Key Considerations in Cross-border M&A

As cross-border M&A activities become increasingly frequent, companies that engage in mergers and acquisitions to expand markets and acquire resources also face various challenges and risks.

The European company successfully acquired an Asian technology company, aiming to leverage the latter’s technological strengths and deep local market expertise to enhance its global competitiveness. However, this cross-border acquisition encountered numerous challenges related to cultural differences, legal compliance, financial transparency, and post-merger integration, all of which became critical issues the company needed to address.

Key Considerations:

1. Legal and Regulatory Framework

Cross-border M&As involve the legal systems and regulatory requirements of multiple countries, often making legal compliance one of the most challenging issues. Different countries have varying legal frameworks, financial reporting standards, tax regimes, foreign exchange controls, and labor laws. For example, in the United States, foreign investments are subject to the review of the Committee on Foreign Investment in the United States (CFIUS), which assesses whether a transaction poses a national security threat.

2. Tax Structure

Tax-related issues in cross-border M&A are usually complex and involve the tax policies of both countries, including income tax, value-added tax (VAT), and capital gain tax. Therefore, it is essential to examine double taxation agreements (DTA) and design the tax structure based on the specific transaction format.

3. Valuation and Earn-outs

Valuation is often at the core of cross-border M&A deals and can lead to disputes. In some cases, cultural differences may cause friction between the acquiring and acquired companies regarding the valuation adjustment mechanism. For instance, the acquired company might exploit cultural differences by accusing the parent company's CFO of moral harassment, initiating civil and criminal proceedings, which in turn hinder the execution of valuation adjustments. To avoid such issues, it is crucial to establish well-defined earn-out provisions and fraud protection clauses.

4. Intellectual Property 

In cross-border M&A transactions involving high-tech sectors such as technology, pharmaceuticals, and the internet, intellectual property (IP) issues are particularly prominent. Different countries have varying levels of IP protection, and cross-border acquisitions may involve the transfer or licensing of patents, trademarks, copyrights, and even government restrictions on technology exports, such as the U.S. Export Administration Regulations (EAR).