Post-completion disputes can be a  feature of M&A. Where a party to the transaction, typically the buyer, does not receive what it has paid for, a dispute is likely to arise. Such disputes can include warranty claims, indemnity claims and disagreement about deferred consideration. Increasingly, parties choose arbitration as the forum for resolving these disputes, particularly in high-value and cross-border transactions, because it has several perceived advantages over the traditional court process.

Post-completion disputes can be a  feature of M&A. Where a party to the transaction, typically the buyer, does not receive what it has paid for, a dispute is likely to arise. Such disputes can include warranty claims, indemnity claims and disagreement about deferred consideration. Increasingly, parties choose arbitration as the forum for resolving these disputes, particularly in high-value and cross-border transactions, because it has several perceived advantages over the traditional court process.

Key takeaways

• Arbitration is often chosen for post-completion SPA claims because it can be private, internationally enforceable, and procedurally tailored to the dispute.
• Arbitration is not automatically faster or cheaper; efficiency depends on procedure design.
• In M&A disputes, drafting choices (seat, rules, confidentiality protections, tribunal expertise and the interface with expert determination) usually matter more than the label            ‘arbitration’ itself.

Confidentiality (and its limits)

Confidentiality is a central commercial driver for arbitration in M&A. Proceedings are typically conducted in private, which can reduce reputational risk and protect sensitive information such as financial models, valuation materials, management accounts and customer lists, particularly for private equity investors and portfolio companies. A duty of confidentiality is implied into the arbitration agreement in English Law. However, confidentiality in arbitration is not automatic in all jurisdictions or under all rules, and it is not absolute. It may be diluted by:

• disclosure obligations to regulators, auditors or fund investors;
• the practical need to involve third parties (e.g. insurers, experts, lenders); and
• court proceedings connected to the arbitration, such as challenges to awards or enforcement, where information may enter the public domain unless managed through redactions or confidentiality rings.

Where disputes engage public interest considerations, the biggest reported challenge is balancing confidentiality and transparency. Parties sometimes manage this tension by agreeing limited publication or redacted awards.

Cross-border enforceability

The process of enforcing arbitral awards in other jurisdictions is generally seen as more straightforward than enforcing foreign judgments before domestic courts. This is largely due to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, commonly known as the New York Convention, providing a widely adopted enforcement network. As of the latest published status lists, there are 172 Contracting States to the Convention, allowing enforcement proceedings in a large number of jurisdictions with relative procedural simplicity.

In M&A disputes, this is particularly important as the assets that may satisfy an award could sit outside of the jurisdiction of the counterparty’s ‘home’ courts. Arbitration’s enforcement infrastructure can therefore operate as a practical form of deal risk management. That said, enforcement strategy should be considered early: outcomes will depend on asset location and the limited grounds on which recognition and enforcement may be resisted.

Neutrality and preferred seats

In cross-border deals, arbitration is frequently chosen because it is perceived as a neutral forum. That matters when the buyers and sellers come from different legal systems or where one side would be forced to litigate in a different jurisdiction.

Empirical data supports the continued prominence of arbitration. In cross-border disputes generally, the 2025 Queen Mary University of London/ White & Case International Arbitration Survey reports that 87% of respondents continue to choose international arbitration to resolve cross-border disputes and London is identified as one of the preferred seats for international arbitration.

Arbitration vs court: procedure and timing

Arbitration is often selected by parties for its procedural flexibility. Parties can:

• choose the tribunal (this can be valuable in M&A disputes that turn on specialist accounting, tax or valuation questions);
• agree a timetable to a final hearing;
• tailor document production; and
• adopt streamlined procedures where proportionate.

Users increasingly rely on expedited procedures and early determination to control time and cost.

In some cases, litigation may still be preferable where third-party compulsion to provide documents or to act as witnesses is expected.

Finality

Arbitration is often attractive because awards are generally final and harder to challenge on the merits than court judgments. Challenges are typically confined to narrow grounds and, in some cases, parties can exclude certain appeal routes by agreement.

Whilst this is often seen as a benefit, it also concentrates risk in tribunal selection and case management. Parties should therefore think carefully about the tribunal’s experience and availability, and ensure the process is structured to fit the dispute profile.

Conclusion

These features explain why arbitration clauses are increasingly common in M&A documentation. For high-value, multi-jurisdictional disputes, arbitration can offer a tailored and commercially pragmatic route to resolution but only if the SPA is drafted with the likely dispute profile in mind and the procedure is actively managed from the outset.