Vice Presidents Mark Berberian and Hyun Lee Join Discussion on Cross-Border Deals in Volatile Sectors at the 2026 ADR Festival in Seoul

November 5, 2026

Analysis Group and Freshfields cohosted a panel discussion on legal and quantum issues in cross-border acquisitions in volatile sectors during the 2026 Seoul ADR Festival. The session, “Deals in Volatile Sectors: Arbitrating Earnouts, W&I Claims, and Quantum in Cross-Border M&A,” was moderated by Samantha Tan (Freshfields) and featured insights from Vice Presidents Mark Berberian and Hyun Lee as well as Rohit Bhat (Freshfields) and Peter Turner KC (39 Essex Chambers). The conversation covered unique legal and valuation challenges in the AI, digital infrastructure, crypto, fintech, social media, and clean energy sectors. 

The panelists explored potential causes of post-acquisition disputes in volatile sectors and the legal, contractual, and valuation challenges associated with these disputes. Disputes may arise following significant market fluctuations, extraordinary events such as the COVID-19 pandemic, and disagreements over the assumptions underlying the financial metrics on which earnouts are based. Panelists discussed how ambiguities in contractual provisions, including purchase-price adjustment mechanisms and earnout formulas, can lead to disagreements over the interpretation and application of transaction agreements.

The discussion also covered legal and procedural considerations in resolving these disputes, including contractual interpretation, the choice between arbitration and expert determination, and practical measures such as careful contract drafting and due diligence. Panelists also considered the role of expert evidence in evaluating disputed representations and the reliability of underlying data and analytical methods. Analysis Group’s work on the Twitter v. Musk case was cited as an example of the disputes that can arise in these sectors and the kind of expert evidence that may inform merits and quantum issues.

Panelists discussed various valuation methodologies and compared the benefits and limitations of three popular approaches to valuation: market evidence, or the price of an asset in an actual market transaction; relative valuation, a value estimate based on comparable companies or transactions; and discounted cash flow (DCF). The discussion also highlighted the importance of aligning valuation analyses with the specific claims at issue and appropriately accounting for risk and uncertainty in projected cash flows or discount rates.

The panelists concluded by offering three key takeaways from the panel:

  • Expect the unexpected with cross-border acquisitions – due diligence and drafting provisions cannot fully account for the range of outcomes in volatile sectors.
  • Be thoughtful on boiler plate language to avoid disagreements over the interpretation of contractual provisions.
  • Specific expertise in the sector is helpful for these disputes as understanding industry-specific business models, competitive dynamics, and key drivers of value can be important for evaluating disputed valuation assumptions and quantifying damages.