Private Legal Transplants in Negotiated Deals

Schweitzer Heike
Additional contact information
Schweitzer Heike: Prof. Dr. jur., LL.M. (Yale), European University Institute (EUI), Florence.

European Company and Financial Law Review, 2007, vol. 4, issue 1, 79-125

Abstract: Anglo-American transactional practice has had an enormous influence on deals practice in continental Europe in recent years. Pre-contractual practices and typical contract clauses have been decentrally adopted into European transactional practice on a broad scale. Yet, while continental private practice has widely assimilated Anglo-American transactional concepts terminologically, identity in terminology does not necessarily imply identity in function and meaning. As is well-known from the more general “legal transplant”-literature, function and meaning of foreign concepts can change as they are being integrated into a different legal system, especially where important systemic differences persist. One important difference between the US and continental European dealmaking environments regarding public deals is the degree to which competition for firms, and the idea to subject transactions negotiated with the management of a public corporation to a “market check”, is encouraged by culture and law. Different attitudes towards the balance between the goals of creating a market for firms and of transactional certainty can significantly change the way particular M & A practices work. Against this background, this paper analyzes the adoption of three broadly-used M & A practices into German practice: letters of intent, breakup fees, and material adverse change clauses, and compares their meaning and function in the US and in Germany. It results that important differences persist. In the longer run, the adoption of Anglo-American deals practices may, however, well change the way markets for firms work in Germany.

Date: 2007
References: Add references at CitEc
Citations:

Downloads: (external link)
https://doi.org/10.1515/ECFR.2007.008 (text/html)
For access to full text, subscription to the journal or payment for the individual article is required.

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:bpj:eucflr:v:4:y:2007:i:1:p:79-125:n:8

Ordering information: This journal article can be ordered from
https://www.degruyter.com/journal/key/ecfr/html

DOI: 10.1515/ECFR.2007.008

Access Statistics for this article

European Company and Financial Law Review is currently edited by Heribert Hirte

More articles in European Company and Financial Law Review from De Gruyter
Bibliographic data for series maintained by Peter Golla ().