Arbitration of M&A Transactions: A Practical Global Guide, Second Edition

In an increasingly globalised and complex economy, arbitration is becoming the dispute resolution mechanism of choice for international M&A transactions. Spanning share purchase agreements, asset purchase agreements, shareholder agreements and joint venture arrangements, this is a huge area of commercial activity, giving rise to an expanding number of disputes. In the second and expanded edition of this title, leading experts in the field of international arbitration provide legal and practical guidance on the key types of dispute likely to arise from M&A transactions (eg, warranty claims, shareholder disputes, claims relating to completion accounts), and offer procedural and tactical tips for arbitration arising from them. The content also covers the fundamental questions of arbitrability, confidentiality, freedom to choose the governing law (and questions of mandatory law) and enforceability in a number of key jurisdictions. Together, the contributors provide a one-stop guide to the legal, tactical and practical aspects of arbitration in today's M&A market. The second edition contains not only valuable updates to the first edition, but includes new chapters covering a number of additional jurisdictions (including Peru and Poland). It also introduces a number of additional chapters on third party funding and warranty and indemnity insurance, as well as key concepts of valuation in the arbitration context, the quantification of damages for breach of representations and warranties. Whether you are a lawyer in private practice or are involved in M&A in the broadest sense, this commercially focused title will provide you with holistic, practical insight into the arbitration of M&A transactions.

Table of Contents:
Introduction Edward Poulton Baker & McKenzie LLP Part 1: National threshold issues Austria Christoph Liebscher Liebscher Dispute Management China and Hong Kong Peter Chen May Tai Helen Tang Briana Young Herbert Smith Freehills LLP England and Wales Joseph Dyke Catriona Nicol McNair Chambers France Julien Fouret Wesley Pydiamah Eversheds Sutherland Germany Guenter Pickrahn Baker & McKenzie LLP Italy Luigi Cascone Roberto Leccese Ughi e Nunziante Japan Peter Godwin John Ribeiro Herbert Smith Freehills LLP Mexico Reynaldo Urtiaga Bryan, González Vargas & González Baz Netherlands Hilde van der Baan Marieke van Hoojdonk Berend Veenstra Allen & Overy LLP Peru Ana Maria Arrarte Maria del Carmen Tovar Andrea Espejo Baker & McKenzie LLP Poland Natalia Jodłowska Joanna Kisielin´ska-Garncarek GESSEL Russia & CIS Vladimir Khvalei Anton Maltsev Baker & McKenzie LLP Singapore Lim Wei Lee Alvin Yeo WongPartnership LLP Spain Antonio Bravo Sara Ganzarain José Sánchez de León Eversheds Sutherland Sweden Johan Strömbäck Setterwalls Turkey and Middle East Ismail G Esin Ali Selim Demirel Esin Attorney Partnership Dogan Gultutan Baker McKenzie LLP USA Oliver J Armas Hogan Lovells US LLP Part 2: The arbitration agreement Agreement to arbitrate Francisco Franco Grant Hanessian Nicholas Kennedy Baker & McKenzie LLP Part 3: Common types of disputes in M&A contracts Pre-signing disputes Soledad Díaz Ferrere Pre-closing disputes Julien Fouret Eversheds Sutherland Claims for breach of representations and warranties Noradèle Radjai LALIVE Claims for breach of indemnities Carmen Núñez-Lagos Hogan Lovells LLP Warranty and indemnity insurance Helen Chapman Claire Fleetwood Natalie Graham Aon UK Limited Price adjustment and closing account disputes Maggie Stilwell EY Disputes arising from joint venture agreements Jörg Risse Baker & McKenzie LLP Disputes arising from shareholder agreeements Rupert D’Cruz Littleton Chambers Tortious claims arising from M&A contracts Charles Golsong Deborah Ruff Pillsbury Winthrop Shaw Pittman LLP Part 4: Other issues arising from arbitration Anti-trust and competition issues Gordon Blanke Blanke Arbitration LLC Procedural and tactical issues arising in M&A disputes John Leadley Baker & McKenzie LLP Valuation issues Michael Weaver Duff & Phelps Third party funding James Mackinnon Burford Capital Damages for breach of warranty Karen Drysdale Liz Perks Haberman Ilett

Review :
Lawyers as well as arbitrators should lose no time in acquiring this book. Out now in a new edition from Globe Law and Business for 2020, it should, ideally, be considered essential reading for anyone dealing professionally with M&A (mergers and acquisitions) transactions. Lawyers will be interested in the fact that many of the articles on the subject therein are written by leading lawyers practicing internationally from leading law firms such as Baker McKenzie, Herbert Smith Freehills and Allen & Overy. ‘Drawing on their extensive experience,’ says consulting editor Edward Poulton’, ‘each of the authors has sought to derive some general themes and lessons.’ As many have come to expect from Globe Law and Business, this book provides readers with pertinent, accurate and authoritative advice from thirty-five expert contributors and seventeen countries: Austria, China and Hong Kong and France, for example, through to Sweden, Turkey and the United States of America. A wealth of high-powered consultancy is here on offer in one handy volume. Yes, this book is a compilation and a valuable one, especially for practitioners involved in cross-border issues. As mentioned in the book’s introduction, ‘the increasingly international nature of M&A means that the relative (and arguably growing) ease with which arbitration awards can be enforced around the world is a real advantage.’ It is also pointed out in the article on England and Wales that ‘given the often complex, specialised, cross-border and sensitive nature of many M&A transactions, arbitration is often viewed as the most preferable forum in which to resolve disputes arising from such transactions.’ A cautionary note, however, warns that in England and Wales, ‘an arbitration clause should be drafted as widely as possible to catch all intended disputes’ and that ‘certain disputes will not be capable of being referred to arbitration under English law.’ Nonetheless, as Globe points out, arbitration is now becoming the dispute resolution mechanism of choice for international M&A transactions, ranging from share purchase agreements to joint venture arrangements and of course much more. This book, comments Lord Hoffmann in the foreword, ‘is well worth reading for anyone who is interested in arbitration, but for lawyers involved in an M&A transaction, it will need to be consulted as soon as the first instructions arrive.' The date of publication of this hardback second edition is cited as at 30th April 2020. The key message that came through from this book is clear: Parties to M&A transactions should be mindful of the potential issues and their resolution (whether through arbitration or other methods) not only at the time the dispute arises, but more importantly, these should be considered at the very beginning of the transaction and also at the drafting stage. All in all, the contributors and editors of this book should be well congratulated for successfully compiling a succinct, informative and practical guide on the relevant key issues surrounding M&A disputes and its related arbitration. To the practitioner tackling this field, whether veteran or apprentice, this book will prove invaluable. It serves as a useful and practical guide that any practitioner can turn to for quick and relevant practical advice on the issues that arise every day in international M&A arbitration. The topics included in this Book are ground breaking, and provide different perspectives that prove to be of importance for both the negotiations and execution of a M&A contract, and the processing of an arbitration. I truly believe that this Book will provide its readers with a thorough analysis of many of the issues that can arise from M&A transactions, from a practical point of view, which bears great significance for all corporate and arbitration lawyers who are dealing with related matters. I highly recommend this insightful read. This book was edited by Edward Poulton and written by practitioners – both lawyers and accountants – with extensive expertise in a wide variety of jurisdictions. It is certainly one of the most useful materials for practitioners in the field, for it covers many relevant jurisdictions as well as common issues arising in the context of M&A arbitration.