Our thinking

Foreign direct investment reviews 2024: A global perspective

What's inside

Understanding the ever-evolving global FDI landscape is crucial amid growing regulatory complexities in cross-border transactions

Introduction

Now in its eighth year of publication, White & Case's 2024 Foreign Direct Investment Reviews provides a comprehensive look at foreign direct investment (FDI) laws and regulations in more than 40 countries worldwide.

In this edition, we continue to offer key datapoints that can help inform parties and their advisors as they evaluate the new set of challenges presented by FDI screening requirements in cross-border transactions that span multiple countries.

FDI screening is continuously evolving, in fact, maturing. Stakeholders in the process, in particular FDI regulatory authorities in allied countries, are communicating and learning from each other. It is imperative to stay on top of the FDI requirements as transactions—be it mergers and acquisitions, investments, public equity offerings, debt structurings or financial restructurings—are negotiated. Understanding the potential remedies that could be required for approval and proper allocation of FDI risk are key ingredients in avoiding unpleasant surprises related to timing, certainty and business plan execution.

The number of national FDI regimes and regulatory enhancements is growing around the world, particularly in Europe, with no harmonization in terms of process and timelines. FDI regulators, at least from allied nations, are collaborating and learning from each other.

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. There is increasing coordination in the European Union (EU) between FDI authorities with the support of the European Commission.

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 the Committee on Foreign Investment in the United States' 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.

Americas

Canada

The Canadian government continues to scrutinize foreign investments by state-owned enterprises and state-linked private investors, especially if from "non-like-minded" countries.

canada fdi 2022

Mexico

FDI, whether undertaken directly or indirectly, is 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 without mitigation, but the CFIUS landscape has continued evolving based on a combination of expanded jurisdiction, mandatory filings applying in certain cases, enhanced focus on a broad array of national security considerations, increased rates of mitigation, further attention on monitoring, compliance and enforcement, and a substantially increased pursuit of non-notified transactions.

United States of America

EMEA

Europe

The European Commission continues to be a driver of FDI screening across the EU, with Member States now moving toward coordinated enforcement.

european union fdi 2022

Austria

The wide scope, low trigger thresholds and extensive interpretation of the Austrian FDI regime require a thorough assessment and proactive planning of the M&A process.

austria fdi 2022

Belgium

The Belgian FDI screening regime entered into force in July 2023. In its early days, investors and authorities alike are coming to grips with the new regime and the guidelines that help parties navigate it.

Belgium

Bulgaria

A bill contemplating the creation of a foreign direct investment screening mechanism in Bulgaria is currently before the Bulgarian parliament.

Bulgaria

Czech Republic

The new Czech Foreign Investments Screening Act took effect in May 2021, establishing the rights and duties of foreign investors and setting screening requirements for Czech targets.

czech republic fdi 2022

Denmark

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

Estonia's foreign direct investment screening mechanism entered into force on September 1, 2023.

estonia fdi 2022

Finland

FDI deals are generally not blocked in Finland.

10_finland_square_800x800_0.jpg

France

French FDI screening continues to focus on foreign investments involving medical and biotech activities, food security activities or the treatment, storage and transmission of sensitive data. The nuclear ecosystem is subject to very close scrutiny.

france fdi 2022

Germany

Following numerous amendments over the past years, Germany's FDI review continued in full swing in 2023, with further significant updates expected in 2024.

germany fdi 2022

Hungary

FDI screening in Hungary – forever changing regulation, no change in its importance.

hungary fdi 2022

Ireland

Ireland is expected to enact its FDI screening legislation in 2024.

ireland fdi 2022

Italy

Italy's Golden Power Law is now more than 10 years old and is continuously expanding its reach.

Italy

Latvia

The law in Latvia provides for sectoral FDI regimes for specific corporate M&A, real estate dealings and gambling companies.

Latvia

Lithuania

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

Lithuania

Luxembourg

In 2023, Luxembourg adopted a national screening mechanism for foreign direct investments.

Luxembourg

Malta

Malta's FDI regime regulates transactions that must be notified to the authorities and, in some cases, will be subject to screening.

Malta

Middle East

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

Middle East

Netherlands

The Netherlands, complementing its existing sector-specific regulations, has introduced a general investment screening mechanism to enhance the protection of its national security across a broader range of sectors.

Netherlands

Norway

The foreign direct investment regime in Norway is subject to upcoming changes, with further changes expected to come.

Norway

Poland

The Polish FDI regime – ambiguous rules, no blocking decisions and evolving market practice.

Poland

Portugal

In Portugal, transactions involving acquisition of control over strategic assets by entities residing outside the EU or the EEA may be subject to FDI screening.

Portugal

Romania

The Romanian regime regarding foreign direct investment appears to have become more stable in 2023, but continues to surprise.

Romania

Russian Federation

Russian laws regulating foreign investments have been considerably amended in 2023 to extend the scope of the laws as well as to strengthen control in this sphere.

Russian Federation

Slovakia

The new Foreign Investments Screening Act entered into force in Slovakia on March 1, 2023.

Slovakia

Slovenia

Since May 31, 2020, certain foreign investments into Slovenian companies can be subject to foreign direct investments review. Incorporation of new companies and business units can also be screened.

Slovenia

Spain

Certain foreign direct investments in Spain are subject to scrutiny under the Law 19/2003 (Law on the movement of capital and foreign economic transactions and on certain measures for the prevention of money laundering). These restrictions started back in 2020 and, since then, additional formalities have been introduced, specifically by the new FDI regulation, which entered into force on September 1, 2023.

Spain

Sweden

In December 2023, Sweden adopted and implemented a new FDI regime, meaning that a general FDI screening mechanism now applies in relation to investments in certain Swedish businesses.

Sweden

Switzerland

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.

Switzerland

Türkiye

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

Turkiye

United Arab Emirates

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

UAE

United Kingdom

The UK introduced new legislation governing FDI in 2022, which also captures domestic investment in certain sectors.

UK

Western Balkans

The Western Balkan region (Balkan countries out of European Union) remain increasingly accessible to foreign investment, without established Foreign Direct Investment ("FDI") screening mechanism, with limited requirements for licensing approvals and ownership thresholds, apart from specific sectors.

Western Balkans

Asia-Pacific

Australia

Australia's stringent foreign investment regulations, overseen by the Treasurer and FIRB, safeguard national interests and security. The framework, including the Foreign Acquisitions and Takeovers Act 1975 and recent updates like the Australia-UK Free Trade Agreement, emphasizes transparency and accountability, with new penalties and registration requirements enhancing oversight and compliance.

Australia

China

While restricting the data transfer relating to national security, China issued guidelines to further optimize its foreign investment environment. 

China

India

India continues to be an attractive destination for foreign investment, ranking as the world's eighth-largest recipient of FDI in 2023.

India

Japan

Certain businesses related to "Specifically Designated Critical Commodities" have been designated "core" sectors subject to Japan's FDI regime, FEFTA.

Japan

Republic of Korea

The Republic of Korea continues to welcome foreign investment, with the government actively seeking to ease regulations and update the regulatory framework to be in line with global standards.

Korea

New Zealand

After a number of years of amendments under the OIA from 2018 to 2021, New Zealand has seen a period of stabilization of the overseas investment regime. However, following the recent election and change of government in New Zealand, further changes are expected to better support investments in build-to-rent housing developments.

New Zealand

Taiwan

Taiwan continues to promote FDI under a two-track screening mechanism for foreign and PRC investors.

Taiwan
Mexico

Foreign direct investment reviews 2024: Mexico

FDI, whether undertaken directly or indirectly, is generally allowed without restrictions or without the need to obtain prior authorization from an administrative agency.

Insight

5 min read

Explore Trendscape

Our take on the interconnected global trends that are shaping the business climate for our clients.

The Foreign Investment Act and its regulations (FIA) constitute the main statutory framework governing FDI in Mexico. In some specific instances, sectorial statutory frameworks (such as the Credit Institutions Act) or relevant permits, authorizations or concessions complement or supersede the provisions of the FIA.

Summary of major changes in 2023

  • There have not been any major changes to the FIA legal framework in 2023

Who files?

Under the FIA, FDI is generally allowed without prior authorization from any administrative agency, except with regard to legal entities that are engaged in the activities described in article 6 of the FIA (restricted investments); or engaged in the activities provided in articles 8 and 7 of the FIA; or with assets valued in excess of the monetary threshold set forth in the FIA's article 9, in an amount in excess of the corresponding cap (capped foreign investments).

The scope of restricted and capped foreign investments is set out below.

Applications for prior authorization are generally submitted by the investor to the National Foreign Investment Commission (CNIE).

Types of deals reviewed

Restricted investments entail the acquisition of a stake—in any amount—of the equity of Mexican companies engaged in land passenger and freight transport services within the Mexican territory or development banking.

Pursuant to the FIA, investments in such ventures are limited solely to Mexican nationals. Foreign investors are statutorily precluded from undertaking a restricted investment.

Foreign investors cannot acquire more than a 10 percent capital stake in a Mexican cooperative production company, which is a special low-revenue company dedicated to a certain primary activity (such as fishing, artisanal products or agricultural production) with a preferential tax regime.

Foreign investors cannot acquire more than 49 percent of the capital stock of Mexican legal entities that are engaged in one of the following reserved activities: manufacture and marketing of explosives, firearms, cartridges, ammunition and fireworks; printing and publication of newspapers for exclusive commercialization within Mexican territory; ownership of agricultural, livestock and forest lands; fishing in freshwater, inshore and exclusive economic zones; integral port administration; piloting services in ports located within Mexican territory; freight shipping within Mexican waters; ship, aircraft and rail equipment fuel and lubricant supply; broadcasting; or air transport services.

The CNIE may still authorize any FDI entailing an acquisition of more than 49 percent of the capital stock of a Mexican legal entity engaged in: maneuvering services in ports located within Mexican territory; freight shipping via coastal and ocean navigation; aerodrome management or operation; education services; legal services; construction and/or operation of railways, as well as railroad transportation services; or holding assets with a book value that exceeds MXN 24.97 billion.

Scope of the review

The CNIE has broad discretion whether to approve or deny an investment request. Factors that the CNIE may take into account typically include the following: the investment's potential impact on the workers of the investment target entity; technological contributions to Mexico; the investment's potential contribution to the Mexican economy; and national security concerns.

Review process timeline

To obtain authorization from the CNIE, interested foreign investors are required to file a pre-investment control notice before the CNIE, attaching as exhibits a duly filled-in questionnaire issued by the CNIE; the financial and corporate documents of the interested foreign investors; a general description of its investment impact in terms of employment, technological contributions and competitiveness increase of the target company; or any other synergy that could derive therefrom; and evidence of payment of filing fees.

Once the pre-investment control notice is duly submitted, the CNIE has 45 business days to authorize the proposed investment. If the CNIE does not issue a decision within that period, the proposed investment will be deemed authorized according to the FIA.

The CNIE can deny an FDI request only for national security purposes. In such a case, the interested foreign investors may file an administrative appellate motion within 15 business days challenging the denial. If the motion is denied, they may file an amparo writ before a court within the following 15 business days challenging both resolutions.

Any FDI in connection with capped investments undertaken without the prior authorization from the CNIE will nullify all the legal acts executed to perform the investment. The CNIE can also fine the involved foreign investors up to MXN 542,850.

How foreign investors can protect themselves

Foreign investors may acquire a non-limited participation in the capital stake of companies engaged in capped activities without prior authorization if the investment is "neutral" —a preferred non-voting financial investment equity that is not characterized as an FDI under the FIA.

Although the FIA is the law generally applicable to FDI, foreign investments can be further limited or restricted by specific regulations or permits applicable to the target company. In any process involving the analysis of potential FDIs, investors should review the terms and conditions provided in the specific regulatory framework and in the permits, authorizations and/or concessions granted to the target company.

Looking ahead

Recently, the CNIE's officials have continued developing a policy-based approach to review and request additional information in FDI review processes. 

Under this approach, when a transaction is reportable, it is advisable to reach out to the CNIE's officials before the filing to discuss the proposed transaction, and to understand what information they would like to see explaining the potential benefits of said transaction in Mexico. 

Although this would ordinarily require the submitting of additional information to the CNIE and adding to the amount of formal documentation that needs to be submitted, it can accelerate the clearance process.

On December 7, 2023, the US Treasury Secretary and Mexico's Secretary of Finance and Public Credit signed a memorandum of intent (MOI) to affirm the importance of foreign investment screening in protecting national security and announced their intention to create a bilateral working group that would exchange information about investment screening.

The Secretary of Finance and Public Credit is one of the members that integrate the CNIE, along with another nine cabinet-level secretaries. Although neither the FIA nor its regulations have been amended yet in connection with the MOI, its signing strongly signals that Mexico's federal authorities (stirred by CNIE's members) may soon begin to discuss or sponsor formal changes to the scope of review, in connection with national security concerns.

White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.

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.

© 2024 White & Case LLP

Top