September 22, 2009
The law & practice of cross-border M&A
Posted by Afra Afsharipour

Other than spending time studying reverse termination fees, I’ve been spending the past year thinking about and researching the role of law and legal culture in cross-border M&A transactions.  When I was in practice, cross-border deals were even more complicated and more engaging than domestic M&A deals.  Who doesn’t enjoy conference calls at 3 am with Israeli counsel trying to explain arcane Israeli tax issues, the miscommunication regarding regulatory review that undoubtedly occurs with British counsel, trying the explain Delaware’s standards of heightened scrutiny to Indian counsel, etc. 

According to the Deal Professor, “a driver of future deal growth will probably come from cross-border and intraregional takeovers.”  I think that is a good thing not just for deal lawyers but for transactional law scholars.  Suffice it to say, there is not an abundance of comparative corporate law scholarship by US legal scholars that examines the laws affecting cross-border M&A deals and the “law of the deal” produced by parties in cross-border acquisitions.  This is especially true with respect to scholarship that studies laws in developing countries and deals where one of the parties is located in or from a developing country.  John Armour and David Skeel have done important work in studying the divergence in US and UK takeover legislation (see here for their law review piece and here for their shorter summary), I’d love to see this kind of work extended.  Currently I am focusing on the role of law and legal culture in outbound M&A activity by Indian multinationals and the differences in deal-making by these emerging economy buyers.  If you are working on scholarly projects that involve cross-border deals, I would love to hear from you.

Comparative Law, M&A, Transactional Law | Bookmark

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