Crossing the border

However, any sale is a daunting – and often once in a lifetime – experience. With the added component of an overseas buyer, the concept can appear overwhelming.

One way to reduce risk in carrying out cross-border transactions is agreeing the governing law of a deal at a very early stage. It is imperative that the documentation is governed by English law and jurisdiction so the parties are bound by English contract principles.

For example, English lawyers like to use ‘Head of Terms’ to set out basic terms of a deal, whereas American legal advisers tend to take a less formal approach. At the very least, though, it would be prudent to set out some key terms in writing before moving to the share purchase agreement.

Moreover, our experience suggests that American lawyers like to extract information on the target business via the warranties in the share purchase agreement, rather than the English preference to complete a full due diligence process.