International and German perspectives on post-M&A disputes

Arbitration is an increasingly popular choice for dispute resolution in cross-border corporate transactions. In Germany, it has become the common method of resolving post-M&A disputes. Typical scenarios include disputes about contractual representations and warranties, purchase price adjustments, MAC clauses, earn-outs, escrowed funds, and statutory tort claims. Often legal and accounting questions are intertwined.
In a cross-border M&A deal, some common questions arise: Should I select arbitration? If so, what choices should I make in the arbitration clause? Is splitting the seat from the applicable substantive law a good compromise? What are the typical procedural challenges in such matters – e.g. information access after closing and interplay of contractual and tort claims – and how can they be addressed in contract drafting? What, if any, solutions to those challenges are offered by arbitral practice? Is there a difference between common law and German law when interpreting M&A contracts?
With our panel of experienced arbitration lawyers, we discuss some of these questions and learn about recent experiences.