Global FDI Reviews

On 17 October 2024, the European Commission (EC) published its Fourth Annual Report on the screening of foreign direct investments (FDI) into the Union (Fourth Annual Report). 24 EU Member States have FDI screening mechanisms in place, up from only 11 in 2017. The only three EU jurisdictions that do not yet have FDI screening mechanisms (i.e., Croatia, Cyprus, and Greece) have taken concrete steps to this effect.

• Understanding the political landscape and economic stability of target markets
• Staying informed about geopolitical developments and economic policies that may affect currency values
• Navigating international relations and regulatory changes that could impact operations, including trade embargoes and sanctions
• Securing intellectual property rights and understanding the nuances of trademark law in each jurisdiction prevent potential infringements and disputes
• Establishing clear dispute resolution mechanisms in contracts and being prepared to engage in arbitration or mediation can save time and resources in resolving conflicts
• Developing communication strategies that consider cultural nuances to enhance relationships and business outcomes
• Leveraging data analytics tools to provide insights into market trends, consumer behavior, and operational performance, helping to inform strategic decisions

National politics and individual governments in place are influential factors that drive national EU FDI regimes and may result in different FDI dynamics, notwithstanding the overall regulatory alignment on FDI in the EU. Cultural aspects also influence the interaction between the actors in FDI clearance proceedings across various EU member states. How are investors, outside counsel and regulators navigating FDI transactions given the pressure these differences might cause?

Agency scrutiny and intervention both in merger control and foreign direct investment (FDI) have intensified. Merger control authorities continue to expand the scope or interpretation of existing rules to catch a wider range of deals. And deals which may historically have escaped scrutiny are now being pursued more vigorously. How are outside counsel navigating this trending restrictive merger/FDI climate, and where are there possible efficiencies?

• Agencies repurposing existing legal tools to expand their reach (e.g., in the EU)
• Case study: Illumina’s acquisition of GRAIL: What will happen now to merger reviews of “below threshold” transactions in the EU?
• Expect filings in transactions that may impact competition and where the parties’ revenues do not necessarily reflect their competitive potential
• Significant transaction multiples are likely to attract scrutiny
• Tougher reviews of non-horizontal mergers
• Merger control/FDI clearance in one jurisdiction does not always mean other agencies will follow or accelerate their processes
• EC simplification efforts: Welcome changes which are likely to reduce the administrative burden for parties in certain deals
• Undertaking an analysis of the potential ESG efficiencies, and inefficiencies, generated by a transaction
• Ensure deal timelines include flex for potentially protracted regulatory processes, including Article 22 referrals in the EU
• Understand where FDI filings are necessary or advisable, and whether the reviews may raise substantive risks and/or affect the deal timeline

On October 28, 2024, the Treasury Department issued a final rule (the Outbound Investment Rule) implementing Executive Order 14105 and creating a regime restricting investment by U.S. persons in targeted sectors in “countries of concern” (currently limited to China). But legal experts warn the regime captures deals involving other countries too. What are the investment review requirements? What constitutes “substantial participation”. How might this regime evolve under a new administration? And where are possible EU parallels emerging?

This session will compare how FDI regulations are being applied across the more active FDI regimes, what has evolved over the last year and how to find your way through regime complexities.

Germany

• Facts and figures on 2024 FDI proceedings
• Managing timing for FDI clearance in multijurisdictional transactions (e.g. Germany / France / Italy)
• Restrictive FDI clearance conditions – examples and implementation
• Expected developments on scope of FDI screening in Germany

France

• Determining if a transaction is subject to the regime
• Specific trends for investments in activities related to electronic technology
• Interactive screening process
• A permanent lowering of the threshold triggering control of foreign investments

Italy

• Navigating numerous interpretational issues in the Golden Power Law
• FDI review of intra-group transactions
• (Increasing) trend of pre-notifications/notifications, conditional approvals and prohibition decisions: key cases
• Enforcement for non-compliance with notification requirements or with remedies/conditions; withdrawal of conditions

FDI in environmental technologies: Renewable energy has emerged as the fastest-growing sector outside of services. What kinds of deals are in the pipeline?

• EV investment: FDI projects in the manufacturing of electric vehicles and batteries have grown 27%
  • Cross-border, greenfield project studies
• Taking advantage of AI investment target regions: Dubai, Bangalore, Singapore, Israel
  • AI featured in nearly 3.5% of all FDI projects worldwide
• Critical infrastructure: Ports, nuclear energy, minerals and other FDI investments in the name of “national security”