翻訳の壁：欧州と米国におけるM&A取引の主要な合意点

After two decades practicing law in Silicon Valley and five formative years working on cross-border deals in Europe, I’ve come to appreciate the subtle (and not-so-subtle) differences in how merger and acquisition (M&A) transactions are structured on either side of the Atlantic. For buyers and sellers on opposite sides of the divide, these can be the difference between a smooth closing and a deal that gets lost in translation.

Below, we look at the key distinctions between U.S. M&A deal terms (sourced from SRS Acquiom) and European M&A deal terms (sourced from CMS), personal insights from the trenches, and practical takeaways for buyers and sellers trying to structure and execute cross-border transactions.

The infographic above provides a comprehensive overview of the six key differences in M&A practices between the U.S. and European markets. These points illustrate the fundamental structural variations that deal teams must navigate when working across borders.

1. Purchase Price Adjustments (PPA): Certainty vs. Flexibility

In the U.S., PPAs are nearly universal. Buyers expect to be made whole for gaps in working capital, shortfalls in cash in the bank, and any remaining debt post-closing. It’s a well-oiled machine, and most parties know the drill.

In Europe, it’s a different story. While PPAs are gaining ground (found in less than half of all M&A deals per CMS), many deals still rely on the “locked box” mechanism, where the price is fixed based on a historical balance sheet, and the seller warrants that there has been no leakage in value since the balance sheet date. This approach offers price certainty but requires trust and diligence.

U.S. clients doing deals in Europe should be open to lock box structures, especially in competitive auctions. European clients entering the U.S. should be ready for detailed post-closing adjustments and the accounting gymnastics that come with them.

2. Earn-outs: A Tale of Two Metrics

Earn-outs are common in both markets, making up 33% of U.S. deals and 25% of European ones. But the way they are structured varies widely. In the U.S., revenue-based earn-outs are more common, as opposed to Europe, where EBIT/EBITDA is king.

In tech and healthcare, where future performance is often speculative, earn-outs can bridge valuation gaps. But they are also a breeding ground for disputes.

Defining metrics clearly is table stakes, as is aligning incentives and not underestimating the emotional toll of earn-out negotiations, especially when founders are staying on board.

The chart above quantifies the prevalence of key M&A practices in both markets. Note especially the dramatic difference in MAC clause usage (98% in the U.S. versus just 14% in Europe) and the inverse relationship in arbitration preference (17% U.S. versus 42% Europe). These statistical differences highlight the importance of understanding regional norms when structuring cross-border transactions.

3. Liability Caps: How Much Skin in the Game?

In the U.S., seller liability is often capped at 10% or less of the purchase price, thanks to the widespread use of transactional, or “rep and warranties” insurance (otherwise known as “RWI”). In Europe, caps are higher, often 25% to 50%, though RWI is catching up.

European sellers are more accustomed to bearing risk, while U.S. sellers expect to shift it. This can lead to friction, so aligning expectations early is key.

This interactive comparison illustrates the fundamental differences in liability approaches and legal frameworks between regions. Toggle between the tabs to explore how these differences might impact deal structuring and negotiations. The higher liability caps in Europe (25-50%) versus the U.S. (typically 10% or less) reflect different risk allocation philosophies that must be reconciled in cross-border transactions.

4. MAC Clauses: Rare in Europe, Routine in the U.S.

Material Adverse Change (MAC) clauses are standard in U.S. deals and used in 98% of transactions. The idea is that between signing and closing, the business has not suffered a MAC, and if it has, the buyer does not have to close. Sometimes, it’s worded that the business hasn’t suffered a MAC since the balance sheet date. In Europe, however, they are rarefied air, appearing in only 14% of M&A deals, and often heavily qualified.

This can lead to surprises when U.S. buyers find no MAC clause in a European deal, and European sellers may balk at the broad language typical in U.S. agreements.

5. Dispute Resolution: Courts vs. Arbitration

Dispute resolution is where things really diverge. In the U.S., litigation is the default remedy, with arbitration used in only 17% of deals. In Europe, the use of arbitration is much higher (42% of deals in 2024), especially in cross-border transactions.

But there is a twist. 70% of European arbitration clauses apply national rules, not international ones. That means a “standard” arbitration clause in Germany may look very different from one in France or the UK.

U.S. clients should be prepared for arbitration in Europe and understand the local rules. European clients doing deals in the U.S. should be ready for court proceedings and the discovery process that comes with them.

6. Transactional Insurance: Growing, But Not Yet Global

RWI, or transactional insurance, is a game-changer. It smooths negotiations, caps liability, and speeds up closings. In the U.S., it’s used in 38% of deals. In Europe, it’s at 24%, but rising fast, especially in the UK and Germany.

I have seen RWI insurance unlock deals that would otherwise stall over the scope of representations and warranties, indemnity caps, or escrow mechanics. But it is not a silver bullet, so underwriting diligence still matters.

Bridging the Gaps

Cross-border M&A is never just about the numbers. It’s about culture, expectations, and communication. I have seen deals that were super smart on paper fall apart because the counterparties did not understand each other’s norms. And I have seen unlikely partnerships thrive because they took the time to bridge those gaps. 

So, whether you’re a U.S. buyer eyeing a European AI startup, or a European medtech platform bolting on a U.S. target, remember that what is “market” depends on where you are. When in doubt, ask someone who’s been on both sides of the table.