Acuerdos de intenciones, negociación y gestión de la incertidumbre en la adquisición de empresas

Abstract

Abstract Letters of intent are well established in M&A, although controversy remains over its nature. Solving, judges from both the U.S and Spain tend to use the “all-or-nothing” approach. The solution, however, has been widely criticized by scholarship because it undermines the optimal level of investments. As an alternative, literature has developed intermediate solutions to promote efficiency. Bearing in mind the above, the present research aims to analyze letters of intent as contractual devices used by the parties for managing uncertainty that underlies negotiations. In this sense, they could be labeled as “design-negotiation contracts” being tailored upon three basic assumptions: i) lack of commitment regarding the final contract; ii) procedural rules for the negotiation process; and, iii) risk allocation. Coordinating the parties’ interaction and assuring reimbursement under certain circumstances promote the investments required to accomplish the deal. The proposed model do not seem suitable for the existing contracts under the Spanish law, therefore a need emerge for studying it as an independent contract. Keywords: Letters of intent, preliminary agreements, negotiations, sunk investments, M&A