Pre-emption right

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A pre-emption right is a right to acquire certain property in preference to any other person. It usually refers to property newly coming into existence. A right to acquire existing property in preference to any other person is usually referred to as a right of first refusal.

In practice, the most common form of pre-emption right is the right of existing shareholders to acquire newly issued shares issued by a company, usually but not always in a public offering. In many jurisdictions this is automatically provided for by statute, but in other jurisdictions it only arises if provided for under the constitutional documents of the relevant company.

Other situations in which pre-emption rights are seen to arise are in property developments; parties close to the investors are often given a right of pre-emption in relation to new flats or condominiums within a development.

Overall, pre-emption right is similar to the concept of a call option.

[edit] Historical meanings

In earlier time, "pre-emption right" has had a separate and distinct meaning to that given to it today.^[1]

Under international law, the right of preemption formerly referred to the right of a nation to detain merchandise passing through her territories or seas, in order to afford to her subjects the preference of purchase. This form of right was sometimes regulated by treaty. A treaty between the United States and Great Britain in 1794 agreed that "whereas the difficulty of agreeing on precise cases in which alone provisions and other articles not generally contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise. It is further agreed that whenever any such articles so being contraband according to the existing laws of nations, shall for that reason be seized, the same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified; and the captors, or in their default-the government under whose authority they act, shall pay to the masters or owners of such vessel the full value of all articles, with a reasonable mercantile profit thereon, together with the freight, and also the damages incident to such detention."

In the United States in the eighteenth century, the right given to settlers of public lands, to purchase them in preference to others, was called the preemption right.