13-14 May 2010, Warsaw, Poland

1. Dispute Resolution in M&A Transactions Tactics, Challenges, Defences Travelling in the Fast Lane: Resolution of Pre-Closing Disputes 13-14 May 2010, Warsaw, Poland P+P Pöllath + Partners Attorneys-at-Law  Tax Advisors Dr. Alice Broichmann

2. Supplementary Rules for Expedited Proceedings • Fast-Track Arbitration Rules of the German Institution of Arbitration (DIS) • Adopted in April 2008 • 7 paragraphs • Supplement the DIS Rules • Time frame • 6 months (sole arbitrator) • 9 months (three arbitrators) • Model clause exists • Retrievable under www.dis-arb.de P+P Pöllath + Partners ■ Munich

3. Supplementary Rules for Expedited Proceedings • Characteristics of the Supplementary Rules for Expedited Proceedings • Quick constitution of the arbitral tribunal • Only two rounds of written submissions (time limit of 4 weeks each) • Only one oral hearing including the taking of evidence • Counterclaims and set-offs must be approved by parties and arbitral tribunal • A time table has to be submitted • Time tables and provisions may be modified if all the parties agree P+P Pöllath + Partners ■ Munich

4. Supplementary Rules for Expedited Proceedings • The Supplementary Rules for Expedited Proceedings in practice • Three cases so far • The rules haven’t been used in an M&A dispute yet • Financial crisis put a damper on M&A • The DIS working group designed the rules for M&A as well • Parties can keep their options open until a dispute occurs and then choose between regular and fast-track arbitration • “If the parties want to keep their options open until the dispute has arisen and until they are able to determine whether a specific dispute is apt for fast-track dispute resolution, they may consider providing for a choice in their arbitration clause between standard DIS arbitration and expedited DIS arbitration under the new Supplementary Rules for Expedited Proceedings.” • Klaus Peter Berger, • The Need for Speed in International Arbitration P+P Pöllath + Partners ■ Munich

5. Ad hoc Fast-Track Arbitration in M&A Pre-Closing Disputes • Tailor-made M&A fast-track arbitration clauses allow for speedy decisions, e.g. through the following provisions • The timeline can be cut down (e.g. 4 weeks to 6 months) • Written briefs can be submitted directly (without involving an arbitral institution) • Arbitrators can be appointed directly in the arbitration clause of the M&A contract • - Arbitrators can immediately check that no conflict of interest exists • - Arbitrators can ensure that they are available in the respective time period • - Arbitrators can immediately see key information like the share purchase agreement and familiarize themselves with everything before a dispute arises • Three-member arbitral tribunals are often preferred by the parties P+P Pöllath + Partners ■ Munich

6. Lessons Learned • Do’s and don’ts in fast-track arbitration clauses • Avoid criteria in the arbitration clause which can be easily manipulated, like the value in dispute • Avoid fast-track arbitration in multi-party situations • Avoid “midnight clauses” • Ensure that the parties are able to comply with short deadlines • - Will internal approvals be required (e.g. board consent)? • - Will travel time be required to attend hearings? • - Will visas be required in international disputes? P+P Pöllath + Partners ■ Munich

7. Szczęśliwej podróży! Bon voyage! Gute Reise! Dr. Alice Broichmann P+P Pöllath + Partners  München E-mail: alice.broichmann@pplaw.com Tel.: +49 (89) 24 240 224