Private Markets Update | Winter 2023 - McDermott Will & Emery


The Private Markets Update highlights key developments emerging from private markets across Europe, the United States and Asia and explores the cross-border issues that matter to investors and sponsors in alternative assets.

As we look back on 2023, market participants all seem to agree that this year presented more challenges than previous years. In this edition, we provide a comprehensive review of this past year and forecast what is on the horizon for 2024.


Aymen Mahmoud | Harris C. Siskind

As we look back on 2023, market participants all seem to agree that this year presented more challenges than previous years. In almost every economy, Q1 showed the slowest quarter globally for both capital raised and deal count since 2017.


Choice of Law in Transatlantic M&A Transactions

David Grimes | Tom Whelan

While nearly all transactions between two parties in the same jurisdiction are governed by that jurisdiction’s law and local commercial approach, the same cannot be said for cross-border mergers and acquisitions (M&A). For cross-border deals that involve a competitive auction, the choice of law and approach is often dictated by the seller. Before making a decision, the involved parties should consider the key differences between transactions governed by US, UK and European laws and how they benefit buyers versus sellers.


Busier Times Ahead? What Private Equity Credit Markets Can Expect in 2024

Aymen Mahmoud | Riley T. Orloff | Ludwig Zesch

As we entered 2022, many wondered how it would be possible to see volume growth following a record-breaking 2021. Within six months, increased interest rates and inflation combined with a war in Ukraine and a disrupted supply chain precipitated a slowdown in the credit markets that had a direct effect on sell-side and buy-side activity. As a result, valuations became harder to predict and questions arose against busy sectors like technology and healthcare.


Preparing for the Foreign Subsidies Regulation

Hendrik Viaene | Stéphane Dionnet

Companies doing business in the European Union must now consider the Foreign Subsidies Regulation (FSR), which introduces notification requirements for certain merger and acquisition (M&A) transactions and public procurement procedures. It also grants the European Commission the power to call in deals when they don’t meet notification thresholds—as long as they are not yet implemented—and gives the Commission wide-reaching investigative and intervention powers.


The Challenges Facing Private Equity in China

Peter Lu

China’s reputation as a haven for private equity (PE) has begun to slip in the eyes of many. With the reported number of US dollar-backed deals on the decline, many predict PE in China will be overshadowed by a multifaceted set of increasing challenges. While commercially sensitive political anxieties and regulatory concerns are key elements of any deal, it’s worth questioning whether China’s situation is that much different from other PE opportunities.


The German StaRUG Regime vs. the English Restructuring Plan

Sunay Radia | Mark Fine | Dr. Benedikt Schulz

English schemes of arrangement have long been used by both English and overseas companies to restructure their debts in the English courts. Companies also have the option of using the English restructuring plan (also known as the “super scheme”), which has been available for nearly three years. These regimes have been attractive to European companies as local law did not provide for similarly flexible restructuring regimes until recently. Now, a number of European jurisdictions, including the Netherlands and Germany, have introduced their own restructuring regimes that implement Directive (EU) 2019/1023 into law. In this article, we explore the German Stabilization and Restructuring Framework of Companies Act (StaRUG) regime, the English restructuring plan, their differences and related jurisdictional and recognition issues.


Closing Healthcare Deals in the Current Market

Grégoire Andrieux | Eleanor West

At the end of September, McDermott Will & Emery hosted several hundred healthcare professionals, investors and dealmakers in London for its annual Healthcare Private Equity (HPE) Europe conference. The event included several panels that discussed the deal environment, explored insights from investment bankers on the current market outlook and dove into strategies for closing healthcare deals in today’s market.


Direct Lending in Italy: Taking Private Debt to the Next Level

Giancarlo Castorino | Nicolò Perricone | Giulia Venanzoni

Traditionally, lending activity in Italy has been reserved for banks and other financial institutions subject to regulatory and prudential supervision. It is a predominantly bank-driven economy with few alternative lenders and small debt capital market offerings when compared to the United States or the United Kingdom, but the time may have come for direct lending to flourish in Italy.


Preparing for New Payment Services Regulations

Renate Prinz | Annabelle Juliette Rau

In November 2015, the Payment Services Directive II (PSD 2) came into force and led to much turmoil amongst payment service providers as many of the regulations were considered too extensive, too complex or unclear. There were also major differences when it came to implementing the rules in each EU Member State, which was a thorn in the sides of EU supervisory authorities. The proposal for a revised Payment Services Directive (PSD 3) is now on the table. Not only does it provide for an amended directive, but it also provides for a Payment Services Regulation (PSR) that would be directly applicable in the Member States and a Financial Data Access (FIDA) framework.


The EU Artificial Intelligence Act’s Impact

Fabio Cozzi | Stefano Mechelli | Lorraine Maisnier-Boché | Massimiliano Moruzzi | Pilar Arzuaga

The EU Artificial Intelligence Act (AI Act) is the world’s first legislation to regulate the use of artificial intelligence (AI). It leaves room for technical soft law but, since it’s the first and thus broad in scope, it will inevitably set standards for AI development and governance.