!Экзамент зачет учебный год 2023-2024 / Amy C Kläsener - The Guide to M_A Arbitration
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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.
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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).
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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.
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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.
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The Contributing Authors
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Ismail G Esin
Esin Attorney Partnership
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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
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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.
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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
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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.).
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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.
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The Contributing Authors
He has given expert evidence in the English High Court and Crown Court, as well as in international arbitrations on over 30 occasions. He has given evidence in ICC, ICSID, LCIA, LMIA, UNCITRAL and various ad hoc arbitrations around the world. Andrew has acted as an arbitrator and regularly acts as a neutral determining expert on completion account disputes.
Andrew has received the following references in Who’s Who Legal: ‘“a consummate professional” who is “greatly respected” by peers and clients alike.’ ‘Andrew Grantham is highly recommended by market sources, who praise his outstanding testifying work in arbitration proceedings, most notably those relating to the construction industry.’‘Andrew Grantham draws international praise for his strong expert witness practice and testifying experience before UK courts and international arbitral tribunals.’
Andrew is a fellow of the Institute of Chartered Accountants in England and Wales and a fellow of the Expert Witness Institute. He was a governor, chairman of the finance committee and treasurer of the Expert Witness Institute from 2007 to 2014.
Francis Greenway
Wilmer Cutler Pickering Hale and Dorr LLP
Francis Greenway is a counsel at Wilmer Cutler Pickering Hale and Dorr LLP in London. He has experience with all major arbitral rules in commercial and investment arbitrations seated primarily in Europe and Asia as well as extensive experience of litigation in the English courts. He has advised on M&A disputes across the oil and gas, telecommunications, media, insurance and other commercial sectors.
Daniel Greineder
Peter & Kim
Daniel Greineder is an English-qualified barrister and partner in the Geneva office of Peter & Kim, a specialist dispute resolution practice. As counsel, Daniel Greineder advises and represents parties to arbitrations. He also accepts arbitrator appointments. He trained at the London commercial bar and was an associate in the arbitration group of WilmerHale in London for more than three years before moving to Switzerland in 2011. He routinely works with lawyers from different common and civil law backgrounds, and many of his cases involve the application of foreign law. In this, he benefits from being a native speaker of both English and German.
Much of his practice involves complex factual and expert evidence, in particular damages calculations. He has worked on numerous corporate disputes, including claims for breach of pre-contractual obligations, claims under representations and warranties, corporate governance and shareholder disputes and, more broadly, joint venture disputes. He has also assisted clients in settlement negotiations and has a particular interest in alternative dispute resolution, including expert determination and mediation.
Daniel Greineder is ranked as both a ‘Future Leader’ in arbitration and a leading construction lawyer in Switzerland in Who’s Who Legal 2018 and 2019. He was educated at the University of Oxford and City University, London.
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The Contributing Authors
Andrea Gritsch
Wolf Theiss
Andrea Gritsch is a Vienna-based partner and member of the Wolf Theiss management team. She handles large-scale mandates spanning multiple jurisdictions and provides full coverage in key legal areas, including M&A, banking and financial services, finance, regulatory compliance, corporate and financial restructuring. Her clients include credit and financial institutions, insurance undertakings, corporates, corporate and financial investors, private equity and venture capital. In the context of her M&A practice, Andrea regularly advises in contentious M&A disputes, with a particular focus on financial arbitration. Andrea studied Austrian law and international economics at the University of Innsbruck, Austria, and Aston University, United Kingdom. Prior to becoming a lawyer, she was a candidate of the Austrian judiciary.
Gerald M Hansen
Forensic Risk Alliance
Gerald (Jerry) Hansen is a partner in the Dallas,Texas, office of Forensic Risk Alliance. He is a CPA and forensic accountant with extensive experience across a variety of accounting, audit, and financial forensics services, including M&A disputes (as a neutral expert and consulting expert), audit services, expert services, forensic due diligence and fraud investigations. He has served one of the Big Four public accounting firms, a multinational consultancy,as well as global corporations in a career spanning over 25 years.Mr Hansen previously served as the south-west region leader of Ernst & Young’s transaction forensics practice, a specialty practice that focused on disputes, investigations and forensic due diligence services stemming from contemplated or completed merger and acquisition transactions.
Mr Hansen has provided dispute-, forensicand audit-related services to clients in a wide range of industries, including real estate, professional services, financial services, technology, energy, transportation, manufacturing, software, food services, publishing, automotive, healthcare, retail, staffing services and advertising. He is a co-author of M&A Disputes
– A Professional Guide to Accounting Arbitrations (Wiley 2017), and he is a contributing author to The Litigation Services Handbook as well as the AICPA book The Guide to Investigating Business Fraud. He holds a BBA in Finance from Southern Methodist University and an MS in Accounting from the University of Virginia.
Greg Huitson-Little
AlixPartners
Greg Huitson-Little works with clients on the financial aspects of litigations and disputes, both domestically and in international arbitration. He provides advice throughout the litigation process: during pre-action stages when considering whether to bring a case, an early assessment of where losses may lie, advice in relation to information and evidence that may be required, right through to detailed assessment of losses and the preparation of expert evidence for use in court or arbitration. Greg has a particular interest in matters relating to intellectual property and technology, but nevertheless maintains a broad, pan-industry practice. His M&A practice includes advice to clients during the completion phases, providing evidence in breach of warranty matters, and working in expert
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The Contributing Authors
determination processes both as an advisor and a determining expert. Greg holds the degree of master of mathematics from the University of Oxford and is a fellow of the Institute of Chartered Accountants in England and Wales.
Philip Jeyaretnam SC
Dentons Rodyk & Davidson LLP
Philip Jeyaretnam is the global vice chair and regional CEO of Dentons Rodyk & Davidson LLP. He is a commercial litigator and international arbitration counsel. He was appointed as senior counsel in 2003 and has been named in all the major legal publications as an expert in arbitration, construction law and litigation. His active international arbitration practice as counsel spans investments and projects across Asia, and he has represented clients in arbitration proceedings in Singapore, Malaysia, Hong Kong, London, Zurich and Brunei. He is particularly experienced in disputes of two kinds, namely disputes involving difficult technical issues and disputes involving complex financial structuring. He has also had numerous appointments as arbitrator, particularly under SIAC and ICC Rules. He was president of the Law Society of Singapore from January 2004 to December 2007, and was the founding chairman of the Society of Construction Law, Singapore. He is currently chairman of Maxwell Chambers, the world’s first integrated dispute resolution venue. He graduated from Cambridge University with double first-class honours and held a visiting Fulbright Fellowship at Harvard Law School.
Lau Wen Jin
Dentons Rodyk & Davidson LLP
Lau Wen Jin is a senior associate in Dentons Rodyk & Davidson LLP’s litigation and arbitration practice group. He graduated from the Singapore Management University with an LLB (summa cum laude), and he then served as a justices’ law clerk to the Chief Justice and Judges of the Supreme Court of Singapore before entering private practice. His main areas of practice are commercial litigation and arbitration, and construction. He is a contributor to Chan Sek Keong (ed.) Civil Litigation in Singapore (Sweet & Maxwell, 2016) and Lan Luh Luh Essentials of Corporate Law & Governance in Singapore (Sweet & Maxwell, 2018). He also taught business law in the Singapore Management University as an adjunct lecturer.
Demet Kas¸arcıog˘lu
Esin Attorney Partnership
Demet Kas¸arcıog˘lu graduated from Marmara University, Faculty of Law in 2009 and was admitted to the Istanbul Bar Association in 2010. She then completed her LLM degree in International Commercial Law at Newcastle University in England in 2011. Demet is a member of the London Court of International Arbitration’sYoung International Arbitration Group, the International Chamber of Commerce’sYoung Arbitrators Forum,Young ISTAC (Istanbul Arbitration Centre) and ASAYoung Arbitration Practitioners Group.
Demet focuses on the resolution of commercial disputes in the areas of M&A transactions and resolution of related commercial disputes through arbitration. Additionally,
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The Contributing Authors
Demet represents clients before arbitral tribunals and before all levels of domestic courts, including in proceedings for the recognition and enforcement of arbitral awards.
Amy C Kläsener
Dentons
Amy Kläsener is a partner in Dentons’ Frankfurt office and leads the disputes team in Germany.Amy focuses on international commercial arbitration and has particular expertise in engineering, construction and M&A disputes. She also sits as arbitrator.Amy is a member of the ICC Commission on Arbitration and ADR. From 2008 to 2010 she served as secretary to the IBA Rules of Evidence Subcommittee tasked with revising the 1999 IBA Rules of Evidence. Amy is passionate about innovation in delivering legal services, including by harnessing legal technology and process and project management techniques.
Chul Won Lee
Kim & Chang
Chul Won Lee is a partner in the firm’s international arbitration and cross-border litigation practice. Mr Lee started his legal career as a judge at Seoul Central District Court. He joined Kim & Chang in 2006 and has since been actively engaged in various international arbitration cases. Mr Lee is the first lawyer to be admitted to practise in both Korea and the United Kingdom by passing the Qualified LawyersTransfer Scheme, a qualification test for solicitors that was opened to Korean lawyers in 2011. His main practice areas include M&A disputes, shipbuilding disputes, insurance disputes, international trade disputes and investor-state dispute settlements. Mr Lee has been a key member of notable international M&A arbitration cases, including KLI, General Motors and Lone Star v. Olympus Capital. Mr Lee was involved in the inauguration of the Asia-Pacific Maritime Arbitration Center of Korean Commercial Arbitration Board in Busan, having prepared the maritime arbitration rule of the Center. Mr Lee also serves as director in charge of international affairs at the Korea Maritime Law Association, Korea International Private Law Association and Korea Insurance Law Association.
Alexandre Mazuranic
White & Case SA
Alexandre Mazuranic is a partner in White & Case’s international arbitration practice group and is based in Geneva. He has acted as counsel in complex commercial disputes submitted to arbitration in various industries and sectors involving, among others, mergers and acquisitions, construction and engineering, commodities trading, and pharmaceutical and healthcare.
In addition, Alexandre also serves as arbitrator and represents parties before the Swiss Supreme Court in proceedings related to challenges of arbitral awards.
Alexandre is the past co-chair of ASA below 40 (the Swiss Arbitration Association young practitioners’ group) and is recognised as one of the future leaders of the arbitration profession in WWL Future Leaders:Arbitration 2019.
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The Contributing Authors
Anke Meier
Noerr LLP
Anke Meier, a partner in the Frankfurt office of Noerr LLP, is admitted to practise as an attorney in Germany and NewYork.
She has acted as counsel, or local co-counsel, for international and domestic clients in more than 70 arbitrations conducted under various arbitration rules as well as in ad hoc arbitration proceedings, including expedited cases and applications for interim measures. Additionally, she serves as party-appointed arbitrator, sole arbitrator or presiding arbitrator on a regular basis. She also advises clients in complex German and US litigation, including the international taking of evidence and in proceedings filed before the domestic courts in connection with arbitration proceedings for recognition and enforcement of awards, jurisdictional disputes and challenges, among other things.
Anke Meier has broad experience in commercial and investment arbitration with a particular focus on disputes in the energy sector. Her practice comprises primarily large and complex international cases with a regional focus on the US and Eastern Europe. However, she also has experience with disputes involving Asian and African parties. She is frequently involved in post-M&A disputes, construction disputes and disputes arising out of supply contracts.
She studied law at Ruhr University in Bochum, Germany, from which she holds a Dr iur. She has earned an LLM in international dispute resolution at the Straus Institute for Dispute Resolution at Pepperdine University School of Law.
In 2013, the Federal Republic of Germany appointed her to the panel of conciliators of the International Centre for the Settlement of Investment Disputes (ICSID).
Jonathan M Moses
Wachtell, Lipton, Rosen & Katz
Jonathan M Moses is co-chair of the firm’s litigation department, which he joined in 1998. He has represented clients in diverse industries, including banks and financial institutions, media companies and industrial firms. His practice includes complex commercial and securities litigation, government investigative proceedings and international arbitration.
Prior to joining the firm, Jon served as an attorney for the NewYork Daily News, where he worked on First Amendment issues. He is also a former journalist, having served, among other positions, as a staff reporter for the Wall Street Journal. Jon received an AB from Harvard University and a JD from Columbia Law School. Following graduation from Harvard, Jon was the recipient of a Fulbright Fellowship in Hong Kong. He also served as a law clerk to the Honorable Stephen F Williams of the United States Court of Appeals for the District of Columbia Circuit following graduation from law school.
Jon is president-elect of the Federal Bar Council in the Second Circuit; chairman of the board of the NewYork City Leadership Academy, an educational organisation that focuses on training leaders who will foster success in public schools; and a member of the boards of The Marshall Project, a non-profit news organisation focused on criminal justice, the New-York Historical Society and Prep for Prep. He is also a member of the American Law Institute. Jon grew up in New Jersey.
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