MUNICH May 2010, Warsaw, Poland Travelling in the Fast Lane: Resolution of Pre-Closing Disputes P+P Pöllath + Partners Attorneys-at-Law  Tax Advisors Dr. Alice Broichmann Dispute Resolution in M&A Transactions Tactics, Challenges, Defences

P+P Pöllath + Partners ■ Munich2 Supplementary Rules for Expedited Proceedings Fast-Track Arbitration Rules of the German Institution of Arbitration (DIS)  Adopted in April 2008  7 paragraphs  Supplement the DIS Rules  Time frame ▫6 months (sole arbitrator) ▫9 months (three arbitrators)  Model clause exists  Retrievable under

P+P Pöllath + Partners ■ Munich3 Supplementary Rules for Expedited Proceedings Characteristics of the Supplementary Rules for Expedited Proceedings  Quick constitution of the arbitral tribunal  Only two rounds of written submissions (time limit of 4 weeks each)  Only one oral hearing including the taking of evidence  Counterclaims and set-offs must be approved by parties and arbitral tribunal  A time table has to be submitted  Time tables and provisions may be modified if all the parties agree

P+P Pöllath + Partners ■ Munich4 Supplementary Rules for Expedited Proceedings The Supplementary Rules for Expedited Proceedings in practice  Three cases so far  The rules haven’t been used in an M&A dispute yet  Financial crisis put a damper on M&A  The DIS working group designed the rules for M&A as well  Parties can keep their options open until a dispute occurs and then choose between regular and fast-track arbitration “If the parties want to keep their options open until the dispute has arisen and until they are able to determine whether a specific dispute is apt for fast-track dispute resolution, they may consider providing for a choice in their arbitration clause between standard DIS arbitration and expedited DIS arbitration under the new Supplementary Rules for Expedited Proceedings.” Klaus Peter Berger, The Need for Speed in International Arbitration

P+P Pöllath + Partners ■ Munich5 Ad hoc Fast-Track Arbitration in M&A Pre-Closing Disputes Tailor-made M&A fast-track arbitration clauses allow for speedy decisions, e.g. through the following provisions  The timeline can be cut down (e.g. 4 weeks to 6 months)  Written briefs can be submitted directly (without involving an arbitral institution)  Arbitrators can be appointed directly in the arbitration clause of the M&A contract -Arbitrators can immediately check that no conflict of interest exists -Arbitrators can ensure that they are available in the respective time period -Arbitrators can immediately see key information like the share purchase agreement and familiarize themselves with everything before a dispute arises  Three-member arbitral tribunals are often preferred by the parties

P+P Pöllath + Partners ■ Munich6 Lessons Learned Do’s and don’ts in fast-track arbitration clauses  Avoid criteria in the arbitration clause which can be easily manipulated, like the value in dispute  Avoid fast-track arbitration in multi-party situations  Avoid “midnight clauses”  Ensure that the parties are able to comply with short deadlines -Will internal approvals be required (e.g. board consent)? -Will travel time be required to attend hearings? -Will visas be required in international disputes?

Dr. Alice Broichmann P+P Pöllath + Partners  München Tel.: +49 (89) Szczęśliwej podróży! Bon voyage! Gute Reise!