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Foreign direct investment reviews 2023: A global perspective

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A guide to navigating the rules for investing in countries that require foreign direct investment approval.


Now in its seventh year of annual publication, White & Case's Foreign Direct Investment Reviews provides a comprehensive look into rapidly evolving foreign direct investment (FDI) laws and regulations in approximately 40 national jurisdictions and two regions. This 2023 edition includes more than 15 new jurisdictions in addition to those covered in previous editions and summarizes high-level principles in the European Union and Middle East. Our expansion in coverage reflects the rapid global proliferation of FDI regimes and our market leading position in the field.

FDI regimes are wide-reaching in scope, from national security to public health and safety, law and order, technological superiority, and continuity and integrity of critical supply chains. They are divergent with respect to jurisdictional triggers across countries, and are almost always a black-box process.

The following are some general observations, in large part based on the 2022 CFIUS and EU annual reports:

  • The number of FDI regimes and regulatory enhancements is growing around the world, particularly in Europe. In 2021 and 2022, four EU Member States—Czech Republic, Denmark, Netherlands and Slovakia—implemented new FDI regimes, and in 2023, Sweden and Belgium are slated to adopt FDI screening measures (in addition to non-member Switzerland).
  • FDI regulators, at least from allied nations, are collaborating and learning from each other. CFIUS reported at its first annual conference in 2022 that it continues to host training sessions for US allies so that they can adopt similar regimes.
  • FDI regulators interpret their jurisdiction and authority broadly, especially if they believe it is in the national interest. Many regulators have "call-in," "ex officio," or "non-notified" authority.
  • Despite increased regulation, most cross-border transactions are successfully consummated, although there has been an increase in the number of cases clearing with remedies.
  • The origin of the investor remains a key concern for Western regulators. For example, China and Russia are included more and more in CFIUS's regular Q&A, asking broader and more invasive questions.

Investors conducting cross-border business need to understand FDI restrictions as they are today—and how these laws are evolving over time—to avoid disruption to realizing synergies, achieving technological development and integration, and ultimately securing liquidity.

We would like to extend a special thank-you to all of our external authors, who have provided some insightful commentary on the FDI regimes in a number of important jurisdictions. The names of these individual contributors and their law firms are provided throughout this publication.

We would also like to extend a special thank-you to James Hsiao of our Hong Kong office and Tim Sensenig of our Washington, DC office for their tireless efforts and dedication to the publication of this edition.



The Canadian government announced a strict framework to evaluate foreign investments in the critical minerals sector by state-owned enterprises and state-linked private investors, especially if from “non-likeminded” countries.

canada fdi 2022


Foreign direct investments, whether undertaken directly or indirectly, are generally allowed without restrictions or without the need to obtain prior authorization from an administrative agency.

mexico fdi 2022

United States

Most deals are approved, but expanded jurisdiction, mandatory filings applying in certain cases, enhanced focus on national security considerations, and a substantially increased pursuit of non-notified transactions have changed the landscape.

United States of America



Driven by the European Commission's guidance, Member States keep expanding their investment screening regimes. A similar trend is observed in Europe at large.

european union fdi 2022


In Austria, the Austrian Federal Investment Control Act (Investitionskontrollgesetz or the ICA) introduced a new, fully fledged regime for the screening of Foreign Direct Investments (FDI) and came into effect on July 25, 2020. With its wide scope of application and extensive interpretation by the competent authority, the number of screened investments has soared.

austria fdi 2022


Belgium implements an FDI screening regime by July 1, 2023.


Czech Republic

The new Foreign Investments Screening Act took effect in May 2021, and completed its first full year in operation in 2022.

czech republic fdi 2022


The scope of the Danish FDI regime is comprehensive and requires a careful assessment of investments and agreements involving Danish companies.

denmark fdi 2022


Estonia will have in place an FDI review regime by September 2023.

estonia fdi 2022


Deals are generally not blocked in Finland.



In France, FDI screening authorities have issued new guidelines to improve the transparency of the FDI process.

france fdi 2022


The Federal Ministry for Economic Affairs and Energy continues to tighten FDI control, but the investment climate remains liberal in principle.

germany fdi 2022


The need for FDI screening remains in focus for deals with Hungarian dimensions.

hungary fdi 2022


Ireland anticipates adopting and implementing an FDI screening regime by Q1 2023.

ireland fdi 2022


Italian "Golden Power Law:" Ten years old and continuously expanding its reach.


Republic of Latvia

The Russian Federation's invasion of Ukraine has precipitated the inclusion of provisions blocking Russian and Belarussian nationals from direct investment in a number of sectors.



All investments concerning national security are under the scope of review.



Luxembourg has introduced a bill of law to regulate foreign direct investments. The law is currently being discussed before the Luxembourg Parliament.



Malta's recently introduced FDI regime captures a substantial number of transactions that must be notified to the authorities and, in some cases, will be subject to screening.


Middle East

The Middle East continues opening to foreign investment, subject to licensing approvals and ownership thresholds for certain business sectors or in certain geographical zones.

Middle East


The Netherlands prepares for its first effective year of new FDI regulation.



Changes in the geopolitical situation have resulted in increased awareness of security threats caused by strategic acquisitions and access to sensitive technology. The ongoing review of the FDI regulations in Norway is expected to result in more effective mechanisms to identify and deal with security threats in transactions and investors should be prepared to take this into account when planning future investments in Norwegian companies that engage in sensitive activities.



The Polish FDI regime governing the acquisitions of covered entities by non-EEA and non-OECD buyers has been extended until July 2025.



Transactions involving foreign natural or legal persons that allow direct or indirect control over strategic assets may be subject to FDI screening.



The Romanian regime regarding foreign direct investment has undergone a major change in 2022, when new legislation was enacted, and is aimed at implementing relevant European Union legislation.


Russian Federation

The Federal Antimonopoly Service (FAS) tends to impose increased scrutiny in the sphere of foreign investments and has developed a number of amendments to the foreign investments laws that are aimed at eliminating legislative gaps in this sphere.

Russian Federation


On November 29, 2022, Slovakia, for the first time, adopted full-fledged foreign direct investment legislation. This legislation is effective as of March 1, 2023.



Since May 31, 2020, certain foreign investments into Slovenian companies can be subject to review. Acquisition of real estate related to critical infrastructure may also be subject to review.



The restrictions imposed by the Spanish government on foreign direct investments during the COVID-19 outbreak have remained after the pandemic.



Other than security-related screening, Sweden is currently still without a general FDI screening mechanism.



Historically, Switzerland has been very liberal regarding foreign investments. However, there has recently been increased political pressure to create a more structured legal regime for foreign investment.



Making Türkiye an attractive investment destination continues to be a priority for the government.


United Arab Emirates

Foreign direct investment is permissible in the UAE, subject to applicable licensing and ownership conditions.


United Kingdom

The UK’s National Security & Investment Act has now been in place for a year and has already made its mark, prohibiting deals on national security grounds and also requiring remedies in cases that are not subject to the mandatory notification requirement.  We expect a continued tough approach over the next year as global geo-political tensions bring national security concerns to the fore.




Australia requires a wide variety of investments by foreign investors to be reviewed and approved before completion of the investment.



China has further developed its national security regulatory regime by promulgating measures on cybersecurity review and security assessment of cross-border data transfer.



India continues to be an attractive destination for foreign investment, ranking as the world's seventh-largest recipient of FDI in 2021.



The Japanese government continues to review filings and refine its approach under the FDI regime following the 2019 amendments.



Korea is increasing the level of scrutiny of foreign investments due to growing concerns over the transfer of sensitive technologies.


New Zealand

Recent legislative reforms have increased the New Zealand government's ability to take national interest considerations into account, but have also looked to exclude lower-risk transactions from consent requirements.

New Zealand


All FDIs are subject to prior approval, but the investment climate is welcoming and liberal.


Foreign direct investment reviews 2023: Australia

Australia requires a wide variety of investments by foreign investors to be reviewed and approved before completion of the investment.

14 min read

Fiona Blanch (White & Case, Associate, Melbourne) contributed to the development of this publication

The decision to approve or deny a foreign investment application is ultimately made by the Treasurer of Australia, based on an assessment of whether the investment would be contrary to the national interest and national security.

When making its decision, the Treasurer is advised by the Foreign Investment Review Board (FIRB), which examines foreign investment proposals, consults with other relevant Australian government agencies as required, and advises on the national interest and national security implications. Australia's foreign investment policy framework comprises the Foreign Acquisitions and Takeovers Act 1975 (Cth) (the "Act") and its related regulations, the Foreign Acquisitions and Takeovers Fees Imposition Act 2015 (Cth) and its related regulations ("Fees Regime"), Australia's Foreign Investment Policy (the "Policy") and a number of guidance notes.

The Australian government has again increased its focus on compliance activities,
enforcement and audits

Recent updates

  • New government: A new federal government was elected in May 2022, with a new Treasurer appointed thereafter. While this immediately impacted penalties and the fees payable for assessing an application to FIRB (see below), it is unclear whether any substantive reforms on top of those in 2021 (also see below) will be implemented by the new government with respect to the FDI regime generally
  • Fees: The new Treasurer announced in July 2022 that fees for making foreign investment decisions would double from July 29, 2022, with a maximum cap set at AUD1,045,000
  • Compliance: The Australian government has again increased its focus on compliance activities, enforcement and audits, particularly with respect to tax and data conditions imposed on FIRB approvals, with contraventions that relate solely to residential land doubling as of January 1, 2023
  • Reforms: As of January 2021, with the implementation of an updated foreign investment regime, the government's focus has firmly been on national security and compliance. The reform package included:
    • A new "national security test" created for foreign investors proposing to acquire a direct interest in a "national security business" or "national security land." The Treasurer now also has the power to impose conditions or block any investment on national security grounds, regardless of value
    • A new voluntary notification regime with respect to "reviewable national security actions," i.e., acquisitions involving a foreign person proposing to acquire a direct interest in any entity or Australian business, or any interest in Australian land
    • A new "call-in" power that allows the Treasurer to screen any investment that would not ordinarily require mandatory notification (i.e., a voluntary "reviewable national security action" noted above, which was not voluntarily filed at the time of acquisition), on national security grounds for a period of ten years following completion of the acquisition. In cases where the Treasurer determines the acquisition was contrary to national security, the Treasurer may make a number of orders, including in extreme cases, disposal orders
    • Updated sectoral guidance in FIRB Guidance Note 8 on national security, to include additional commentary for sectors such as health, critical minerals and technology, public infrastructure, energy, gas, electricity, transport and data
    • Removal of the 40 percent threshold for the foreign government investor test: Private equity investors are no longer treated as foreign government investors purely by virtue of passive upstream investors who are foreign government entities holding, in aggregate, >40 percent of the interests in that private equity investor (e.g., fund)
    • Expansion of the exemption certificate regime with ability for the Treasurer to grant investor-specific exemption certificates
    • Stronger and more flexible enforcement options, including powers to impose or vary conditions to approvals, or, as a last resort, require divestment of previously approved investments where national security risks emerge (compliance with approval conditions is receiving more attention as the government has received criticism for failing to allocate sufficient resources to this area)
    • Increased monitoring and investigative powers and materially higher civil and criminal penalties
    • Introduction of the Foreign Acquisitions and Takeovers Fees Imposition Regulations 2020 (Cth) and a new way of calculating submission fees for FIRB applications
  • Data: FIRB has increasingly emphasized that, as part of its national interest assessment, it will have particular regard to the protection of sensitive Australian data and foreign access to or interference with such data. For example, this has been a particular focus with respect to proposed investments in Australian healthcare groups in the context of "patient data" and data centers
  • Conditions: Generally, the Treasurer approves the vast majority of applications. However, FIRB has been increasingly willing to use conditions and undertakings as a mechanism to increase the government's oversight of more complex or sensitive investments. Undertakings required from FIRB may include matters relating to governance, location of senior management, listing requirements, market competition and pricing of goods and services (e.g., that all off-take arrangements must be on arm's-length terms) and other industry-specific matters. FIRB has also issued a set of standard tax conditions that apply to those foreign investments that pose a risk to Australia's revenue and make clear the requirements and expectations for investors—and in 2022, we are seeing an increase in tax conditions being imposed on foreign investors (in particular private equity investors) to address the potential for "treaty shopping," as a result of the ATO's view on income versus capital
  • Powers: The Treasurer has wide divestiture powers; criminal prosecution and civil penalties (including the issuance of infringement notices) can also apply for serious breaches of Australia's foreign investment laws and for those facilitating such breaches, such as professional advisors. The standard practice is to seek approval where there is any doubt as to whether approval is required

Who files

A foreign person or entity making an acquisition that requires approval under the Act must apply to FIRB for a notification that the Treasurer has "no objection" to the acquisition, before completion of the acquisition. In these circumstances, any agreement to make the acquisition must be conditional upon, and subject to, receipt of FIRB approval by the acquirer.

An application includes a filing fee that varies according to the type of deal and the deal value. As of January 1, 2021, amendments to the Fees Regime changed the way that fees are calculated for applications and, as of July 29, 2022, the fees applicable for an application to FIRB doubled, with the maximum fee payable now capped at AUD1,045,000.

An application to FIRB can be mandatory (as explained below), or voluntary, subject to the type of the transaction and the sectors involved (a voluntary filing may preclude post-acquisition orders being made by the Treasurer on the basis of "national security" concerns—as further explained below).

The Treasurer may prohibit an investment if he or she believes it would be contrary to the national interest or national security.

Types of deals reviewed

FIRB approval is required for a range of acquisitions by foreign persons, including:

  • A "substantial interest" in an Australian entity: An acquisition of a direct or indirect interest of 20 percent or more in an Australian entity valued at more than AUD310 million (approximately US$216 million as of January 15, 2023)
  • A "direct interest" in a national security business: An acquisition of a direct interest of 10 percent or more in an Australian national security business (for example, a business that holds critical gas, water or port assets, a telecommunications carrier, or is involved in the supply chain for military and defense goods and services). There is no monetary threshold for these acquisitions
  • An interest in national security land (for example, a defense premises or land in which the Australian intelligence community has an interest). There is no monetary threshold for these acquisitions
  • Australian land and land-rich entities: Various acquisitions of interests in Australian land are regulated with varying monetary thresholds, including with respect to residential land, vacant commercial land, developed commercial land and an entity where the value of its interests in Australian land exceeds 50 percent of the value of its total assets
  • Agricultural land and agribusinesses: Acquisitions of interests in agricultural land and agribusinesses are regulated separately in the Act. In addition, a register of foreign ownership of agricultural land is maintained by the Australian taxation authority

Certain types of investors receive differing treatment for their deals:

  • Free trade agreement investors: Consistent with Australia's free trade agreement (FTA) commitments, higher monetary thresholds apply to certain acquisitions made by investors from Chile, China, Japan, New Zealand, Singapore, the US and countries for which the Comprehensive and Progressive Agreement for Trans-Pacific Partnership is in force. For example, an acquisition of an Australian entity by an FTA country investor will only require FIRB approval if the entity is valued at more than AUD1.3 billion (approximately US$907 million as of January 15, 2023), unless the investment relates to a "national security business" or a "sensitive business," such as media, telecommunications, transport, defense and military-related industries (to which a lower or zero threshold may apply), or the investor is a foreign government investor
  • Foreign government investors: Stricter rules apply to foreign government investors, which can include domestic or offshore entities where a foreign government and its associates hold a direct or upstream interest of 20 percent or more, or foreign governments of more than one foreign country and their associates hold an aggregate interest of 40 percent or more. In general, unless an exemption applies (e.g., the de minimus exemption for offshore acquisitions), a foreign government investor must obtain FIRB approval before (i) acquiring a "direct interest" (generally defined as at least 10 percent holding or the ability to influence, participate in or control) in any Australian asset or entity; (ii) starting a new business; or (iii) acquiring mining, production or exploration interests

Scope of the review

The Treasurer may prohibit an investment if he or she believes it would be contrary to the national interest or national security.

In making this decision, while the concept of "national interest" is not defined in the legislation, the Treasurer will broadly consider:

  • The impact on national security (being the extent to which investments affect Australia's ability to protect its strategic and security interests)
  • The impact on competition (being whether a proposed investment may result in an investor gaining control over market pricing and production of a good or service in Australia)
  • The effects of other Australian government laws and policies (including tax and revenue laws and the impact of the investment on Australian tax revenues)
  • The impact of the investment on the Australian economy and the community
  • The character of the investor (including to the extent to which the investor operates on a transparent commercial basis and is subject to adequate and transparent regulation and supervision, as well as the corporate governance practices of the investor)

The "national security test" requires the Treasurer to assess a given investment from a national security perspective, and whether such investment will affect Australia's ability to protect its strategic and security interests. In making this assessment, the Treasurer relies on advice from the relevant national security agencies for assessments as to whether an investment raises national security issues (e.g., through foreign intrusion or espionage). This test is generally applied in circumstances where an investment involves a "national security business, "national security land" or falls within one of the sectors of interest for the Treasurer, as set out in Guidance Note 8 on National Security.

Review process timeline

Under the Act, the Treasurer has 30 days to consider an application and make a decision. However, in practice, the assessment process is in many cases extended and takes longer, typically eight to 12 weeks from the time of application to the receipt of a "no objections" notification. As mentioned above, the holiday period usually impacts these timeframes for decisions.

The timeframe for making a decision will not start until the correct application fee has been paid in full. If the Treasurer requests further information from the investor, the review period will be on hold until the request has been satisfied.

Typically, if FIRB requires further time, it will request that the applicant voluntarily extend the approval deadline. As the Treasurer is also entitled to unilaterally impose a 90-day extension under statute, applicants are generally incentivized to "voluntarily" request the proposed deadline extensions and, in reality, the review process will take approximately eight to 12 weeks.

How foreign investors can protect themselves

Foreign persons should file an application in advance of any transaction, and any transaction requiring mandatory FIRB approval must be conditioned on receipt of FIRB approval. Such a transaction should not proceed to completion until the Treasurer advises on the outcome of his or her review. For applications involving a sensitive or national security business or sector (e.g., a transaction involving businesses engaged with the Australian defense force, public infrastructure, power, ports, water, telecommunications, banking or media sectors), foreign investors should consider the government's invitation in the Policy to engage with FIRB before filing an application for a significant investment. Leading into the holiday period in December and January, and the impact of an Australian federal election (the next federal election is not anticipated until 2025), it is expected that decision timeframes for FIRB applications will be protracted. Foreign investors should be particularly cognizant of the need to engage with FIRB and Australian legal advisers early in a deal timeline.

These discussions may help foreign investors understand the complexity of their application, any national interest concerns the government may hold about a particular proposal, and the conditions the Treasurer may impose on approvals.

These discussions can also help with structuring a transaction in order to reduce the likelihood of rejection. Such discussions should be held at an early stage in order to provide enough time to satisfy all FIRB queries. Where there is a competitive bid process for the acquisition, a foreign investor that does not actively engage with FIRB early in the bidding process may be placed at a competitive disadvantage to other bidders who do. Foreign investors should be prepared to discuss in detail any conditions and undertakings that may be requested by FIRB, especially for acquisitions that are likely to attract greater political or media scrutiny.

Investors should be aware of the sensitivity in relation to the investment structures used by foreign investors, profit shifting and payment of Australian tax. Early on, foreign investors should work with their tax advisors to ensure their investment structures do not fall outside the spectrum of what is acceptable to the Australian Tax Office (ATO), as the ATO is consulted in all approval processes. In particular, see below under the bullet point "Conditions" for commentary on tax conditions that may be attached to a FIRB approval. Investors should also work with their advisors to determine a level of transparency in upstream ownership, to avoid further enquiry from FIRB and possible future delays.

Looking ahead

  • Exemptions under the Act now include an additional limb that carves out acquisitions in sensitive sectors and/or of national security concern. Exemptions that previously applied to certain transactions (for example, the de minimus exemption for offshore transactions) will now also need to be assessed against the new national security framework under the Act
  • An assessment as to whether an entity is a "national security business" or holds an interest in "national security land" will require extensive due diligence, which generally extends beyond searching publicly available information. Given that national security actions attract mandatory filings and are now carved out from most exemptions under the Act, it is important to fully diligence the target and its business from this perspective
  • FIRB will require the identities of any upstream investor (and their upstream investors) that will hold more than a 5 percent interest in the target (on a look-through basis) following the acquisition. We recommend including this information upfront in the application to avoid a protracted consultation process with FIRB
  • While the "statutory deadline" for FIRB applications is 30 days under the Act, this is generally not the decision period for a given application. Whether mandatory or voluntary, the decision period for an application will depend on a number of factors:
    • The identity of the investors, their country of origin and whether there is any upstream foreign government ownership
    • Whether the transaction involves a national security action
    • The number of consult partners FIRB engages with while assessing the application—these can include the ATO, the competition regulator and the Department of Defence
    • The complexity of the application and
    • Australia's political landscape (i.e., its relations with the investor's country of origin and whether there is an impending election/holiday period in Australia)

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This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.

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