Drafting And Diligence Matter In M&A: Lessons From "Save Mart"

Foreword

Much has been written about Delaware's "Save Mart" dispute. Most publications have highlighted the fact that the arbitrator in that case, the Honorable Joseph R. Slights III, found it unnecessary to resort to the extrinsic evidence and relied on a strict contractual interpretation to find in favour of the purchaser.¹

In a previous publication written by our firm addressing "Save Mart", we discussed the Order of the Delaware Court of Chancery confirming the arbitrator's award. The focus of that article was a comparison of Delaware and Canadian law regarding complex commercial disputes and their different approaches to matters of contractual interpretation. We considered whether an adjudicator applying Canadian law would have reached the same decision as made under Delaware law. In preparing that article, we relied on the Court of Chancery Order and the facts detailed therein. We have subsequently gained access to the previously confidential arbitral