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.
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.
Raphaël Schindelholz, Marie Flegbo-Berney, and Stéphane Lagonico (Bonnard Lawson) authored this publication
Unlike many other European jurisdictions, Switzerland has traditionally been very attractive for foreign investments, with few or no restrictive conditions. However, that could change under a new FDI regulation, the idea of which was first mooted by the Swiss parliament in March 2020.
There are currently no general foreign investment controls in Switzerland. Foreign investment control only applies to certain industries and sectors, in particular banking and securities and real estate, where prior government approval is required. Several additional business activities require a license from the authorities and, in the fields of aviation, telecommunications, nuclear energy, and radio and television, the licensing conditions include specific requirements regarding foreign investors.
In the cases mentioned above, the reasons for the longstanding limitation of access to foreign investors in the legislation are linked to the very specific context of these sectors, as opposed to a desire to control foreign investment from an economic perspective.
Despite the planned limitation of controls to state-owned foreign investments, the approval procedure is not expected to be amended: it will be up to the foreign investor or its representative to submit a foreign investment that would be subject to control by the competent authority—the State Secretariat for Economic Affairs within the Federal Department of Economic Affairs, Education and Research.
According to the Federal Council's press release in May 2023 about the refinement of the law project, the new draft will be limited to the control of investments driven by foreign states and aimed at taking over a Swiss company active in a particularly critical field—such as the manufacture of military capital goods, the operation of power grids, electricity production, healthcare infrastructure or communications infrastructure.
Under the future legislation, it is expected that an authorization regime will apply to any acquisition by a foreign state or a foreign company under state influence in the following areas: defense equipment or services essential to the operational capability of the Swiss military; dual-use goods; energy and water supply; central IT security systems; or security services for the national authorities.
The future project is likely to be limited to the control of foreign-directed investments in critical areas. In this regard, most of the critics do not question the criteria set out in the first draft, but rather call for certain clarifications to avoid legal uncertainties. Therefore, most of the criteria for an approval decision, set out in the first project for this type of situation, remain fully relevant.
In principle, the acquisition will be approved if there is no reason to believe that it threatens or endangers public order or safety.
The decision will be based on the following key elements, among other things: if the investor's activities will have a negative effect on the public order or security of Switzerland or other states; if the investor has resorted to espionage or been sanctioned by an embargo); the services, products or infrastructure of the Swiss company can be replaced within a reasonable period of time; and the acquisition provides access to key data protection information.
Because the future project is likely to be limited to the control of foreign-directed investments in critical areas, it seems safe to assume that every acquisition subject to control will be carefully examined by the relevant authorities.
In this respect, most of the criticisms leveled at the first draft do not call into question the approval system per se or the length of the proposed procedural deadlines. Consequently, the deadline set out in the first draft, which gives the supervisory authorities up to three months to approve or reject an investment in cases requiring in-depth examination, remains fully relevant.
It can already be established that restrictions on foreign investment will be much more limited than the first draft envisaged, but the contours of the new foreign investment regime remain relatively vague. Foreign investors should continue to stay plugged into this topic and seek local counsel assistance if they expect to encounter any potential FDI issues.
The new project from the Federal Department for Economic Affairs was originally scheduled for the end of the year 2023. It is highly likely that this deadline will be extended and that the new draft will be submitted to parliament in 2024 at the earliest. As such, there is likely to be greater clarity on how the bill will operate in the year or two ahead.
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