Cross-border M&A: A checklist of US issues for non-US acquirors

In contrast to purely domestic M&A, cross-border M&A involves an additional array of legal, jurisdictional, cultural, and commercial nuances that must be navigated. To assist non-US acquirors who are interested in making strategic or other investments in the United States, this article offers a practical guide and covers topics ranging from acquisition structures to regulatory compliance to representations and warranty insurance, among others. While each M&A transaction will present bespoke issues, some of which are likely to be unfamiliar to non-US acquirors, a foundational familiarity with the most common issues that underlie and accompany US M&A deals will help secure successful outcomes.

Contents

1. Cross-Border M&A: A Checklist of US issues for Non-US Acquirors
2. Deal Structure: Tax, Acquisition Finance, and Other Considerations
3. Foreign Investment Review (CFIUS)
4. Merger Control
5. Regulated Industries
6. Securities Laws and Mandatory Offer Requirements
7. Corrupt Business Practices and Economic Sanctions
8. Director Fiduciary Duties
9. Litigation
10. Human Resources Considerations
11. Intellectual Property and Data Protection
12. Politics and Local Market Practice
13. Representations and Warranty and Other Transactional Risk Insurance Products
14. Distressed Acquisitions
15. Conclusion

1. Cross-Border M&A: A Checklist of US Issues for Non-US Acquirors

Cross-border merger and acquisition (“M&A”) transactions can be far more complex than purely domestic transactions. With advanced planning and careful consideration of relevant issues, however, it is possible to navigate this complexity successfully and achieve the parties’ commercial objectives. This article presents an overview of certain key issues that should be considered by non-US acquirors contemplating acquisitions or other strategic investments in the United States.

Global M&A activity peaked during 2021, but volumes normalized in 2022 in a year marked by inflation, progressively increasing interest rates, Russia’s invasion of Ukraine, ongoing supply chain disruptions and food and energy insecurity, and the continuation of the COVID-19 pandemic. In particular, cross-border M&A activity has remained relatively stable, painting a more certain picture for global dealmakers than has recently been the case.

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