M & A Agreements

• Applicant: Professor Dr. Stefan Korch
• Subject Area: Private Law
• Term: since 2023
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 525936831

Mergers and acquisitions are of enormous economic importance. This reality contrasts sharply with the lack of attention paid by legal academia, which focuses instead on purchase provisions of the German Civil Code (BGB) that are irrelevant in practice. Over decades, legal practioners have developed a complex system of contracts and procedures encompassing its own conventions, a system which is concealed from outsiders on account of ubiquitous confidentiality and arbitration clauses. This study aims to re-integrate the law on mergers and acquisitions – as actually practiced – with the jurisprudential discourse and proceeds first by creating the necessary factual basis. The project gathers all publicly available information and assembles it like the pieces of a mosaic. In addition, the study analyzes confidential information, e.g. original contracts and law firm templates, and completes this data set through a survey of M&A practitioners. The work thus provides unprecedented insight into the world of mergers and acquisitions, a field which has not previously been the subject of empirical legal research. This factual basis allows for a pioneering in-depth analysis that can counteract the widespread legal uncertainty caused by the absence of a theoretical foundation. However, the work is not limited to supporting legal practice. Rather, it demonstrates that M&A agreements are – from a theoretical perspective – an extremely rewarding topic of research as they raise numerous fundamental questions: How does private law fulfill its support role in contracts that deliberately waive large segments of nonmandatory law? What limits does private law impose on the drafting done by specialized and experienced legal practitioners, given that much of the reasoning behind mandatory provisions does not apply to M&A contracts? And what influence does corporate law have on M&A practice? The thesis seeks answers to these questions by adopting an interdisciplinary approach, choosing not only a doctrinal but also a legal-economic and comparative perspective. A better understanding of corporate acquisition leads to the final goal of the work: the establishment of a starting point for broader research on contractual practice and the formulation and conclusion of contracts. M&A agreements are paradigmatic for the template- based individual contracts that are used frequently in practice. These types of contracts differ from genuine standard term contracts because they do not manifest information asymmetry. At the same time, however, these contracts are not, as is often implicitly assumed in legal academic conceptions of contracts, drafted for each individual legal transaction, starting with a blank sheet of paper. As M&A agreements, these template-based individual contracts constitute a blind spot in legal scholarship.

• DFG Programme: Publication Grants