Ireland's commercial court played a pivotal role in October 2007 in the completion of the A5.7bn (£4.1bn) merger between German-listed banks DePfa Bank and Hypo Real Estate Holding in the most valuable corporate merger ever completed in Ireland.

Both DePfa and Hypo are worldwide banks with their origins in Germany, but DePfa is incorporated in Ireland. It could, therefore, structure the merger as a scheme of arrangement with its own shareholders under section 201 of the Companies Act 1963 (similar to UK Companies Act 1985, section 425). This is what brought the merger before an Irish court.

The Irish High Court (of which the Commercial Court is a specialist division established in 2004) may approve a scheme that has been accepted by a majority in number representing 75% of the shares voted at a court-convened extraordinary general meeting.

A scheme may be proposed in Ireland by a target to its shareholders, where the offer is recommended, as an alternative to a bid by the purchaser. This can reduce the stamp duty burden when the target's shares are cancelled rather than transferred. Shearman & Sterling (London and Duesseldorf) and McCann FitzGerald in Dublin advised DePfa. Freshfields Bruckhaus Deringer (London and Duesseldorf) and Arthur Cox (Dublin) acted for Hypo.

The merger first appeared before the Commercial Court within days of its announcement in July. The court, for the first time in Ireland, approved a full timetable for all steps in the process, up to the final approval hearing. Times were fixed for delivering an information circular to shareholders and other interested parties and for other steps to publicise the proposal, and dates were fixed for the court-convened EGM and (if the scheme was approved) later case management steps in the proceedings for court approval of the scheme. This provided complete transparency in the markets as to when each event would occur.

In approving the scheme, Mr Justice Kelly, the judge in charge of the Commercial List, applied the five-part test he described in Re Colonia Insurance [2005]. The court must be satisfied that: sufficient steps were taken to identify and notify all interested parties (principally shareholders and relevant regulators); statutory requirements (governing circular content and approval of the scheme by the required voting majority in each class) and the court's own directions have been complied with; classes of shareholders were properly constituted; no issue of coercion or fraud on the minority arises; and an intelligent and honest member of the class concerned acting in respect of his interest might reasonably approve the scheme.

Kelly found that all of these tests were satisfied. He agreed that where more than 99% of the shares were registered in the name of a settlement agent to facilitate trading, it was necessary to drill notifications and information through to the level of depository banks and their clients who beneficially owned the shares. Significantly, he accepted English authority that the fact directors gave irrevocable undertakings to support the scheme did not of itself constitute those directors as a separate class. Having considered the commercial elements of the proposal, he found ample evidence that experienced people in the industry regarded the scheme as sound.

A Hypo shareholder had begun proceedings in Germany seeking declarations that Hypo was not properly authorised to complete the merger. However, Kelly noted that the German proceedings had begun late, were unserved and did not seek injunctive relief to restrain Hypo from entering the transaction. Hypo and its trustee had undertaken to the court to be bound by the scheme, so the obligation to implement it once approved was absolute. Accordingly, the scheme was approved on 2 October and became effective later that day, when Hypo's capital increase to establish shares forming part of the consideration was registered in Germany.

By supporting the commercial need for predictability in the timing of stages in the merger process, and by its robust analysis of the applicable principles in a scheme to implement a complex international transaction, the Commercial Court, which won an Irish Public Service Excellence Award in 2006, again underlined the great advantages created by establishing a specialist Irish High Court division for applications and disputes of commercial significance.

Sean Barton is a partner in the commercial litigation group at McCann FitzGerald in Dublin.