Dramatic Increase of Merger and Acquisition Transactions Around The World
23
Why Arbitration in Merger and Acquisition Transactions?
26
Problems Focused on Merger and Acquisition Arbitration
28
A Working Definition of Merger, Acquisition, and Takeover
37
Delimitation of the Subject
45
Structure of The Thesis
46
CHRONOLOGICAL PHASES OF MERGER AND
A. The Value–Increrasing Theories
53
B. The Value (Decreasing or) Destroying Theories
55
1. Preliminary Contacts
60
a. Delimitations of The Notion
66
b. Related Instruments
67
bb. Confidentiality Agreements
68
cc. Variations in Terminology
68
dd. Pre–Contractual Agreements and Promises to Contract
69
ee. Bilateral (or Multilateral) and Unilateral Letters of Intent
69
aaa. Does the Letter of intent Amount to a Contract?
71
bbb. Does the Letter of Intent amount to a Promise to Contract?
74
ccc. Is the Letter of Intent an Offer?
74
e. Contractual Interpretation and Completion
78
D. Signing Phase (Purchase Agreement)
81
E. Closing Phase (Completion)
82
G. Representations, Warranties and Indemnification
84
II. Conclusion of Chapter I
84
ARBITRATION AND MERGER AND
II. Arbitration in Pre–Signing Disputes
90
A. Conflicts Arising Out of a Letter of Intent
93
B. Conflicts arising out of Due Diligence
95
III. Arbitration in Post–Signing: Disputes Arising From MergerPurchase Agreements
96
A. Violation of Covenants
99
B. No Material Adverse Changes
99
C. Price Adjustment Arbitration
102
1. Reasons For Price Adjustment Clauses
104
2. Frequently Disputed Issues on Price Adjustments
105
3. Expert Arbitration
109
D. Representations and Warranties
113
1. Breaches of Representations and Warranties
118
a. Duty to Investigate
118
2. Consequences of Breaches of Representations and Warranties
120
E. Third– Party Claims
121
F. Claims For Non–performanceFundamental Error
121
G. Put and Sale Options
124
IV. Particular Aspects of Merger and Acquisition Transactions Related Arbitrations
126
A. Multi–Party and Multi–Contract Disputes
126
B. Extension of Arbitration Agreements to Third Parties
127
V. Conclusion of Chapter II
129
CHALLENGES AND PRACTICAL SOLUTIONS
COOPERATION AND COORDINATION OF ARBITRAL PROCEEDINGS IN MERGER AND ACQUISITION TRANSACTIONS
II. The Scope of Arbitration Clauses in Merger and Acquisition Transactions
136
III. Multiple Proceedings and Parallel Proceedings in Merger and Acquisition Transactions
138
1. Multi–Contract and “Group of Contracts” Doctrine in Merger and Acquisition Transactions
140
2. Parallel Proceedings in Merger and Acquisition Arbitration
142
a. Parallel Proceeding Depending on The Same Dispute
142
aa. Mechanism of Lis Pendens in Merger and Acquisition Arbitration
143
aaa. Buenaventura Case
148
bb. Mechanism of Res Judicata in Merger and Acquisition Arbitration
153
b. Parallel Proceedings Depending on Related Disputes
158
IV. Solutions Proposed by Doctrine and Case Law in Different Jurisdictions for Joinder of Parallel Proceedings
163
V. Advantages and Disadvantages of Consolidation in Merger and Acquisition Arbitration
168
VI. Consolidation in a Single Arbitration
176
VII. Conclusion of Chapter III
178
MULTI–STEP PROCESSES IN MERGER AND
III. Different ADR Procedures used in Merger and Acquisition Transactions and Interaction with Arbitration Proceedings
187
D. Expert Determination
199
1. Problems Involving Expert Determination
202
2. Solutions Proposed
204
IV. The Problem of Confidentiality in Multi–Tiered Dispute Resolution Processes
205
V. Conclusion of Chapter IV
208
ISSUES OF CONSENT IN MERGER AND
II. Identifying Consent in Merger and Acquisition Arbitration
212
A. Incorporation by Reference
215
B. Consent to an Underlying Contract Typically Constitutes Consent to an Arbitration Agreement
217
C. Consent to Underlying Contract Not d for Consent to Arbitration Agreement
218
D. Consent on The Related Agreements
220
E. Defects of Consent: Fraud (Dol), Mistake (Erreur)
223
1. ICC Case No. 11961
224
2. ICC Case No. 12502
226
F. ImpliedTacit Consent
229
III. Consent on the Transfer of the Arbitration Agreement After Merger and Acquisition Transactions
232
1. ICC Case No. 12745
242
B. The Latter Superseded the Former and Succession
250
IV. Conclusion of Chapter V
260
Consecutive Phases of Merger and Acquisition Transactions
268
Arbitration and Merger and Acquisition Transactions
269
Coordination and Cooperation of Arbitral Proceedings in Merger and Acquisition Transactions
270
Multi–Step Processes in Merger and Acquisition Transactions
273
Issues of Consent in Merger and Acquisition Arbitrations
275
Regulations, Directives
293