Although Asia was hard hit by Covid-19 (much like the rest of the world), the mergers and acquisitions (M&A) market managed to rebound by the latter half of 2020, particularly in the last quarter which saw a heavy surge in deal activity.
This rise in Asian M&A activity was mirrored by an increased uptake of warranties and indemnities (W&I) insurance.
Traditionally, W&I activity in the Asia-Pacific was focused predominantly in Australia and New Zealand, where it is an established feature in deal-making. It is generally still in relative nascency in Asia, but its adoption has seen significant acceleration in recent years as advisors and parties become more familiar with the product.
The size of the region means that dealmakers face various practical challenges, particularly as cross-border deals are a prominent feature. Dealmakers need to consider and accommodate different legal systems, a multitude of local laws and a wide variety of language and cultures.
In terms of legal systems, the level and certainty of enforcement of local laws can differ significantly, not just across countries, but even across states within the same country. It is not uncommon for the same regulatory requirements to receive different treatments or interpretations depending on the local or state authorities involved.
This means guidance from reliable local counsel familiar with the nuances of the relevant legal and commercial realities is key in accurately identifying material issues and assessing the practical risks. Certain countries require specified categories of sale agreements to be entered into in the local national language and parties will often need to obtain and work with translations of amongst others, laws, contracts and transaction documents.
Discussions and negotiations can become more complicated as well when there are multiple local counsels involved, each of whom will likely have different first languages, which can sometimes give rise to miscommunications.
It is important for dealmakers new to the region to keep in mind that Asia is not a single monolithic entity. There are varying degrees of sophistication among the Asian countries which will affect the risk profile for each deal. For example, countries such as Singapore or South Korea have well-established, easily accessible legal and commercial systems in place.
Conversely, other countries are still in the process of developing these and do not yet have the same tools and resources, such as electronic public databases or easily available guidance from relevant authorities. For parties engaging in deals involving a combination of such countries, it is necessary to recognize and make these distinctions in order not to inflate, or alternatively underestimate, the risks involved.
The same arise in the underwriting process. The involvement of numerous jurisdictions in a single deal, each with their own unique issues and challenges, often results in voluminous due diligence materials for underwriters to review, often within a compressed timeline. Where the due diligence materials are in foreign languages, underwriters will also need to rely on translations which can give rise to the same issues of miscommunications and misunderstandings.
Evaluating the risks present in specific countries means underwriters need to be familiar with the political and economic landscape, and cultural and business practices of each jurisdiction, so they can accurately assess the actual (rather than theoretical) risk involved.
Administratively, regulatory requirements pose another complication in the underwriting process since they often necessitate partnering with local insurance companies to comply with licensing requirements. As W&I is still a relatively new product in Asia, local insurers do not always have a deep knowledge of the product or what it involves, meaning underwriters need to invest a fair amount of time particularly in the initial stages to help local partners develop a better understanding of the product and how it works.
Despite these complexities, W&I insurance is coming of age in Asia, and we are confident that this growth will continue over the coming years.
This article is written by Heidi Shum, an underwriter at Liberty GTS in Singapore focusing on M&A insurance in Asia Pacific.
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