Locking up the deal – perspectives and practices from around the world

Summary provided by officers
IBA Corporate and M&A Law Committee

A report on a session at the IBA Annual Conference Toronto 2025, on 3 November 2025

Session Co-Chairs
Sarah Young, Ropes & Gray, New York
Rabindra Jhunjhunwala, Khaitan & Co, Mumbai

Panelists
Rod Davies, TD Securities, Toronto
Jacob Gofman, Blake Cassels & Graydon, Toronto
Susan A Meisel, Sony Music Entertainment, New York
Kenichi Sekiguchi, Mori Hamada & Matsumoto, Tokyo

Session summary

Our 2025 Toronto session ‘Locking up the deal – perspectives and practices from around the world’ explored the mechanisms and strategies used by global deal practitioners to provide greater deal certainty in regard to M&A transactions. The panel, chaired by Sarah Young and Rabindra Jhunjhunwala, featured perspectives from legal advisers, in-house counsel and an investment banker, with the panel hailing from the United States, Canada, Japan and India.

The discussion began by defining what it means to various stakeholders to ‘lock up a deal’. It was highlighted that the concept differs across transaction structures but is broadly understood to capture contractual protections and risk allocation, including in the context of both regulatory approvals and interloper bids. The panel examined the legal foundations of deal protection mechanisms, focusing on how directors’ fiduciary duties apply in various jurisdictions and that they may constrain the use of contractual lock-up provisions, comparing the relevant standards applied across Delaware, Canada and Japan.

The panelists then discussed global deal protection practices, including termination fees, voting agreements, matching rights, no-shop and go-shop provisions and fiduciary outs. Practical negotiation dynamics and the impact of management objectives and regulatory risks on the negotiation and enforcement of lock-up provisions were also addressed.

The session concluded with a focus on cross-border transaction challenges, emphasising the need to harmonise approaches and understand the cumulative effect of deal protection mechanisms, especially in light of increased regulatory scrutiny and global antitrust concerns.

Key takeaways

• the tension between deal certainty and fiduciary flexibility is universal, but its resolution depends heavily on the local legal frameworks, market practices and cultural norms. Interestingly, the same contractual provisions are often employed across jurisdictions even where differing fiduciary overlays might permit a more flexible approach;
• practitioners must consider not only what is legally permissible, but also what is commercially reasonable and market accepted in each jurisdiction;
• the cumulative effect of deal protection devices is critical; courts and regulators generally assess the overall package and the aggregate effect of all such provisions, rather than individual provisions in isolation; and
• cross-border transactions require careful navigation of conflicting legal standards and expectations, with a focus on balancing the certainty of closing with flexibility in order to respond to changing circumstances.