The Form Doesn’t Know Anything: A Response to Chowdhury, Chudkowski & Gulati

Merger and acquisition agreements differ significantly from sovereign bonds. While I have criticized the stubborn persistence of harmful or ineffective boilerplate in the M&A deal world, this persistence does not stem from a desire for uniformity or blind adherence to a sacred form. The dynamics involved in negotiating merger and acquisition agreements often dictate that comments on a form agreement be kept to a minimum, making the improvement of the form a secondary goal. Moreover, what one party considers bad boilerplate may be seen as beneficial by another.

Many of the myths supposedly debunked by Chowdhury, Chudkowski & Gulati may, in fact, not be myths at all, at least in M&A. But one conclusion they draw appears to apply equally to M&A—the tug of form and market is strong indeed.