For a question like this what sort of structure would you recommend? Would you take a factor and then look at both companies and compare?
Also more broadly do you have any advice for structuring written exercises?
Hiya
@legal18
I think
@Amma Usman and
@Andrei Radu would have much more to say, but I wanted to set out some initial thoughts below. If the written exercise requires comparing two business options (e.g. an investment, acquisition, or merger) you should structure your response clearly to ensure that your reasoning is easy to follow. Generally, I take the following approach.
First, I normally start with an executive summary
. This section allows me to concisely state my recommendations up front and allows the reader to immediately understand my position. This section should be brief and concise, consisting only of 2-3 points to signpost your reader. You can just use bullet points and say something to the effect of:
1. Executive Summary
- Based on several legal and commercial considerations discussed below, I/we would recommend proceeding with Option A.
- Option A presents fewer regulatory risks an offers stronger long-term growth potential, outweighing its higher initial cost
This is just an example, but notice that the summary briefly/concisely sets out the position and even highlights some major concerns posed by the option you've selected (e.g. benefits outweigh option A's higher initial cost)
After the executive summary, you should then compare the two options in a structured manner. You can do this by looking at one set of factors at a time and analysing how both options measure up, which is often clearer than discussing the options separately. How much detail or sub-headings you potentially use will depend on the word count and other factors. But generally I think it's possible to simply use "commercial considerations" as one sub-heading/section, and then "legal considerations" as another sub-heading/section.
2. Commercial Considerations
In this section, you can set out some of the commercial considerations that I mentioned in my previous post. So, again, for illustration, you can set out sub-points under this section in the following way:
- Financial Viability: Why is your option more financially viable? Is it more cost-effective than the other option B? Are the revenue streams relatively stable for your recommended option? Are the projected returns of option A more favourable than option B?
- Market Position/Synergies: Will the acquisition/investment of Option A strengthen the company’s competitive advantage relatively to option B, and if so why? Does Option A better align with the investor/company's strategic goals compared to B?
- Operational Risks or Integration Challenges: Will one option require costly restructuring or create supply chain issues?
3. Legal Considerations
As with section 2, you can briefly state what considerations you're discussing and then jump into breaking those points down more fully in this section. Some points you might want to
- Regulatory Risks: Does one option require approval from multiple regulatory bodies? For instance, are there potential antitrust concerns or foreign direct investment concerns?
- Contractual or Liability Risks: Does due diligence reveal significant legal risks, such as unresolved litigation, debt obligations, or hidden liabilities for one option over another?
- Employment or Governance Issues: Are there any risks related to workforce integration, leadership transitions, or shareholder approvals?
Again, I'd recommend that, for each point, you compare both options directly rather than discussing them separately. So, for instance:
"In terms of regulatory risk, Option A requires approval from multiple EU regulators, potentially delaying the transaction or leading to a longer time horizon. Option B, however, faces fewer hurdles due to its smaller market footprint, making it more attractive from a regulatory risk perspective."
4. Conclusion and Next Steps
After comparing the legal and commercial risks, costs, and benefits of the options you're given, I'd recommend briefly outlining some of the steps you think are worth taking in relation to your recommended choice. This is important since no option is risk-free, including your preferred option. In this section you could mention the following types of points:
- Further due diligence (e.g., “Before going further with Option A, it would be prudent to conduct additional financial audits.”)
- Regulatory engagement (e.g., “Engaging with competition or financial authorities early could help address concerns about X or Y proactively or assist with pre-completion approvals.”)
- Contractual protections (e.g., “Including indemnities and warranties in the purchase agreement can limit exposure to hidden liabilities, including X and Y.”)
Here, you don't need to focus on comparing the options, but just showing the reader that you're aware of the sort information or further steps that might be required in relation to your recommendation.
Hope this offers some help as to how you can go about structuring your written exercise. A lot will depend on the type of written exercise you're given, but this should give you a sense of how to differentiate the commercial and the legal considerations in a way that's clear for the reader.
Good luck with your future written exercises!