Rodolfo G. Papa highlights key insights from LATIN COUNSEL’s 2026 M&A Report  

LATIN COUNSEL recently published —for the fourth consecutive year— the report "LATIN COUNSEL M&A Outlook for the Americas (2026 edition)" (by Rodolfo G. Papa).

Rodolfo G. Papa, LATIN COUNSEL’s correspondent in Argentina, editor of the first three editions of this Report, who also acts as a "local counsel" advising local and foreign clients in the negotiation of M&A agreements, academic, mentor and trainer of young Latin American lawyers, director of the international training course "Structure of an M&A Deal" (available in "in-house" format), and author of five books published in Latin America on this subject, shares on this occasion a series of reflections on the recently published fourth edition of the Report "LATIN COUNSEL M&A Outlook for the Americas (2026 edition)", as well as other current issues concerning the professional training of Latin American corporate lawyers specialised in this field.

I - The "Pillars" of the report "LATIN COUNSEL M&A Outlook for the Americas (2026 edition)"

LATIN COUNSEL has recently published —for the fourth consecutive year— its annual report "M&A Outlook for the Americas (2026 edition)", whose content brings together a current view of the dynamics of the main markets in Latin America and Spain, focused on the structuring and execution of this type of commercial transaction.

Since its first edition (in 2023), this report has incorporated (and expanded) the contribution of leading corporate law firms in several jurisdictions across our region, through the participation of their leading practitioners as co-authors of this product.
In this fourth edition, the following authors and firms participated in its preparation:

Argentina: Estanislao Olmos – Bruchou & Funes de Rioja.
Brazil: Paula Vieira de Oliveira, Manoela Bruno Morales Naquis, Daniel Fermann – Mattos Filho.
Central America (regional perspective): Vivian Liberman – BLP.
Chile: Pablo Iacobelli, Sebastian Melero – Carey.
Colombia: Claudia Barrero – Philippi Prietocarrizosa Ferrero DU & Uría.
Ecuador: Diego Pérez, Juan Manuel Marchán – Pérez Bustamante & Ponce.
Spain: Iván Delgado – Pérez-Llorca.
Mexico: Manuel Galicia – Galicia Abogados.
Paraguay: Antonio Villa Berkemeyer, Hugo Alexander Berkemeyer – Berkemeyer.
Dominican Republic: Fabio J. Guzmán Saladín, Lourdes Medina Romero – Guzmán Ariza.
Peru: Alberto Rebaza, Rafael Lulli – Rebaza, Alcázar & De Las Casas.
Venezuela: Fulvio Italiani – D’Empaire, and,
THE AMERICAS (Regional perspective) | SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP (NEW YORK) | Paola Lozano (Report Editor)
The structure of the contents of the report "LATIN COUNSEL M&A Outlook for the Americas (2026 edition)" was shaped, through the contribution of each of its respective "local" authors, by providing answers to the following "macro" questionnaire, on the basis of an approach from their respective home jurisdictions:

1. What key trends do you expect will shape the M&A landscape in 2026, especially regarding the most resilient industries and geographic activity in your region?
2. How do you foresee changes in regulatory frameworks —specifically the impact of new trade tariffs and the evolution of competition laws— affecting cross-border M&A activity in 2026?
3. Given the projected economic conditions for 2026, what factors (such as the stabilisation of interest rates or compliance with ESG criteria) do you expect will most influence company valuations?
4. How will the standardisation of AI and digital transformation continue to drive M&A strategies in 2026, especially in sectors such as healthcare, finance and technology?
5. What changes do you foresee in financing options and deal structures for 2026, particularly regarding the role of private credit and the use of earn-outs to bridge valuation gaps?

The full version of the Report (both in Spanish and English) can be accessed through the following link: https://www.latincounsel.com/?Noticias=MA_Perspectivas_para_Las_Americas_Edicion_2026&lang=English

It is worth highlighting that this report was prepared almost simultaneously with the recent international conference: "M&A in Latin America: building bridges through business: rethinking M&A in the Americas", organised by the Latin American Regional Forum and the Corporate and M&A Law Committee of the International Bar Association (IBA), held from 23 to 25 March in the city of Punta del Este (Eastern Republic of Uruguay), in which not only did the vast majority of the co-authors of this report participate in person, but also several members of the LATIN COUNSEL team, who represented the brand on that occasion, as one of the official exhibitors of the Conference, led by its deputy director, Mónica Fuertes Britez.

During the celebration of this international event, the content of the Report was shared for the benefit of its more than 700 participants.

Since its creation, more than 20 years ago, LATIN COUNSEL, as a leading brand in the publication of legal news in the business world and of leading law firms in Ibero-America, has promoted dissemination and participation in international events, conferences, seminars and networking meetings, held both in person and remotely, related to the subject matter covered by this Report.

Such events, in which LATIN COUNSEL has also been represented by members of its team, have been organised in the most important cities of our region, as well as in the United States, Canada and Europe, by entities globally recognised for their prestige in the world of corporate legal practice (e.g.: the International Bar Association, the American Bar Association (Section on International Law), AIJA, the Rocky Mountain Mineral Law Foundation, among others).

In conclusion, and as a result of its reading (which we obviously recommend), below we will set out (not exhaustively) what could be the main "findings" of this new edition of the report:

Each M&A transaction entered into in any jurisdiction in Latin America has its own distinctive features, depending on the affected economic sector (and its regulatory impact), the profile of its parties (especially the buyer), and also whether it is exclusively local or cross-border;

Certainly, with respect to the buyer profile, at present it may take different forms, such as: a sovereign wealth fund, a private equity fund, a multilatina, or a family office, as the case may be;

There is no single reason that justifies the purpose of its structuring. In practice, for example, it may respond to a "divestment" by a multinational company, or to capturing new "market shares";

There are a series of "next generation" issues that have been incorporated as part of the legal and regulatory due diligence agenda, such as: ESG matters, compliance, corporate governance, treatment and privacy in the use of personal data, antitrust, and cybersecurity policies, among the relevant ones;

A regulatory issue whose application has become decisive in the implementation of M&A transactions at a regional level, through the enactment of a series of "national laws", has undoubtedly been the imposition of merger control (ex ante) (such as what will take place, for example, in Argentina, as from November 2026, and the recent cases of Uruguay and Guatemala could also be cited);

The content structure of the SPA used in a standardised way in our region (following the Anglo-Saxon format) has recently incorporated provisions also generated by Common Law practice (in the USA and also Spain), such as the contracting of a "representations and warranties insurance" policy, and a price adjustment clause (or "earn-out"), respectively;

The use of "artificial intelligence" is becoming increasingly common in due diligence exercises carried out in transactions entered into regionally;

The tendency is overwhelmingly to agree (in the SPA) on access to commercial arbitration (whether local or international) as the dispute resolution forum arising from its performance, in light of a series of advantages conferred by its use, such as: the lack of need for exequatur for its enforcement purposes (under the 1958 New York Convention), and limited judicial interference in its proceedings.

II - The "four avenues" for carrying out an "M&A Transaction" in Latin America

When we approach this type of commercial transaction entered into in our region, we cannot overlook a series of distinctive features that characterise them.
Basically, what shapes them —in their structure— are what I refer to as the "four avenues", which, for obvious reasons, we must know in order to anticipate possible transactional risk scenarios whose occurrence could adversely affect them.
What are these "four avenues" that characterise an M&A transaction?

Its protagonists (or "future contracting parties"); the target company (which acts as a "third party" vis-à-vis them); the transaction itself (which may be subject to regulatory approvals, such as, for example, its qualification as a "merger control event" under local competition law); and finally, those "third parties" that may have established some type of legal relationship with the target company, and whose conduct could expose it to liability (for example, whether joint liability in labour matters, or the attribution of autonomous criminal liability under the applicable legislation —specifically regarding corporate compliance—, respectively).

Another particular feature of these deals is that their development and consummation is not linear or automatic, but rather, in the vast majority of cases, given the "standardisation" of their stages and the documentation used, the formation of contractual consent is gradually built through the conduct and "intention of the contracting parties", by operation of the principle of "good faith", and of the "secondary duties of conduct" (loyalty, consistency, trust, disclosure duties, confidentiality, among others).

Thus, the course of an M&A transaction, which undoubtedly from the standpoint of Latin American corporate legal practice displays a "standardised" structure, will normally go through 3 "macro" stages: the preliminary or pre-contractual stage, the contractual stage (which in turn may be subdivided into signing and closing), and the post-contractual stage, respectively.

It is worth stressing that the transition from one stage to the next will not necessarily materialise in real life, given the potential occurrence of a variety of conflicts that may arise as part of its dynamics, also bearing in mind that each M&A transaction, by its own characteristics, is unique.

For the "local lawyers" who accompany clients (domestic or foreign) in building these types of transactions, each M&A deal is —in itself— challenging, since it not only requires proving knowledge and experience in drafting its documentation, but also undertaking real teamwork, made up of specialists in various legal and regulatory areas, whose contribution will be fundamental to adding value to the professional service provided, taking into account that it will be aimed at achieving the following objectives:

(a) to access relevant information (or validate it, as the case may be), allowing an understanding of the target company’s financial condition (with its strengths and weaknesses);
(b) to identify potential financial and regulatory risk scenarios that could adversely affect its execution;
(c) to report properly on the "materially adverse findings" identified, their impact, and, if feasible, specify the actions required to mitigate them; and,
(d) to use such information for the future negotiation of the transfer agreement.

In addition to its interdisciplinarity from a legal perspective, an M&A transaction also requires the involvement of other professional profiles, in particular accountants, whose scope will focus on reviewing the target company’s accounting and tax matters, as an accounting entity and autonomous taxpayer, and corporate finance experts, responsible for its financial-economic valuation.

From a practical point of view, lawyers leading its execution should take into consideration a series of premises. Below, I will set out those which, in my opinion, are important.

First of all, what interest are we going to represent, from its inception, especially during the due diligence stage, whose conclusions should lead us to the negotiation of the transfer agreement.

Of course, the negotiation strategy and legal protection to be adopted, depending on which of its protagonists we advise professionally, whether we are on the seller’s side or on the prospective buyer’s side, will obviously be different.

Also, whether the proposed transaction is exclusively local or international. It is common, in this type of transaction, for local lawyers to represent foreign companies that either decide to divest, or alternatively make their "first landing" through the purchase of an equity interest in a domestic company. Both scenarios are currently feasible.

In this regard, it should be noted that, in a scenario of internationality, we must properly observe and manage certain significant circumstances resulting from that attribute.

In this respect, when we legally advise global companies coming from the Anglo-Saxon world, the language of the transaction (especially its documentation) will be English.

This is an "unwritten" rule that has been accepted worldwide, which leads to the application of certain legal terms originating in Common Law.

This is another challenge for Latin American lawyers. Since, when reviewing them, the content of documents prepared in English by the lawyers of a foreign company that is party to a local M&A transaction should be (in substance) consistent with our respective legal system.

III. Transaction formats of an M&A Transaction in Latin America: share deals VS. asset deals. Towards a new configuration of the SPA from the "prism" of regional practice

A simple yet decisive question that we must ask our client at the beginning of our work would be how we are going to structure the proposed M&A transaction.
In other words, whether its object would consist of the sale or purchase of a controlling equity interest (or "control block"), which grants "internal legal control" over a local target company, or alternatively, a set of assets or a business establishment or "going concern", constituting a "de facto universality", and which under the local legislation applicable to the deal in our region mostly receives specific legal treatment.

Certainly, the adoption of one structure or the other is fundamental to how an M&A transaction will be legally implemented.

The first point to note is what would be the most important difference in choosing one format or the other. The answer would be that, by acquiring "control" of a company, adopting the position of its new controlling shareholder or partner, one would be "inheriting" (indirectly) its entire history, and essentially all of its liabilities, not only those known or recorded, but also those unknown, or more commonly referred to as "hidden liabilities", which would expose the acquirer to suffer (as the "worst-case scenario") the risk of the "unknown".

Whereas, alternatively, by purchasing assets, materialised as a business establishment or going concern, the assumption of certain liabilities or claims generated by its operation (by the seller) could be limited, especially those of a commercial nature, although not those in labour and tax matters, for which the buyer would be jointly liable.

It is important to note that, in market practice, the vast majority of M&A transactions are currently carried out under the format of a transaction involving equity interests or, as the Anglo-Saxons would say, "share deals".

The foregoing also has solid evidence, taking the experience of the Colombian market.
In this regard, in a recent research document entitled "Deal Points 2025", prepared by the Mergers and Acquisitions Research Seedbed of the Law Faculty of Universidad de Los Andes, presented during the "Fourth M&A Colombia Congress", it was reported that M&A transactions entered into in that market during the past year 2024 were structured around equity interests or share deals in 79% of the surveyed transactions.

The other question whose answer would be crucial so that the contracting parties could negotiate the scope of the allocation of their respective risks and liabilities resulting from the transfer of a controlling equity interest in a local company would be to determine what exactly a selling shareholder or partner transfers. In other words, whether it only transfers such position, or whether it implicitly entails the transfer of a portion of the corporate assets.

Such question has been settled by commercial case law in the Federal Capital (Argentina), in a decision which concluded by holding that:

"...In the sale and purchase agreement of a ‘control block of shares’, the seller does not guarantee the condition of the corporate assets, since the transferor only transfers his shareholder rights, and not a portion of the company’s assets, unless there is an express agreement linking the transferred shares or interests to the assets, and a guarantee regime is agreed in that regard...".

In other words, from the rationale underlying said judgment, it could be interpreted that the exercise concerning the assumption, and where appropriate transfer, of risks and liabilities resulting from the transfer of corporate assets is maximised, also taking into account that these types of agreements are, in essence, atypical and unnamed.

Precisely, this has been the position I presented —as a paper— in person during the XVI Argentine and XII Ibero-American Congress on Corporate and Business Law, organised by the Law Faculty of the National University of Tucumán, during 17 to 20 September 2025.

In that work, I argued that although the new unified codification recognised the supplementary application of the governing rules on "sale and purchase" to those agreements whose object was the transfer of ownership of securities for a monetary price, I did not adhere to the solution by which it would be trying to subject, at least partially, this globally standardised format —whose construction is also the result of pacta sunt servanda in its maximum expression— to the rules of a traditional contract such as sale and purchase.

On the basis of the "disruptive" approach I shared in that paper, whose origin comes from Comparative Law, it leads us to maintain that the doctrine established by the aforementioned judgment should be updated, and consequently, to interpret that the regime of risks and liabilities resulting from the transfer of a controlling equity interest should be implemented —as a rule— "in the shadows", and in parallel to traditional Civil Law, with the exception of compliance with those mandatory or public policy rules that cannot be derogated by the parties’ autonomy of will.

In this regard, I have taken as the source of my argument a series of doctrinal opinions originating in various Ibero-American jurisdictions, especially Spain, Peru and Colombia.

In that sense, the Colombian model had adopted this "vanguard" position since the issuance by its Civil Cassation Chamber of the Supreme Court of Justice of a judgment that replicated what had been decided 25 years earlier by the Commercial Chamber in the aforementioned "Rocha v. Puente" case.

Thus, in that precedent of Colombian courts, it was held that in a share purchase the general rule is that the thing sold is the shares, not the underlying company. Therefore, according to its Supreme Court, the buyer can only claim eviction or hidden defects of the shares, and therefore, any contingency suffered by the company will not be subject to compensation. According to its rationale, it was indispensable for the contracting parties to include an "indemnity covenant" that would expand the liability regime, since the company was not covered.

Another doctrinal opinion, consistently with the foregoing, has pointed out that the importance of "representations and warranties" lies precisely in achieving a link between the legal transaction and the real value of the company, and thereby extending to the seller the obligation to answer for the assets of the company being sold. That opinion added that, as there was no general liability regime in share purchases that included considerations regarding the company’s assets, the parties had to adhere strictly to the regime they agreed in the contract for that purpose. Thus, the general rule in a share purchase agreement is that the clauses the parties agree regarding the seller’s liability were not only law for the parties, but were the only law the parties had.

IV. Conclusion. The corporate lawyer specialised in structuring M&A Transactions in Latin America is not born, but built

In my own journey through the legal profession, specialising in practice in these types of transactions has undoubtedly been a process of continuous learning, which still continues to this day, and also of professional training.

For all those law students close to graduation, as well as lawyers in their first years of professional development who aim to build a corporate career, proving that they possess know-how and experience on how to position themselves in relation to an M&A transaction is undoubtedly an objective that should be pursued.

In this regard, we should ask ourselves what would be the main tools for accessing both the knowledge and the solid specialisation needed to become a future leader in the design and execution of such deals, whether as in-house counsel (in charge of the internal legal affairs department of a medium-sized or large company), or alternatively in internationally recognised law firms that normally offer these types of professional services.

In this regard, I do not have a single possible answer.

The tools for education and training are, in my understanding, multiple.

Certainly, a very good learning school would be to join work teams led by one or several partners or leading practitioners of law firms ("full service firms"), through the areas in which they provide advice, representing one of the transaction’s protagonists.

Of course, there are other alternatives. Such as taking courses, training sessions and professional programmes, to access practical and appropriate information on how to design a transaction with these characteristics, identifying the documentation that must be prepared at each of its stages, and the main risks to which it may be exposed.

During the last 5 years, I have had the opportunity (and the challenge) to professionally train and coach more than 500 lawyers from 13 countries in Latin America on how to address this field.

Another possibility would be to create a networking relationship with a tutor or mentor, and through such contact, to share his or her experience, teachings and advice, in order to follow a "road map" that would allow its beneficiaries to achieve their objectives.
We must also mention another relevant tool, which goes beyond the level of knowledge and professional experience in carrying out these types of operations, since, to perform efficiently, the lawyer who dedicates his or her professional practice to advising on M&A transactions should adequately manage, in interaction with clients and with his or her own colleagues, a series of "soft skills", such as: assertive communication, emotional intelligence, efficient time management, empathy, resilience, management of work teams, flexibility in decision-making, and balance between work and personal life ("work life balance"), among others.

We hope that all these contents will be of interest to those colleagues who wish to continue strengthening their knowledge and capabilities for the development of their professional practice in the design and leadership of these types of deals in the corporate world.

Without a doubt, the challenge remains open to all.

For any additional consultation or comment on the contents of this article, and to obtain information about my professional training course (in remote and "in-house" format), for the benefit of law firms and companies with an active presence in Latin America, "Structure of an M&A Deal", you may contact me at the following email: Rodolfo.papa@latincounsel.com


Rodolfo G. Papa
LATIN COUNSEL Correspondent in Argentina
Email: Rodolfo.papa@latincounsel.com