By Evarist Baimu Nyaga Mawalla - Home

claims not to contain legal rules, it does have legal consequences and the power to makedecisions comes from the code and the rules.The function performed by the panel is a public law function: it is regulatory in a publicrather than a private sense, as can be seen from the way it operates and the consequencesof breach.Furthermore, any attempt to oust the jurisdiction of the courts by proclaiming the nonlegalnature of the code must be against public policyRobert Alexander Q.B. Timothy Lloyd Q.C. and Keith Rowley for the panel. Thequestion of the courts jurisdiction over the panel is important for all self regulatingbodies. The City is traditionally self regulating and remains substantially so, subject tothe Financial Services Act 1986. That Act does not expressly deal with the Panel onTake-overs and Mergers.In many cases of self regulation there may be a right to a remedy in private law, usuallyarising out of a contractual relationship. The absence of a public law jurisdiction does notnecessarily deprive persons affected of a remedy. For example where someone allegesthat the rules of a body as to its membership are in restraint of trade, it is open to him tobring an action notwithstanding that he is not a member on that body: Eastham v.Newcastle United Football Club Ltd.(1964) Ch.43. But in such a case there would be nojurisdiction in public law over that body.Self-regulation stems from a realization by a group that the regulation of theiractivities is desirable in the common interest That group accepts that rules for theperformance of functions and duties should be established and enforced.The success of self –regulation depends on (i) rules being drawn up by responsible andacceptable responsible bodies: (ii) the observance of those rules; (iii) respect for thedecisions of those bodies by these affected; (iv) those who operate in the marketaccepting that the rules and their obedience to them are essential as an aspect of enteringthe market at all. In assessing whether the rules provide sufficient protection it is right toremember that no one can survive in the market without the confidence of others and thatsuch rules ultimately serve the public interest.The Panel on Take- overs and Mergers in denying the jurisdiction of the court, isnot claiming a licence to take wrong decisions. The panel may be required to takedecisions swiftly and finally. When a ruling is asked for in the course of a bid it mayaffect the outcome of the bid before or after it has succeeded. If the latter then the shareswill already be traded under the new name. In the former case, if a dissatisfied partyrushes to court, it will have the effect of dislocating the market during a takeoversituation. However fast the court is able to act. If the panel is called to resolve a conflictbetween parties and their financial advisers, there is an overwhelming need fro speedyfinality. An application to the court may be made as a defensive measure during a bid, tocreate uncertainty even after the outcome of the bid is known.145