Global FDI Reviews

We have seen the first few cases in Europe where FDI decisions by a national regulator have been challenged in court. What trends are we seeing so far and the lessons learned?

• Analysing the increased interaction between Member States via the EU screening mechanism and whether such information exchange and interaction leads to more FDI filings/investigations
• Examining recent developments in Europe – what new FDI regimes will come into force, or further expansion to existing regimes? What will this mean in practice?
• Determining the recent European Commission economic strategy and its proposed changes to the EU FDI regulation
• Reviewing recent court decisions, including:
  • BMWK’s prohibition of the acquisition of PCK Raffinerie GmbH
  • BMWK’s prohibition of the acquisition of the German medical device manufacturer Heyer Medical AG
  • Italian government prohibited acquisition of Microtecnica
  • Recent Xella decision by the European Court of Justice
• Will there be a reduction in regulatory hurdles as FDI Regimes continue to evolve and as courts continue to scrutinise the substantive review, commitments and procedural rights?

This three-part session will compare and contrast how FDI regulations are applied across different jurisdictions, what has changed in the last 12-months, and what’s around the corner and how to navigate the nuances of varying regimes

Germany

• The latest developments, such as perception of Chinese investors, newly introduced filing fees and details on the planned FDI Act
• What can we anticipate in the new law?
• How will this converge over the different jurisdictions?

France

• The latest expansion of the French FDI regime, such as the extension of the scope of covered investments, the extension of the scope of covered activities, the simplification and limitation of the scope of French FDI exemptions

UK

• Gain insight into the latest developments of the National Security and Investment Act and what might be coming around the corner since the Call for Evidence closed on 15 January 2024, such as:
  • Exempting certain internal restructurings from the NSIA regime
  • Amending the scope of certain of the 17 sensitive areas of the economy subject to mandatory notification requirements
  • Adding sectors subject to mandatory clearances
  • Improving the NSIA notification and assessment process
  • Updates on the UK Government’s public NSIA guidance

Companies should note that antitrust agencies are taking jurisdiction over a broader range of transactions that would have historically escaped scrutiny and are aggressively enforcing violations. Not only is the number of filing obligations increasing, but the reviews themselves are becoming more challenging. Not to mention new regimes such as the EU foreign subsidy regime and other potential reforms such as outbound investment screening are set to create even more complexities.

• Examining if a filing is necessary: Voluntary versus cautionary filings
• Where do you file: Which jurisdictions require a filing, and exploring multi-jurisdictional filings
• Determining the filing jurisdiction(s)
• Analysing the member countries’ power to review, or not review
• Cooperation agreements
• How to streamline the costs
• Quick, efficient ways to reduce regulatory friction?
• Assessing how long will the review take and the associated risk to the transaction
• Determining what kind of security supply is needed

Senior corporate executives will walk you through the most pressing, complex FDI challenges that come across their desks. Topics will include:

• What to incorporate into the advanced planning to avoid unexpected impacts
• Managing costs while ensuring compliance
• Ensuring that you are factoring in local FDI screening timeframes into your global M&A deal strategy
• Implementing a clear foreign investment review strategy to facilitate timely approval of transactions consistent with deal objectives
• Identifying which process oversights can lead to a review being aborted, prohibited or cleared with commitments
• Finding efficiencies and best practices for reducing the risk of delays during the review process

This session will examine how different Member States evaluate and scrutinise transactions involving emerging and critical technologies and materials. Delegates will gain real-world takeaways on how these transactions may be handled differently, how timelines will be affected, and in the ramifications for investments in emerging technology sectors, including:

• Military application, including dual-use
• Autonomous driving / unmanned aircrafts
• Satellites
• AI and quantum computing
• Cybersecurity
• Semiconductors
• Critical minerals and agriculture

The European Commission implemented its Foreign Subsidies Regulation (FSR) as an enforcement tool to intervene in transactions that distort the competition market. Now 1 year on – how effective has this regime been?

• Exploring what types of M&A transactions have been investigated
• How has the Commission assessed if the businesses operating in the EU has been backed by foreign subsidies
• What specific aspects to mind for PE-sponsored transactions
• How has the Commission evaluated whether there has been distorted competition in the internal market
• Examining how the Commission has imposed redressive measures, block deals / public awards and even dissolve concentrations already concluded

The European Commission implemented its Foreign Subsidies Regulation (FSR) as an enforcement tool to intervene in transactions that distort the competition market. Now 1 year on – how effective has this regime been?

• Exploring what types of M&A transactions have been investigated
• How has the Commission assessed if the businesses operating in the EU has been backed by foreign subsidies
• What specific aspects to mind for PE-sponsored transactions
• How has the Commission evaluated whether there has been distorted competition in the internal market
• Examining how the Commission has imposed redressive measures, block deals / public awards and even dissolve concentrations already concluded

Your opportunity to drive the conversation! During this interactive session, delegates are invited to join a small group discussion table of their choice to unpack real-world instances of how remedies are being applied to transactions, from a variety of perspectives. Delegates are encouraged to bring their experiences to the table for a facilitated constructive conversation.

Table One: Merger Controls, FDI and FSR

• Navigating the three new layers of complexity for companies to consider in the EU
• New approach to the EU’s merger control referral mechanism together with the ex-post review of transactions
• Needing to undertake a complete FDI assessment, covering now almost all EU Member State jurisdictions
• Dealing with FSR now the EU Commission is able to review transactions in which the purchaser has benefits from foreign subsidies

Table Two: FDI Remedies Across Jurisdictions

• What types of remedies are being imposed, in which jurisdictions?
• How common are these in such jurisdictions and what is the justification?

Table Three: The Latest Commitment Strategies Emerging Across Multiple FDI Regimes

• Examining how thresholds and requirements might vary depending on the size of the stake acquired, the assets and target revenues as well as relevance of other means of effective control
• Treatment of asset deals, IP transfers and green field investments
• Which regulations come into play during the transaction and after?
• Special considerations for preparing transaction documents when risk is being transferred from one party to another