Cross-Border M&A

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Theresa May, the new UK Prime Minister, commented that the UK Government should adopt an industrial strategy capable of “stepping in” to defend sectors that are important to the UK economy from acquisition by overseas acquirors.  Linked is an alert memorandum prepared by our Brexit Working Group, which focuses on the existing powers available to the UK Government to prohibit acquisitions of UK companies (or indeed non-UK companies with UK operations) on “public interest” grounds within the confines of EU law and discusses how these might be expanded following Brexit.
Continue Reading Industrial Strategy Post-Brexit: The UK’s Power To Block Mergers On Public Interest Grounds

On 12 September 2016, the rules of the UK Takeover Code governing the communication and distribution of information during a UK takeover bid will change. The rules and requirements affected are summarized in the attached memo and include the chaperoning requirement for meetings and calls with shareholders and analysts, new rules relating to the use of materials during meetings and calls, and new rules relating to the use of social media and videos during bids. 
Continue Reading UK Takeover Code Update: The Communication and Distribution of Information During a UK Takeover Bid

Companies based in the People’s Republic of China have committed to over $100 billion of overseas acquisitions since January 1, 2016, including a number of high profile targets in the United States and Europe.[1] The ties of these buyers to governmental entities in the PRC, coupled with the unpredictability of the PRC government, and the challenges that a non-PRC counterparty faces when seeking to enforce contractual obligations and non-PRC judgments in PRC courts has led practitioners to implement an array of innovative provisions in M&A Agreements.
Continue Reading How M&A Agreements Handle the Risks and Challenges of PRC Acquirors

The EU has been on an accelerated transition towards a more climate-friendly energy sector since 2009.  EU Member States are committed to decrease CO2 emissions by 20% by 2020, and to increase generation from Renewable Energy Sources (“RES”) to mandatory targets.  After implementation of the Paris Agreement, these targets will likely be revised upwards, given the EU’s initial commitment for a 40% reduction of CO2 emissions by 2030.  Strong demand for clean energy, government support including subsidies and tax incentives, and governmental mandates create attractive opportunities for investment in RES generation and the transmission infrastructure needed to bring clean energy to users.
Continue Reading Investing in Energy in the EU – Navigating the Ownership Unbundling Rules

In a landmark decision in Cavendish Square Holding BV vs Talal El Makdessi, the UK Supreme Court recently overturned a Court of Appeal decision (discussed here), and substantially re-formulated the English law principles relating to contractual penalty clauses. Upholding the validity of provisions in a purchase agreement that forfeited deferred consideration upon breach of non-competition covenants by the seller, the Supreme Court held that the true test as to whether a clause was penal (and therefore unenforceable) was whether it imposed a secondary obligation on the contract breaker “out of all proportion to any legitimate interest of the innocent party” in enforcing the obligation breached.
Continue Reading UK Supreme Court Substantially Re-Formulates Contractual “Penalty” Principles

I. The German M&A Market – a Seller’s Market

Germany has long been an attractive market for both strategic and financial investors. This is due to a number of reasons. The German economy is traditionally shaped by highly regarded blue chips with strong brand recognition and “quality perception” as well as successful small and medium-sized companies (Mittelstand), many of them global market leaders in industrial niche markets. Germany is also considered as – and continues to prove itself to be – a stable and solid hub in a European market environment that, due to the never-ending Euro crisis, the Crimea/Ukraine crisis and other crises, has not ceased to be turbulent and volatile. More recently, the USD/EUR exchange rate has added to Germany’s attractiveness for inbound M&A transactions.
Continue Reading Current Trends in German M&A

On March 27, 2013, China’s Ministry of Commerce (“MOFCOM”) published for public comment “Rules on Attaching Restrictive Conditions to Concentrations between Undertakings (Draft for Comment)” (the “Draft Rules”). As the first comprehensive guidance on merger remedies under the Chinese Anti-Monopoly Law (the “AML”), the Draft Rules address a wide range of issues, including the design, implementation, monitoring, modification and waiver of merger remedies, as well as liability for breach.
Continue Reading MOFCOM Solicits Comments on Draft Merger Remedies Rules