Introduction

Cross-border mergers and acquisitions frequently involve some of the most sophisticated contractual arrangements in international commerce.

A single acquisition may involve a share purchase agreement (“SPA”), shareholders’ agreement, disclosure letter, escrow agreement, warranty and indemnity insurance policy, transitional services agreement, management agreements, financing documents and multiple ancillary contracts governed by different laws.

The transaction itself may be completed within months. The legal consequences, however, may continue for years after closing.

Once control of the target company passes to the buyer, disputes may arise concerning matters such as:

• inaccurate financial statements;
• breach of representations and warranties;
• undisclosed liabilities;
• tax exposures;
• purchase price adjustments;
• completion accounts;
• earn-out calculations;
• material adverse change provisions;
• fraud or misrepresentation;
• indemnification obligations;
• leakage;
• escrow releases;
• non-compete obligations;
• shareholder deadlock;
• board representation;
• minority protection;
• put and call options;
• drag-along and tag-along rights;
• dividend policies;
• capital increases;
• dilution;
• and ultimate corporate control.

In international transactions, these disputes may involve parties, companies, assets and evidence situated across several jurisdictions.

For this reason, arbitration has become one of the principal mechanisms for resolving cross-border M&A and shareholder disputes.

Its attraction is understandable.

Arbitration offers parties the ability to select a neutral forum, choose specialist decision-makers, determine procedural rules, avoid litigating before the courts of either party’s home jurisdiction and obtain an award capable of international recognition and enforcement.

The New York Convention provides the international legal foundation for this enforcement system. It requires Contracting States, subject to limited exceptions, to recognise arbitration agreements and foreign or non-domestic arbitral awards.

Yet M&A arbitration also creates distinctive legal problems.

The first question is often not whether the seller breached the SPA.

It may instead be:

Which dispute-resolution mechanism was the parties’ contract actually intended to apply to the particular dispute?

A purchase price dispute may have been allocated to an independent accountant. A warranty claim may belong in arbitration. A challenge to a shareholders’ resolution may be subject to mandatory company law. A dispute concerning several interconnected contracts may require joinder or consolidation.

Accordingly, dispute-resolution architecture should be treated as an integral part of transaction drafting rather than as boilerplate placed at the end of the SPA.

1. Why Arbitration Is Particularly Suitable for Cross-Border M&A Disputes

International M&A disputes involve several features that make arbitration attractive.

Neutrality

Where a German investor acquires a Turkish company from an international group, neither side may wish to submit disputes exclusively to the courts of the other party’s jurisdiction.

The parties may instead choose:

• London;
• Paris;
• Geneva;
• Singapore;
• Hong Kong;
• Stockholm;
• or another established arbitral seat.

The seat provides the procedural legal framework while permitting the parties to choose a different substantive law for the SPA.

Specialist tribunals

M&A disputes frequently require understanding of:

• accounting;
• financial statements;
• corporate governance;
• valuation;
• taxation;
• transaction structures;
• earn-out mechanisms;
• private equity;
• and complex damages models.

Parties can select arbitrators with substantial experience in these areas.

Procedural flexibility

Arbitration allows procedures to be adapted to the transaction.

The tribunal can potentially determine certain issues early, bifurcate liability and quantum, appoint experts, limit document production or establish accelerated timetables.

International enforcement

International enforceability remains one of arbitration’s greatest advantages.

The New York Convention establishes common standards for recognition of arbitration agreements and enforcement of foreign arbitral awards across its Contracting States.

This is particularly important where the seller, buyer or controlling shareholder may have assets in several jurisdictions.

2. The Share Purchase Agreement as the Centre of M&A Arbitration

The SPA is normally the principal source of post-closing M&A disputes.

The document defines:

• what was sold;
• at what price;
• on which financial assumptions;
• which risks remain with the seller;
• which risks transfer to the buyer;
• what the seller represented about the target;
• and what remedies are available if those representations prove inaccurate.

Post-acquisition arbitration therefore often becomes an exercise in reconstructing the contractual allocation of risk negotiated at signing.

A buyer may discover after completion that the target:

• owes significant unpaid taxes;
• has overstated revenue;
• possesses materially less inventory than recorded;
• is exposed to regulatory penalties;
• has lost a major customer;
• faces employment claims;
• does not own material intellectual property;
• or breached anti-corruption regulations.

The buyer may attempt to recover its loss through warranty, indemnity, covenant, fraud or contractual price-adjustment claims.

The precise drafting of the SPA becomes decisive.

3. Representation and Warranty Claims

Representations and warranties are among the principal mechanisms through which sellers allocate transaction risk.

Typical warranties concern:

• title to shares;
• corporate authority;
• financial statements;
• taxation;
• material contracts;
• employment matters;
• litigation;
• regulatory compliance;
• intellectual property;
• data protection;
• environmental liabilities;
• sanctions;
• anti-corruption compliance;
• assets;
• debt;
• and undisclosed liabilities.

Suppose the seller warrants that the target’s financial statements fairly reflect its financial position.

After closing, the buyer discovers substantial liabilities that should have been recognised before completion.

The buyer may allege that the warranty was false when given.

The tribunal may then need to determine:

1. what the warranty objectively meant;
2. whether the relevant fact was disclosed;
3. whether the warranty was breached;
4. whether contractual notice requirements were satisfied;
5. whether the claim was made within the contractual limitation period;
6. whether the buyer suffered recoverable loss;
7. whether contractual caps, baskets or exclusions apply.

In sophisticated M&A disputes, liability rarely ends with establishing that information was inaccurate.

The structure of the SPA’s limitation regime may be equally important.

4. Disclosure and the Disclosure Letter

A seller will often qualify warranties through disclosure.

A typical SPA provides that the seller will not be liable for matters that were fairly disclosed to the buyer before signing.

This creates disputes concerning what constitutes sufficient disclosure.

For example, if thousands of documents are uploaded to a virtual data room, can the seller later argue that every fact contained in those documents was disclosed?

The answer depends on the contract.

SPAs frequently define disclosure standards requiring information to be disclosed with sufficient detail to identify the nature and scope of the matter.

An arbitral tribunal may therefore need to examine:

• the disclosure letter;
• data room;
• management presentations;
• due diligence reports;
• correspondence;
• Q&A records;
• and negotiation history where admissible.

The dispute can become highly document-intensive.

5. Indemnity Claims

Specific indemnities differ conceptually from general warranties.

Where due diligence identifies a known risk, the buyer may demand a specific contractual indemnity.

Examples include:

• pending tax audits;
• environmental remediation;
• litigation;
• regulatory investigations;
• historical employee claims;
• intellectual-property disputes;
• or identified compliance violations.

If the relevant liability materialises, the indemnification analysis may be more straightforward than a warranty damages claim because the parties have expressly allocated that specific risk.

Nevertheless, disputes can arise regarding:

• scope;
• causation;
• mitigation;
• double recovery;
• timing;
• defence of third-party claims;
• settlement rights;
• and calculation of indemnified loss.

6. Purchase Price Adjustment Disputes

One of the most common technical disputes in M&A arises from post-closing purchase price adjustments.

A transaction may initially be priced using an enterprise-value-to-equity-value bridge.

A simplified formula might be:

Equity Value = Enterprise Value – Net Debt ± Working Capital Adjustment

The final purchase price may therefore depend upon financial conditions at closing rather than signing.

Disputes frequently arise concerning:

• working capital;
• cash;
• debt;
• debt-like items;
• transaction expenses;
• accounting policies;
• inventory;
• provisions;
• accrued liabilities;
• intercompany balances;
• and unusual pre-closing transactions.

A disagreement over whether one liability constitutes “Debt” or “Working Capital” may shift the final purchase price by millions of dollars.

7. Completion Accounts Versus Locked-Box Transactions

Two common pricing mechanisms illustrate different dispute risks.

Completion Accounts

Under a completion accounts structure, an estimated price is paid at closing and later adjusted based upon accounts prepared as of the completion date.

This can produce significant post-closing disputes.

The parties may disagree about:

• accounting standards;
• consistency with past practice;
• transaction-specific definitions;
• provisions;
• inventory valuation;
• cut-off dates;
• or classification of liabilities.

Locked-Box

Under a locked-box mechanism, price is generally determined using historical financial statements at an agreed locked-box date.

The buyer then receives economic benefit from that date onward, subject to protection against unauthorised value extraction.

The principal disputes therefore often concern leakage.

Examples may include:

• dividends;
• management fees;
• shareholder payments;
• related-party transactions;
• extraordinary bonuses;
• debt repayments to sellers;
• or transfers of assets outside ordinary business.

The parties should define “Permitted Leakage” and “Leakage” precisely.

Poor drafting can transform relatively ordinary intra-group transactions into substantial post-closing claims.

8. Expert Determination and Arbitration Are Not the Same

A major drafting issue in M&A agreements is the relationship between arbitration and expert determination.

Many SPAs provide that accounting disputes relating to completion accounts will be referred to an independent accounting firm rather than an arbitral tribunal.

This can be efficient.

An accountant may be better placed than three lawyers to decide a technical disagreement concerning inventory valuation.

However, difficulty arises when the dispute contains both legal and accounting issues.

Suppose the parties disagree whether a particular payment falls within the contractual definition of “Debt.”

That may involve interpretation of the SPA rather than an accounting exercise.

The accountant’s mandate may be limited to calculating the amount once the legal classification has been established.

The result can be a jurisdictional dispute:

Is this an accounting dispute for the expert or a contractual interpretation dispute for the arbitral tribunal?

The SPA should therefore clearly define:

• which disputes go to expert determination;
• which disputes go to arbitration;
• whether the expert acts as expert or arbitrator;
• whether the determination is final and binding;
• the scope of permissible review;
• and what happens where legal and accounting questions overlap.

Failure to coordinate the two mechanisms can produce parallel proceedings and contradictory results.

9. Earn-Out Disputes

Earn-outs are another significant source of M&A arbitration.

An earn-out makes part of the purchase price conditional upon the target’s future performance.

For example, the seller may receive an additional USD 30 million if EBITDA exceeds a specified amount during the two years following acquisition.

Such mechanisms bridge valuation disagreements.

They also create conflicts of interest.

After closing, the buyer normally controls the company whose performance determines the seller’s additional consideration.

The seller may later allege that the buyer deliberately reduced the earn-out by:

• reallocating revenue;
• increasing costs;
• changing accounting methods;
• diverting customers;
• terminating key employees;
• reducing marketing expenditure;
• transferring profitable activities to affiliates;
• or otherwise managing the business differently.

The buyer may respond that it acquired the company precisely because it wanted the freedom to manage it.

A well-drafted earn-out clause should therefore address:

• accounting principles;
• operational covenants;
• ordinary-course requirements;
• permitted restructuring;
• allocation of group costs;
• related-party transactions;
• information rights;
• calculation procedures;
• and dispute resolution.

10. Material Adverse Change and Material Adverse Effect Disputes

Between signing and closing, the target company’s position may deteriorate substantially.

SPAs may therefore contain a Material Adverse Change (“MAC”) or Material Adverse Effect (“MAE”) provision permitting the buyer, in defined circumstances, to refuse completion.

Such provisions commonly exclude general developments affecting:

• the economy;
• financial markets;
• the relevant industry;
• interest rates;
• wars;
• pandemics;
• legal changes;
• or political conditions,

unless the target is disproportionately affected.

Disputes concerning MAC clauses can become particularly important during periods of economic or geopolitical instability.

Arbitrators may need to determine:

• whether the event falls within the contractual definition;
• whether its effect is sufficiently material;
• whether an exclusion applies;
• whether the effect is temporary or durable;
• and whether the target was disproportionately affected.

Because transactions often require rapid decisions, interim measures may become crucial.

11. Fraud and Misrepresentation Claims

Not every post-closing claim is purely contractual.

A buyer may allege that the seller deliberately concealed information or fraudulently induced the acquisition.

Possible allegations include:

• manipulated financial statements;
• fabricated customers;
• concealed regulatory investigations;
• secret related-party arrangements;
• false revenue recognition;
• corruption;
• or deliberate concealment of liabilities.

Fraud allegations can significantly affect the contractual liability regime.

SPAs often contain limitations of liability that do not apply to fraud or wilful misconduct.

The precise consequences depend on the governing law.

Evidence becomes especially important.

Arbitration may involve forensic accounting, document production, witness testimony and electronic communications covering years before the transaction.

12. Warranty and Indemnity Insurance

Warranty and indemnity (“W&I”) insurance has become an important feature of international M&A transactions.

In broad terms, W&I insurance may allow a buyer to recover certain warranty losses from an insurer rather than directly from the seller.

This can facilitate transactions, particularly where:

• private equity sellers seek a clean exit;
• sellers distribute proceeds shortly after closing;
• or buyers want additional protection beyond the seller’s negotiated liability cap.

However, W&I insurance can create a second contractual layer.

A single factual issue may involve:

• the SPA;
• disclosure process;
• insurance policy;
• insurer exclusions;
• notification requirements;
• and subrogation rights.

Dispute clauses should therefore be reviewed for compatibility.

Otherwise, an SPA dispute could be determined in one arbitration while the related insurance dispute is resolved in another forum.

13. Shareholder Agreements and Post-Acquisition Disputes

Not every cross-border acquisition results in 100% ownership.

Frequently, the purchaser acquires a majority or minority interest while the original shareholders remain invested.

The relationship may then be governed by a shareholders’ agreement (“SHA”).

Typical provisions concern:

• board composition;
• reserved matters;
• voting rights;
• financing;
• dividend policy;
• transfer restrictions;
• pre-emption rights;
• information rights;
• non-compete obligations;
• deadlock;
• exit;
• drag-along;
• tag-along;
• put options;
• call options;
• and valuation.

These agreements can produce disputes fundamentally different from ordinary SPA warranty claims.

The issue may no longer be compensation for historical wrongdoing.

Instead, it may be who controls the company today.

14. Corporate Control Disputes

Control disputes can arise where shareholders disagree about:

• appointment or removal of directors;
• business strategy;
• new financing;
• capital expenditure;
• acquisition proposals;
• dividend distributions;
• related-party transactions;
• changes to constitutional documents;
• or sale of the company.

A shareholder may allege that another shareholder has used its control rights to undermine contractual minority protections.

Conversely, a minority investor may be accused of using veto rights opportunistically to block ordinary commercial decisions.

Because the commercial consequences are immediate, monetary damages several years later may provide inadequate protection.

This makes interim relief particularly important.

15. Reserved Matters

Joint venture and shareholder agreements frequently contain a list of reserved matters requiring unanimous approval or a specified supermajority.

These may include:

• amendments to articles;
• capital increases;
• major acquisitions;
• disposals;
• borrowing beyond specified limits;
• related-party transactions;
• appointment of senior management;
• annual budgets;
• dividends;
• commencement of litigation;
• or changes in business.

Disputes can arise over the boundaries of reserved matters.

A controlling shareholder may argue that a transaction falls within ordinary management authority.

The minority investor may contend that it requires its consent.

Where the transaction is imminent, emergency arbitration or court relief may be required before the disputed corporate act becomes irreversible.

16. Deadlock Disputes

A 50/50 joint venture can become commercially paralysed where shareholders fundamentally disagree.

Shareholders’ agreements frequently provide escalating deadlock mechanisms, for example:

1. management negotiation;
2. referral to senior executives;
3. mediation;
4. buy-sell mechanism;
5. put or call option;
6. liquidation.

Some agreements use mechanisms sometimes described as:

• Russian roulette;
• Texas shoot-out;
• sealed-bid procedures;
• or compulsory sale arrangements.

Arbitration may become necessary where one shareholder alleges that:

• no genuine deadlock occurred;
• procedural conditions were not satisfied;
• the mechanism was triggered in bad faith;
• valuation was manipulated;
• or the resulting share transfer is invalid.

Because these provisions can determine ultimate corporate ownership, drafting precision is essential.

17. Put and Call Option Disputes

Put and call options are particularly common in joint ventures and private equity transactions.

A put option may permit a minority shareholder to require another party to purchase its shares following certain events.

A call option may permit one shareholder to acquire another shareholder’s shares.

Trigger events can include:

• material breach;
• deadlock;
• change of control;
• default;
• insolvency;
• failure to meet performance targets;
• or passage of an agreed investment period.

Disputes may concern both whether the option was validly triggered and how the shares must be valued.

The arbitration clause should be coordinated with the valuation procedure.

Otherwise, a tribunal may decide that a call option was properly exercised while a separate expert determines price under an inconsistent factual framework.

18. Drag-Along and Tag-Along Rights

Exit rights represent another significant area of shareholder disputes.

A drag-along right generally permits a controlling shareholder selling its shares to compel minority shareholders to sell on the same transaction.

A tag-along right generally allows minority shareholders to participate in a sale by the controlling shareholder.

Disputes may arise concerning:

• whether the contractual threshold was met;
• whether the purchaser qualifies under the agreement;
• whether the same economic terms were actually offered;
• valuation;
• consideration structure;
• rollover equity;
• warranties required from minority sellers;
• and alleged attempts to circumvent the rights.

Where a corporate sale is already scheduled to complete, interim relief can again become crucial.

19. Dilution and Capital Increase Disputes

Corporate control may also change through financing.

Suppose a majority shareholder proposes a substantial capital increase.

A minority shareholder unable or unwilling to participate may be diluted.

The minority investor may allege that the financing was deliberately structured to reduce its ownership.

Disputes may involve:

• pre-emption rights;
• valuation;
• contractual veto rights;
• funding obligations;
• shareholder loans;
• conversion rights;
• and directors’ duties.

Arbitration may resolve contractual aspects of these claims.

However, mandatory company law may affect the validity of corporate resolutions and remedies available against the company itself.

20. Arbitrability of Corporate Disputes

One of the most important legal issues in shareholder arbitration is arbitrability.

Commercial parties generally possess broad freedom to arbitrate contractual disputes.

But not every corporate-law issue can necessarily be determined through arbitration in every jurisdiction.

Certain legal systems restrict arbitration concerning matters that:

• affect third parties;
• require registration in public corporate registers;
• concern winding-up or insolvency;
• determine the existence of a legal entity;
• challenge certain shareholder resolutions with erga omnes consequences;
• or fall within exclusive jurisdiction of national courts.

The applicable analysis may involve several laws:

• law governing the arbitration agreement;
• law of the arbitral seat;
• law governing the company;
• and law of the enforcement jurisdiction.

For this reason, parties should not assume that inserting “all disputes arising out of or relating to this Agreement” automatically makes every corporate dispute arbitrable.

21. The Importance of the Seat of Arbitration

The choice of arbitral seat is particularly important in M&A disputes.

The seat determines the procedural legal framework governing matters including:

• court supervision;
• challenges to arbitrators;
• applications to set aside awards;
• arbitrability;
• and judicial assistance.

The UNCITRAL Model Law has influenced arbitration legislation across numerous jurisdictions and addresses the arbitral process from recognition of arbitration agreements and tribunal jurisdiction through interim measures and enforcement.

Commonly selected seats for international M&A arbitration include:

• London;
• Paris;
• Geneva;
• Singapore;
• Hong Kong;
• Stockholm;
• New York;
• and other arbitration-friendly jurisdictions.

The selection should not be made solely because a city is geographically convenient.

The legal regime of the seat matters.

22. Choice of Arbitral Institution

M&A agreements frequently select leading international institutions such as:

• ICC;
• LCIA;
• SIAC;
• HKIAC;
• SCC;
• ICDR;
• or other established arbitral institutions.

The appropriate institution depends on the transaction, parties, geography and expected dispute profile.

As of 1 June 2026, arbitrations commenced under ICC Rules are generally governed by the 2026 ICC Arbitration Rules, unless the parties have agreed to apply an earlier version. The revised Rules include mechanisms concerning multi-party and multi-contract proceedings, case management and early determination.

ICC reported 881 new arbitrations in 2025 involving 2,531 parties from 147 jurisdictions, illustrating the international reach of its caseload.

The LCIA Rules 2020 contain mechanisms dealing with emergency arbitrators, interim measures and consolidation or concurrent conduct of related arbitrations.

The SIAC Rules 2025, effective from 1 January 2025, introduced or expanded procedures including streamlined proceedings, preliminary determination, coordinated proceedings, expedited procedures and enhanced emergency-arbitrator mechanisms.

These procedural tools can be particularly useful in complex M&A disputes.

23. Multi-Contract M&A Transactions

A major acquisition rarely consists of one contract.

The transaction may involve:

• SPA;
• SHA;
• escrow agreement;
• transitional services agreement;
• management agreement;
• IP licence;
• financing documentation;
• non-compete agreement;
• and disclosure documentation.

If different documents contain inconsistent arbitration clauses, procedural difficulties can become substantial.

For example:

SPA: ICC arbitration in London.

SHA: LCIA arbitration in London.

Escrow agreement: courts of New York.

Transition services agreement: ICC arbitration in Paris.

A single factual dispute may then generate several proceedings.

The better approach is to develop a coherent dispute-resolution architecture across the entire transaction.

24. Joinder and Consolidation

M&A disputes are often multi-party.

A transaction may involve:

• several sellers;
• buyer entities;
• guarantors;
• founders;
• management shareholders;
• escrow agents;
• or parent companies.

Modern institutional rules attempt to address this complexity.

The ICC Rules permit claims involving multiple contracts and provide mechanisms for joinder and consolidation subject to specified conditions.

The LCIA Rules similarly provide for consolidation and concurrent conduct in defined circumstances involving compatible arbitration agreements and related transactions.

These mechanisms are valuable but cannot completely repair inconsistent transaction drafting.

Consent to arbitration remains fundamental.

25. Interim Measures and Emergency Arbitration

Corporate-control disputes frequently cannot wait until a final award.

Imagine that one shareholder intends tomorrow to:

• issue new shares;
• remove directors;
• transfer key assets;
• complete a drag-along sale;
• draw down escrow funds;
• dispose of the target;
• or terminate a critical contract.

Damages years later may not adequately restore the status quo.

Parties may therefore seek interim measures requiring or preventing particular conduct.

The UNCITRAL Model Law includes a framework for interim measures in support of arbitration.

Major institutional rules also provide emergency procedures.

Under the LCIA Rules, a party may seek an Emergency Arbitrator before constitution of the ordinary tribunal, while applications to competent state courts for interim measures remain possible.

The SIAC Rules 2025 strengthened emergency relief mechanisms and permit, among other developments, applications for emergency proceedings even before filing the Notice of Arbitration and provide for protective preliminary order applications in defined circumstances.

For an M&A lawyer drafting the transaction, availability of urgent relief should therefore be considered at the contractual stage.

26. Arbitration and National Courts Can Coexist

Choosing arbitration does not mean courts disappear entirely.

National courts may remain relevant for:

• interim injunctions;
• attachment;
• preservation of assets;
• evidence;
• enforcement;
• corporate-register actions;
• insolvency proceedings;
• and applications to set aside awards.

A well-drafted arbitration clause should therefore preserve access to courts for appropriate interim or conservatory relief without creating an argument that seeking such relief waives arbitration.

Institutional arbitration rules commonly recognise this relationship.

For example, the LCIA expressly confirms that an application for interim measures to a competent court before tribunal formation is not inconsistent with its emergency-arbitrator framework.

27. Confidentiality

Confidentiality is frequently cited as an important advantage of arbitration in M&A disputes.

This can be especially valuable where claims involve:

• purchase price;
• internal valuations;
• trade secrets;
• customer information;
• business plans;
• compliance investigations;
• shareholder conflicts;
• or allegations of fraud.

Public litigation may reveal commercially sensitive matters.

However, parties should not assume that confidentiality operates identically in every arbitration.

The applicable institutional rules, arbitration law and contractual provisions should be examined.

A specific confidentiality clause may therefore remain advisable.

28. Evidence and Document Production

Post-M&A disputes can involve enormous volumes of evidence.

Important documents may include:

• SPA drafts;
• negotiation correspondence;
• due diligence reports;
• data room contents;
• management presentations;
• financial models;
• board minutes;
• accounting records;
• internal emails;
• audit documents;
• tax files;
• valuation reports;
• and post-closing communications.

The arbitration procedure must balance evidentiary completeness against proportionality.

A tribunal may permit targeted document production while refusing broad discovery.

Digital transaction platforms increasingly preserve detailed records concerning:

• when a document was uploaded;
• who accessed it;
• whether it was replaced;
• and what information was available to the buyer before signing.

Such metadata can become important in disclosure disputes.

29. Accounting and Valuation Experts

Expert evidence plays an unusually important role in M&A arbitration.

Tribunals may hear experts concerning:

• accounting;
• tax;
• valuation;
• damages;
• industry practice;
• forensic investigations;
• or corporate finance.

A warranty claim may require the tribunal to answer two different questions.

First:

Was the warranty breached?

That is principally a legal and factual question.

Second:

What would the company have been worth if the warranted position had been true?

That can require complex valuation evidence.

Experts may apply:

• discounted cash flow analysis;
• comparable company multiples;
• precedent transaction multiples;
• EBITDA adjustments;
• loss-of-value analysis;
• or other methodologies.

The choice of valuation date and methodology can materially alter damages.

30. Calculating Damages in SPA Claims

Suppose the buyer pays USD 300 million for a company based upon an EBITDA multiple.

After closing, it discovers that EBITDA had been materially overstated.

The buyer may argue:

Had the true EBITDA been known, the company would have been worth USD 240 million.

The claimed damages may therefore be USD 60 million.

The seller may respond that:

• the buyer did not rely on EBITDA;
• synergies justified the price;
• the alleged breach did not cause the loss;
• the buyer overpaid for unrelated commercial reasons;
• or contractual limitations exclude the claim.

Arbitration tribunals must therefore distinguish between:

• breach;
• causation;
• contractual measure of damages;
• valuation loss;
• consequential loss;
• and double recovery.

31. Contractual Limitation Regimes

Sophisticated SPAs rarely provide unlimited seller liability.

Common limitations include:

De minimis threshold

Claims below a specified amount are ignored.

Basket

The seller becomes liable only after total qualifying claims exceed an agreed threshold.

Cap

Maximum liability is limited to a percentage of the purchase price or another amount.

Time limits

Different warranties may have different survival periods.

For example:

• general warranties: 18–24 months;
• tax warranties: statutory limitation period plus an agreed extension;
• fundamental warranties: substantially longer.

Exclusive remedies

The SPA may provide that specified contractual remedies are exclusive.

No double recovery

A buyer cannot recover the same economic loss twice.

Arbitrators must apply this negotiated contractual architecture.

32. Notice of Claim Provisions

One of the most commercially frustrating outcomes in M&A disputes occurs when a substantively strong claim fails because the contractual notice requirements were not satisfied.

SPAs may require a claim notice to:

• be submitted before a specific date;
• identify the nature of the breach;
• provide reasonable details;
• identify the amount claimed;
• and comply with contractual service provisions.

Whether strict or substantial compliance is required depends on the governing law and drafting.

Parties discovering a potential claim should therefore review the notice clause immediately.

Waiting until damages are fully quantified can be dangerous where contractual limitation periods are approaching.

33. Shareholder Claims and the Company as a Non-Signatory

A further complication arises where the shareholders’ agreement contains an arbitration clause but the company itself is not a signatory.

The shareholder may want relief requiring corporate action.

The tribunal must then consider whether:

• the company is bound by the arbitration agreement;
• relief can effectively be ordered only against the shareholder;
• applicable law permits non-signatory theories;
• or national court proceedings are also required.

Potential non-signatory doctrines vary considerably between jurisdictions.

They may involve concepts such as:

• assumption;
• agency;
• assignment;
• alter ego;
• estoppel;
• incorporation by reference;
• or other doctrines recognised under applicable law.

Parties should therefore decide during drafting whether the target company should itself become a party to the arbitration agreement.

34. Parallel Proceedings

Complex corporate disputes may generate simultaneous:

• arbitration;
• court proceedings;
• expert determination;
• regulatory investigations;
• insolvency proceedings;
• and criminal proceedings.

For example, a shareholder may arbitrate contractual breach while separately challenging a corporate resolution before the courts of the jurisdiction of incorporation.

Parallel proceedings create risks including:

• inconsistent decisions;
• duplicated evidence;
• increased costs;
• strategic delay;
• and conflicting interim measures.

Tribunals and counsel must therefore develop a coordinated procedural strategy.

35. Enforcement of M&A Arbitral Awards

An award has limited value if it cannot be enforced.

Before commencing arbitration, the claimant should therefore identify:

• where the respondent owns assets;
• whether those assets can be attached;
• whether the respondent is likely to restructure;
• whether guarantees exist;
• and which jurisdictions may ultimately be involved in enforcement.

The New York Convention’s international enforcement framework remains one of the primary reasons arbitration is attractive for cross-border M&A transactions.

Nevertheless, enforcement may be refused on limited grounds, potentially including invalidity of the arbitration agreement, serious procedural defects, matters outside the tribunal’s mandate, non-arbitrability or public policy.

This again reinforces the importance of correctly drafting the arbitration agreement.

36. Drafting an Arbitration Clause for an M&A Transaction

A sophisticated M&A arbitration clause should address more than simply stating:

“Any dispute shall be resolved by arbitration.”

Parties should consider:

Institution

Which arbitral institution will administer the dispute?

Seat

What is the juridical seat of arbitration?

Tribunal

One or three arbitrators?

Language

What language will govern proceedings?

Governing law

Which substantive law governs the agreement?

Scope

Does the clause cover contractual and non-contractual claims?

Multiple contracts

Are arbitration clauses across transaction documents compatible?

Consolidation

Can related proceedings be consolidated?

Joinder

Can affiliates, guarantors or additional sellers participate?

Interim relief

Can parties seek emergency arbitration or court injunctions?

Expert determination

Which issues belong exclusively to an accountant or valuation expert?

Confidentiality

What information must remain confidential?

Corporate disputes

Does applicable law permit the intended corporate-law remedies to be arbitrated?

A few additional lines of drafting before signing can prevent years of jurisdictional litigation after the transaction fails.

37. A Better Dispute-Resolution Architecture for Complex Transactions

For sophisticated international transactions, dispute resolution should be designed across the entire deal rather than agreement by agreement.

A coordinated structure may provide, for example:

Accounting calculations → independent expert

SPA warranty and indemnity disputes → arbitration

SHA and corporate control disputes → same arbitration institution and seat

Urgent control disputes → emergency arbitration and court interim relief

Mandatory corporate registry or insolvency matters → competent national court

The key is compatibility.

The dispute mechanisms should operate together rather than compete against each other.

38. Strategic Considerations Before Starting an M&A Arbitration

Before commencing proceedings, a claimant should answer several practical questions.

What is the contractual basis of the claim?

Warranty, indemnity, covenant, fraud, price adjustment or shareholder breach?

Was valid notice given?

A procedural defect may destroy an otherwise strong claim.

Who should be respondent?

Seller, parent guarantor, founder, shareholder or company?

Is the dispute arbitrable?

Particularly important for corporate remedies.

Does an expert have exclusive jurisdiction?

Critical for completion-account disputes.

Are urgent measures necessary?

Assets or corporate control may change rapidly.

Where are enforceable assets?

A damages award should have economic value.

Is settlement commercially preferable?

M&A parties may remain connected through transitional services, earn-outs, minority shareholdings or future transactions.

A legally successful arbitration that destroys a valuable continuing commercial relationship may not always produce the optimal economic outcome.

39. Why M&A Arbitration Is Increasingly Sophisticated

International M&A disputes are no longer limited to simple claims that a seller breached a warranty.

Modern proceedings can involve:

contract interpretation + corporate governance + accounting + valuation + tax + forensic investigation + regulatory law + multiple jurisdictions.

Procedural developments within major arbitral institutions increasingly reflect this complexity.

ICC’s current 2026 Rules contain modernised case-management mechanisms and provisions addressing multiple parties and contracts, while the current SIAC regime includes preliminary determination, coordinated proceedings and enhanced emergency procedures.

The LCIA framework similarly provides tools for emergency relief, interim measures and consolidation of related proceedings.

These mechanisms make institutional arbitration particularly adaptable to sophisticated acquisition and shareholder disputes.

Conclusion

International arbitration has become one of the most important dispute-resolution mechanisms for cross-border M&A transactions and international shareholder relationships.

Its principal strengths—neutrality, specialist tribunals, procedural flexibility and international enforceability—are particularly valuable where buyers, sellers, shareholders, companies and assets are distributed across multiple jurisdictions.

Yet the effectiveness of arbitration depends heavily upon transaction drafting.

Post-acquisition disputes frequently arise from:

representations and warranties, indemnities, disclosure, completion accounts, purchase price adjustments, locked-box leakage, earn-outs, MAC clauses and fraud allegations.

Shareholder disputes introduce a second category of problems involving:

board control, reserved matters, deadlock, dilution, put and call options, drag-along and tag-along rights, exit mechanisms and corporate control.

These disputes cannot always be treated identically.

Some accounting matters may properly belong to an independent expert.

Some contractual disputes are ideally suited to arbitration.

Certain corporate, insolvency or registry-related matters may remain subject to mandatory national law and national courts.

The most sophisticated approach is therefore not simply to include an arbitration clause.

It is to create a coherent M&A dispute-resolution architecture covering the SPA, shareholders’ agreement and ancillary transaction documents.

Parties should decide in advance:

• which disputes are arbitrable;
• which matters belong to an accounting or valuation expert;
• which arbitral institution should administer proceedings;
• where the arbitration should be seated;
• whether consolidation and joinder may be necessary;
• how urgent interim relief can be obtained;
• whether the company itself must sign the arbitration agreement;
• and whether the resulting award can realistically be enforced against the relevant assets.

The same principle applies when a dispute has already arisen.

A party contemplating M&A arbitration should not begin by asking only:

“Did the other party breach the agreement?”

The more complete analysis is:

“What contractual risk was allocated, which decision-maker has jurisdiction over the dispute, what remedy is legally available, and how can that remedy ultimately be enforced?”

In international M&A and shareholder disputes, answering those questions correctly can be as important as proving the underlying breach itself.

Disclaimer: This article is provided for general legal research and informational purposes only and does not constitute legal advice. The arbitrability of corporate disputes, interpretation of SPA provisions, availability of interim relief, liability limitations and enforcement of arbitral awards depend on the governing law, arbitral seat, jurisdiction of incorporation, transaction documents and circumstances of each individual case.