Gerald (Jerry) M Hansen, Forensic Risk Alliance
This is an extract from the second edition of GAR’s The Guide to M&A Arbitration. The whole publication is available here.
This Guide focuses primarily on various aspects of the resolution of M&A disputes through arbitration. A formal arbitration process, however, is not the only method of resolving certain M&A disputes. An expert determination is an additional alternative dispute resolution process often included in transaction agreements, one that is commonly utilised in resolving post-closing purchase price adjustment disputes. This chapter will discuss a variety of topics focused on assisting transaction parties, their advisors and their counsel in managing the expert determination process, including how an expert determination differs from an arbitration and the types of M&A disputes that are most often appropriately resolved through an expert determination. This chapter will also discuss and describe a variety of factors related to expert determinations, including, defining and documenting the process in the relevant transaction agreement; items to include in submissions to the expert that can have a direct impact on the determination; and the critically important selection of the expert.
Expert determination versus arbitration
Before discussing how to manage the process, we should differentiate between an expert determination and an arbitration. While the processes can appear similar because quite often the two can be procedurally very similar, there are some key differences and considerations for transaction parties opting for this forum of dispute resolution.
There are two primary differences between arbitrations and expert determinations. The first is that an expert determination is most commonly conducted and provided by a single expert, commonly an accounting or other industry expert, whereas many arbitrations involve an arbitral tribunal comprising attorneys. The second key difference is that, generally speaking, there are no formal rules governing an expert determination other than what may be provided for in the transaction agreement (or otherwise agreed between the parties and possibly the expert), other than licensing standards for professional certifications held by the expert. By contrast, arbitrations are governed by a variety of rules, laws and treaties that can apply depending on the venue or the parties’ agreement.
These differences are important to be aware of when selecting the dispute resolution process to include in transaction agreements. There are different types of M&A disputes, some of which are best served by arbitration, others by expert determination. This is why many transaction agreements contain both dispute resolution methods, with each applicable to different disputes. (See Chapter 3 on conflicts between expert determination and arbitration clauses.)
Types of disputes frequently resolved through expert determinations
M&A disputes relate to a variety of transaction provisions, such as representations and warranties, indemnities, transaction fraud, leakage, and purchase price adjustments. Not all M&A disputes are appropriate for expert determination. In addition, there is a marked difference between an expert who determines an M&A dispute and a quantum expert or other subject-matter expert witnesses. This chapter is only concerned with the expert determination, not other experts that may be retained to assist a party in presenting its position in the arbitration or expert determination.
Expert determinations are commonly provided for in transaction agreements to resolve post-closing purchase price adjustment disputes. Such disputes are also referred to as net working capital disputes, closing accounts disputes or completion accounts disputes. Many transaction agreements contain post-closing purchase price adjustment mechanisms based on a pre-determined metric – commonly net working capital – but it could be some other metric, such as EBIT.
How a purchase price adjustment dispute can arise is based on the provisions of the transaction agreement. Most agreements with purchase price adjustment provisions allow a buyer to review the acquired entity and propose adjustments to the price if the buyer believes certain financial statement items (e.g., net working capital items) reflected at the closing date are not representative of the actual amounts received or are otherwise recorded contrary to the applicable accounting guidance (e.g., in violation of IFRS or US GAAP). The types of items most commonly at issue are those requiring some level of estimation or subjective judgement on the part of management, which allows for differences of opinion. Examples of such items would include allowance for doubtful accounts, inventory reserves, warranty reserves, contingent liabilities and similar accounts. If the seller disagrees with the buyer’s proposed adjustments, the parties may negotiate and settle their differences, or the disagreement may persist, resulting in a contractually agreed dispute resolution process, typically an expert determination.
Outside the United States there can be a perception that contractually provided for purchase price adjustments and resulting disputes have decreased in frequency. This is because the use of locked-box transactions to avoid purchase price adjustment calculations and disputes is increasingly common in the United Kingdom and some other European countries. Locked-box transactions commonly establish the purchase price based on a review of the most recent audited financial statements and, once agreed, the purchase price is locked and not subject to adjustment post-closing. This may, or may not always, prove successful, but further discussion is outside the scope of this chapter. What is important to note is that cross-border transactions involving US-based counterparties still commonly include net-working-capital-based purchase price adjustments and dispute resolution provisions. As a result, purchase price adjustment disputes and expert determinations are still relevant in the cross-border context, even if not prevalent in some intra-country transactions.
Other types of M&A disputes can involve a variety of contractual, legal and damages issues that are typically more appropriately handled through commercial arbitration involving an attorney or a tribunal of attorneys, not an expert determination by a single accounting or industry expert. Expert determinations can be utilised for other types of M&A disputes, such as indemnity claims that are related to net working capital items, for example taxes, but this is relatively infrequent. More commonly quantum- or valuation experts would assist client counsel with such disputes in an arbitration.
Identifying the types of M&A disputes that most frequently involve expert determinations is a good starting point, but managing the overall expert determination process will require an understanding of the common expert determination framework and how to document the process in the transaction agreement. Not only will such steps assist in smoother dispute resolution they can also help avoiding a protracted negotiation, or even a dispute, regarding the process itself.
Defining the expert determination process
An important aspect of managing expert determinations is understanding and defining the dispute resolution process. This Section on defining the expert determination process will address this topic from two perspectives – first by describing and defining the common expert determination process and second by describing how to sufficiently document (define) that process in the transaction agreement.
What does expert determination look like?
If a post-closing purchase price adjustment dispute does arise, the resolution process should be about resolving the dispute, not a protracted negotiation about the process itself. In some cases, the negotiation about the process becomes a dispute in itself, separate from the substantive issues. If, however, the transaction agreement adequately provides for the dispute resolution process, this negotiation can be streamlined.
Expert determination for a purchase price adjustment dispute would commonly include the following steps:
- The parties agree on the expert to resolve the dispute.
- A schedule is agreed that provides specific due dates for the various activities described below.
- The parties provide simultaneous submissions (initial submissions) to the expert in support of their positions on the items in dispute.
- The parties provide simultaneous rebuttal submissions to the expert, restricted to addressing arguments raised by the opposing party in their respective initial submission.
- The expert has the opportunity to submit interrogatories or document requests to the parties regarding the items in dispute or the parties’ submissions.
- The parties respond to the expert.
- The expert provides the written determination to the parties.
The expert determination process in most cases is not bound by formal rules or procedures as is arbitration. The common process outlined above is only a guide and may be altered in any way the parties agree. For example, the parties may wish to provide for a hearing in person or via teleconference to present their positions live to the expert; or the parties may wish to forgo the rebuttal submissions. The overall goal should be a fair process designed to provide the expert with sufficient information to reach a fully informed determination.
Depending on the nature and magnitude of the items in dispute, this may involve more or fewer steps. The effort required for each activity and the timeline depend on the number and complexity of the items in dispute.
Defining the expert determination process in the transaction agreement
Armed with a basic understanding of what is involved in an expert determination, the parties and their counsel can better manage the process by incorporating various aspects into the transaction agreement. Doing so will assist in focusing the parties efforts on resolving the dispute, should one arise, rather than on the process itself. By the time a dispute is imminent, the parties are most likely not on good terms, which can create difficulties when negotiating the procedures. Therefore, the time to include such items is during the drafting of the agreement.
In practice, the importance of clarity in the implementation of some post-closing related provisions, such as purchase price adjustments, representation and warranty claims, leakage, and potential disputes related to such issues, is sometimes overlooked (or considered less important) when drafting. Obviously (and understandably), the parties would rather focus on the excitement surrounding a transaction and other perceived weightier matters such as agreeing a purchase price, the due diligence results, or the prospect of adding a new product or service. After all, a post-closing dispute may not actually happen, right?
Rather than viewing them as less important, defining the expert determination provisions sufficiently in the transaction agreement can actually have a double benefit: (1) they will clearly spell out the overall process the parties should follow if a dispute arises, thereby streamlining the process, and (2) they will add clarity that may actually assist in preventing all or part of a dispute that may otherwise arise. A failure to sufficiently attend to post-closing dispute resolution provisions, especially for complicated or heavily negotiated transactions, can create an opportunity for post-closing issues to arise or be magnified. Such issues often originate in avoidable ambiguities or omissions in the transaction agreement. A crafty counterparty may attempt to exploit them if left unaddressed.
While it is important to include some guidelines regarding the dispute resolution process, a great level of procedural detail is not warranted or even possible in most cases. Failing to include any procedural details in the transaction agreement, however, is also not an appropriate option. So, where should the parties focus their efforts? The transaction parties should allocate time to the post-closing provisions of the transaction agreement that could be susceptible to varying interpretations or negotiation several months after the closing. These provisions include, but are not limited to, those related to post-closing purchase price adjustments, as well as any related dispute resolution provisions. Clarity in provisions describing the implementation of the post-closing purchase price adjustment methodology, calculation and dispute resolution process is important, and will prove a valuable reference should a dispute occur.
Following are a few key items to consider including in the transaction agreement.
- Specify a firm, individual or list of individuals to serve as the expert. Failing to do so can lead to a protracted search and negotiation (and potentially a dispute) about selection. This does not mean that the firm or the individual named in the purchase agreement will not have a conflict when a dispute arises, but if chosen carefully the odds of this occurring are greatly reduced. The transaction agreement should also specify the process to select an alternative expert if the firm or individual named has a conflict. For example, the agreement could state that if the nominated firm is conflicted, an alternative firm that is an international public accounting firm with operations in the United Kingdom will be selected. (Considerations in the selection of the specific expert to serve are discussed later in this chapter.)
- Specify the general procedures. These could be similar to those in the example provided above or could include a provision for a hearing, additional submissions, fewer submissions, etc. Setting out the process will eliminate the need to obtain agreement between the parties later, when the parties are contemplating a dispute. Many transaction agreements only generally refer to the process. For example, the agreement may state that the parties will provide submissions to the expert who will rely exclusively on such information to determine the disputed items. Such a general reference to the process leaves much open for interpretation by the parties and the expert.
- Specify the applicable provisions, calculations, methodologies, etc., that have an impact or relation to the post-closing purchase price adjustment and dispute resolution process. In this regard, any calculation impacting the determination of net working capital and the purchase price adjustment should have an example calculation included in the transaction agreement. These should be very detailed to mitigate opportunities for differing interpretations. For example, for a net-working-capital-based purchase price adjustment mechanism, the example calculation of net working capital should not simply list the balance sheet accounts that are to be included, because balance sheet accounts are often consolidated amounts of several sub-ledger accounts. The example calculation should include detail of the sub-ledger components to avoid subsequent misinterpretation. Months later in a dispute process, when this example may need to be referred to, is when memories become vague because one interpretation of a provision negatively impacts a party’s position on a disputed item, while an alternative interpretation supports the position. Adding such rigour to the transaction agreement will provide the expert an easy-to-follow guide in reaching a determination on the items in dispute. It could also help avoid certain disputes due to the clarity of the example.
Alternative dispute resolution processes are often less expensive than litigation, but that does not mean they are inexpensive. Post-closing disputes can be very costly to resolve. By just paying attention to a few key post-closing provisions in the transaction agreement, parties can often mitigate (i.e., manage), the nature and magnitude of post-closing disputes. The time invested in defining the expert determination process before closing can result in time and cost savings after closing.
Assess your strength of position
Prior to the expert determination process, an additional step the transaction parties can take is to assess the relative strength of position on each of the items in dispute. A good tool to use is a resolution matrix. This is basically an analytical assessment of the strength of position and likelihood of prevailing on each of the items in dispute. The assessment-of-strength spectrum can be useful with either three or five strength-of-argument classifications. For example, a five-class spectrum would include these categories: strongly favours seller, favours seller, neutral, favours buyer, strongly favours buyer.
The overall goal of the resolution matrix is the identification of certain disputed items that it might make sense to attempt to negotiate away prior to commencing the expert determination. The items with the lower likelihood of success in the expert determination might be settled through negotiation. Another objective could be to resolve or settle less significant items beforehand so the parties do not incur costs from advisors and the expert to resolve items with less significant monetary impact. Further, the results of the resolution matrix may provide a party with information that can be used to its benefit even before the expert determination process begins. For example, if a party identifies an item in dispute that the resolution matrix indicates it is likely to lose, that party can attempt to negotiate a 50/50 split on the item with the other party. If successful, it could be considered a win of 50 per cent on an item it assessed as a likely 100 per cent loss.
If both parties utilise a strength-of-argument assessment, like a resolution matrix, an expert determination process focused solely on the significant issues in dispute can often be achieved. A note of caution: the resolution matrix process is an imperfect estimation of the outcome in an expert determination. It can be useful in assessing strength of position and in indicating items for potential negotiation, but it should not be relied on as an infallible predictor of the expert’s ruling for each item in dispute.
Submissions to the expert should be robust
If a dispute does occur that is submitted for an expert determination, such a determination will ultimately be reached based on the information provided to the expert. In an expert determination process, each party will be required to provide information to the expert in support of its respective positions on the disputed items. Many expert determinations are conducted solely in writing and, as a result, the parties will typically have only two opportunities to provide information to the expert – the initial and rebuttal submissions. Sometimes a third opportunity is available through providing responses to the expert’s interrogatories or requests, but only if the expert makes such requests. The limited opportunities to provide information to the expert in support of a party’s positions heightens the importance of the completeness and quality of the submissions.
The initial submission is each party’s first opportunity to provide detailed information to the expert supporting their positions. Beyond a detailed discussion of the disputed items, there are a few other categories of information that each party should cover to provide context.
The parties have been dealing with this transaction for many months, or longer, that has now proceeded to a dispute. It can be easy for the parties to forget that the expert most likely knows very little, if anything, about the parties, the target entity, the transaction agreement, or the disputed items. While such information is often not determinative of disputed items, it provides necessary background information to more fully understand them.
Company and industry specifics
Similarly, the expert may or may not have significant experience in the specific industry of the target company. While a lack of industry experience typically has no bearing on the expert’s ability to appropriately resolve the dispute, the parties would be well advised to provide any industry- or company-specific information to aid the expert’s understanding. These specific facts and circumstances of the business can be important as they provide context to certain disputed items and potentially impact the ultimate resolution. For example, describing that the company commonly stocks higher than normal levels of inventory at certain times of the year because it has seasonal sales, can provide information to the expert relevant to rebutting a proposed adjustment to inventory for excess inventory levels. Another example could be describing specific economic factors that have impacted the business operations or the industry temporarily or in the long term. Other accounting considerations can include, for example, the methodology used to determine the allowance for doubtful accounts. Under IFRS, there are multiple acceptable methods for determining this, including those based strictly on the ageing of receivables and others based on specific identification of accounts with potential collection issues. All of this information is useful to the expert in understanding the business and can have an impact on the determination of certain items.
Detailed disputed item discussion and support
Finally, the submissions should include very detailed discussions of the disputed items and sufficient supporting documentation. The discussions should describe and quantify the disputed item, reference the applicable accounting guidance, refer to specific applicable transaction agreement provisions, discuss why one party is correct and the other is not, and give a conclusion that links back to the transaction agreement (e.g., consistent with historical accounting practices). All of this information is necessary to provide the expert with sufficient information regarding each disputed item to make an informed determination. The supporting documentation is also key and it should be relevant. It is especially critical to provide supporting documentation that may not be obvious. An expert will typically request accounting related information if not provided with a party’s submission, but he or she may not be aware of certain information relevant to a disputed item. For example, for disputed items related to excess inventory, typical supporting documentation would include historical sales or usage of the inventory items in dispute. While useful, such information may be incomplete when considered in isolation because there may be additional information such as a product improvement or a new sales channel that would provide the expert with a better understanding of the future expected inventory usage. If this additional information is not provided (or not requested because the expert was unaware of its existence), the expert could unknowingly make a determination that is not fully informed.
Selecting the right expert
A final key consideration for transaction parties and their counsel in managing the determination process is the selection of the expert. In contrast to an arbitration tribunal, an expert determination is almost always provided by a single expert – commonly an accounting or other industry expert, typically referred to in the transaction agreement as the accounting expert, neutral accountant or similar term – who is selected by the parties in accordance with the transaction agreement.
Selecting the right expert can assist in obtaining a more accurate and supportable determination. This is important because most expert determinations are final and binding on the parties. Some transaction agreements specifically name an individual or a firm to act as the expert. In others a general reference to a nationally recognised accounting firm is all that is included. Knowing that in the event of a dispute an expert will need to be engaged (regardless of whether one was named in the transaction agreement), what are the important factors for transaction parties and their counsel to consider? Following are several items of importance in the selection process.
- The expert should be selected by the parties based on depth of experience. In considering the qualifications of potential experts, it is important that the expert be a licensed professional in the requisite profession (e.g., a certified public accountant). As noted earlier, many transaction agreements provide for the expert’s determination to be final and binding on parties with only few and narrow grounds available for appeal. Therefore, in the case of a purchase price adjustment dispute involving net working capital items, the selection of an appropriately experienced accountant to serve in the capacity of the expert would be critical to the fair and complete resolution of the dispute.
- The parties should select someone experienced in expert determination of M&A disputes. Without specific experience, the role and the process can be alien to the uninitiated, as it is often very different from the normal spectrum of engagements of, for example, a financial statement auditor. Experience with the role and process may also protect the parties against an expert overstepping their bounds and being persuaded by a flurry of loosely related arguments that are irrelevant, potentially resulting in a determination outside the scope of the expert’s specialist knowledge and possibly outside the scope of the transaction agreement.
- The parties should identify a firm or expert that has run a conflict check and is free of conflicts at the time it is selected to be included in the transaction agreement. Failure to do so can result in an extended delay in the dispute resolution process while the parties identify firms to consider, then agree on the specific firm, and agree on an individual from that firm. Much of this can be avoided by including the selected firm or expert in the transaction agreement.
- An expert’s experience in the specific industry of the parties or the target entity is typically not required or necessary to consider. Owing to the nature of the disputed items in many post-closing purchase price adjustment claims, industry experience is often not relevant because the relevant professional accounting guidance is generally applicable across industries. This is not true, however, for every dispute. A few industries and disputed items would benefit from specific industry experience and knowledge, such as energy and agricultural claims, which can involve unique disputed items and accounting considerations.
Most of the considerations listed above are applicable regardless of whether the expert will be named in the transaction agreement or will be selected only in the event of a dispute. In the event of a dispute requiring an expert determination, the selection of the expert is clearly a key component of that process because of the finality of the determination. Selecting an inexperienced and underqualified expert can lead to a flawed process and possibly an unjust determination. The items described above can assist transaction parties and their counsel in managing the process in a way that results in a fair dispute resolution process.
Managing expert determinations involves planning that begins in the transaction agreement drafting stage, long before an M&A dispute is even contemplated by the parties. In this chapter we have discussed that an expert determination is not an arbitration, and as such it involves some unique considerations and planning. It is possible to actively manage the process by documenting the dispute resolution procedures in the transaction agreement, by objectively assessing the strength of argument on the items in dispute, by providing sufficient background and information to the expert and by selecting an appropriate expert. By applying the information in this chapter the expert determination process can be managed in a way that focuses on the substantive issues, not on the process itself, while providing for an equitable procedure for the transaction parties.
Subscribe here for related content, breaking news and market analysis from Global Arbitration Review.
Covering commercial and investment arbitration, Global Arbitration Review is the unofficial broadcaster for members of the international arbitration community, keeping them feeling up to date and informed.