Mergers: practical issues in international M&A deals

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

A session at the IBA Annual Conference Toronto 2025, on 4 November 2025

Antitrust Section (Lead)
Corporate and M&A Law Committee

Session Co-Chairs
Catriona Hatton, Baker Botts, Brussels
Sara García Vázquez, Uría Menéndez, Madrid

Panelists
Logan M Breed, Hogan Lovells, Washington, DC
Jon Feldman, Goodmans, Toronto
Laurence Bary, Herbert Smith Freehills Kramer, Paris
Xanthe Ranger, American Securities, New York

Session summary

Planning and structuring an M&A deal is becoming increasingly challenging, especially when dealing with cross-border transactions involving multiple jurisdictions. Competition authorities are showing an increasing willingness to review transactions. Within this evolving landscape, characterised by diverse merger control regimes and the expanded use of call-in powers by competition authorities, the sector is facing new layers of uncertainty. This dynamic not only impacts deal timelines, but also affects how parties allocate risk and structure their contractual arrangements. These subjects were explored during our panel session, which focused on how to navigate this shifting landscape and effectively manage antitrust risks within M&A transactions.

Key takeaways

• Competition authorities worldwide are increasingly inclined to review and challenge mergers. It includes agencies ‘calling in’ deals, which includes claiming jurisdiction over transactions that traditionally fell outside their authority, such as in regard to below-thresholds deals;
• the way mergers are assessed is also changing. Competition authorities are now taking into account new factors such as sustainability, employment, data-related issues and innovation when evaluating the deal’s potential benefits and risks from an antitrust perspective. There is also a change in some major jurisdictions to the types of remedies regulatory authorities will accept, opening up opportunities to address competition law issues without divestments, but also presenting the risk of being subject to broad behavioural commitments and ongoing monitoring by such authorities over a long period post-closing;
• these elements must be carefully reflected in the transaction timetables, closing conditions and risk allocation provisions, even for non-reportable transactions, as they may still raise competition concerns. ‘Hell or high water’ provisions, in their purest form, may no longer be appropriate;
• interim covenants require careful management. Deal teams and counsel must balance preserving business value with competition law compliance, from signing through to closing. The European Commission, as well as national authorities, have been more active in recent years in enforcement in this area and some authorities are taking a very conservative approach in regard to what restrictions can legitimately be imposed on the target;
• similarly due diligence and integration planning require careful management, including through the appropriate constitution and conduct of clean teams, to ensure that the information flow between the parties does not infringe competition rules; and
• early cross-disciplinary collaboration is critical. Involving M&A and antitrust experts from the outset helps anticipate timing issues, manage risks and navigate regulatory challenges.