Forpligtelser i virksomhedsoverdragelser: W&I-forsikringens rolle

Abstract

This thesis explores the impact of Warranty & Indemnity (W&I) insurance on the legal and economic framework of mergers and acquisitions (M&A) within the Danish context. Conventionally, the process of M&A has entailed meticulous contractual negotiations with the objective of allocating risk, predominantly driven by substantial information asymmetries and the considerable financial interests involved. In recent years, the increasing use of W&I insurance has had a significant impact on this well-established M&A landscape. The transfer of potential post-transaction claims to insurance companies through W&I insurance can profoundly affect the legal positions and economic incentives of the parties involved. From a legal perspective, it relieves sellers of most post-transaction liabilities while providing buyers with a more reliable mechanism for compensation in cases of undisclosed liabilities and breaches of warranties. Although the basic assessment of defects remains somewhat unchanged, the handling of liability and the practical enforcement of claims is undergoing a significant change. This thesis adopts a mono- and interdisciplinary methodological approach, including both a legal dogmatic method and an economic analysis based on game theoretic models, with particular emphasis on scenarios of incomplete and asymmetric information. The analysis commences with an examination of conventional transactions that do not involve W&I insurance. It then proceeds to evaluate scenarios in which W&I insurance is used, highlighting changes in bargaining dynamics, strategic behaviour and incentive structures. The study's primary findings suggest that W&I insurance substantially alters the conventional risk distribution between buyers and sellers. From an economic vantage point, the presence of W&I insurance has been demonstrated to enhance transactional efficiency. The thesis concludes that W&I insurance not only serves as a supplementary layer of protection but increasingly constitutes a strategic and transformational element within M&A transactions. This paradigm shift has profound implications for conventional contractual and economic relationships, influencing factors such as negotiation power, risk allocation, and transactional incentives. Future research perspectives emphasize the necessity for greater transparency and structured empirical studies on the judicial handling of W&I-related disputes. These studies would improve legal clarity and transactional predictability.