Registration and Networking

Co-Chairs’ Opening Remarks

Dr. Tilman Kuhn
Partner
White & Case, Düsseldorf, Brussels

Samantha Mobley
Partner
Baker & McKenzie LLP, United Kingdom

EUROPEAN COMMISSION SCREENING

PART I – Status Report on the European Commission Screening: Key Updates on the Review Process, Filing Requirements and Timelines

This session will look at the Report from the Commission to the European Parliament and the Council: First Annual Report on the screening of foreign direct investments into the Union, released November 2021, including the review of reports by the 27 Member States and other sources, confirming the clear value-added of the Regulation and the cooperation mechanism.

• Examining the evolving role of the EU Commission and Member States when reviewing agreements
• The latest trends in the number of reviews, involving which Member States and which sectors
• Discussing harmonization efforts between the Commission and the Member States and the division of labour
• What can cause delays in the screening process and what can make the process run more smoothly?
  

EUROPEAN COMMISSION SCREENING

PART II – MEMBER STATE IMPLEMENTATION FRAMEWORK Comparing and Contrasting EU Member States’ Implementation of the EU Regulatory Screening Framework

Marie-Anne Lavergne
Head of Unit, Foreign Investments Control, Agence France Trésor (AF)
Ministère de l’Économie, France

Dr. Jan Bonhage
Partner
Hengeler Mueller (Berlin/Brussels)

Pedro Callol
Partner
Callol, Coca & Asociados, Spain

Dr. Angelika Milger
Policy Officer, Division VE5-I Investment Screening, EU and International Relations
Federal Ministry for Economic Affairs and Climate Action, Germany

This four-part session will compare and contrast how FDI regulations are applied across different member states, what has changed in the last 12-months and how to navigate the nuances of varying regimes.

With the latest regulatory changes in the UK, Germany, France and Italy, this session will delve into the implementation of the EU screening framework. The distinguished faculty members will address the baseline substantive criteria and the degree of discretion left for domestic screening application.

GERMANY
The German government has broadened the definition of “critical infrastructure” under the BSI Act, (the 17th amendment) to the Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung, AWV).

FRANCE
The French Foreign Investment Regime (FFIR) has broadened its scope for reviewing FDI transactions

SPAIN
Spain introduced a broad FDI regime in March 2020 which potentially requires FDI screening for a great number of acquisitions. Upcoming implementing regulation could narrow the scope of the FDI regime.

Networking Break

EUROPEAN COMMISSION SCREENING

PART III – PRACTITIONERS’ STRATEGIC INSIGHTS: The Newest Best Practices for Navigating the Review Process and Grey Areas of the EU Commission Report

Dr. Jérôme Philippe
Partner
Freshfields Bruckhaus Deringer, FRANCE

Lucio D’Amario
Partner
Linklaters, ITALY

Building on the previous session, learn how legal practitioners are deciphering the EU Commission’s report and revisiting strategies for filings and mitigating the risk of delays.

Topics will include:

• Identifying which process oversights can lead to a review to be aborted, prohibited or cleared with mitigation
• Finding efficiencies and best practices for reducing the risk of delays during the review process
• How to deal with the opaqueness of the substantive review and filing

Networking Luncheon

UNITED KINGDOM

The NSIA Five-Months – A Check-In on How the NIS Regime is Working in Practice: What is Triggering Reviews, Causing Delays and Enhanced Scrutiny of Transactions

Marc Israel
Partner
White & Case LLP

John Messent
Senior Attorney
Cleary Gottlieb Steen & Hamilton LLP, United Kingdom

This session will examine the practical implementation of the United Kingdom’s National Security and Investment Act 2021 ("NSIA"), enacted in January 2021. Experts will discuss the latest best practices and grey areas.

• A closer look at the scope of the legislation and its intent to address national security matters
• What is the role of the UK government to block transactions?
• Is the legislation working the way it was designed?
• How has competition law in the UK changed and how has it stayed the same?
  

Incorporating Mitigation Strategies into Your Deal Structure: The Finer Points of Passing Clearance and Getting the Deal Done

Dr. Andrea Pomana
Partner
ADVANT Beiten, Germany

Steven Klemencic
Managing Director
Berkeley Research Group LLC, United States

• Examining how thresholds and requirements might vary depending on the size of the stake acquired, the assets and target revenues
• Structuring cross-border M&A transactions
• Managing the implications of tight deadlines: Advisability of pre-notification contacts with relevant authorities
• Which regulations come into play during the transaction and after?
• Key insurance considerations affecting transactions
• Special considerations for preparing transaction documents when risk is being transferred from one party to another
  

Networking Break

CASE STUDY

Lessons Learned from Recent, High-Profile Transactions Including Syngenta, Couch-Tard and Nuctech

Dr. Tilman Kuhn
Partner
White & Case, Düsseldorf, Brussels

Julie Soloway
Co-Chair of the Competition/Antitrust and Foreign Investment Group
Blakes Cassels & Graydon LLP, Canada

This session will take a closer look at the news-making transactions, the practical questions and aftermath arising from three of the most recent, significant transactions and what they what is reveal for future transaction filings, timelines and deal approval.

• Case Study one: Italy vetoes sale of seed producer to Chinese-owned Syngenta
• Case Study Two: France Blocks $20 Billion Takeover of Carrefour by Canada’s Couche-Tard
• Case Study Three: Taiwan’s GlobalWafers Co. Ltd. unable to aquire German chip supplier Siltronic

In-House Executive Insights on FDI Reviews, Mitigation and Post-Transaction Challenges: Positioning Your Organisation for Deal Approval and Post-Acquisition Success

Dominik Eisenhut
Senior Legal Counsel
Airbus Defence and Space, Germany

Moderated by:

Alan Levesque
Senior Managing Director
Ankura, United States
Former Vice President, Chief Ethics & Compliance Officer Vice President, Chief Ethics & Compliance Officer Raytheon

Senior in-house executives will walk you through the most pressing, complex FDI challenges that come across their desks. Learn best practices for embedding global regulatory requirements into your processes and procedures. Benefit from first-hand insights and concrete examples of pitfalls to avoid once the deal is done. Real world examples include:

• Special Security Agreement (SSA): how does a European parent company manage the financial management system in incorporating US subsidiary companies under an SSA?
• Which types of Non-Disclosure Agreements should the related parties have, i.e. a European and US parent/child company?
• How do European companies protect indigenous European technologies when they are transferred to a US daughter company?
• The interplay of international trade requirements, including holding no US origin data on cloud networks outside of the US
• How are companies overcoming the expected (and unexpected) hurdles to implementing agreements?
  

End of Day One

Co-Chairs’ Opening Remarks

Dr. Tilman Kuhn
Partner
White & Case, Düsseldorf, Brussels

Samantha Mobley
Partner
Baker & McKenzie LLP, United Kingdom

Early Riser Keynote Address

Bruce Miller AO
Chair
Foreign Investment Review Board, Australia

KEYNOTE ADDRESS

UK Priorities for Investment Security

Jacqui Ward
Director National Security and International
Department for Business, Energy & Industrial Strategy United Kingdom

Which Industry Sectors are Now Raising Red Flags: Real-World Insights on What is Now Causing Delays and Derailing Deals?

Dr. Roland M. Stein
Partner
BLOMSTEIN, Germany

Chase D. Kaniecki
Partner
Cleary Gottlieb Steen & Hamilton LLP, United States

J. Tyler McGaughey
Partner
Winston & Strawn LLP

This session will look at which sectors are being scrutinised more than before as potential national security risks, and how sectors may vary depending on country regime. This session will also look at traditional high-risk sectors and which types of transactions continue to cause delays in the FDI review process.

• Critical Technology – Access to defense-related or otherwise sensitive export controlled or other, including defence and aerospace, artificial intelligence, cryptography, synthetic biology
• Sensitive Personal Data – banking, insurance, healthcare, geolocation capabilities
• Critical Infrastructure – energy, transportation, real estate, communications and media, critical supplies
  

Networking Break

Managing the Interplay between CFIUS, UK and EU Member State Regimes: Critical Updates on FIRRMA, CFIUS Reviews and Mitigation Expectations

Dr. Thomas S. Wilson
Partner
Kirkland & Ellis (Belgium)

Steven Klemencic
Managing Director
Berkeley Research Group LLC, United States

Jonathan Panikoff
Senior Fellow
Atlantic Council
Former Director, Investment Security Group, Office of the Director of National Intelligence, United States

Alan Levesque
Senior Managing Director
Ankura, United States
Former Vice President, Chief Ethics & Compliance Officer Vice President, Chief Ethics & Compliance Officer Raytheon

• How does meeting CFIUS requirements position transactions for approval in the EU and UK?
• Are countries investing in the US receiving a preferred investor status?
• The cross-over between FDI and other types of investment reviews: what to expect when the deal raises antitrust issues or involves controlled technologies, classified activities or telecommunications services
• Assessing the unique issues that come into play when a Chinese company acquires a European company with U.S. subsidiaries
• Mitigating security risks posed by interlinked markets and infrastructure
• Examining the real-world impact of recent transaction reviews on both sides of the pond
  

The Nuances of FDI Filings in Australia: Need-to-Know Takeaways for Current and Future Transactions

Marcus Clark
Partner
Johnson Winter & Slattery, Australia

Deborah Johns
Partner
Gilbert + Tobin, Australia

This session will explore Australia’s foreign investment framework, which came into effect in January 2021 and is governed by the Foreign Investment Review Board (FIRB). Delegates will hear critical insights on how the reforms are structured for safeguarding national security.

• The newly amended scope of critical infrastructure
• Which types of investments would be subject to pre-closing review?
• What are companies doing to meet post-transaction? compliance expectations?
• How is the Australia enforcing the regulations?
  

Special Considerations for Transactions Involving Sensitive or Personal Data: Embedding Mitigation Controls into Your Deal Structure

Randall H. Cook
Senior Managing Director
Ankura, United States

Dr. Roman Reuter
Senior Counsel, International Competition Affairs
Deutsche Telekom AG

Jenine Hulsmann
Partner
Weil, Gotshal & Manges LLP, United Kingdom

This session will look at which mitigation strategies and controls can be used to assist with structuring a merger on investment agreement when sensitive data or personal data is involved.

• Examining the overlap between foreign investment regimes and the telecom security regulation sector
• Analyzing what types of data are perceived as raising security red flags, including technical, public information in large quantities, customer data
• What comes out in client discussion and understanding the company’s level of involvement in data storage
• What are the practical difficulties when advising clients in this sector?
  

End of Conference