Implementation of alternative dispute resolution mechanisms in cross border mergers: International legal study

UNIVERSITÉ DE 7 NOVEMBRE À CARTHAGE

Faculté des Sciences Juridiques, Politiques et

Sociales de Tunis II

Thesis in partial fulfilment of the requirements for the
MASTER'S DEGREE IN COMMON LAW

IMPLEMENTATION OF ALTERNATIVE DISPUTE RESOL UTION MECHANISMS

IN

CROSS-BORDER MERGERS

INTERNATIONAL LEGAL STUDY

Prepared by: Syrine AYADI

Supervised by: Professor Peter SCHRAEDER

ACADEMIC YEAR 2006 / 2007

To My Father ~

The Faculty assumes no responsibility at all for the opinions expressed here.

ACKNOWLEDGMENTS

I would like to express my deepest gratitude to Professor Peter SCHRAEDER, my thesis director, for his advice. I am particularly grateful to his countless supervision, useful suggestions and everlasting support, patience and encouragement.

Special thanks go to my father who worked hard to make my life better, to my sister who helped me to realize this work and to all my friends.

I would like to express my sincere gratitude to the UNIDROIT Institute for having given me this opportunity to be among the scholars' researchers. My time in Rome was a period of academic enrichment and discovery that allowed me to do researches in a delightful atmosphere. I am eternally grateful to the people who generously offered me their academic assistance by sharing their legal points of view on many topics and contributed to the joy of coming to work every day.

Thank you all.

Abbreviation

· DGCL: Delaware General Corporate Law

· TCCC: Tunisian Commercial Companies Code

· AAA: American Arbitration Association

· CBM: Cross-Border Merger

· ADR: Alternative Dispute Resolution

· CM: Conflict Management

· LLC: Limited Liability Company

· ICC :International Chamber of Commercial

· GAAP: generally accepted accounting principles

· US: United States of America

· RMBCA: revised Model Business Corporation ACT

· EC: European Commission

· ECJ: European Court of Justice

· UNIDROIT: International institute for the Unification of Private Law

· UNCITRAL: United Nations Convention on international

Commercial Arbitration

· UAA: Uniform Arbitration Act

· FAA: Federal Arbitration Act

Synopsis

PRELIMINARY CHAPTER

Introducing the cross-border merger process from a legal

approach

Section 1: Cross-border mergers corporate tools

Section 2: Cross-border mergers fundamental requirements

CHAPTER I

Implementation of Alternative Dispute Resolution mechanisms required

Section 1: Necessities of implementing Alternative Dispute Resolution mechanisms

Section 2: Adaptations of alternative dispute resolution mechanisms in merger agreement

CHAPTER II

Implementation of ADR mechanisms challenged

Section1: Challenges to implement ADR in Cross-Border Mergers as it concerns Mediation.

Section 2: Challenges to implement ADR in Cross-Border Mergers as it concerns Arbitration

"By failing to prepare you are preparing to fail ..."

Benjamin Franklin

Introduction

One of the most complex processes in a company^,s first steps toward globalization is the establishment of the overseas marketing base in a local economy. Because the environment is naturally quite different from market to market, a new strategy is required to face the challenges each new situation presents to future success. Taking into consideration the rapidly change and fluid business environment that exists in world markets today, the most efficient and economical way to establish a presence is by merger. Cross-border mergers have been used by a variety of companies as an effective strategy for creating value. However its conduct has been accepted with potential difficulties that may generate disputes.

The integration of firms through a merger requires joining different corporate cultures, management and communication styles, experiences, rules and procedures. This interconnection of cultures could lead to conflict between shareholders and directors. Unresolved conflict during a merger could lead to litigation, and collapse of the merger. In such a situation, businesses and their transactional lawyers¹ should look to options that cultivate and implement² well-organized and friendly dispute resolution mechanisms to resolve these complex business transactions.

In order to cope with the increasing complexity of the modern business world, alternatives to litigation³, has been developed, as a natural and flexible means for resolving disputes that are likely to arise between businesses. The issue is both current and relevant.

In order to prevent potential disputes that might arise during the merger closing negotiations stages between domestic and foreign

¹ "...A transactional lawyer is a lawyer who works primarily on transactions such as...mergers, acquisitions and the like...» Garner, B. A., "Black^,s Law Dictionary", seventh edition, ST PAUL, MINN, 1999 and from Westlaw Data Base, The Black^,s Law Dictionary (8th ed. 2004)

² "...To implement means to apply to anything necessary to perform a task. Implementation means completion, execution, accomplishment, realization, and performance..." Webster's New Thesaurus of the English Language, by MERRIAM-WEBSTER, edition 2002.

³Litigation can be defined to include all adjudication in a government forum, whether that forum is a court or some other government body, such as administrative agency. Litigation is a process of dispute Resolution. The Black's Law Dictionary. Op.cit note 1 page 1

companies, the utilization of Alternatives to litigation would be a significant and resourceful action.

First of all, it is necessary to set forth some basic definitions, considered necessary tools for the analysis of complex phenomena.

The Black^,s Law Dictionary defines merger as "The absorption of one organization (esp. a corporation) that ceases to exist into another that retains its own name and identity and acquires the assets and liabilities of the former... Corporate mergers must conform to statutory formalities and be approved by a majority of the outstanding shares'.

Merger is a type of business combination that needs to be distinguished from acquisition. Acquisition⁴ is a generic term that implies a transfer of ownership, while a merger constitutes a technical term qualifying a particular legal process that would be followed or not by an acquisition. It is more often the case of simple acquisition of companies without being followed by mergers. During an acquisition the deal may be negotiated or hostile. Instead in a merger the deal is negotiated. The differences are to be detected in the legal treatments of these operations in accordance with the national legislation in force"⁵.

⁴ Acquisition (namely Takeover) can be defined as the acquisition of ownership or control of a corporation. A takeover is typically accomplished by a purchase of shares or assets, a tender offer or a merger. Friendly takeover when is approved by the target corporation's board of directors. Hostile takeover when is resisted by the target corporation's board of directors. The black's law Dictionary note & page 1

⁵ Ayadi, R., « Les Fusions et acquisitions dans le secteur bancaire européen : Proposition d'une grille d'analyse des logiques industrielles des fusions et acquisitions pour évaluer leurs impacts sur la performance », PHd présentée à UNIVERSITE PARIS DAUPHINE pour obtenir le titre de DOCTEUR DE L^,UNIVERSITE PARIS DAUPHINE Spécialité : Sciences Economiques, juillet 2006.

Given that ,many elements between European legal systems like in France and Germany which belong to the civil Law tradition⁶ on the one hand and the US legal system which belong to the Common law⁷ tradition ,on the other hand, will increase the divergence in carrying -out cross-border mergers.

From European Company law perspectives, merger is considered as "a corporate transaction that in volves the transfer of all of the acquired company's assets and liabilities to the acquiring company, with the consequence of the disappearance of the acquired company"⁸. In the same way, from the Tunisian Company legislation in force ⁹ merger is defined as the "amalgamation of two or more companies to constitute one" and classified in either a "fusion par absorption" where a company completely absorbs another company (merger by amalgamation or by acquisition) and in a "fusion avec creation d'une société nouvelle" where two companies merge to form a new company (merger by consolidation or formation of new company) ^10.

When reference is made to international mergers, the participating companies are cooperating in different countries¹¹ and are subject to different Company laws.

⁶Civil Law: one of the two prominent legal systems in the western world originally administered in the Roman Empire and still influential in continental Europe, Latin America, Scotland and Louisiana, among other parts of the world. Black's Law Dictionary op.cit page 1 note 1

⁷Common Law: "the body of law derived from judicial decisions, rather then from statutes or constitutions". Id.

⁸ Brussels, 18.11.2003 (2003), Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on cross-border mergers of companies with share capital, (presented by the European Commission) Draft Directive on Cross-Border Mergers

⁹ Law n°2000-93 of 3rd November 2000 outlining promulgation of the Tunisian Commercial companies Code(TCCC) in its articles 411 to 427

¹⁰ Article 411 TCCC a La fusion est la réunion de deux ou plusieurs sociétés pour former une seule société. La fusion peut résulter soit de l^,absorption par une ou plusieurs sociétés des autres sociétés, soit de la création d^,une société nouvelle à partir de celles-ci... » Personal translation. See appendices n°4

¹¹ "Cross-border merger" is a merger transaction involving companies at least two of which are governed by the laws of different Member States". The Black's Law dictionary , Op.cit Page 1, note1

From US perspectives, Delaware¹² Company Law, considered the main source regulating merger law, governs merger regime in accordance with section 251 of the Delaware General Corporation Law as amended on July 1, 1998¹³ and classify it in both a "direct or legal merger" and "triangular merger"¹⁴.

The concept of merger takes place when "one constituent entity merges with and into another "constituent" entity. The latter, "surviving," entity succeeds to all assets and liabilities of the disappearing entity by operation of law¹⁵.

In European and Tunisian Company law, the acquired companies are dissolved without going into liquidation¹⁶; the acquiring companies increase their capital¹⁷. The deal is negotiated and requires the draft of a merger contract that must be recommended by the board of directors of each company and approved by the meeting of shareholders¹⁸.

A merger may occur between same or different types of companies¹⁹. The limited liability company²⁰, considered the most common form of European business entity and the business corporation, considered the most used form of American business entity²¹, tends to facilitate cross-the

¹² Delaware, the second smallest state of the union has emerged as a clear winner in this system attracting over half of the large publicly traded corporations. Because of Delaware's market dominance, the general corporation law of Delaware controls the internal of thousands of the most prominent US corporations. This makes the general corporation law of Delaware the most important corporation law in the United States. Prior to Delaware's leading position, New Jersey was the most popular state for incorporation. Source Forstinger, Christin.M, Take over law in the EU and the USA, A comparative analysis", kluwer Law international , 2002

¹³ But also by Chapter 11. 02 of the Model Business Corporation Act " RMBCA" revised in 1999

¹⁴ Under Delaware law, a merger can be classified under two types of transactions : (1) A direct merger of the target into the acquirer with the target's shareholders receiving in the alternative stock of the acquirer and cash, and (2) a triangular merger in which a wholly-owned subsidiary of the acquirer merges into target with :(a) the target's shareholders receiving, in the alternative, stock of the acquirer or cash, and (b) acquirer ending up as the owner of all of the target's outstanding shares. Delaware General Corporation Law section 251

¹⁵ DGCL section 251 and the Revised Model Business Corporation Act RMBCA chapter 11 § 11.07

¹⁶ Article 411 (2) TCCC and article 2 (2-c) of the EU Directive on cross-border mergers of LLC of October 2005.

¹⁷ Article 411 (3) of the TCCC and article 14 of the EU Directive on cross-border mergers of LLC

¹⁸ Article 99 and 102 of the Code of Commerce and article 291 of the Tunisian Commercial companies' code, article 9 of the EU Directive on cross-border mergers of LLC. Section 251 of the Delaware General Corporate law

¹⁹ Article 412 of the TCCC, merger may occur between business corporations( SA), Limited Liability Company (SARL), and Limited Liability Partnership(Société en commandite par actions) , Article 1 of the cross-border mergers EU Directive covers all companies with shares capital (public limited companies and incorporated private companies. See appendices n°1; section 251 of DGCL: a merger may occur between two or more for- profit, stock corporations, or between one or more such corporations and one or more of the following entities: a. "Joint stock" companies (DGCL § 254), b. "Non-stock" or "non-profit" corporations (DGCL §§ 255, 257 and 258), c. Limited partnerships (DGCL § 263); and d. Limited liability companies (DGCL § 264).

²⁰ Limited liability Company (LLC): company with share capital and having legal personality possessing separate assets which alone serve to cover its debts. Article 2 of the EU Directive on cross-border mergers of LLC. See appendices n°1

²¹ Corporations: -An association of shareholders (or even a single shareholder) created under law & regarded as an artificial person by courts, having a legal entity entirely separate & distinct from the individuals who

border merger transaction. When the deal occurs between companies governed by different national company laws, it is called "cross border merger". Cross-border mergers are frequently straightforward international acquisitions in which the acquiring company purchases shares in the target company in exchange for its own shares. They are subject to different but conflicting company laws²² that may generate inconsistency in the choice of the applicable law from private international law²³ perspectives. The term "merger" will be used in this paper to mean "mergers by acquisition".

The world has witnessed the emergence of ^,Alternative Dispute Resolution^, which refers to the wide range of Legal possibility that use techniques other than trial to settle disputes²⁴. "Resolving a dispute might be defined as ending the dispute in such a way that the claimant is satisfied with a just result or through a fair process..."²⁵ Alternative dispute resolutions can be considered as about all legally permitted, cheaper, more flexible and quicker processes of dispute resolution other than litigation. They also meet some needs of the business community that judicial litigation cannot offer: confidentiality and an expertise on their settlement. Moreover, their tailoring in business transactions demands a great deal of negotiation between drafters in order to avoid the main problems that are likely to arise. Accordingly they might symbolize what American scholars call "the modern technology of the conflict- management system"²⁶, in essence, techniques that could

compose it, with the capacity of continuous existence or succession, & having the capacity, as such legal entity of taking, holding & transmission property, suing & being sued, & exercising such other powers as may be conferred on it by law, just as a natural person may. Id

²² Article 412 of the TCCC , Article 4 (a) of the EU Directive on cross-border mergers of LLC, Chapter 11 of the Re MBCA ( 1999) §11.02 (b)

²³ It is traditional to use the expression « conflict of laws » or « private international law » to describe the body of principle and rules applicable to transborder cases involving private relationships that contain at least on legally relevant foreign element. Private international law or conflict of laws rules result from the existence of different legal systems in the world. The expression conflict of laws will be used here and understood that it has the same meaning as "private international law". Walker and Castels, Choice of law rules, Private /nternational Law, Canadian Conflict of Laws, 4ed , Butterworths, 1997

^'Ware, S., Alternative Dispute Resolution, Law Stamford University Cumberland School of Law, Horn Book Series, ST PAUL. MINN.2001

²⁵ Id page 5

²⁶ Conflict Management: "An approach to conflict whereby parties can develop protocols or arrangements for preventing disputes from occurring and pre-determining the range of appropriate responses to conflict should

significantly improve the practice of dispute resolution in international

business. Alternative methods of dispute resolution will therefore be referred to below by the acronym that is tending to be accepted universally in practice, i.e. ^,ADR^,. The basic

division within ADR is between "Arbitration v everything else"²⁷. The spectrum of available ADR mechanisms in international business area can be divided into two broad categories of procedures: binding techniques such as Arbitration²⁸ and non-binding techniques such as mediation²⁹ sometimes confused with conciliation in many civil law countries³⁰.

Cross-border mergers are of unique importance in this day and age and ADR has become a field of study and an area of practice of enormous magnitude. Over the last decade, we have seen a dramatic increase in such sophisticated combination schemes in international business arena. The leading example is the Daimler Chrysler merger case 1998³¹. In the US and in Europe, continuing harmonization has taken place in many sectors³² in addition to confidence's restoration in the world system and global markets in the field of merger activity³³.

In Europe, after three decades of negotiations³⁴, following the adoption of the European Company Statute ("Societas Europea" or "SE") in 2001 which entered into force in 2003, some company law aspects giving companies, operating in more than one member State the option to

one arise". Pirie, A., "Alternative Dispute Resolution. Skills, Science and the Law", Canadian Legal Skills, Faculty of law, University of Victoria, IRWIN LAW, 2003.

²⁷ /d p5

²⁸ Arbitration: a method of dispute resolution involving one or more neutral third parties who are usu. agreed to by the disputing parties and whose decision is binding. The Black's Law dictionary .Op.cit page 1 note 1

²⁹ Mediation: A method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution. id

³⁰ Report of the secretary General, UNCITRAL, Working group on Arbitration, 33^rd Session, at 28, UN, Doc A/CN/WG.II/WP.110 (2000), at www.uncitral.org , (discussing and defining the term "conciliation" v "mediation".).

³¹ The Daimler/Chrysler merger case (November 1998) in , Horn, N., "Cross border Mergers and Acquisitions and the Law", Kluwer Law International 2001

³² Cross-border mergers are changing the structure of the banking industry. United Nations Conference on Trade and Development World Investment Report 2000 Cross-border Mergers and Acquisitions and Development United Nations New York and Geneva, 2000

³³ ... the move to the International Accounting Standards for all listed companies (IAS) (2005), the Generally Accepted Accounting Principles (GAAP), The reform of the European Merger regulation (may 2004), the European Company Statute (October 2004), which in its turn has inevitably expedite the harmonization of corporate tax laws among the member states...", Beggs. P.F.C , Corporate Acquisitions and Mergers, Volume I, Kluwer Law International 2004

³⁴ In 14 December 1984 the Commission adopted a proposal for a tenth Council Directive on cross-border mergers of companies. In 2001, the Commission withdrew this first proposal for a tenth Directive.

migrate and to establish as a single company under the European Law by way of merger among other member states were finally regulated. Based on the EC treaty and other European Directives³⁵ a proposal³⁶ for a directive designed to facilitate merger transactions between companies incorporated in different EU member states to overcome obstacles created by different national laws, has been approved and adopted on October 2005.

On the other hand, following the 90's , with the emergence of developing countries as important locations for promoting cross-border mergers³⁷, in response to sustained efforts of many emerging countries to create more business friendly environments³⁸, Tunisia, has attracted sizeable amounts of foreign investors in recent years³⁹. In this global movement, supported by its political stability, the Tunisian government has begun during the last decade to modernize its economy with the purpose of integrating the global market.

It has established reforms compatible with the proper functioning of the policy of the top industrialized countries like the US and the European Union countries. In this context, the Tunisian legal system saw a substantial amount of legal reforms since trade protection has been

³⁵ 3rd Company law Directive of 9 October 1978 related to domestic mergers and article 220 of the EEC treaty are legal basis of the proposal of the 10^th Company law Directive of the 14 January 1985 withdrawal in 2001 and replaced by the EU Directive on cross-border mergers of public and private companies adopted in 2005. Katz, D., & Elofson, A.," Proposed EU Directive on Cross-Border Mergers", the M&A lawyer Review , January 2004, West Law data base

³⁶ The proposed Directive would allow companies across the EU to merge cross-border based on the approach taken in the Third Company Law Directive, which applies to domestic company mergers of public limited companies, and the cross-border provisions in the European Company Statute". id

³⁷ ".... While their share in world cross-border M&as remained constant at less than 10 per cent in terms of value almost every year until the mid-1990s, in terms of the number of deals, it increased from 5 per cent in 1987 to 19 per cent in the late 1990sThe value of cross-border M&as undertaken by firms from developing countries rose from $3 billion in 1987 to $41 billion in 1999...". United Nations Conference on Trade and Development World Investment Report 2000 op.cit page 6 note 6

³⁸ Generally in developing Countries, M&A activity has been slow, due partly to the slow pace of privatization and partly for broader reasons related to the investment climate and limited availability of attractive firms for purchase in the private sector The principal acquirers of firms based in developing countries have traditionally been the European Union firms .They became the largest acquirers during 1998-1999, replacing United States firms and accounting for more than two-fifths of all cross-border M&As in developing countries Cross-border M&A purchases by firms based in developing countries nearly doubled in 1999 after dipping in 1998 in response to the Asian financial crisis. UNCTD Id.

³⁹ "...There is also more diversification in terms of both source countries -- with the United States being the most important one, followed by European countries -- and in terms of sectors -- with manufacturing and services gaining in importance over natural resources. id.

removed and tariffs dismantled through the establishment of a Free Trade Zone with Europe⁴⁰. In order to provide Tunisian companies with a wellorganized legal framework favorable to their growth, Tunisia created through its judicial authorities, national legislation that legally permits domestic and cross-border merger.

Legal and economic interests have been confirmed. They are: fortifying the competitive capacity of the Tunisian companies; reorganizing and reducing the number of companies and shareholders; and creating a powerful group that will know how to impose itself on the international market. According to World Bank-European Commission Programme on Private Participation in Mediterranean Infrastructure: "...the most important merger have involved subsidiaries of multinational companies such as Mobil in the petroleum sector, Volvo and Renault in the motor vehicles sector and many merger cases have been investigated during the years 1998-2001...etc⁴¹. Thus the achievement of Company law reforms introduced especially in the Tunisian financial sector was illustrated by the first domestic merger between three Tunisian banks, the Tunisian company of banks (STB)⁴² with the National bank of tourist development (BNDT)⁴³ and the Economic development bank of Tunisia (BDET)⁴⁴ following the reform of 2000⁴⁵ promulgating the Tunisian Commercial Companies Code. In 2002 the Tunisian national business

⁴⁰ Tunisia was the first country of the Mediterranean region having signed the agreement of Euro Mediterranean Association in July 17, 1995 which has entered in force March 01, 1998, an agreement that plan to create a zone of free trade progressively by 2010 and which objectives were to promote the stability, the peace and the prosperity in the region. In addition, Tunisia is member of the United Nations, the WTO, the IMF, the World Bank, the Arab league, the Arab Maghreb Union, as well as the African union. Tunisia has adhered to the GATS/OMC (application limited to some sectors of the economy: communication, finance and tourism) and benefit of the growth programs of the World Bank. Op.cit Ayadi, R. page 2, note 2

⁴¹."...the explosives manufacturing companies, the domestic liquid gas companies, companies manufacture motor lubricants... An important Merger between "Esso Standard Tunisia" and "Mobil Tunisia" was submitted by the two companies to the minister of trade approval, the two multinationals, Esso Standard and Mobil, already got the Merger approval from the American and the EU competition authorities and that they effectively merged in September 1999... Further more in the Tunisian market of trucks another domestic Merger case involving two subsidiaries of two multinational companies, "AB Volvo" and Renault in 2000, a metal manufacturing firm intended to acquire a laboratory firm specialized in metal testing..." UNCTD W.I Report 2000 note 7 page 6

⁴² Société Tunisienne des Banques (translation)

⁴³ Banque Nationale de Développement Touristique (translation)

⁴⁴ Banque de Développement Economique de Tunisie (Translation)

⁴⁵ In the financial sector the recent merger occurred in 2000 of STB Bank with two domestic banks (BNDT and BDET) was the first case that could illustrate the best example of domestic merger in Tunisia...followed by the merger by absorption of Comete Engineering and SOGETA in 2002, and recently the merger of Tunisia Leasing and Amen leases. The Economist www.economist.tn

environment saw its first case of cross border acquisition between a Tunisian bank-"Union Internationale des Banques (UIB)"- with the French bank -"Société Générale (SG)"-⁴⁶.

With the growing cross-border business activity, common law and civil law scholars should take a fresh look at the intersection of dispute resolution and international business.

Civil law countries are now developing an interest in alternatives to litigation methods for the resolution of international business disputes. Growing interest has been shown in ADR in the European Union. Considered as a means of improving general access to justice in everyday life, ADR has received close attention from the EU member states. This specific European context explains the background for the preparation by the European Commission of the "Green Paper on ADR" launched April 2002, to initiate a constructive debate on a number of legal issues that had been raised with regard to ADR in civil and commercial law. the European Commission has published on April 2004, a "Preliminary Draft Proposal for a Directive on Certain Aspects of Mediation in civil and Commercial Matters", as well as a Draft European Code of Conduct for Mediators, which became final at a European Commission Justice Directorate conference in Brussels on July 2, 2004.

Equally, extensive experience has been shown in alternative dispute resolution in the US⁴⁷. Many efforts have been made to improve and unify regulation deal with Arbitration and mediation⁴⁸. In 1998, Congress adopted the Alternative Dispute Resolution Act (ADR Act), which requires federal district courts to establish at least one ADR program and to develop procedural rules for its wide and active use.

⁴⁶ In 2002, the privatization of "l'Union Internationale des Banques" (UIB) was lunched. In 5 November 2002, "Société Générale" acquires 52% of the UIB capital. id

⁴⁷ The American Bar Association, the American Arbitration Association, and the Society of Professionals in Dispute Resolution, are organizations providing legal communities with education, research, alternative procedures in the area of ADR and playing an important role in the creation of standards of ethics and professional responsibility for neutral persons in charge of resolving disputes

⁴⁸ In 1998, Congress adopted the Alternative Dispute Resolution Act, which requires federal district courts to establish at least one ADR program and to develop procedural rules for its wide and active use.

The subject of international Arbitration was also addressed in the "Revised Uniform Arbitration Act" (ReUAA). Thus, many US states have based their statutes on the Model Arbitration Law proposed in 1985 by the United Nations Commission on International Trade Law (UNCITRAL).

Other Countries, such as Tunisia have approached international Arbitration in a variety of ways, such as adopting parts of the UNCITRAL Model Law together with provisions taken directly from the 1958 United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards (commonly referred to as the New York Convention). At national level, following the promulgation of the Tunisian Arbitration Code⁴⁹ the Tunisian law on arbitration observed an improvement of the knowledge of Tunisian lawyers regarding the Arbitration culture, meanwhile a support of the Arbitration "centers" at national level offering Arbitration services^5°. By contrast, mediation still lacks a well established national legal frame work.

Internationally , although international support, academic and popular literature on ADR methods have proliferated , few studies have been made as regards ADR' s relationships with the Corporate world, particularly in merger law.

The idea proposed in this paper is that a merger can be successful by implementing a problem solving system that deals with dispute at an early stage. The implementation of such problem solving system should , potentially resolve any disputes in a way that gives parties more creative business- orientated solutions and satisfaction, thereby preserving their business relationships, particularly when they are involved in cross- border transaction and subject to differing national company Laws. The tailoring of this system in such intricate transactions will demand a great deal of negotiation between draftsmen, in order to avoid the main problems that are likely to arise. There will be situations when it may be

⁴⁹ Tunisian Arbitration Code promulgated by law n°93-24 dated April 26^th , 1993

^5° The local and international Arbitration Center "AL-INSAF" founded on may 24 1995 in pursuance of the law n° 93/42 dated April 26 1993 which promulgated the Tunisian Code of Arbitration. The center is operated by a highly qualified staff composed of the best lawyers and judges in the countries.

advantageous for the contracting parties to specify different procedures to handle special disputes that arise from the same transaction. The circumstances in which they will be utilized can often be formalized in the merger contract.

All these considerations raise a key question: how implementing alternative dispute resolution mechanisms during a cross-border merger can be a resourceful action? Implementing ADR mechanisms during cross-border mergers is required; however, it could be challenged. Accordingly, an international legal study in view of the American and the European perspectives will be undertaken in the following three chapters:

- Preliminary Chapter: Introducing the cross-border merger process from a legal approach

- Chapter I: Implementation of Alternative Dispute Resolution mechanisms required

- Chapter II: Implementation of Alternative Dispute Resolution mechanisms challenged