Navigating trans‐atlantic deals: warranties, disclosure and material adverse change

Purpose – The purpose of this paper is to explore certain remaining differences in the underlying legal considerations and the differing customs and practices of US and UK mergers and acquisitions in relation to certain issues. Design/methodology/approach – A review was undertaken of the leading cases in the UK and various states of the USA and custom and practice in the UK and USA, in each case in relation to the following areas: representations and warranties; disclosure; the effect of the buyer's knowledge; repetition of warranties/representations; and material adverse change. Findings – Although the historical differences between UK and US mergers and acquisitions are diminishing as the frequency of trans‐atlantic transactions increases, there remain certain variances which have important implications for the allocation of risk between a buyer and seller in any trans‐atlantic merger or acquisition. Originality/value – This paper is useful for professional advisers acting in connection with a trans‐atlantic merger or acquisition and for buyers and sellers contemplating such transactions.