Mergers and acquisitions in Latin America
13 Mar - 15 Mar 2024
Session information
Breakout session 1 – Closing litigation issues: controversies related to the use of escrow agreements, representations and guarantees, and price adjustment. Mediation and dispute resolution regarding these issues
Thursday 14 March (1130 - 1300)
Description
Latin America is commonly perceived to experience lower levels of M&A-related litigation than countries in other regions. However, not all M&A transactions begin and end the same – ie beginning where the buyer approaches the seller and ending when the seller receives funds and the deal is closed. Indeed, the perception that litigation is slower is therefore a reason, but disputes involving participants in M&A transactions across the region are common. The panel, together with those of you who decide to attend, will explore how the overcrowding of justice systems in countries around Latin America plays a role in the lack of M&A related litigation. We will also discuss the preference by parties to M&A deals for arbitration, rather than domestic courts or alternative dispute resolution procedures. Although it could be said that most disputes are settled through direct conversations between principals, as opposed to formally starting lawsuits or arbitration proceedings, we will also aim to discuss problems between parties where claims are more commonplace and frequently contested or challenged, including: post-closing indemnification, purchase price adjustments, concerns about escrow agreements and possible sums that may be retained. We will not only explore those mechanisms used for funding and securing an indemnity (ie, escrow agreements), but also other mechanisms such as set-offs against future payments (particularly earn-out payments) and a partial holdback of the purchase price. Where applicable and publicly available we will also discuss and explore how tribunals have handled such situations.
Session / Workshop Chair(s)
Tomas Araya | Bomchil, Buenos Aires, Argentina; Senior Vice Chair of Membership, Insolvency Section |
Carlos Del Rio | Creel Garcia-Cuellar Aiza y Enriquez, Mexico City, Mexico; Treasurer, Latin American Regional Forum |
Speakers
Gabriel Mesa | Covington & Burling, New York, New York, USA |
Andrea Saffie | Cariola Diez Perez-Cotapos, Santiago, Chile; Latin American Regional Forum Liaison Officer, Poverty and Social Development Committee |
Laura Sinisterra | Debevoise & Plimpton LLP, New York, New York, USA |
Gretta Walters | Chaffetz Lindsey, New York, New York, USA |
Jose Felix Zaldivar de la Rica | Uria Menendez, Madrid, Spain |