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MAC/MAE clauses are best defence against expected M&A disputes boom in EMEA, finds new BRG Research

Global consultancy Berkeley Research Group (BRG) has released the results of its 2021 BRG M&A Disputes Report which featured quantitative and qualitative research providing an outlook on the global M&A disputes landscape. 

As the M&A market remained extremely strong in 2021 and is expected to stay that way into next year, the data delivers insight into factors driving an increase in disputes. Those factors include innovative deal structures, new investment vehicles, advances in technology and rapidly changing economic conditions.

Following BRG’s inaugural effort from 2020 focused specifically on the Asia–Pacific (APAC) region, this year’s report offers a global outlook adding data and insights from Europe, the Middle East and Africa (EMEA) and North America, as well as APAC, and digs deeper into recurring themes, together with new questions and findings.

In addition to a quantitative survey of 225 lawyers, private equity professionals and corporate finance advisors, the report features perspectives from more than 15 of the world’s top lawyers working in M&A, disputes and private equity. Outside contributors come from leading firms including Baker McKenzie, Latham & Watkins, Allen & Overy, King & Spalding and Herbert Smith Freehills.

“In a moment with increasingly complex M&A deals, the findings in this report make it abundantly clear that a multidisciplinary approach, built around understanding the fundamental issues at play and the root causes behind disputes, is crucial to get to the bottom of individual disputes,” says BRG Managing Director Mustafa Hadi.

The report looks at the new issues Covid has presented resulting in potential disputes dealing with purchase price adjustments and earnout calculations. BRG’s research also examines another potentially powerful shift: MAC, MAE and force majeure clauses. Terms that were once simple boilerplate are getting closer looks, and trends like third-party financial audits are becoming a bigger factor in how deals take shape.

“At the end of 2020, following a significant litigation on MACs in the UK courts being finally determined, it put a healthy new reemphasis on exclusions and carve-outs from a MAC and how these exclusions operate in practice,” says Simon Rootsey, Partner at Akin Gump in London.

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