The Dissenters' Appraisal Right and the Synergy Value - A Comparative Approach to the Legal Situations in U.S., Japan and Germany -

This paper tries an approach to the legal situations regarding the relationships between the appraisal right and synergy generated by the restructuring and the distribution of the latter to the shareholders of the participating companies. It does perform thereby comparings with the legal situations in U.S., Japan and Germany. At first it shows the situation in U.S., in especially in the statutes and common law of the State of Delaware. In furtherance it tried to show that of Japan, introducing and analyzing the recent jurisdictions of Supreme Court and lower courts of Japan. The cases of the former say the relationship between the changes of entire corporate value following the reorganizations and the synergy distribution. At last the author shows the corresponding situations in Germany analyzing the Federal Court Case of ABB, DAT/Altana and Stollwerck. The paper tries in last phase to show the legal frames surrounding the distribution of synergy. It showed as conclusion the followings. There prevails the principle of ‘but-for’ price (nakariseba price) in case of negative synergy. In case of positive synergy there prevails the principle of private autonomy, that is to say, that the agreed merger price becomes fair value, provided that the procedural fairness has been completely confirmed. The courts should be active by the valuation of appraised stocks in case of positive synergy without procedural fairness.