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.
Taiwan continues to promote FDI under a two-track screening mechanism for foreign and PRC investors.
Benjamin Y. Li, Derrick Yang and Yu-ting Su (Lee & Li, Attorneys-at-Law) authored this publication
In Taiwan, the Department of Investment Review (DIR, previously known as the Investment Commission) of the Ministry of Economic Affairs (MOEA) oversees two separate regulatory regimes for inbound investments from the People's Republic of China (PRC, excluding Macau and Hong Kong) and from the rest of the world.
All inbound investments are subject to the DIR's review under either the foreign investment or PRC investment track.
A foreign investor should file the investment application according to the Statute for Investment by Foreign Nationals, which allows foreign investors to invest in any Taiwanese company unless the company engages in prohibited or restricted business or the investment poses a risk to national security, public order, good morals or national health. The government has a "negative list" that specifies the restricted or prohibited industries, such as military-related chemical products, firearms, transportation and mass media.
A PRC investor should file the investment application according to the Measures Governing Investment Permits to the People of the Mainland Area. A PRC investor refers to an individual, juristic person, organization or any other institution of the PRC (PRC national); and any company located in any third area (other than the PRC or Taiwan) in which, in aggregate, more than 30 percent of its equity or capital is held by PRC nationals or which is controlled by PRC nationals (the third-area company). Unlike foreign investors, PRC investors can only invest in industries listed on the government's "positive list."
The DIR will review two types of investments.
The first is foreign investments, including: the acquisition of stock or capital contribution of a Taiwanese company; setting up a branch office, proprietary business or partnership in Taiwan; and providing shareholder loans for a term of one year or longer to those invested Taiwanese companies in the first two categories.
The DIR also reviews PRC investments including: acquiring stock or capital contribution of a Taiwanese company, proprietary business, partnership or limited partnership (subject to certain exceptions for acquiring shares in a TWSE or TPEX-listed company); setting up a branch office, proprietary business or partnership in Taiwan; providing shareholder loans for a term of one year or longer to those invested Taiwanese companies referred to above; having control over a Taiwanese proprietary business, partnership, limited partnership or a private company via contractual arrangement; and acquiring the business or assets of a Taiwanese private company by a third-area company.
When reviewing an investment application, the DIR applies a totality test by taking into account the nature of the business, scale of investment, parties involved, potential impact on national security, public order, public health, technology advancement, local economics, rights of the local stakeholder and employees, and other relevant factors. If the investment involves a PRC investor or sensitive business (such as critical infrastructure, telecommunications or other restricted business), the DIR will increase its scrutiny by requesting detailed information on the ownership structure and the intended purpose, and seeking relevant government bodies' opinions. As such, it will generally take longer for the DIR to review PRC applications.
The DIR's approval is usually a condition precedent to the closing of a transaction. While the DIR has the sole discretion to reject or impose conditions on a transaction, it has approved most of the applications received and only rejected a limited number of cases because of national security concerns or adverse impacts on the local economy. In some cases, the DIR may also require undertakings from the investors per other competent authorities' requests or attach conditions to an approved investment.
The DIR's review process usually takes one to two months for foreign investments and two to four months for PRC investments, depending on the scale and complexity of the investment. The DIR has the sole discretion to request further information from the prospective applicants, consult intra-governmental bodies, and/or conduct ad hoc reviews on a case-by-case basis, which may prolong this timeline.
While reviewing an application submitted by a foreign investor, the DIR will review the foreign investor's shareholding structure, including each layer of investment vehicle up to the ultimate beneficial owner, to ensure that the investor is not a de facto PRC investor.
As foreign investors and PRC investors are subject to different regulatory reviews, we strongly advise the investor to carefully examine its shareholding structure and the business it wishes to invest in with an experienced counsel to fully assess the risks and structure the transaction effectively.
Statistics from the DIR indicate a positive trend in FDI approvals. In the first quarter of 2023, the DIR has approved foreign investments amounting to approximately US$7.97 billion, the third-highest amount in the past 15 years. This indicates a strong interest from overseas investors in Taiwan's business environment and growth potential.
In 2024, Taiwan will continue to promote FDIs in renewable energy and high-technology industries, particularly in semiconductors, 5G telecommunications, AI, and the Internet of Things, and leverage Taiwan's strengths in advanced technology, manufacturing, and research and development.
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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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