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Commercial M&A I Legal consequences counter-offer & Scope responsibilities M&A attorney.

In an extensive dispute, one of the Dutch Courts of Appeal ruled that an attorney engaged to assist in drafting the outcome of negotiations in a SPA (in which negotiations the attorney was not involved) could not be held accountable for unanticipated consequences of the SPA. The fact that Dutch attorneys operate as “dominus litis” under the Dutch code of conduct for attorneys (which concept entails that attorneys are not bound to follow orders from their clients: an attorney is not “his master’s voice”) does not impair the fact that attorneys are permitted to accept restricted assignments (such as solely documenting conclusions of a negotiation). Please bear in mind, however, that this outcome is based upon the specific circumstances of the matter. For instance, from a judgement of the Dutch Supreme Court in 2021 it appears that a legal advisor can be held accountable for not warning his client that issuing a counter-offer in negotiations, is also deemed to be an automatic and formal rejection of the previous offer by the counterparty under the laws of the Netherlands.