Dr. Wolf H. von Bernuth on “Arbitration of Cross-Border M&A Disputes”
On November 7, 2024, IDR LL.M. students had the privilege of attending a thought- provoking and engaging lecture by Dr. Wolf H. von Bernuth, a partner at Hausfeld, on the complexities of arbitration in cross-border M&A disputes. Drawing on his extensive experience in arbitration under both ad hoc rules and institutional rules such as DIS and ICC, as well as his role as an expert to the German Bundestag’s legal committee during the 2012 KapMuG reform, Dr. von Bernuth provided invaluable insights into the intricacies of arbitration in post-M&A conflicts.
Dr. Wolf H. von Bernuth began his lecture by introducing students to the key issues in post-M&A disputesand explaining the reasons why parties prefer arbitration as a resolution mechanism in such cases. He discussed how post- transaction interests frequently diverge, leading to conflicts in M&A scenarios. To make the session more interactive, he presented a case study inspired by real-world events, in which a purchaser discovered after the transaction that a significant portion of the acquired company’s revenue was tied to bribery, impacting its valuation. The purchaser subsequently initiated arbitration proceedings, claiming that it had overpaid on the basis of this valuation. The students were divided into two groups to debate procedural arguments under DIS rules, exploring issues of arbitrator impartiality and the presence of witnesses in the hearing room. Following the group presentations, Dr. von Bernuth provided constructive feedback and elaborated on the relevance of soft laws and international standards, such as the IBA guidelines on Conflicts of Interest. He also discussed the flexibility offered by DIS rules when procedures are undefined, allowing either the parties or the tribunal to determine the appropriate approach.
We extend our heartfelt gratitude to Dr. Wolf H. von Bernuth for sharing his expertise and making the session a memorable and enriching experience. The lecture equipped students with tools to navigate arbitration in post-M&A disputes effectively.
- Qihui Cai & Zhijing Wu, IDR LL.M. Candidate, Class of 2024/2025