Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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C. Where Do We Go From Here?

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  1. Stick to the Basics.  Simple, clear, unambiguous drafting of merger agreements is often key to dispute outcomes.  Clients should ask their lawyers the basic questions - will the agreements work as expected.  Lawyers should insist on the time to draft simple, unambiguous provisions (yes, it takes longer to draft simple provisions).  All deal participants should be chastened by the recent striking lack of predictability regarding how common contractual provisions will be interpreted, and do their best to make sure their agreements will be interpreted as they intend.

  2. Mundane Provisions Matter.  The "back of the merger agreement" - supposedly "boilerplate" provisions such as governing law and choice of court - is always important when disputes arise.  Litigating the merger agreement in Delaware, while the financing is litigated in New York (a not uncommon result of standard jurisdictional provisions), can have a major impact on outcome, as can the choice of whether a case is litigated in Delaware (which sees a constant stream of complex M&A cases) or a jurisdiction with less experience in these areas.

  3. Careful Attention to Deal Specifics.  A transactional world where nothing is "market" is an opportunity not a barrier.  With a (relatively) clean slate, lawyers will be able to devise creative and practical solutions to deal-specific problems.

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