Dealmakers should be made aware that deals outside of traditionally sensitive sectors may face an FDI scrutiny. Last year, at least 20 transactions globally were blocked or abandoned due to national security or FDI screening-related concerns.
During the past two years, nine EU Member States have either adopted a new screening mechanism or expanded their existing regime. New FDI regimes in Belgium, Luxembourg, the Netherlands, Ireland, Estonia and Sweden are expected to enter into force in 2023.
The UK's National Security and Investment Act (NSIA), which has been in force since January 2022, is expected to have an impact on merger control. A number of deals have been blocked, or subject to conditions, under the NSIA and parties should take this into account in their multijurisdictional assessment.
Following the publication of CFIUS's very first enforcement and penalty guidelines, CFIUS will be likely very active in enforcement actions, focusing in particular on Chinese investors.
In Australia, FDI reviews have been playing a significant role in merger control. The FDI regulator will seek the antitrust regulator's view on any investment that increases the applicant's presence in a particular industry. Where competition clearance is not mandatory, but FDI over a certain threshold is, this interplay can initiate a unilateral review by the competition authority, opening the applicant up to questioning to determine the competitive effects of the proposed transaction.
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