Managing Conflicts of Interest in Investment Banking

Implications, and why to avoid them if possible.

Guide to managing conflicts of interest in investment banking

Conflicts of interest pose significant reputation and legal risks to corporate finance professionals. In investment banking, and M&A in particular, there is a higher risk of bad press and civil litigation than is the case with other areas of corporate finance.  This guide will offer some advice on managing conflicts of interest in investment banking and how to avoid compromising situations for yourself and the bank.

As a consequence of the above, investment bankers must be particularly careful in identifying, assessing and managing conflicts of interest in connection with such transactions.

Managing Conflicts of Interest in Investment Banking

 

Identifying conflicts of interest

In many cases, investment banks can easily identify conflicts.  In other cases, important conflicts may not be as readily identifiable. It is not possible to provide a comprehensive definition of what constitutes a “conflict of interest” but generally the phrase refers to circumstances in which:

  1. A firm has more than one interest in a transaction
  2. The existence of those multiple interests may compromise, or have the appearance of compromising, the bank’s ability to provide independent financial advice to its clients or impair the bank’s ability to satisfy the legitimate expectations of those clients

These are the two most common tests for identifying and managing conflicts of interest in investment banking.

 

Examples of conflicts of interest

Here is a list of common examples of conflicts of interest in investment banking:

  1. The bank or an affiliate has more than one client who is interested in the outcome of a transaction or potential transaction
  2. The bank or an affiliate is a lender to, or investor in, one of the parties to a transaction or potential transaction
  3. The bank knows material non-public information about a party or potential party to the transaction that it is unable to share with its client

M&A transactions expose the bank to a variety of potential real and perceived conflicts of interest. The bank will not knowingly put itself in a conflict situation that cannot be managed appropriately.

 

How to avoid conflicts of interest

To mitigate reputation and legal risks associated with transactional conflicts of interest, it is a good idea to avoid:

  1. Providing financial advisory services for any transaction to two competing interests
  2. Making equity investments in any transaction with two competing interests
  3. Provide or arrange financing in connection with a take-over of a client
  4. Advise a client in connection with an unsolicited bid from another client

Some conflicts of interest may be mitigated through disclosure, some require client consents and others require the implementation of formal information barriers or similar procedures. Some conflicts of interest may be sufficiently difficult to manage that the bank has to recuse itself from acting for one or more clients. Investment bankers are urged to consult with legal as early as possible when conflicts or potential conflicts of interest arise.

These are some of the most useful strategies for managing conflicts of interest in investment banking.

 

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