Материал: Amy C Kläsener

@privlawlib

United Kingdom

Assessing the value of the target company is notoriously difficult and subjective, and requires expert evidence to assist the tribunal. A typical mechanism for identifying the value of a target company will be to look at the market price. In working out the actual value a tribunal may take into account the way the claimant itself valued the company, as that is evidence of how the market would value the property or business. English law does not, however, require the tribunal to adopt the method of valuation that the claimant actually adopted.54 For example, where information that would have affected the value of the property is unknown by the market, the market value of publicly traded shares may not be a fair test of the true value because the market price only reflects the limited information available to the market.55 In such cases the market price after the information becomes public may be better evidence of the real market value of the shares.56

English law imposes restrictions on the recovery of damages by reference to the rules of causation, mitigation and remoteness. In both contract and tort, the claimant must show that the breach of contract, or the defendant’s wrongdoing, or both, were effective causes of the loss (they need not be the sole cause).57 Similarly, in contract and tort, claimants cannot recover damage that they could have taken reasonable steps to avoid (or mitigate). However, the remoteness rules in relation to claims made for negligent or fraudulent misrepresentation are more relaxed than those for contractual damages and admit a higher level of recovery.58 For the former, all damage directly flowing from the inducement (including consequential losses) is recoverable, regardless of whether the defendant would have foreseen it; contractual damages, on the other hand, are recoverable for categories of loss for which the defendant assumed responsibility.59

Special procedural issues

As M&A transactions will often concern multiple parties and multiple contracts, one question that often arises is how far third parties can be joined to an arbitration. Parties can make express provision for joinder or consolidation in the agreement to arbitrate.

In the absence of express provision, English law is more conservative than some other legal systems when it comes to engaging the liability of persons that are connected to the entity that is itself party to the relevant M&A contract (such as, for example, a parent company that may have more assets to satisfy an award of damages). In particular, it is relatively

54Senate Electrical Wholesalers Ltd v.Alcatel Submarine Networks Ltd [1999] 2 Lloyd’s Rep 423 at [34].The price the claimant itself would have paid if the proper accounts had been presented is good (but not conclusive) evidence of what the market would have paid, and factors such as competition for the business and how parties in fact pragmatically conduct bidding are to be taken into account. In this context, it will be relevant to look at not only the figure a pricing model produces, but also the demand and competition that there was in the market.

55As explained in the deceit case of Derry v. Peek (1887) 37 Ch D 541.

56A Kramer, The Law of Contract Damages (2017, 2nd edn), at para. 9.19.

57County Ltd v. Girozentrale Securities [1996] 3 All ER 834.

58For fraud, see Doyle v. Olby [1969] 2 QB 158. For negligent misrepresentation, see s.2(1) Misrepresentation Act

1967 and Royscot Trust v. Rogerson [1991] 2 QB 297 (by virtue of ‘the fiction of fraud’ wording in the statute). 59 Transfield Shipping Inc v. Mercator Shipping Inc (The Achilleas) [2008] UKHL 48.

196

© 2020 Law Business Research Ltd

@privlawlib

United Kingdom

difficult to pierce the corporate veil under English law.60 In some cases it may be possible to establish an agency relationship between the entity that is party to the contract and another person, but whether it is possible will depend on the facts of each particular case.

60VTB Capital Plc v. Nutritek International Corp [2013] UKSC 5. English law is strict on these contractual mechanisms, as can be seen in its rejection of a purported doctrine that companies can bind other companies to arbitration if they form a ‘group’, see Peterson Farms Inc v. C & M Farming Ltd [2004] EWHC 121 (Comm).

197

© 2020 Law Business Research Ltd

@privlawlib

Appendix 1

The Contributing Authors

Hiroki Aoki

Nagashima Ohno & Tsunematsu Singapore LLP

Hiroki Aoki is a partner at Nagashima Ohno & Tsunematsu Singapore LLP. He is specialised in dispute resolution and has a wide range of experience in international arbitration under various arbitration rules including ICC, SIAC, JCAA and litigation in various jurisdictions. He has been working in Singapore since 2013. He graduated from the University of Tokyo (LLB) in 2000 and the University of Michigan (LLM) in 2004. He was admitted to practise law in Japan and joined the Nagashima Ohno & Tsunematsu Tokyo office in 2007. Before being admitted to the Bar, he worked at the Ministry of Land, Infrastructure, Transport and Tourism of Japan (2000–2006).

Michael Bösch

Thouvenin Rechtsanwälte KLG

Michael Bösch is specialised in commercial arbitration. He has acted as counsel and arbitrator in dozens of international and national arbitrations, both under institutional rules such as the ICC, LCIA and Swiss Rules and also ad hoc. His cases involve a wide area of matters, in particular M&A transactions and shareholders’ agreements, but also agency and distribution, sale of goods, and construction, including turn-key projects. Michael is frequently called on to speak at arbitration conventions and is the co-author of the firm’s Arbitration Newsletter Switzerland on selected decisions of the Swiss Federal Supreme Court relating to actions for annulment of arbitral awards. Through his corporate and commercial advisory work Michael has developed a robust and profound understanding of various business sectors, enabling him to use this expertise also in contentious matters for the benefit of his clients or the tribunal. Who’s Who Legal: Arbitration (2018 and 2019 editions) recognises Michael as a ‘Future Leader’ in the partner category and he is lauded by peers as ‘an excellent lawyer’ who is ‘intelligent, knowledgeable and responsive’ (2019). Who’s Who Legal: Litigation (2019) features Michael as the second most highly regarded ‘Future Leader’. He is also recommended by The Legal 500 and Leaders League.

199

© 2020 Law Business Research Ltd

@privlawlib

The Contributing Authors

Michael holds an LLM from Georgetown University Law Center,Washington, DC, and is a Fellow of the Chartered Institute of Arbitrators.

Hye Won Chin

Kim & Chang

Hye Won Chin is an associate in Kim & Chang’s international arbitration and cross-border litigation practice group. She has represented numerous clients in international disputes before various arbitral institutions, including the ICC and KCAB. Her clients are from a wide range of industries, including construction, private equity funds, and IT manufacturing and services. In particular, her expertise is focused on cases involving M&A disputes and legal matters in the field of IT industries. She has also advised Korean and international clients on corporate cross-border merger and acquisition matters.

Una Cho

Kim & Chang

Una Cho is a senior foreign attorney in the international arbitration and cross-border litigation practice at Kim & Chang. Ms Cho specialises in international arbitrations and cross-border litigations, representing clients in complex multi-jurisdictional disputes of wide-ranging subject matters, including aviation, construction, energy, financing, intellectual property, mergers and acquisitions, and joint ventures. She has advised clients under the rules of the International Chamber of Commerce, the Singapore International Arbitration Centre,the London Court of InternationalArbitration,the International Center for Dispute Resolution of the American Arbitration Association, the Court of Arbitration for Sport, the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada and the Korean Commercial Arbitration Board. She has a broad range of experience, including in proceedings relating to emergency arbitration, sports arbitration, internet fraud and aviation accidents, among others. She has also advised Korean and international clients on corporate cross-border merger and acquisition matters.

Ali Selim Demirel

Esin Attorney Partnership

Ali Selim Demirel graduated from Bilkent University, Faculty of Law in 2008 and was admitted to the Istanbul Bar Association in 2009. Ali is a senior associate and the team leader of the arbitration practice group of Esin Attorney Partnership. He is a member of the London Court of International Arbitration’s Young International Arbitration Group, the International Chamber of Commerce’s Young Arbitrators Forum,Young ISTAC (Istanbul Arbitration Center) and ASAYoung Arbitration Practitioners Group.

Ali focuses his practice on the resolution of commercial disputes, particularly regarding post-M&A disputes and particularly through arbitration. He represents clients before arbitral tribunals and before all levels of domestic courts.

Ali started his career as an M&A lawyer, and focused on advising private equity firms; however, he has more recently directed his attention to the arbitration of M&A disputes.

200

© 2020 Law Business Research Ltd

@privlawlib

The Contributing Authors

.

Ismail G Esin

Esin Attorney Partnership

.

Dr Ismail G Esin graduated from the Istanbul University Law School in 1990 and started

his career, after his masters degree (LLM) in Tübingen, as a research assistant at Marmara

.

University’s Civil Law Department in 1992. Ismail received his PhD from the University of Tübingen in 1997. Upon his return to Istanbul in 1997, he established Esin Attorney Partnership, where he is currently the firm’s managing partner. In 2011, Esin Attorney

Partnership joined one of the world’s leading law firms, Baker McKenzie, as a member firm.

.

Ismail has over 20 years of experience advising clients in dispute resolution, litigation, mergers and acquisitions, privatisation and real estate matters. He regularly advises banks,

multinational companies, governments and private equity funds on investments and major

.

projects in Turkey, Europe, the Middle East and the CIS. Ismail also heads the firm’s arbitration practice and acts as arbitrator and counsel, with a particular focus on arbitration arising from M&A transactions. He represents numerous leadingTurkish and international companies before local and international arbitral tribunals under various arbitration procedures

(ICC, LCIA,ASA, ISTAC, etc.).

.

Ismail is one of the leading lawyers in Who’s Who Legal for mergers and acquisitions, commercial arbitration and commercial litigation. Chambers & Partners, IFLR and The Legal 500 ranked Dr Esin as one of the leading individuals in the fields of corporate/ mergers & acquisitions and dispute resolution. Dr Esin lectured at Marmara University (1992–2004), Istanbul Bilgi University (2002–2009), Galatasaray University (2005–2006) andYeditepe University (2013–2015).

Yang Fan

King & Wood Mallesons

Dr Yang Fan is international dispute resolution manager of King & Wood Mallesons. She obtained her first law degree in Shanghai in 2001 and was called to the Bar of England and Wales in 2005. She has been teaching and practising law in Hong Kong since 2009. Fan specialises in complex commercial disputes arising from share purchase agreements, joint ventures, international sale of goods, letters of credit, carriage of goods by sea, charterparties­ and FIDIC contracts, etc. She has arbitrated and mediated in proceedings conducted in English and Chinese (Putonghua and Cantonese). She has been appointed as an arbitrator under the ICC Rules of Arbitration (2012) and HKIAC Administered Arbitration Rules (2013), and has extensive experience in arbitrations under other leading institutional rules, as well as in ad hoc arbitrations in leading international seats including London, Hong Kong and Kuala Lumpur.

Andrew Grantham

AlixPartners

Andrew Grantham has dealt with litigation matters and financial investigations since 1991. His experience as an expert witness covers many aspects of accounting, financial and damages matters, including breach of contract and loss-of-profits claims, claims arising following acquisitions and sales of businesses (including breach of warranty and completion account disputes) and business valuations.

201

© 2020 Law Business Research Ltd