LIJDLR

ROLE OF ARBITRATION IN CROSS-BORDER MERGERS AND ACQUISITIONS: LEGAL LANDSCAPE AND ENFORCEMENT CHALLENGES

Dr. Shreya Bhardwaj, Assistant Professor at Gitarattan International Business School Affiliated with Guru Gobind Singh Indraprastha University (GGSIPU) (India)

Herambh Bhatia, 3rd year, Student at Gitarattan International Business School Affiliated with Guru Gobind Singh Indraprastha University (GSSIPU) (India)

Cross-border mergers and acquisitions sit at the intersection of corporate law, private international law, and commercial risk allocation, and disputes arising from them rarely fit neatly inside the courts of a single jurisdiction. Arbitration has become the dispute resolution mechanism of choice for such transactions because it offers a neutral forum, confidentiality, party autonomy in selecting decision-makers, and most importantly a relatively reliable path to cross-border enforcement under the New York Convention. This paper examines the legal architecture that supports arbitration in cross-border M&A and tests that architecture against the practical reality of enforcement. Rather than retelling the familiar doctrinal story of arbitration’s rise, the paper concentrates on three friction points that recur in M&A arbitration practice: first, the arbitrability of disputes that straddle private contract and public corporate-law remedies, particularly shareholder oppression and minority-protection claims; second, the interpretation of risk-allocation devices such as Material Adverse Change (“MAC”) clauses when tested through arbitration rather than litigation; and third, the structural gap between an arbitral award on paper and an arbitral award actually collected, given the discretionary refusal grounds under Article V of the New York Convention. Drawing on current institutional data from the ICC and SIAC, recent case law including the NSW Supreme Court’s decision in Cosette Pharmaceuticals Inc v Mayne Pharma Group Limited on MAC-based termination, the English Commercial Court’s decision in BM Brazil v Sibanye, and the evolving Indian arbitrability jurisprudence culminating in Vidya Drolia and the Anupam Mittal litigation, the paper argues that the legal landscape is converging toward arbitration-friendliness in principle while remaining fragmented in enforcement practice. The paper closes with a set of practical drafting and policy recommendations directed at transactional lawyers, arbitral institutions, and legislators, aimed at narrowing the gap between the promise of arbitral finality and the reality of cross-border collection.

📄 Type 🔍 Information
Research Paper LawFoyer International Journal of Doctrinal Legal Research (LIJDLR), Volume 4, Issue 2, Page 2572–2596.
🔗 Creative Commons © Copyright
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License . © Authors, 2026. All rights reserved.