Tech Law Bits

In the last episode of Tech Law Bits for now Martin speaks about his own table topic. Co-moderator of this round will be Jessica Lee, partner at the law firm of Loeb & Loeb in New York. Our topic at the round tables and in this talk will be data transfer to the U.S. Jessica briefly introduces the content of President Biden's Executive Order and explains why this really is novel. Martin touches upon the European Data Protection Board's opinion on the Draft Implementing Decision of the European Commission on the adequate protection of personal data under the EU-US Data Privacy Framework. We will be discussing with the attendees of our round table why data transfers are crucial in technology transactions and how the issue comes into play. We will touch upon both the diligence before completion of the deal, as well as the potential migration of data post closing.

Florian Müller from Switzerland and Martin Schirmbacher introduce the topic Florian will host together with Mathias Nordmann of SKW in Munich: NFT and crypto challenges. Florian briefly explains what NFT actually are and we discuss whether the hype on NFT is already over and how the general idea will live on in certain business models. The crypto angle lies with decentralized autonomous organization (DAO's) and the question how the involvement of this technology influences diligence processes and transactions in general.

In this episode Martin Schirmbacher speaks with expert Prof. Eric Wagner from Stuttgart, Germany, on Product liability for automated and semi-automated systems. They start with clarifying that the automation of systems is actually much more than autonomous driving vehicles. Eric than differentiates between contractual obligations and tort law. We briefly touch upon the changed European legislation on digital products and the obligation of sellers (and manufacturers) to provide updates to software. Eric then speaks about developments in product liability laws and how to deal with the risks involved in diligence processes before M&A transactions.

Philipp will moderate his round table together with Oliver Süme of Fieldfisher in Hamburg, Germany. And their topic is the up and coming Digital Services Act. Martin and Philipp discuss how the new DSA affects technology M&A in the future and how DSA-compliance will be an important part of due diligences in the online services industry (and not only there). We also mention the unclear scope of the DSA and how clients deal with this.

The table on "Earnouts" will be moderated by Lise Lotte Hjerrild from Copenhagen, Denmark, Ariella Dreyfuss from Tel Aviv, Israel, and Richard Burrows, from London, U.K. With Ariella and Lise Lotte Martin Schirmbacher speaks on legal issues to have in mind when it comes to agreeing to earnouts in transactions in the technology sector. We especially touch upon the issues lawyers should have in mind when drafting earnout clauses from both the sellers’ as well as the buyers’ perspective. Further we discuss why earnout clauses are especially equipped to bridge the gap between seller's and buyer's ideas on evaluation especially in med tech companies and start-ups that have not yet proofed that the market is ready or their product.

In another episode of "Tech Law Bits" Martin Schirmbacher speaks with two fellow tech lawyers Elisabeth Vestin from Stockholm, Sweden and Harry Rubin from New York, USA. Their topic at the round table session of the 6th Mergers and Acquisitions in the Technology Sector Conference in Berlin will be "Co-opetition licenses and arrangements". We discuss what role co-opetition arrangements play nowadays and what potential controversial issues there are. After quickly lying out that co-opetition is an agreement of co-operation between competitors, we discuss that there might be antitrust issues, but that the real problems are of contractual nature. We speak about best practices in confidentiality as well as licensing.

The table on "Exchange of information during transactions – competition law" will have three moderators: Laura Ziferman from Vilnius, Lithuania, and two Hamburgers: Hans Henning Hoff and Tim Reher. Martin Schirmbacher speaks with Laura and Hans on how the exchange of information during a transaction becomes a competition law issue and what potential consequences would be. We hear in what way the technology sector is particularly vulnerable to illegal exchange of information. We especially touch upon the introduction of clean teams as part of a solution to avoid cartel authorities stepping in.

In this episode of Tech Law Bits Martin Schirmbacher speaks with Gisèle Rosselle of Strelia in Brussels, Belgium and Maire O'Neill of William Fry in Dublin, Ireland. Their topic at the round table session of the 6th Mergers and Acquisitions in the Technology Sector Conference in Berlin will be due diligences in M&A deals and how to approach them effectively. Gisellle and Maire will discuss different approached to diligence processes and how these depend on various factors, e.g. the experience, size and long term interest of the potential buyer.

The table on "A.I. in M&A Transactions" will have three moderators: Johan Hübner from Stockholm, Sweden, Norman Heckh from Madrid, Spain and Torsten Kraul from Berlin, Germany. The three explain to Martin Schirmbacher the three different angles to the topic that they intend to take during the round table discussions at the Berlin conference: - Regulatory: How is the use of Artificial Intelligence currently regulated and what will the AI Act bring? - Transactional: What are the peculiarities of transactions involving A.I. solutions on the target's side? - Practical: How can lawyers profit from A.I. solutions in their legal tech applications?

Merger Control and FDI issues is the hot topic of Olivia Lê Horovitz from Paris and Falk Schöning from Berlin. The two explain to the host Martin Schirmbacher what the issue with Foreign Direct Investments (FDI) actually is and how 'national security' as the reason behind any regulation has become broader and broader. It is explained why FDI-regulation especially concerns technology deals and who the relevant authority is. We also speak about antitrust issues and whether these lead to a decrease in tech deals (spoiler: not really). There are many more questions - table 12 is going to be hot!