ESG를 고려하는 M&A와 그 시사점

There are movements to consider environmental, social, and governance(“ESG") factors in M&A transactions in Europe, the US, and Japan. This article first explored the necessity to consider ESG factors in M&A transactions. And then it explored how to address ESG considerations in the context of an M&A transaction, including Due Diligence, Contractual Protection, Post Merger Integration("PMI"). Finally it tried to find out some implications and assignments. The ways to address ESG considerations in the context of an M&A transaction are as follows. ① ESG factors can be a driver of value as well as a source of risk to the company, so it is necessary to consider ESG factors in M&A transactions. ② ESG factors increasingly influence how companies select potential targets in Europe, the US, and Japan. This article explored some of related cases. ③ Recently, ESG factors are now important considerations in M&A due diligence in Europe and the US. It can be said that considerations of a previous due diligence included the existence and nonexistence of the violation of laws and regulations. But considerations of a recent due diligence include the existence and nonexistence of the violation of not only laws and regulations but also Soft Law. And a recent due diligence broaden the scope of an inspection from the target company itself to the supplier or executives(executives' sexual harassment or discriminative conduct). ④ Where ESG risk has been identifed, an acquirer may consider seeking contractual protection in the acquisition agreement(precondition or pledge clause, representations and warranties clause, and covenant clause). ⑤ As PMI, acquirer needs to establish the system of internal control and identify ESG risk. The implications and assignments are as follows. First, it would be necessary to consider ESG factors in Due Diligence, Contractual Protection, PMI. Next, 'human rights due diligence' is not the same concept of due diligence in the context of M&A transactions. 'Human rights due diligence' is the concept that the company should conduct inspections to prevent the infringement of human rights in the supply chain as ordinary internal control. But major advanced countries enacted a law about 'human rights due diligence' and there are some cases that the problem of human rights seriously impacts the company. So it would be necessary to inspect the compliance with the laws and regulations or the response to human rights matters in the target company and supply chain in the context of M&A transactions, especially when acquiring foreign companies. Finally, the importance of 'human rights due diligence' has become bigger and bigger both home and abroad, so it would be necessary to consider enacting a law about 'human rights due diligence' and explore regulatory methods