In Takeda Pharmaceutical Co v Fougera Sweden Holding 2 AB, the High Court held that the seller was not under an express or implied duty to provide the buyer with information relevant to settling a tax dispute involving the target company. The tax liability in question was indemnified by the seller but had a time limit for resolving the issue of six years from completion. The buyer said that it could resolve the dispute if it was provided the information by the seller and also that the “further assurance” provision in the SPA meant that the seller was obliged, expressly or implicitly to provide the information.
The High Court disagreed saying that there was no express obligation on the seller to provide the information and so there was nothing for the further assurance clause to apply to.
This is another example of the courts taking a strict approach to interpreting provisions in SPAs and tax covenants negotiated between informed parties and highlights the importance of including clear drafting to deal with points that either of the parties thinks might be pertinent in enforcing rights and obligations.