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.
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.
The Canadian government continues to scrutinize foreign investments by state-owned enterprises and state-linked private investors, especially if from "non-like-minded" countries.
FDI, whether undertaken directly or indirectly, is generally allowed without restrictions or without the need to obtain prior authorization from an administrative agency.
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.
The European Commission continues to be a driver of FDI screening across the EU, with Member States now moving toward coordinated enforcement.
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.
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.
A bill contemplating the creation of a foreign direct investment screening mechanism in Bulgaria is currently before the Bulgarian parliament.
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.
The scope of the Danish FDI regime is comprehensive and requires a careful assessment of investments and agreements involving Danish companies.
Estonia's foreign direct investment screening mechanism entered into force on September 1, 2023.
FDI deals are generally not blocked in Finland.
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.
Following numerous amendments over the past years, Germany's FDI review continued in full swing in 2023, with further significant updates expected in 2024.
FDI screening in Hungary – forever changing regulation, no change in its importance.
Ireland is expected to enact its FDI screening legislation in 2024.
Italy's Golden Power Law is now more than 10 years old and is continuously expanding its reach.
The law in Latvia provides for sectoral FDI regimes for specific corporate M&A, real estate dealings and gambling companies.
All investments concerning national security are under the scope of review.
In 2023, Luxembourg adopted a national screening mechanism for foreign direct investments.
Malta's FDI regime regulates transactions that must be notified to the authorities and, in some cases, will be subject to screening.
The Middle East continues to welcome foreign investment, subject to licensing approvals and ownership thresholds for certain business sectors or in certain geographical zones.
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.
The foreign direct investment regime in Norway is subject to upcoming changes, with further changes expected to come.
The Polish FDI regime – ambiguous rules, no blocking decisions and evolving market practice.
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.
The Romanian regime regarding foreign direct investment appears to have become more stable in 2023, but continues to surprise.
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.
The new Foreign Investments Screening Act entered into force in Slovakia on March 1, 2023.
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.
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.
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.
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.
Foreign direct investment is permissible in the UAE, subject to applicable licensing and ownership conditions.
The UK introduced new legislation governing FDI in 2022, which also captures domestic investment in certain sectors.
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.
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.
While restricting the data transfer relating to national security, China issued guidelines to further optimize its foreign investment environment.
India continues to be an attractive destination for foreign investment, ranking as the world's eighth-largest recipient of FDI in 2023.
Certain businesses related to "Specifically Designated Critical Commodities" have been designated "core" sectors subject to Japan's FDI regime, FEFTA.
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.
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.
Taiwan continues to promote FDI under a two-track screening mechanism for foreign and PRC investors.
The Middle East continues to welcome foreign investment, subject to licensing approvals and ownership thresholds for certain business sectors or in certain geographical zones.
Gabrielle Margerison (White & Case) contributed to the development of this publication
The general trend continues toward an investment-friendly environment in the Middle East, as local governments aim to attract more inbound investments by foreign investors. However, foreign investors must ensure that they consider sector-specific restrictions, or subsequent approvals or licenses needed, particularly where an activity is considered to be of strategic impact or importance to a particular jurisdiction.
In the Middle East, the onus is typically on the foreign investor to apply for an approval from the relevant government or regulatory body prior to investing in the relevant jurisdiction.
Licensing approvals for any kind of foreign investment (both greenfield and brownfield) are widespread and vary across and within the various jurisdictions. For example, in Saudi Arabia, any foreign investor that wishes to do business must obtain a foreign investment license from the Ministry of Investment (MISA).
It is also common in the Middle East for jurisdictions to put in place sector-wide restrictions where foreign investment is generally not permitted or highly restricted. In Saudi Arabia, these sectors are set out on a "negative list." The negative list includes: oil exploration, drilling and production (with some exceptions); real estate investments in the city of Makkah (or Mecca) and Medina; services related to pilgrimage (Hajj); or fishing/hunting marine living resources.
In Qatar, these sectors include: banking; insurance companies; commercial agencies; and any other fields for which a decision from the Council of Ministers is issued.
In the UAE, these sectors include: security, defense and activities that have a military nature; bank, exchange houses, finance companies and insurance activities; currency printing; telecommunications; pilgrimage (Hajj and Umra services); Quran memorization centers; and services related to fisheries.
In the Middle East, there is often a significant overlap in FDI screening and other general licensing procedures—such as in Saudi Arabia and the UAE—while in some jurisdictions, for example Jordan, no specific FDI rules exist.
The review process timelines vary from jurisdiction to jurisdiction. For example, in Qatar, the Ministry of Commerce and Industry would usually make a decision within 15 days of receiving a complete application.
As foreign investment requirements vary across the Middle East, foreign investors should ensure that they have obtained legal advice to determine the FDI restrictions that exist in any relevant jurisdiction.
Several jurisdictions have created economic free zones for the purpose of attracting foreign investors where FDI restrictions, as compared to their base economies, are less onerous. These economic free zones can cater to different sectors—including logistics, industrial or IT. As such, foreign investors should, with the help of local counsel, determine which economic free zone is appropriate for their proposed business activity.
In the coming years, we expect to see an increase in the number of economic free zones being created in the Middle East, where foreign investment rules and requirements are more relaxed than those in base economies. For example, in Saudi Arabia, the government announced the establishment of four new SEZs across various regions.
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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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