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Arbitration is rapidly becoming the preferred dispute resolution mechanism for the life sciences sector. There are numerous reasons for this. The most obvious is that increasingly M&A transactions are cross-border (e.g. Takeda’s acquisition of Shire). The often complex lengthy process involved in life science transactions can give rise to dispute at various stages.
Please join Haig Oghigian, F.C.I.Arb. of Squire Patton Boggs LLP as he addresses:
- The law applicable to each agreement is expressly stated in most Life Sciences transaction contracts. Difficult issues arise, however, where it is not. These mostly arise in the pre-signing phase, usually before the execution of a letter of intent ("LOI") This might occur if the parties felt that choosing an applicable law was unnecessary in an LOI or inappropriate, since it might imply that the document has legal effects that the parties did not intend the LOI to have.
- Here, as well, problems can arise, including: (a) what is a competent court if it is not specified in the relevant document (L0I or agreement); (b) whether an arbitration clause is valid, whether it extends only to other companies of the groups to which the parties belong; and (c) whether a particular issue falls within the scope of the arbitration clause.
- Interim relief may also play an essential role in Life Sciences transaction disputes by preventing behavior that could have irremediable consequences, such as the breach of a confidentiality or exclusivity clause or, most importantly, the completion of a proposed transaction with another party.
- Specific performance is difficult topic, the main question being whether the implementation of a proposed transaction can be ordered by a judge or arbitral tribunal. The answer is likely to depend on the circumstances and the stage at which the issue arises.
In the pre-signing phase, it is difficult to imagine where a court could issue an order to sign an agreement especially if the terms and conditions have not been at least substantially agreed upon.
At the post-signing but pre-closing stage, specific performance could be envisaged, but not without carefully taking into account the nature of the transaction. Ordering the assignment of 100 per cent of the shares of a holding company might, for example, be not too problematic. On the other hand, ordering parties to set up and manage a joint venture can be expected to be more problematic.
Program Level: Overview
Intended Audience: Attorneys and allied professionals who counsel pharmaceutical and life sciences companies
Prerequisites: A familiarization with life sciences law, litigation and regulation
Advanced Preparation: None