The first day of the conference began with welcome remarks by the Conference Co-Chairs, Mr. Rabindra Jhunjhunwala, Khaitan & Co, Mumbai, Maharashtra; Conference Coordinator Asia Pacific, IBA Corporate and M&A Law Committee, Ms. Nivedita Rao, Cyril Amarchand Mangaldas, Bangalore, Karnataka, and Mr. Jörg Menzer, Noerr, Munich; IBA Vice-President.
Inaugural Session
In his welcome address, Mr. Rabindra Jhunjhunwala briefly discussed the IBA and the conference. He highlighted the record-breaking participation of delegates in this edition, with 35 percent new delegates, delegates from more than 20 countries, and more than half foreign delegates.
Contextualising the conference, Ms. Nivedita Rao spoke about the placement of the last IBA conference right after COVID-19 versus now wherein the global environment has ongoing conflicts, geopolitical uncertainties, trade tensions, tariffs, increasing skepticism around globalisation and increasing move towards insularisation, and divergent and uncertain growth in different parts of the world. She underscored that, against this backdrop, India continues with its audacious growth plan with a multi-faceted approach. Mentioning that this was an ambitious agenda but with a vast and growing consumer market, favourable demographics, and very strong capital markets, India continues to be a very attractive investment destination. Lastly, she briefly explained what the conference would entail and who the guests and speakers would be.
In his welcome remarks, Mr. Jörg Menzer, Noerr, Munich, and IBA Vice-President, agreed with Ms. Rao’s statement that the 30 trillion goal was indeed ambitious. He remarked that the world was currently struggling with globalisation, which used to be a way to integrate, especially in the legal field as it birthed the International Bar Association itself. He elaborated that the legal profession also plays a very important role in upholding open-mindedness, this integrative thrive, in safeguarding that every citizen and participant in globalisation is protected. He noted that there is increased pressure on the independence of the judiciary and the work of lawyers globally. In light of this struggle, he encouraged his fellow lawyers to remember why they became lawyers. Lastly, he stated that lawyers should remember that they can advise their clients on business practices that might make sense from an economic perspective but not for the greater good of society and the environment.
“We want to integrate and overcome differences. Actually, we want to enjoy differences of culture and different perspectives of life. If we as individual lawyers prevail at a certain moment the pressure over our calling of being lawyers. I think we will lose much more not only individually but as societies and as human mankind.”
– Mr. Jörg Menzer
“Our trade, our vocation, us as lawyers are the backbone for democratic free and just societies.”
– Mr.Jörg Menzer
Thereafter, a keynote speech was delivered by Prof. K.V. Subramanian, International Monetary Fund, Washington DC, on ‘Make (it happen) in India: USD 30 trillion goal’.
Following this, he and Mr. Cyril Shroff, Cyril Amarchand Mangaldas, Mumbai, Maharashtra, engaged in a fireside chat wherein Prof. Subramanian was asked pertinent questions by Mr. Shroff to set the tone for the conference.
Prof. Subramanian spoke about how the rule of law plays a role in promoting the market economy and fuelling growth, as well as how technology plays a role. He underscored that in terms of state capacity, there were two critical elements; judiciary and bureaucracy. From a corporate perspective, he opined that the delay in delivering justice creates uncertainty for market participants and stakeholders. This also impacted the type of contingencies that can be dealt with and the kind of innovation that can be supported. He remarked that the judiciary, especially in civil cases, plays a very critical role in supporting the economy. Regarding the technological aspect, he stated that it could be used to deal with the judicial backlog, making judgments accessible in several languages, for administrative purposes, and proceedings could be captured through AI.
Upon being asked what was holding India back from fixing this issue, Prof. Subramanian opined that where there is a will, there is a way. The solution required the judiciary and the polity to come together. He illustrated that if the issue of the sanctioned capacity of judges was solved at the district level, then there would be significant improvement. He also suggested that retired judges could also be made part of the agenda for reducing the backlog. He remarked, “None of the solutions that are required for the Indian judicial system to become efficient and deliver timely justice were rocket science. If the will is shown, it’s actually a low-hanging fruit to be plucked. All the stakeholders in the judicial system have to play a role.”
Regarding what key measures the private sector needed to take, Prof. Subramanian remarked that the private sector lacked in taking risks and encouraged them to take calculated risks despite the fear-mongering. He further spoke about the lack of vision of the private sector, businesses having copied models instead of innovating, leveraging technology to enable labour, labour emoluments, the importance of labour-intensive growth, disadvantages of a capital-intensive business model for India, and not getting involved in the present global developments.
Session 1
The first session titled ‘Geopolitics, regulatory trends and impact on M&A’ was moderated by Ms. Menaka Doshi, Bloomberg, Mumbai, Maharashtra, and Mr. Rabindra Jhunjhunwala. It was impanelled by Mr. Nicolas Bourtin, Sullivan & Cromwell, New York; Mr. Christian Hoedl, Uría Menéndez, Madrid, and Member, IBA Corporate and M&A Law Committee Advisory Board; Mr. Nitin Maheshwari, JP Morgan, Mumbai, Maharashtra; and Ms. Melanie Howard, Partner, Latham & Watkins, London.
While moderating the panel, Ms. Menaka Doshi briefly spoke about the recent tariff imposition by USA, pause on M&A, and other geopolitical issues that had impacted the M&A activity.
From the perspective of UK, Ms. Melanie Howard highlighted that in the last few years there had been a lot of chaos in the UK due to Brexit, but the government was attempting to create a sense of stability and a stable investment environment. She added that some of the trends that were seen in the first quarter might continue, there would be more domestically focused and country contained M&As.
Mr. Nicolas Bourtin underscored that the uncertainty of US affairs presently made it very difficult to count on whether these changes will encourage more US-focused deal-making, joint ventures in the US, companies wanting to find manufacturing presence in the US or some level of investment. However, he remarked that surely there would be opportunities for some companies even in this climate. Regarding deregulation in the USA, Mr. Bourtin agreed that the hope was that this would encourage other countries to get rid of such regulation, but due to the chaos, nobody knows where deregulation stands.
Expressing a positive outlook from the Indian perspective, Mr. Nitin Maheshwari stated that they had been advising their clients to not focus on 2025 but rather on the next 10 or 20 years. He outlined four dynamics around how clients are thinking, namely, increased investment in India in the last decade, India’s change from a services-exports-based economy to a manufacturing one, India’s digital transformation and pace of change, and Indian public markets. He remarked that all the disruption being talked about or seen is going to be an opportunity.
Regarding the inbound investments exceeding outbound investments, Mr. Maheshwari said that Indian larger corporates have been focused on deploying capital and growth in India, so many assets were bught by them. In select niches, skills, clients, or markets, Indian clients have been going outside and buying assets, which is a trend that will continue in his opinion.
While moderating the panel, Mr. Rabindra Jhunjhunwala, stated that whether trade war or political instability, there was no doubt that geopolitical changes were compelling companies to rework and rethink how they approach M&A transactions. He added that dealmakers were focusing more on flexibility, risk management, and regulatory compliance. They were incorporating a wide range of clauses and strategies to ensure the success of deals and to cope with the unpredictability. So, as the world’s political landscape continued to evolve, it was likely that trends such as nearshoring and focus on emerging markets would only intensify.
Thereafter, the panel discussed transaction trends that are gaining prominence due to current changes, Trump’s presidency, businesses coping with the US government for the duration of the term, EU regulations causing delay in M&As, Foreign Direct Investment hurdles, earn-outs, due diligence, technology risk to business models, using stock for acquisitions, use of reverse break-peace, companies adjusting growth, adapting AI, EU-style WNI insurance in cross-border transactions, regulatory challenges, and much more.
Session 2
Moderated by Ms. Darshika Kothari, AZB & Partners, Mumbai, Maharashtra, and Mr. Ralf Morshäuser, Gleiss Lutz, Munich; Senior Vice Chair, IBA Corporate and M&A Law Committee, the second panel discussed the topic ‘Blurring the lines between private equity and M&A — financial investors as strategic acquirers: trends and implications’. Ms. Manisha Girotra, Moelis & Company, Mumbai, Maharashtra; Mr. Ian Ho, Simpson Thacher & Bartlett, Hong Kong SAR; Mr. Vishal Mahadevia, Warburg Pincus, Mumbai, Maharashtra; and Ms. Bhavi Sanghvi, KKR, Mumbai, Maharashtra.
Introducing the panel and topic, Ms. Darshika Kothari spoke about India being ranked as the number one emerging markets as the most attractive destination for capitalists and how private equity had evolved in India.
“So private equity in India, which started as quiet capital, is today’s strategic capital, transforming businesses, taking control and shaping the future of Indian enterprise. Today’s PE firms resemble modern conglomerates, except with leaner teams, tighter timelines, and an eye always on the exit.”
Growth buyouts
Exploring the emergence of buyouts and control deals, Mr. Vishal Mahadevia talked about India’s journey in the field of private equity. He underscored the two changes that had taken place; one, it had become harder to find entrepreneurs and invest in minority deals at attractive prices as India became more global, and second, the emergence of growth buyouts. Mr. Mahadevia added that there were several factors driving growth buyouts in India. Firstly, the scale had increased from 50 million to at least 200-300 million for private equity transactions. Secondly, older entrepreneurs wanted to sell their businesses through private equity instead of the strategic route. Lastly, there were management teams now who were ready to leave their jobs to work at a private equity buyout for the wealth creation opportunity.
Business families
Ms. Kothari asked Ms. Manisha Girotra about her perspective on the recent trend of founder or promoter families being interested in selling their businesses. In answering the question, Ms. Girotra stated that several factors created this trend. The first factor was the realisation that if one wanted to sell a business, the market was deep enough for setting up another business, the second one was that the next generations didn’t want to run the business for various reasons, and the third factor was how private equity helped the businessmen transition while keeping them as the face of the business or retain the chairman position, which was important in an Asian economy. Adding his perspective from the European angle, Mr. Ralf Morshäuser stated that until a decade ago, there were not enough targets for control deals. Due to the limited number of deals, private equity found partnerships with entrepreneurs as an alternative. So, there was a little trend of partnerships in Europe as well.
Further, the panel discussed how businesses transition from being run by a family to a management team, what was the role of the promoter, how business families cope with the transition, the challenges faced by the founder, and the trickiness of the chairman position.
Offshore Investments and Consortium Deals
Regarding the legal aspect of offshore investments, Ms. Bhavi Sanghvi stated that there had been changes in legal regulations. She stated that there were several legal considerations that depended on where the business value was coming from, and it was not a one-case-fits-all scenario.
Adding to the discourse about consortium deals from an Asian perspective, Mr. Ian Ho stated that the important aspect was to find the right partner. In this regard, private equity was now being relied upon for their expertise, operational experts, senior advisors, and access to different geographies.
Exits
Ms. Girotra underscored how exits from investments in private equity had changed two-fold; one, the public markets were willing to absorb secondary investments, and second, private equity assets could be pitched to domestic companies directly. She stated that the landscape had transformed from an ethical strategic to private equity deals, domestic mutual funds for the public markets, and non-reliance on foreign money.
Providing the perspective of controlling shareholders during an exit, Ms. Bhavi spoke about their liabilities and their focus on aspects like Environmental, Social, and Governance (‘ESG’) and Advanced Business Application Programming (‘ABAP’). She underlined that, unlike a minority investment, a controlling shareholder had to test what were the softer and informal drivers of the business. In case there was a transfer of control, the controlling shareholders would have to think about whether there are promoter relationships with distributors that would impact the intended value creation. Furthermore, another aspect was that in case the seller was a private equity fund, typically, there would be no business warranties and indemnities(‘W&I’). In that case, it had to be assessed how uncovered risks would be dealt with, such as by covering the vendor diligence report and getting a W&I insurance if there was no promoter backstop.
From the Asian perspective, Mr. Ian Ho stated that in cases with higher valuations or where leverage may not be as prevalent or as much compared to other jurisdictions, the private equity shops focus more on the depth and the scope of commercial due diligence in order to find ways to extract value. These ways were not limited to traditional methods such as ESG they also considered whether AI or technology could be incorporated in the business. Thus, the due diligence had broadened.
Exploring one of his recent deals of a partnership between a corporation and private equity, Mr. Ralf Morshäuser stated that the corporate governance issues were mostly resolvable, but the exit was either a red line or drag along. In fact, drag-along exits were fairly common in the European context. So, a safe exit was preferably the red-line exit in partnerships with private equities. Ms. Kothari added that in the early days of private equity, a drag-along exit could be used, but it was severely resisted. However, it was increasingly seen that the drag-along exit had to come with a minimum return, or it faced resistance. Thus, the market was becoming more mature, negotiations were being done differently, founders were wiser, and people were getting smarter. Mr. Mahadevia opined that usually the put option and drag were not relied upon since their enforcement was difficult.
On the minority investments, Mr. Mahadevia stated that a minority investment is not done without red lines on the exit, including some form of drag or commitment for an exit to the private equity fund, and this formed a huge part of the negotiation.
Lastly, on the legal aspect of exit routes, Ms. Sanghvi stated that when there is a buyout or controlled investment, one has to make sure that there is enough scope for liquidity, and for taking decisions which the promoters agree with.
Session 3
The third panel on the topic ‘Mitigating regulatory risk — key considerations’ was moderated by Mr. Sandeep Parekh, Finsec Law Advisors, Mumbai, Maharashtra; and Mr. Hans-Joerg Ziegenhain, Hengeler Mueller, Munich, and Member of Advisory Board, IBA Corporate and M&A Law Committee. It consisted of panellists Ms. Ipsita Dutta, Morgan Stanley, Mumbai, Maharashtra; Mr. Yuto Matsumura, Hitachi, Tokyo; Ms. Adina Shapiro, Herzog Fox & Neeman, Tel Aviv, and Scholarship Officer, IBA Corporate and M&A Law Committee; and Ms. Ananya Sharma, JSW Group, Mumbai, Maharashtra.
As regulatory frameworks become more complex and demanding, the panel discussed the role of in-house counsels in ensuring compliance has never been more critical. This panel delved into the evolving compliance landscape and the strategies in-house teams are using to manage regulatory risks in the mergers and acquisitions context.
Session 4
This session consisted of several hot topic roundtables, on the following topics with the respective speakers:
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Seamless transition post-merger — best practices for cultural integration and talent management and addressing post-merger integration challenges: Mr. Michael Kutschera, Binder Grösswang, Vienna; Co-opted Member, IBA Bar Issues Commission Policy Committee; and Mr. Alexander Zharskiy, ALRUD, Moscow; Conference Quality Officer, IBA Corporate and M&A Law Committee.
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Use case of artificial intelligence (AI) in mergers and acquisitions (M&A) and its ethical considerations: Mr. Tino Gaberthuel, Lenz & Staehelin, Zurich; and Mr. Sameer Sibal, Jerome Merchant + Partners, Mumbai, Maharashtra.
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The growing integration of environmental, social and governance (ESG) in mergers and acquisitions (M&A) deal making: Mr. Arnav Dayal, Trilegal, Gurugram, Haryana; and Mr. Lorenzo Olgiati, Schellenberg Wittmer, Zurich; Secretary, IBA Corporate and M&A Law Committee.
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Legal strategies for mergers and acquisitions (M&A) in startups: Mr. Suneeth Katarki, IndusLaw, Bangalore, Karnataka; and Mr. Takashi Toichi TMI Associates, Tokyo.
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Opportunity in Asian deal complexity- getting deals done in South East Asia: Ms. Swathi Girimaji, Bharucha & Partners, Bangalore, Karnataka; and Mr. Nicholas Soh, Allen & Gledhill, Singapore.
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Key considerations for valuation, transfer and protecting intellectual property in an mergers and acquisitions (M&A) transaction: Mr. Ankit Chhabra, Eversheds Sutherland, London; and Ms. Natasha Sethna Veritas Legal, Mumbai, Maharashtra.
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Risk identification, assessment and mitigation in mergers and acquisitions (M&A) transactions: Mr. Francesco Florio, Legance, Milan; and Mr. Nusrat Hassan, Dentons Link Legal, Mumbai, Maharashtra; Co-Chair, IBA India Working Group.
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What keeps a general counsel awake at night? Mr. Rishi Gautam, Tata Consumer Products, Mumbai, Maharashtra; and Mr. Gerald Reger, Noerr, Munich.
Session 5
This panel discussion was on the topic ‘Refuse to lose’ and moderated by Mr. Jean-Claude Rivalland, Norton Rose Fulbright, Paris; Chair, IBA Corporate Membership Subcommittee. The session was empanelled by Mr. Andrew Cohn, Skadden, Singapore; Mr. Deepak Chauhan, Director, Legal & Ethics, Welspun World, Thane, Maharashtra; Ms. Rinki Ganguli, Brookfield Asset Management, Mumbai, Maharashtra; Mr. Wai King Ng, WongPartnership, Singapore; Mr. Satish Kishanchandani, Pioneer Legal, Mumbai, Maharashtra; Mr. Sun Yul Lee, Kim & Chang, Seoul; Ms. Nallini Puri, Cleary Gottlieb Steen & Hamilton, London; and Ms. Puja Sondhi, Shardul Amarchand Mangaldas & Co, Delhi.
Pitching for business is both an art and a science, yet few are formally trained in the skill as a lawyer. In this live pitch session, two teams (comprising of lawyers from different jurisdictions) pitched for a deal mandate to a panel of general counsels. The panel also discussed the key elements of a successful mergers and acquisitions pitch.
Session 6
This panel titled ‘Antitrust/competition policy and enforcement’ was introduced by Ms. Ravneet Kaur, Chairperson, Competition Commission of India (‘CCI’), Delhi, who delivered a keynote speech. The moderator was Ms. Nisha Kaur Uberoi, JSA, Mumbai, Maharashtra, and Newsletter Editor, IBA Antitrust Section; and the session was impanelled by Mr. Mrinal Chandran, India Resurgence Fund, Mumbai, Maharashtra; Mr. Anshuman Sakle, Khaitan & Co, Mumbai, Maharashtra; and Mr. Rahul Satyan, Associate General Counsel, APAC Competition & Regulatory, Facebook, Singapore.
Speaking from the perspective of a control platform, Mr. Mrinal Chandran stated that their strategy for navigating a situation where there was a limited pool of people and certain schematic funds were dealing with all the hard parts and issues. According to him the point of contention was that the industry’s perspective was that it should be one size fits all and the regulator’s perspective was that there cannot be different roles for different people. He remarked that though India was an emerging area of interest for investors, it was an evolving industry and it was hard to raise money for geography-specific strategies that are very diverse. This was because the pool of investment opportunities was smaller compared to sitting in a global fund.
Concerning issues around interlocking directors, Mr. Chandran opined that there were several ways to solve them which allowed people to be on boards while addressing their concerns that access to sensitive information was not abused. Lastly, he noted that this was one of the failures of the industry and it should be brought up more proactively and addressed.
Mr. Anshuman Sakle contributed to the discussion by speaking about green channel filings in India and the issues therein. He remarked that green channel filings, introduced in 2019 by CCI, were a game changer as one could get a deemed approval, which reduced transaction time. However, the rules of eligibility had changed in 2024. For example, the definition of the affiliate was broader to account for various portfolio companies, especially financial sponsors.
On the note of commercially sensitive information (‘CSI’), Ms. Nisha Kaur Uberoi spoke about the Goldman Sachs penalty order which specified by precedent what CSI meant. Taking the baton from Ms. Oberoi, Mr. Chandran stated that in the Indian context, shareholders didn’t have strategic control over CSI. This was challenging in his opinion as a private equity or venture capitalist is fiduciary of the capital, their first job was investor protection. He also discussed control rights and access to CSI.
Thereafter, Ms. Oberoi, Mr. Chandran, and Mr. Sakle discussed part payment of consideration being considered as gun-jumping in India. While Mr. Sakle explored the limited practical workarounds, earnest money deposits, interim financing, bridge financing, and value maximisation, Mr. Chandran spoke about his personal experiences in resolving such issues.
Mr. Rahul Satyan underscored how M&A works in digital markets. He stated that the regulatory perspective of tech M&A had everything to do with the country where that M&A is happening, and where one was in their digital journey. He also highlighted that it was the AI space where many exciting changes would take place in the next decade. He explored how AI works, its foundational models, derived models, and apps, and the level of competition faced at each level. He remarked that there was so much concentration at every level that the traditional concerns of M&A regulation did not really apply to nascent markets like AI.
Lastly, the panel explored deal value thresholds, India’s digital journey, digital influence standard of control, material influence, listed company acquisitions, and ease of business.
Session 7
The seventh panel for the day reflected upon ‘Corporate governance trends and best practices for public M&A and listed companies (including recent disclosure and rumour verification regime)’.
Corporate governance standards continue to evolve, especially for public companies involved in mergers and acquisitions (M&A) transactions. The panel encompassing Nivedita Rao, Cyril Amarchand Mangaldas, New Delhi; Asia Pacific Regional Forum Liaison Officer, IBA Women Lawyers’ Committee; Franziska Ruf, Davies Ward Phillips & Vineberg, Montreal; Amit Tandon IiAS, Mumbai; Andrew Wark Cravath, Swaine & Moore, New York discussed the latest trends in corporate governance and best practices, including new disclosure practices, rumour verification and best practices to ensure transparency and shareholder protection in public M&A deals.
The Panel was moderated by Charles Martin, Darrois Villey Maillot Brochier, Paris; Member, IBA Law Firm Management Committee Advisory Board and Kunal Thakore TT&A, Mumbai, Maharashtra.
Speaking on the promoter-controlled landscape, Mr. Amit Tandon, highlighted that 70—75% of listed Indian companies are promoter-owned, raising the risk of insiders misusing their control. He raised a concern that they may use their dominant position as owner-managers to push through certain regulations, certain transactions which benefit them at the expense of the outside or minority shareholders. Due to this, the regulators have increasingly focused on related party transactions (RPTs).
On the regulatory aspect, he said that regulators have tightened regulations. Reiterating the first major step in this direction, he pointed out that promoters or affected parties cannot vote on certain resolutions. Regulators seek more and more disclosures to be put out by the market participants. Reflecting on the central role played by the audit committees and independent directors in approving RPTs, Mr. Tandon underscored that the audit committees must be on the forefront, approve the transactions, and recommend them to the board and shareholders.
He put forth numbers which showed that over the past decade, the number of RPTs presented for shareholder approval in India’s top 500 companies has risen significantly—from around 150—160 in 2014—15 to nearly 760-800 today. He furthered that to streamline disclosures, SEBI commissioned a standardised framework via an industry standard forum comprising representatives from three large industry associations- ASSOCHAM, FICCI, and CII. They have shared a minimum amount of data, which needs to be shared with the board, or the audit committee.
Mr. Tandon also addressed the issue that regulatory push for detailed disclosures continues, it has often resulted in voluminous shareholder communications. The disclosures run into tens or hundreds of pages, he said. He also raised concerns about dependencies on promoter-linked entities and exemptions for government-owned companies that reduce transparency.
Sharing the perspectives from Canada that echo similar concerns and stand, Ms. Franziska voiced that there are a lot of controlled companies with significant shareholders in Canada. Hence, RPTs arise regularly in the context of mergers.
Regarding the constitution of independent or special committees of independent directors that are not related, not involved in this transaction in any way, shape, or form, she said that they would be involved in an independent valuation to the extent that is required. Emphasising on additional evaluation for minority shareholders, she said that the same is required to be conducted under the independent committee.
She discussed that in a public company merger, there is already a fair opinion that would provide some comfort to the shareholders that the consideration being offered under the merger is fair from a financial point of view to the shareholders. Underscoring minority shareholder approvals in addition to the normal corporate shareholder approval, she opined that might to required depending on how the transaction is structured.
Throwing light on the USA perspective, Mr. Andrew Wark Cravath, shared that USA is governed largely by SEC rules that dictate disclosure. He said that companies are required to disclose in their periodic reports RPTs with managers, management, members of the board, and significant stockholders. Public companies (NYSE/NASDAQ) are also required to maintain RPT approval policies that dictate the types of RPTs required to be approved by the board.
Mr. Wark highlighted that under SEC rules, listed companies are effectively required to have an independent or audit committee approve any material related party transactions, with the materiality threshold set at $120,000. He further clarified that executive compensation, although not classified as a related party transaction, is subject to detailed disclosure and must be approved by a compensation committee of independent directors. These disclosures, which include benchmarking data and performance metrics, are published in annual proxy statements. Public companies are also subject to the “say-on-pay” shareholder vote—typically held annually—on executive compensation policies, as well as a “say-on-frequency” vote every three years.
Mr. Wark emphasised the growing influence of proxy advisors such as ISS and Glass Lewis, whose compensation analyses and voting recommendations heavily impact institutional investor decisions.
When discussing merger transactions, Mr. Wark explained that regulatory oversight comes both from SEC disclosure requirements and state corporate law, with Delaware law serving as the de facto national standard. Particularly in take-private transactions involving controlling stockholders, companies must meet the “entire fairness” standard unless specific procedural safeguards are followed, including approval by both an independent special committee and a majority-of-the-minority shareholder vote.
Recent court scrutiny has increasingly challenged the independence of board members and the adequacy of disclosures, prompting concerns across the M&A community. He noted that these developments have led some controlling shareholders to bypass shareholder votes and risk litigation instead.
In response, Delaware recently amended its corporate statute, codifying a more objective safe harbor to provide clearer guidance and protections for boards and controlling shareholders, aiming to restore predictability and flexibility in M&A planning. These changes come amid broader debates around Delaware’s role in corporate governance, including prominent cases like Tesla’s shift to Texas.
Taking the discussion further, Ms. Franziska emphasised that while Canada may not be as litigious as the United States, the roles and responsibilities within RPTs remain robust and multifaceted.
Directors in Canada continue to play a central role in transactions unless it involves an unsolicited or hostile takeover bid made directly to shareholders, she said.
In such cases, the board may be bypassed, but otherwise, it remains an integral part of the process—either as a whole or through independent committees in cases of conflict.
A critical distinction highlighted by her, was the broader fiduciary duty of directors in Canada. She discussed that unlike in the U.S., where shareholder value often dominates decision-making in change-of-control scenarios, Canadian directors are expected—and increasingly encouraged—to consider a wider array of stakeholder interests, including employees, creditors, suppliers, consumers, and environmental impacts. This reflects a more holistic approach to corporate responsibility.
She also explained that beyond the board, corporate management typically plays a key role, except where conflicts of interest exist—such as when a CEO is expected to stay on or roll over equity. In such cases, negotiations are often led by independent directors with support from unconflicted members of management.
Legal advisors, both in-house and external, play critical roles depending on the complexity and structure of the transaction. Each party, including the bidder, the target, and any special or independent committees, typically engages its own counsel and financial advisors. These advisors support negotiations, due diligence, regulatory filings, and disclosures.
The discussion also underscored the importance of fairness opinions and independent valuations, particularly in related party transactions. In this reference, she added-
It’s not mandated by law, but there are very few transactions that would go ahead without one. They are required to supervise the valuation, the independent valuation if one is required in the context of a related party transaction.
Reflecting on the Indian perspective, Ms. Nivedita Rao, emphasised that while governance frameworks may broadly align globally in terms of approvals and processes, India presents certain distinctive challenges. Most major transactions in India require shareholder approval, making the role of promoters significantly influential.
“In many cases, the promoter can swing a transaction,” she explained.
She also highlighted the implications of India’s stringent disclosure regime. Once a transaction is either approved or rejected, it becomes public knowledge, underscoring the importance of alignment and clarity before any formal board consideration.
A major point of discussion was the critical role played by audit committees in India. Ms. Rao pointed out that, even outside of related party transactions, the audit committee bears the responsibility of ensuring that the transaction is being executed at a fair value.
This places a significant burden on independent directors, she noted, adding that their scrutiny is essential for protecting the interests of the listed entity.
She also drew attention to complications that arise when global deals inadvertently overlook Indian compliance requirements. She cited instances where a global transaction between two multinational corporations includes Indian subsidiaries, some of which are listed companies subject to domestic regulations. India has all of these compliance requirements. “When it comes to the company who will be implementing it, the board has to approve it,” she said. Her closing advice was clear: “Bring your Indian legal advisors in early—right from the start.”
Session 8
Discussing ‘Hot sectors for inbound and outbound M&A’, this panel comprised of Ms. Piusha Bose, Freshfields, London; Mr. Abhishek Kolay, Kirkland & Ellis, New York; Ms. Zia Mody, AZB & Partners, Mumbai, Maharashtra; and Mr. Sergio Sanchez Sole, Garrigues, Madrid; Member, IBA Corporate and M&A Law Committee Advisory Board, as the panellists. The panel was moderated by Mr. Sourav Mallik, Managing Director & Deputy CEO, Kotak Investment Banking, Mumbai, Maharashtra; and Mr. Roddy Martin, Herbert Smith Freehills, London.
Mr. Sourav Mallik remarked that M&A in India was fairly robust despite the global uncertainty in terms of geopolitics. He demonstrated and elaborated upon the increase in outbound activity from 9 billion to 15 billion, increase in FDI from 41 billion to 52 billion, sector-wise increase in the role of sponsors, increase in consumer transactions from 6.6 billion to around 14 billion, and stock for stock transactions. Taking over from Mr. Mallik, Mr. Roddy Martin agreed that the TMT sector was emerging as the hottest sector for M&A, and added that the infrastructure, utilities, and renewables sector was the second largest sector.
The moderators laid down three themes for the discussion, which were as follows:
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Role of divestments in driving M&A
In this regard, Ms. Piusha Bose outlined two trends, one, was the global spin where there is a global core in Europe or the USA, and they are carving out a non-core business. Second, was the MNC that has a large Indian business that they want to divest. She spoke in depth about global spins, their regulatory aspect, and the challenges therein. Lastly, she remarked that the increase in divestments by MNCs was an excellent thing for India.
Thereafter, Mr. Abhishek Kolay explained the recent acquisition of Sanofi’s consumer health business, Opella, by a private equity firm CD&R.
Ms. Zia Mody added that the reason for companies seeing valuations double or triple on a price-to-earnings multiple in India was a combination of the significant but non-core spins and the attractive price. She explained that the spins were usually auctions, so, the price was discovered well.
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Decarbonization and energy transition
Mr. Sergio Sanchez Sole remarked that India is one of the largest and fastest-growing energy markets in the world and India’s energy capacity has increased by almost 300% in the last eight years. He reflected on his personal experience stating that previously, it was a regulatory nightmare to invest in the Indian energy sector but now that was not the case. Mr. Sole also agreed that Spain was the European leader in solar and wind energy. Further, he explored India’s shift from overdependence on Chinese imports to local manufacturing, the strong presence of Spanish interests in India, and the government’s monopolisation of energy distribution businesses by the Indian government. Lastly, he discussed the European-India corridor in the auto sector.
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M&A to obtain and exploit emerging technologies
Herein, Ms. Mody spoke about navigating challenges in bringing in technologies and consequently, dealing with China and the related geopolitics. She remarked that India’s perception of the Chinese border incursion had impacted and will impact private equity firms. She stated that the truth was that the balance of trade was 80 percent China and 20 percent India, and there was still an immense import of Chinese sub-assemblies by India. Lastly, she explored the need for technology no matter the route and the reduced relevance of press note 3.
Ms. Bose added that there were companies listed in Europe or the USA, but because they have some Chinese shareholders, they could face challenges from a technical perspective despite not being Chinese for all practical purposes.
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Technology Everywhere: Digitisation & Data
Delving into the increase of reverse flips, Ms. Mody stated that this development was happening for commercial reasons as the price discovery on the Indian market for these tech companies would be much more than what they expected initially while setting up in Singapore or America. She explained that some companies set up holding companies in Singapore or America and subsidiary companies in India. Thereafter, the shareholders kill the holding company and become shareholders of the Indian subsidiary, which then goes for an Initial Public Offering (‘IPO’). She added that this process had to justify both foreign and Indian laws. Lastly, she underscored why the trend did not seem like it would be stopping.
“This is where value creation will show India as a market because people are lapping up these reverse mergers, and the IPOs are promising to be interesting.”
-Ms. Zia Mody
“It’s [increase in reverse flips] a good trend for us because it gives us more work, it shows India as a destination for IPO markets, and it shows that both the retail investors as well as the FIIs are looking to invest in them.”
-Ms. Zia Mody
Ms. Bose also provided her insights on reverse flips. She agreed that reverse flips reinforce the message of India being a destination with good valuations.
Adding to the conversation, Mr. Kolay spoke about the emerging M&A trends in the USA-India cross-border tech sector. He stated that the deal flow or number of M&A deals in the IT services sector had been a little slower over the last two to three years. He stated that there could be a few reasons for this such as accelerated exits pre-COVID, many companies could not keep up with growth after the cross-border deals, and the creation of a valuation gap in demand and supply.
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Significance of Private Capital Sponsors in M&A
For this topic, Ms. Mody talked about the preferred sectors for financial sponsors, such as pharma, healthcare, infrastructure, etc. She highlighted how the spending power of Indian youth had changed. In this regard, she explored the consumer companies that have come to India, the rise of e-commerce, access to products, and the mobility of the youngster population.
“Spending is shifting away from large, movable properties to consumable products.”
-Mr. Sourav Mallik
Thereafter, Mr. Kolay added to the conversation by exploring platform deals and the reasons for their recent increase.
Given that there are many similarities between India and Spain in terms of the market, market structure, and market behaviour, Mr. Sole talked about financial sponsor investments in W&I insurance in Spain.
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M&A to Give Access to Fast-Growing Markets
Mr. Kolay explored the key challenges and opportunities in the USA-India corridor for M&As. He spoke about tariffs and their impact as the challenge and highlighted the increasing interest of entrepreneurs that are willing to invest significantly in human capital in India on the aspect of growing opportunities.
Ms. Bose added that there were strong geopolitical reasons why some supply chain realignment was happening already. She stated that there was a lot of interest in India, particularly from sectors like industrial, auto, defense, defense-adjacent, OEMs, etc.
Session 9
The ninth panel for the day explored the topic ‘NCLT as the new battleground — stressed asset M&A and trends in M&A disputes’. It was moderated by Mr. Shuva Mandal, Anagram Partners, Mumbai, Maharashtra; and Mr. Mohit Saraf, Saraf & Partners, Mumbai, Maharashtra. The panellists included Mr. Anirudh Agarwala, Touchstone Partners, Mumbai, Maharashtra; Mr. Zal Andhyarujina, Senior Advocate, London; Mr. Krishnava Dutt, Argus Partners, Mumbai, Maharashtra; and Ms. Vineetha MG, Samvad Partners, Mumbai, Maharashtra.
Introducing the panellists and the topic, Mr. Mohit Saraf talked about how there were stressed assets worth almost $100 billion in the last 10 years, gross NPA, and opportunities provided by Insolvency and Bankruptcy Code, 2016 (‘IBC’), for M&A.
Speaking on the role of NCLT in stressed asset transactions, Mr. Zal Andhyarujina briefly explored the history of the insolvency regime in India, wherein he talked about the issues with the old regime, the difficulties of the strict timelines in the IBC, and the clean slate doctrine. Mr. Andhyarujina stated that the clean slate doctrine was a useful risk containment exercise though, certain nuances had to be settled, such as whether tax liabilities are wiped clean and the stake of third parties. He also commended Justice (Retd.) R.F. Nariman for streamlining the IBC and eliminating the early disputes.
Adding to what Mr. Andhyarujina said, Mr. Krishnava Dutt spoke about the functioning of NCLT. He stated that the IBC and NCLT had given a lot of comfort to the private credit industry despite its flaws, as compared to the previous regime.
Mr. Shuva Mandal asked Ms. Vineetha MG about who the negotiations were conducted with and who stands behind the risk of bidding on a stressed asset. Ms. Vineeta responded that negotiations were primarily conducted with the Committee of Creditors (‘COC’) or lenders. She also stated that the Resolution Professional (‘RP’) had a huge role under the IBC and relied on the information provided by the promoters and management, which was difficult as there was no other data or cooperation. Lastly, she commented that though there were guidelines and parameters for the lenders or COC, there was no monitoring authority determining whether the negotiation was fair, whether the information was provided properly, or how the valuations were determined for the stressed assets.
Thereafter, the moderators explained the functioning of the IBC process in case of stressed assets. Mr. Saraf spoke about playing against the unsecured lenders, and the importance of information collected and disclosed by the RP. Speaking from a transaction lawyer’s perspective, Mr. Mandal spoke about the creditor-in-possession model and MSMEs. They underscored the importance of timelines when it came to pricing the stressed asset, and jurisdiction of the NCLT.
The panel went on to discuss the jurisdiction of the NCLT, how the NCLT is overburdened, the type of disputes NCLT adjudicates, shareholder disputes, the Cyrus Tata dispute, and interplay between regulatory conditions and IBC timelines.
Lastly, the panel delved into the relationship of private equity with stressed assets, issues with the clean slate doctrine, how the NCLT deals with IBC cases and M&A situations, biases of the NCLT, NCLT judges, and much more.
Session 10
The last session was on ‘M&A in technology — key considerations’. It was moderated by Mr. Ronald Chen Wachtell, Lipton, Rosen & Katz, New York; Assistant Secretary, IBA Corporate and M&A Law Committee; and Mr. Rajesh Sreenivasan, Rajah & Tann Asia, Singapore; Scholarship Officer, IBA Media Law Committee; and impanelled by Ms. Jagriti Bhattacharyya, Pine Labs, Mumbai, Maharashtra; Mr. Rishab Kumar Cooley, Palo Alto, California; Mr. Matthieu Pouchepadass, Bredin Prat, Paris; and Mr. Yash Rana, Goodwin Procter, Hong Kong SAR.
Explaining the difference between tech M&A and regular M&A, Ms. Jagriti Bhattacharyya stated that the asset base in a tech company was entirely intangible, so the level of diligence that went into ensuring that the assets are secure was much higher. Additionally, they are entirely based on intellectual property, so the diligence involved ascertaining what the intellectual property rights are, ensuring that the ownership validity of these rights was kosher, making sure the technical debt does not surpass what the asset is worth, what were the platforms, whether the code was written adequately, whether there was any chance of obsolescence, etc. She also stated that many of the services that tech was bringing in were regulated, especially multi-jurisdictionally. Thus, it was a challenge to ensure that the services that the tech company wanted to provide or the way the platform operated was kosher. Lastly, Ms. Bhattacharyya also underscored that since the entire system was a brainpower-driven activity, how the HR managed the diligence concerning the people was also relevant because, during acquisition, it was important to be able to retain the talent that would not only be responsible for future growth but also take the company through the transition and integration phases.
Mr. Yash Rana added to the discussion by talking about the key drivers for the increase in tech M&A. He stated that in 2024, the key driver was stabilising interest rates that allowed investors to feel that they could put money to work. But there was some cautious investing in high-margin, strong cashflow businesses like software such as cloud computing, or innovation businesses like AI. He added that the reduction of antitrust was also a driver.
Mr. Rishab Kumar Cooley explored how the deal process might be different in a tech M&A deal compared to a non-tech M&A deal. He agreed that a large part of tech M&As was companies acquiring debt and capital. A lot of companies aren’t necessarily interested in buying revenue, so the contracts can be less important, and the people and the technology are much more important. He also stated that when a tech company is being acquired, what is really being acquired is usually a venture-backed company with many stockholders. Thus, the capital structure was unique. Mr. Cooley stated that such a structure was why it was important to know how to address the intricacies and figure out where the purchase price would fit and how the transaction would play out.
From a European perspective, Mr. Matthieu Pouchepadass talked about the direction in which M&As were moving, regulation or deregulation. He stated that over the past few years, the anti-trust authorities had been quite aggressive in trying to scrutinize the tech M&A deals. The issue there was that those deals often had massive targets with little to sometimes, no turnover. So, the classic tools that the authorities could use to capture and scrutinize those transactions were inefficient. Thus, many jurisdictions and regulators in Europe have lowered the transaction value thresholds to capture those transactions that the target develops around new technology, which might have a huge impact on the competitiveness of the game.
Mr. Pouchepadass added that some countries went beyond this measure and developed ‘calling powers’ wherein they will be able to call virtually any transaction that they think might have an impact on the market and the competitive landscape. Additionally, the EU adopted the Ticket Marker Act, 2013, which obligates the gatekeepers and large and usual suspect companies like Apple, Amazon, Meta, Microsoft, etc., to inform the EU of any transactions that they do. Lastly, he stated that authorities are developing new theories of harm.
The panel discussed several other topics, such as the current geopolitical atmosphere, semiconductor technology, tariffs, anti-trust perspective, tech diligence, data protection regulations in tech M&As, AI, intellectual property infringements, patents, serial acquirers, tech start-up M&As, and much more.
Closing Remarks
Wrapping up the conference, Ms. Darshika Kothari provided a summary of the event and the discussions that took place therein. She remarked that across all sessions, the quality of conversations was exceptional. There were leaders across continents and sectors, seasoned veterans as well as first time attendees. She commended the audience for asking insightful questions and keeping the conversations engaging. Lastly, she encouraged the audience to carry this spirit forward in their endeavours.
