DENMARK Law and Practice Contributed by: Thomas Weitemeyer, Pernille Nørkær, Jonas Høst and Jacob Kreutzmann, Moalem Weitemeyer
Where merger control applies, agreements commonly include specific gun-jumping safeguards. These typi - cally cover limits on competitively sensitive informa - tion sharing (often managed through clean teams and protocols), restrictions on joint decision-making that could amount to premature influence over the target, and careful separation of integration planning from any conduct that could be viewed as de facto early implementation or transfer of control. 7.5 Multi-Jurisdictional and Multi-Regulator Co-Ordination In multi-jurisdictional transactions, the Danish merger control, investment screening and sectoral approv - al workstreams are typically aligned with the global regulatory strategy. Filings are co-ordinated to ensure consistent transaction descriptions, theories of harm, and economic narratives, while managing differences in local filing forms, confidentiality rules and informa - tion requirements. Potentially divergent outcomes (eg, remedies in one jurisdiction but not another, or different timing/con - ditions) are primarily managed in the transaction documentation through (i) conditions precedent and closing mechanics aligned with the “hardest” or most time-critical jurisdiction, (ii) detailed co-operation and control clauses for regulatory engagement (includ - ing remedies and appeals), and (iii) long-stop/outside dates structured to accommodate different statutory review periods and any stop-the-clock events.
(including squeeze-outs) and public M&A disclosure/ takeover rule challenges. 8.2 Challenges to Deal Process, Governance and Disclosure In public (listed) transactions, disputes may arise where stakeholders allege non-compliance with the takeover and market disclosure framework (includ - ing equal treatment, offer process requirements and timely disclosure of inside information). In private (non-listed) transactions, process and governance disputes more often relate to corporate approval requirements, conflicts in controlling share - holder or management decisions, and valuation issues (including in squeeze-out or compulsory transfer sit - uations), or are disputes under shareholders’ agree - ments (eg, voting arrangements, veto rights, deadlock mechanisms and transfer restrictions). 8.3 “Broken Deal”, MAC/MAE and Conditions Litigation Disputes over material adverse change/effect clauses, termination rights and closing conditions are primarily analysed as matters of contract interpretation, sup - plemented by general principles of Danish contract law (including good faith/loyalty principles) and, where relevant, mandatory rules under company or capital markets law. In practice, courts and arbitral tribunals tend to apply a wording-based and evidence-based approach. A party seeking to terminate or rely on a material adverse change/effect clause or an unsatisfied condition must demonstrate a contractual and legal basis for doing so (eg, that the relevant contractual threshold is met), and ambiguous drafting is typically construed nar - rowly given the seriousness of termination. 8.4 Disputes Over Regulatory Efforts and Remedies Regulatory approvals and adverse decisions are usu - ally managed through (i) contractual allocation of “who must do what” in the filing process, (ii) negotiation of remedies or conditions with the Danish Competition and Consumer Authority, and (iii) termination mechan - ics if clearance cannot be obtained on acceptable terms within the long-stop period. Disputes relating
8. M&A Litigation and Disputes – Substantive Deal Issues
8.1 Frequency and Types of M&A Litigation M&A-related litigation in Denmark is common, but a significant proportion of such disputes are resolved through arbitration or settled before arbitration pro - ceedings commence, particularly in larger or cross- border deals. M&A disputes are rarely heard by the ordinary courts. Common disputes involve warranty/indemnity claims, price adjustments and earn-outs, closing conditions and broken deals (including regulatory approvals and efforts obligations), shareholder/governance issues
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