投资对赌协议纠纷裁判处理的定性和定量问题分析

Analysis of Characterization and Quantum Issues in the Dispute Resolution regarding Value Adjustment Arrangements in Private Equity Investment

近年来,在私募股权投资实践中,因"对赌安排"而产生的纠纷频发。在此类纠纷的处理中,一直存在定性和定量两个方面的挑战和争论。就如此巨大规模的投资市场而言,急需形成能够得到市场广泛认可且符合市场交易逻辑的统一裁判原则、思路和标准。笔者认为,在定性层面,应将对赌安排理解为合同法律关系,基本适用合同法审视,此等安排的法律有效性应该是确定的,而不应因投资人投资而取得股东身份即认定也构成公司法律关系,并主要以公司法审视或受制于公司法规定,从而使得其法律定性和法律有效性出现不确定性。在定量层面,业绩补偿就是一个投资估值根据目标公司实际业绩进行计算调整的安排,本身是一个经济利益计算问题,而不是法律问题。尽管如此,由于实践中对赌安排的合同约定或公式表达的不完善性,使得在处理连续业绩补偿以及业绩补偿+回购等叠加请求时,出现了口径和标准不一且不符合交易逻辑的现象。本文旨在从定性和定量两个角度就投资对赌安排进行系统分析并给出纠纷裁判处理的原则和方法。

In recent years,there are more and more disputes arising from the value adjustment mechanism(so-called the bet-on arrangements)involved in the private equity investment practice.In handling the disputes in this regard,there is a long standing disparity of views and challenges in respect of the characterization and quantum analysis regarding the value adjustment mechanism.Giving the huge size of investment market practice,there is an urgent need for a set of uniform legal principles,logics and criteria for such dispute resolution,which need to be in conformity with the transaction logic and can be widely accepted by the market.With respect to the characterization of the bet-on arrangements,the author believes that such arrangements should be perceived as contract law relationship among the parties and then the contract law should be mainly applied for reviewing the legal validity,and with this approach,the legal validity of such arrangements can be ascertained,and on the other hand,such arrangements should not be deemed as company law relationship and then be put under the direct scrutiny of company law just because the fact an investor obtains the shareholder status due to its investment into the company,if with this approach,the legal validity of such arrangements could be ambiguous.As for the quantum issue of the bet-on arrangements,the author believes that the related performance compensation results from the valuation adjustment of the target company based on the actual performance of the company.This is a matter of pure calculation of economic interest other than a legal issue.Nevertheless,due to some imperfect contractual provisions or formula on bet-on arrangements in practice,when dealing with the claim for continuous/multiple performance compensations and/or performance compensation+share repurchase,the standard and approach involved vary frequently and are not in consistency with transaction logic.Therefore,the purpose of this article is to give an overall analysis on the characterization and quantum issues regarding the bet-on arrangements in investment,with an attempt to conclude with some principles and guidelines for dispute resolution.