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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.

United States of America

Foreign direct investment reviews 2023: 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.

13 min read

The Committee on Foreign Investment in the United States (CFIUS), which is led by the US Department of the Treasury and made up of US national security and economic agencies—including Defense, State, Justice, Commerce, Energy and Homeland Security—conducts national security reviews of foreign direct investment (FDI) into the United States and certain real estate transactions.

The Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) significantly overhauled the CFIUS process, including by adding new types of transactions subject to CFIUS review, giving CFIUS additional resources to review transactions and address concerns, and, for the first time ever, mandating notification of CFIUS in certain cases. New regulations fully implementing FIRRMA's reforms took effect in 2020, and the CFIUS landscape has continued to evolve since then as CFIUS avails itself of its greater authorities and resources, and the US government makes clear that it views CFIUS as a key national security tool.

In a 39 percent leap for 2020, CFIUS filings reached an all-time high in 2021

Recent updates

  • CFIUS filings have been increasing. In a 39 percent leap from 2020, CFIUS filings reached all-time highs in 2021, the first full year in which FIRRMA was implemented. Although CFIUS has not yet released statistics for 2022, our internal data indicates a further slight increase in filings in 2022 despite overall M&A activity declining compared to 2021
  • Despite the increase in cases, CFIUS has generally maintained efficiency in reviewing transactions. In 2021, the one notable decline in CFIUS's efficiency pertained to transactions that were withdrawn and refiled, which is likely due to more time being needed to negotiate mitigation measures in those cases
  • The vast majority of CFIUS reviews clear without mitigation, but there has been an uptick in the number of transactions resulting in mitigation. This likely reflects a combination of CFIUS having additional resources—meaning it can require more mitigation as it has greater ability to monitor compliance—and the Biden administration viewing CFIUS as a key national security tool, including as reflected in the September 2022 Executive Order
  • The Biden administration issued a new executive order in September 2022 that provides guidance on how CFIUS should examine national security risks associated with a given transaction. President Biden's Executive Order 14083 emphasizes the administration's focus on CFIUS's role in using its foreign investment review authorities to protect US national security and highlights areas of particular national security concern. Although the Executive Order does not change the CFIUS process or authorities—and the factors it sets forth were likely already being considered by CFIUS in reviews—it provides a useful (but not comprehensive) guide for considering whether contemplated transactions have a potential nexus to national security and could have CFIUS implications
  • In October 2022, the US Treasury also published new Enforcement and Penalty Guidelines that provide the first public insight in CFIUS history on the Committee's calculus when determining the appropriateness and number of penalties for violations. Although there has not been a significant number of announced penalty actions since FIRRMA was enacted, we anticipate that CFIUS intends to start using these authorities more going forward, particularly as parties are now on notice about criteria CFIUS will utilize to assess whether penalties should apply

Who files

CFIUS filings are usually submitted jointly by the parties to the notified transaction—typically the investing entity and the target.

Though the CFIUS regulations now mandate filings for certain transactions, CFIUS review remains predominantly a voluntary process, as most transactions subject to CFIUS's jurisdiction do not meet the mandatory filing criteria. Even for transactions under CFIUS's voluntary authorities, CFIUS may request parties notify a transaction of interest and has the authority to initiate reviews directly. CFIUS is pursuing non-notified transactions more aggressively, so the risk of CFIUS reaching out on a non-notified transaction has notably increased since FIRRMA was implemented.

Mandatory filing requirements apply only to covered transactions (i.e., foreign investments subject to CFIUS jurisdiction) that involve "TID US businesses," which (as discussed below) are certain US businesses involved with critical technologies, critical infrastructure or sensitive personal data. Specifically, subject to certain exemptions, mandatory filings are required in the following two circumstances:

  • The acquisition of 25 percent or more of the voting interests in a TID US business by a person in which a single foreign government holds, directly or indirectly, a 49-percent-or-greater voting interest. All parents in the investor's ownership chain are deemed 100 percent owners, so dilution of ownership interests is not recognized for purposes of this test
  • A foreign investment in a TID US business involved with critical technologies, where one or more "US regulatory authorizations" (e.g., export licenses) would be required to export, re-export or retransfer any of the US business's critical technologies to the investor or any person holding a 25-percent or greater, direct or indirect, voting interest in the investor. With a few exceptions, mandatory filing is required even where such critical technologies would be eligible for export to the relevant foreign person under a license exception

If a mandatory filing applies, notification by a declaration or notice must be submitted to CFIUS at least 30 days prior to the transaction's completion date.

FIRRMA also introduced the concept of "excepted investors," which are not subject to CFIUS's expanded jurisdiction for certain non-controlling investments or real estate transactions and are exempt from mandatory filing requirements. Excepted investors and their parents must meet relatively strict nationality-related criteria related to "excepted foreign states," which are currently Australia, Canada, the United Kingdom and New Zealand (though this list can change). Excepted investors are not exempt from CFIUS's general jurisdiction, only from CFIUS's expanded authorities under FIRRMA.

Types of deals reviewed

Consistent with its long standing authorities, CFIUS has jurisdiction to review any transaction that could result in "control" of a US business by a foreign person. Control is defined as the power, direct or indirect, whether exercised or not, to determine, direct or decide important matters affecting an entity. CFIUS interprets control broadly, and notably control can be present even in minority investments. A "US business" is similarly defined and interpreted broadly by CFIUS.

In addition to its traditional authorities regarding control transactions, under FIRRMA CFIUS now has expanded jurisdiction to review certain "covered investments" in sensitive US businesses referred to as "TID US businesses." "TID" stands for Technology, critical Infrastructure and sensitive personal Data. Specifically, TID US businesses are US businesses that:

  • Produce, design, test, manufacture, fabricate or develop one or more critical technologies (i.e., certain items and technology subject to US export controls)
  • Perform certain actions in relation to identified critical infrastructure assets, referred to as "covered investment critical infrastructure" or
  • Maintain or collect sensitive personal data of US citizens

A covered investment is a non-controlling transaction that affords the foreign investor any of the following with respect to a TID US business:

  • Access to any "material nonpublic technical information" in its possession
  • Board membership or observer rights (including nomination rights) or
  • Any involvement, other than through voting of shares, in substantive decision-making regarding sensitive personal data of US citizens, critical technologies or covered investment-critical infrastructure

CFIUS also has jurisdiction to review changes in rights that would provide control or, for a TID US business, covered investment rights, as well as transactions designed to evade CFIUS review.

Covered transactions (i.e., those subject to CFIUS's jurisdiction) include deals structured as stock or asset purchases, debt-to-equity conversions, foreign-foreign transactions where the target has US assets, private equity investments (in some cases even where the general partner is US-owned) and joint ventures into which a US business is being contributed.

Beyond its traditional investment focus, CFIUS now also has jurisdiction to review the purchase or lease by, or a concession to, a foreign person or real estate in the US that is located within, or will function as part of, certain air or maritime ports, or is located in or within certain proximity ranges of identified military installations and areas. Real estate transactions under CFIUS's jurisdiction are not subject to mandatory filing requirements.

Scope of the review

CFIUS reviews are focused on national security concerns. CFIUS conducts a risk-based analysis based on the threat posed by the foreign investor, the vulnerabilities exposed by the target US business, and the consequences to US national security of combining that threat and vulnerability.

Based on its risk assessment, CFIUS determines whether the transaction presents any national security concerns. If CFIUS identifies such concerns, it first determines whether other provisions of US law can sufficiently address them. If no other provisions of US law adequately address the concerns, CFIUS next determines whether any mitigation measures could resolve the concerns. If mitigation is warranted, CFIUS will typically negotiate terms with the parties, which will be a prerequisite to CFIUS clearing the transaction.

If CFIUS determines that mitigation cannot adequately resolve its concerns, CFIUS will typically request that the parties abandon their transaction (or that the foreign buyer divest its interest in the US business if the review happens following closing).

If the parties will not agree to abandonment or divestment, CFIUS can recommend that the president of the United States block the transaction, as only the president has the authority to prohibit a transaction. Presidential blocks are relatively rare, though they have happened more frequently in recent years. It is more typical for parties to agree to terms for abandonment or divestment directly with CFIUS. Although the CFIUS process is confidential, presidential block orders are public.

Review process timeline

There are now two options for how parties can notify a transaction to CFIUS: a declaration, which is a short-form filing reviewed on an expedited basis; or a voluntary notice, which is the traditional CFIUS notification mechanism. Both declarations and notices include required information about the investor and its owners, the US business that is the subject of the transaction and the transaction itself, although notices require more such information (e.g., personal identifier information for directors and officers of the investor and its parent companies). For both declarations and notices, CFIUS will also typically request additional information via Q&A during the review.

Following the initial submission, the declaration process typically takes approximately five to six weeks, and the notice process usually takes approximately three to five months. Following its assessment of a declaration, CFIUS may request the parties file a notice, so in those cases, the total process for a transaction notified by declaration will take longer. For complex transactions, deals expected to be more sensitive from a national security standpoint or in cases where parties want to be assured the certainty of CFIUS clearance, it may be advisable for the parties to start with a notice.

Once accepted by CFIUS, a declaration is assessed in 30 calendar days. At the end of the 30 days, CFIUS may take one of four actions: 1) clear the transaction; 2) inform the parties that CFIUS cannot clear the transaction on the basis of the declaration, but not request a notice (commonly referred to as the "shrug"); 3) request that the parties file a notice for the transaction; or 4) initiate a unilateral review.

Though the shrug outcome does not confer "safe harbor" as a clearance does—after a shrug, CFIUS could theoretically request a notice for the transaction in the future—in our experience transaction parties have typically treated the shrug outcome as sufficient for closing.

For a notice, the parties initially submit a draft "prefiling," on which CFIUS will provide comments and follow-up questions. After addressing those comments, parties will formally file the notice with CFIUS. CFIUS then has to accept the filing, at which time a 45-calendar-day initial review begins. At the end of the review, CFIUS will either clear the transaction or proceed to a 45-calendar-day investigation. About half of cases proceed to investigation.

If a transaction is referred to the president, the president has 15 calendar days to decide whether to prohibit the transaction.

In some cases, CFIUS will need additional time to complete its process, such as when negotiating mitigation measures with the parties. An investigation may be extended for one 15-calendar­-day period in "extraordinary circumstances," though this happens rarely. More typically, in such circumstances, CFIUS will allow the parties to withdraw and resubmit their filing, which restarts the initial 45-day review period. Most transactions are cleared in one CFIUS cycle.

Filing fees apply to notices submitted to CFIUS, but not to declarations—though they apply for notices submitted following CFIUS's assessment of a declaration. Fees are assessed based on a tiered approach, providing for a proportional cost equal to or less than 0.15 percent of the transaction value. The lowest fee is US$750 for transactions valued between US$500,000 and US$5 million (transactions under US$500,000 are not subject to fees), and the highest-tier fee is US$300,000 for transactions valued at US$750 million or more.

It is critical for foreign investors to consider CFIUS issues

How foreign investors can protect themselves

It is critical for foreign investors to consider CFIUS issues—including assessing jurisdictional matters, whether mandatory CFIUS filing will apply, and potential substantive risks—as early as possible in cross-border transactions involving foreign investment (direct or indirect) in a US business. Notably, this includes minority and venture capital investments. Given potentially severe penalties for noncompliance, parties need to know early on whether filing will be required—and where it is not, may want to include relevant representations in the purchase agreement to provide additional protection.

In cases where filing is mandatory or the parties voluntarily notify CFIUS, allocation of CFIUS mitigation risk will be a key issue. Most transactions are cleared without mitigation, but when it is required, mitigation can have a substantial impact on transaction goals and present unexpected costs. The range of mitigation measures that can be imposed by CFIUS is quite broad (based on the risk profile of the deal), and it is important for investors in particular to have as clear an understanding as possible with respect to what mitigation measures would be acceptable to them. Between additional CFIUS resources enabling CFIUS to address concerns in a broader range of transactions and more focused review of certain national security considerations under both FIRRMA and the Executive Order, mitigation may increase in frequency.

Looking ahead

  • CFIUS continues to approve most notified transactions without mitigation measures, though mitigation frequency may be increasing
  • Notwithstanding mandatory filing requirements, CFIUS remains predominantly a voluntary process
  • Declarations—short-form CFIUS filings that are reviewed on an expedited basis—can (subject to deal timing and dynamics) be a valuable tool for parties in transactions that are unlikely to present national security concerns
  • Where CFIUS has national security concerns, it can impose mitigation conditions that can have significant implications on the foreign investor's involvement with the US business and also increase costs. It remains critical for investors to consider mitigation risks at the outset and negotiate protections into the transaction agreement
  • The decrease in Chinese investment in the US has correlated with a decline in transactions being stopped by CFIUS, though China remains a key CFIUS focus even in non-Chinese transactions
  • CFIUS's aggressive pursuit of non-notified transactions means closed deals could come under CFIUS scrutiny, and parties to new deals should carefully assess CFIUS considerations when determining whether to voluntarily notify CFIUS

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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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