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.
Foreign direct investment is permissible in the UAE, subject to applicable licensing and ownership conditions.
Gabrielle Margerison (White & Case) contributed to the development of this publication
Recent legislative changes demonstrate significant progress in liberalizing the extent to which foreign investors can invest in companies onshore in the United Arab Emirates (UAE); however, foreign direct investment continues to be primarily targeted toward the UAE's financial and non-financial free zones. With respect to onshore companies in the UAE, prior to any acquisition, an investor should consider the nature of the intended business activities and the extent to which foreign ownership of businesses carrying out such activities is permitted.
For the purposes of corporate law, the UAE comprises two jurisdictions. Offshore UAE comprises the two financial free zones—the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM) — – and more than three dozen non-financial free zones.
Onshore UAE is the geographical space that falls within the UAE's borders but outside of offshore UAE.
Foreign investment remains primarily targeted toward offshore companies in the UAE, as the financial and non-financial free zones permit 100 percent foreign ownership. For FDI into offshore companies in the UAE, the applicable laws and regulations in the relevant offshore jurisdiction will need to be considered.
Until recently, there were significant restrictions with respect to foreign ownership in onshore companies in the UAE. Such restrictions meant that a foreign investor could hold a maximum of 49 percent of the share capital of an onshore limited liability company in the UAE, with a UAE national or company holding (at a minimum) 51 percent of the company's shares.
Recent legislative amendments have relaxed these restrictions regarding certain business activities. Thus, where foreign ownership in an onshore company in the UAE is being considered, three possibilities are now available.
For businesses conducting activities set out on "positive lists" of approved commercial activities published by the UAE's Departments of Economic Development (DED), 100 per cent foreign ownership is permitted. The DEDs act alongside the UAE's Ministry of Economy as the primary regulatory bodies governing the establishment, licensing and operation of onshore companies in the UAE, including for companies where foreign ownership is intended.
UAE Cabinet Decision No.55/2021 sets out a list of strategic impact activities that are of an increased commercially sensitive nature and that attract higher levels of regulatory supervision, such as activities of a military nature, financial services activities or telecommunications activities, among others. Any investor, including foreign investors, intending to invest into a company carrying out an activity set out in the strategic impact list must notify the relevant UAE regulatory authority as to whether the regulatory authority will permit it to acquire the shares in/incorporate the relevant company.
Where a company's activity falls neither on a positive list, nor on the Strategic Impact List, the previous foreign ownership restrictions (49 percent foreign ownership and 51 percent Emirati ownership) is understood to apply, although this is not expressly stated in applicable UAE law.
With respect to the transfer or acquisition of any shares in a UAE company, an extensive "know your client" check will be undertaken on the proposed investor and its ultimate beneficial ownership, including every entity in the chain.
Breaches of the laws governing foreign ownership in onshore UAE may result in the imposition of fines or imprisonment. Moreover, the Ministry of Economy or competent authority, as the case may be, may request to dissolve a company if incorporated or if it performs an activity in violation of the provisions governing foreign ownership. In practice, the UAE is a jurisdiction where cooperation from relevant authorities is required on an ongoing basis in order to operate a business.
There is no formal review process for FDI transactions in the UAE.
Although there is no formal review process for FDI transaction in the UAE, foreign investors must ensure that they review the foreign investment restrictions in the UAE ahead of taking any other steps to carry out business in the UAE, including: seeking guidance from experienced local legal experts to navigate complex regulations and ensure compliance; and prioritizing comprehensive due diligence to understand regulatory requirements (for example, whether a particular sector does not permit foreign ownership), market conditions and potential risks.
The UAE is likely to continue its efforts to attract foreign investment by implementing further reforms, potentially focusing on specific sectors to drive economic diversification.
There is likely to be an emphasis on sustainable and innovative investments, as the UAE aims to position itself as a global hub for technology and green initiatives.
The government is likely to maintain its commitment to investor-friendly policies, promoting transparency and efficiency in the FDI landscape. This could include the establishment of further free zones or relaxation of FDI rules in onshore UAE.
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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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