a net cost for the contracting parties, the right does provide benefits. Several books and articles dealing with rights of first refusal in the close corporation context suggest that the device is used to assure compatible management, maintain family control, or otherwise protect the remaining shareholders from an interloper. The existence of such goals, however, explains only why an insider might value property, in this case shares, more highly than an outsider would; it does not explain why the encumbrance is necessary. Presumably, if the insider places the highest value on shares or other property, he will buy them when they are offered for sale. Underlying this rationale, then, must be a further argument about bargaining breakdown. Fully spelled out, the argument is that an insider may place a high idiosyncratic value on a property and that, absent the insurance provided by a right of first refusal, such value could be lost in a failed negotiation.
Although helpful, the bargaining-breakdown explanation is not fully persuasive. The second aim of this Article is to rebut this justification by demonstrating that equally effective insurance against bargaining breakdown can be provided at lower cost through an instrument that I call a commitment to auction.
3. Suggest that rights of first refusal are primarily motivated by a desire to inhibit exit.
Having rejected