Can you be forced to negotiate a deal in good faith?
While an enshrined position in continental Europe, the general position under English law is that there is no obligation to negotiate in good faith as part of a transaction. Earlier this month, the High Court in Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd  EWHC 2104 found a provision in an agreement to engage in ‘friendly discussions’ prior to commencing any litigation or arbitration proceedings to be enforceable. The judgment does not, however, seek to upend the well-established position that where no contract is in place an agreement to negotiate generally lacks the necessary certainty and will have no legal content to be enforceable (Walford v Miles)…
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M&A Diligence: time-limited obligation to resolve a dispute by friendly discussions found to be enforceable
Care should be taken when inserting clauses into acquisition agreements that require parties to speak to each other to resolve problems.
A truncated due diligence exercise, however time-efficient, can lead to unexpected exposure for purchasers.