CrossBorder Investment & M&A: Risk Management and Mitigation
1. CROSS-BORDER INVESTMENT AND M&A:
RISK MANAGEMENT AND MITIGATION
February 13, 2014
MODERATOR: Alexander B. Kasdan, Managing Director, DelMorgan & Co.
Neil Morganbesser, President and CEO, DelMorgan & Co.
Michael V. Gisser, Partner, Skadden, Arps, Slate, Meagher & Flom LLP
Nathan D. O’Malley, Partner, Gibbs Giden Locher Turner Senet & Wittbrodt LLP
David J. Karl, President, Asia Strategy Initiative
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3. Alexander B. Kasdan, Managing Director, DelMorgan & Co., has more than twenty
years of investment banking, real estate, corporate law and corporate strategy
experience. Mr. Kasdan has executed over 100 domestic and cross-border transactions
totaling more than $10 billion in overall volume in a variety of industries. Prior to
joining DelMorgan, Mr. Kasdan founded Convergence Capital Partners, LLC, a
boutique investment banking advisory and real estate investment firm and was an
investment banker at Peter J. Solomon Company, Credit Suisse First Boston and
Merrill Lynch, in New York and Moscow, Russia.
100 Wilshire Blvd.
Santa Monica, CA 90401
Mr. Kasdan practiced law with O’Melveny & Myers LLP (formerly O’Sullivan Graev
& Karabell LLP) and Paul, Hastings, Janofsky & Walker LLP (formerly Battle Fowler
LLP), where he specialized in mergers and acquisitions, private equity and corporate
finance transactions. In addition, Mr. Kasdan served as Corporate Counsel in charge of
business development at Schlumberger Ltd., a global oilfield and information services
Mr. Kasdan graduated magna cum laude from Middlebury College with a B.A. degree
in Economics and Italian and was elected to Phi Beta Kappa during his junior year. In
addition, he holds a J.D. degree from Columbia University Law School and has studied
at the University of Florence in Italy. Mr. Kasdan is admitted to the Bar in the State of
Mr. Kasdan is a Senior Advisor to Governance and Transactions LLC, an advisory firm
established in 2003 by Mr. James L. Gunderson, former Secretary and General Counsel
of Schlumberger Limited, to assist boards, management and owners with corporate
governance, compliance, structuring and strategic transactions.
4. Neil Morganbesser is co-Founder and President & CEO of DelMorgan & Co. where he provides
senior leadership within the firm and helps oversee all client engagements. Mr. Morganbesser is also
CEO of Globalist Capital LLC, DelMorgan’s broker-dealer affiliate. Mr. Morganbesser has over 20
years of experience providing financial and strategic advice to a full range of clients, including
entrepreneurs, large corporations, governments, family businesses, private equity funds, and special
committees of public companies.
Mr. Morganbesser has been affiliated with some of the leading institutions in the world, and his
experience ranges from representing the offshore owners in the sale of a small, private U.S. company
for $10 million to representing the special committee of a large, public company in a $9 billion
negotiated management buyout with a highly complex financial structure.
100 Wilshire Blvd.
Santa Monica, CA 90401
Mr. Morganbesser has truly global experience with the most sophisticated transactions, across a broad
range of industries and in a large number of jurisdictions, as the lead banker on a wide variety of
transactional and other advisory assignments, including domestic and cross-border mergers,
acquisitions, joint ventures, sales and divestitures, restructurings, special committee assignments,
unsolicited acquisitions and hostile defense. With transactional experience in over 30 countries, Mr.
Morganbesser has successfully advised on over 75 transactions.
Until May 2008, Mr. Morganbesser was the head of West Coast and Asia Mergers & Acquisitions at
Bear Stearns & Co., as a Senior Managing Director based in Los Angeles. Prior to joining Bear
Stearns in May 2001, Mr. Morganbesser was an investment banker in the Mergers, Acquisitions and
Restructuring Department at Morgan Stanley (in New York from 1993-1998 and in Los Angeles from
1998-2001). From 1990-1993, Mr. Morganbesser was a corporate and M&A attorney at the
preeminent New York law firm of Wachtell, Lipton, Rosen & Katz.
Mr. Morganbesser graduated with an A.B. magna cum laude in Applied Mathematics / Economics
from Harvard University (Phi Beta Kappa) in 1986 and received his J.D. and M.B.A. degrees (Order
of the Coif, with honors) from Stanford University in 1990.
5. Michael V. Gisser is a Partner at Skadden, Arps, Slate, Meagher &
Flom LLP, Mergers and Acquisitions, Technology and International.
Mr. Gisser is based in Los Angeles and leads the firm’s Asia-Pacific
practice as the firm’s senior M&A partner in the region. He has been
continuously active in cross-border control transactions for more than 20
years. Mr. Gisser advises clients throughout the world in a range of
industries with respect to corporate and international transactions,
representing major firm clients in the real estate, technology and
entertainment industries, among others.
300 South Grand Avenue
Los Angeles CA 90071-3144
As a result of his extensive cross-border experience, Chambers Global
2013 profiled Mr. Gisser as a “leading lawyer” in both China and the
United States. In addition, he has been recognized in Corporate/M&A by
Chambers USA and Chambers Asia-Pacific. The Los Angeles Daily
Journal consistently has listed Mr. Gisser as one of California’s top
“Rainmakers.” He teaches at the Stanford Directors’ College in Chin
6. Nathan D. O'Malley, Partner, Gibbs Giden Locher Turner Senet
& Wittbrodt LLP, leads the International Business and Dispute
Resolution practice group. A recognized international arbitration
practitioner, Mr. O'Malley has extensive experience representing
clients in transactions and disputes throughout Europe, the Middle
East, Asia and Africa. Prior to joining Gibbs Giden, Mr. O'Malley
practiced for eleven years in Europe with various Benelux law firms.
In his arbitration practice Mr. O'Malley represents clients in the
distribution, energy, construction and technology industries.
1880 Century Park East,
Mr. O’Malley has acted in a wide range of matters including disputes
arising out of infrastructure mega-projects in the Persian Gulf,
intellectual property licenses between US and Asian parties and master
distribution agreements covering Europe and the Middle East. He is
the author of a leading text on international arbitration procedure
entitled The Rules of Evidence in International Arbitration: an
Annotated Guide (Informa, 2012) and has acted in cases seated in a
number of key jurisdictions such as Geneva, Singapore, London and
Abu Dhabi. Additionally, he has been appointed on multiple occasions
to act as an international arbitrator, in particular in cases administered
by the ICC International Court of Arbitration in Paris and the
Permanent Court of Arbitration in The Hague.
7. Asia Strategy Initiative
David J. Karl
David J. Karl is President of the Asia Strategy Initiative, an
analysis and advisory firm focused on the intersection of politics
and economics in Asia, and heads its practice on South Asia. He
is also a co-founder and senior director of Geoskope LLC, an
intelligence company focused on key emerging economies. He
previously served as director of studies at the Pacific Council on
International Policy and as an adjunct professor of international
relations at the University of Southern California and Occidental
College. In addition, David served as project director, Joint Task
Force on Enhancing U.S.-Indian Economic Relations.
He received his doctorate in international relations at the
University of Southern California, writing his dissertation on the
India-Pakistan strategic rivalry, and took his masters degree in
international relations from the Johns Hopkins University School
of Advanced International Studies.
8. ORGANIZER & HOST:
100 Wilshire Blvd.
Santa Monica, CA 90401
Anna Spektor, Founder, Expert Presence / Expert Webcast
Anna Spektor is a seasoned business development consultant
and founder of Expert Presence, a leading management
consultancy dedicated to helping professionals and senior
executives effectively reach and engage target audiences,
develop and solidify stakeholder relationships and increase
brand awareness locally and nationwide. Anna is also the
organizer and host of Expert Webcast and Expert Forum,
leading thought leadership platforms delivering knowledge and
insight on current issues and the latest developments in law,
accounting and finance.
9. MAJOR TOPICS
• The global outlook for cross-border investment and M&A activity
• Legal risks particular to investments in emerging markets; specifically in
technology and natural resources
• Including political risk into the analysis of potential cross-border investment
• Special protections afforded to foreign investors by bilateral and multi-lateral
• Resolving disputes arising out of international M&A and cross-border
• Economic risks particular to cross-border and emerging market investments
• Raising capital for cross border investment and M&A: explaining the risks to
• Transaction considerations and structures: strategic, legal, tax, accounting
• Effects of risk on valuation and successful deal execution
• Cultural considerations
• Case studies
10. TRANSACTIONAL CONSIDERATIONS
Drivers of cross-border deals
Strategic v. financial buyers
Due diligence and access to information
Decision making, timing and process
Economic risks particular to cross-border and emerging market investments
Raising capital for cross border investment and M&A: explaining the risks to
Understanding local capital markets
Transaction considerations and structures: strategic, legal, tax, accounting
Effects of risk on valuation and successful deal execution
12. 2014 POLITICAL RISK OUTLOOK IN ASIA
• Most militarized region in the world – Increased China-Japan tensions
• Heightened emerging market turbulence – New currency crises? New
• Year of Truth for Chinese commitment to economic reform and
• Will Abe-nomics run out of gas?
• Key elections in India and Indonesia – Implications for investor
• Year of Truth for the Trans-Pacific Partnership
• Will the Regional Comprehensive Economic Partnership gain
• Political instability in Thailand
David J. Karl, Asia Strategy Initiative
13. MITIGATING LEGAL RISK CHECK LIST
• There are two types of laws which will impact the transaction:
(1) regulatory and mandatory law; and
(2) the law of the contract.
• Choose a governing law early within the transaction (LOI or MOU
• If a potential dispute would involve more than one possible jurisdiction,
arbitration is the preferred choice.
• The choice of an arbitral institution has considerable impact on the
quality of the arbitrator who will hear your case.
• The venue or place of arbitration is a designation that has legal
14. INVESTMENT TREATIES
• Bilateral Investment Treaties or BITs are agreements between two
nations governing standards of fair treatment afforded to foreign
• Other agreements, including Multilateral Free Trade (NAFTA) or
Bilateral Free Trade Agreements (Korea-US FTA)may also include
investor protection chapters.
• These agreements may grant the investor a right to file a claim
(wrongful expropriation of assets) before an international arbitral
• Relevant for investment in sensitive sectors, or those that involve
regulatory licenses or concessions, or entities that are governmental or