Multi-jurisdiction guide for screening foreign investments May 2021 Contents Introduction 3 Kenya 133 Status of foreign investment screening mechanisms in various 5 Mexico 141 countries The Netherlands 149 Overview of foreign direct investment screening mechanisms by 7 jurisdiction Norway 155 Australia 8 Peru 160 Austria 13 Poland 169 Brazil 23 Portugal 182 Canada 30 Romania 189 Chile 40 Colombia 50 Russia 197 Czech Republic 56 Slovakia 203 Denmark 62 South Africa 208 EU 71 Spain 213 France 79 Sweden 222 Germany 85 UK 226 Hungary 97 Ukraine 234 Ireland 107 US 239 Italy 112 Contact details 248 Japan 125 www.dlapiper.com UKG/105118479 2 Introduction There is little debate about the impact of foreign direct investments (FDI) on economic development since the 1990s, when FDI flows started increasing steadily due to a shift towards international technology-based production and a wave of cross-border mergers and acquisitions (M&A). Due to the COVID-19 crisis, FDI flows decreased substantially all over the world in 2020 (reaching their lowest level since 2005 according to the OECD) but certain economies such as China and India still recorded high FDI inflows. The importance of FDI in today’s globalized economy, enabling economic actors in various industries to reach unprecedented economies of scale, is beyond doubt. FDI activity also has important implications for both origin and destination countries in terms of economic growth and labor productivity. Governments have reconsidered their positions and have shifted policies to become FDI magnets, particularly in developing and emerging countries. Many have removed restrictions on financial flows, fostering even greater mobility of capital and international exchanges, but the profile of each specific country varies. For example, the OECD presents Japan, China or France, to name a few, as sources of FDI outflows worldwide whereas the Netherlands, the United Kingdom or Brazil tend to be recipient countries. The flipside is, however, that investments in certain sensitive/strategic sectors (e.g. key technologies) can be seen as a risk to national security or public order. Consequently, some local as well as supranational authorities (such as the EU) have developed measures aimed at screening foreign investments, ultimately enabling them to intervene either ex ante and/or ex post should those investments require control -or in the more severe cases- prohibitions. Despite efforts such as EU Regulation 2019/452 (which entered into force on 11 October 2020) to establish a framework to screen FDI into the EU, the reality is that FDI regimes are far from harmonized and there is no single path that an investor can follow in terms of due diligence. The new legislation does promote cooperation, information sharing and a minimum level of transparency regarding FDI control between the European Commission and Member States but it does not -and cannot- create a one-stop shop, nor replace national FDI screening mechanisms. www.dlapiper.com UKG/105118479 3 Introduction To a large extent, governments retain their freedom to design FDI screening regimes for their countries’ needs. And while many share common grounds (e.g. the focus on sectors such as telecommunications, critical infrastructure -particularly energy and transport- or defense and public order) the fact each country has discretion explains why, for example, the US is seen as a more permissive regime than others across the EU or Asia. Even within the EU, the range of sectors defined as strategic varies widely and many Member States have yet to adopt an FDI regime. In the midst of COVID-19, several Member States reviewed their screening mechanisms, or adopted specific new mechanisms to cover investments in healthcare, biotech and other sectors. Other countries, such as France and Australia, adopted a temporary regime to ensure the protection of their national interests during the crisis. Furthermore, in the wake of the European Commission’s proposal for a Regulation on foreign subsidies, non-EU investors will face new regulatory hurdles and will need to consider different regulatory approvals concurrently, especially in M&A, when investing in the EU. While the aim of this guide is not to substitute proper due diligence and specialized advice when considering a country’s FDI climate, it will hopefully help the reader navigate the different regimes, particularly in this complex context. This guide explains the key aspects of regimes, including main issues to consider as well as thresholds and proceedings to take into consideration when investing in our globalized world. Léon Korsten Joaquín Hervada Sierra Richard Sterneberg Partner Partner Head of Global Government Amsterdam Madrid Relations T: +31 20 541 9873 T: +34 91 788 7311 Brussels [email protected] [email protected] T: +32 2500 1524 [email protected] Nathan Bush Nicholas A. Klein Partner Of Counsel Singapore Washington T: +6 56 512 6065 T: +202/799-4129 [email protected] [email protected] www.dlapiper.com UKG/105118479 4 Status of foreign investment screening mechanisms in various countries www.dlapiper.com UKG/105118479 5 JURISDICTIONS WITH DLA PIPER PRESENCE JURISDICTIONS WITH SFI MECHANISM IN PLACE JURISDICTIONS WITHOUT SFI MECHANISM Australia Austria Belgium ✓ Brazil ✓ Canada ✓ Chile China ✓ Colombia ✓ Czech Republic ✓ Denmark EU France ✓ Germany ✓ Hungary Ireland Italy ✓ Japan Kenya Mexico ✓ The Netherlands ✓1 Norway ✓ Poland ✓ Romania Portugal ✓ Russia ✓ Slovakia South Africa ✓ Spain ✓ Switzerland ✓2 UK ✓ Ukraine ✓ US ✓ 1 There is no mechanism now but it will be introduced in the future 2 In Switzerland, DLA Piper works with a local relationship firm www.dlapiper.com UKG/105118479 6 Overview of foreign direct investment screening mechanisms by jurisdiction www.dlapiper.com UKG/105118479 7 Australia www.dlapiper.com UKG/105118479 8 Indicate five biggest FDI countries of origin On the basis of the most current publicly available information: (indicate percentage if available) • US (25.6%) • UK (17.8%) are the biggest investors in Australia, followed by: • Belgium (9.1%) • Japan (6.3%) • Hong Kong (SAR of China) (3.7%) Legal framework in force On the basis of the most current publicly available information: • US (25.6%) • UK (17.8%) are the biggest investors in Australia, followed by: • Belgium (9.1%), • Japan (6.3%) • Hong Kong (SAR of China) (3.7%) Legal framework in force Australia’s foreign investment policy framework comprises the Foreign Acquisitions and Takeovers Act 1975 (FATA), its related regulations, and Australia’s Foreign Investment Policy. Australia's Foreign Investment Policy provides guidance on what factors are typically considered in assessing whether an investment proposal is contrary to the national interest. The concept of national interest includes factors such as national security, competition, the impact on the economy, the community, and the character of the investor. Where a proposal involves a foreign government or a related entity, the government also considers the commerciality of the investment Investment by a foreign entity in Australia may require the formal submission of a proposal. This is subject to approval by the Australian Foreign Investment Review Board (FIRB). Last revision of the legal framework Significant amendments to the FIRB approval regime came into force from January 1, 2021. Contextualization of the legal framework In national security measures triggered by the COVID-19 pandemic, since March 29, 2020, a AUD0 (historical or other) monetary screening threshold applied to all acquisitions subject to the FIRB regime. From January 1, 2021, the pre-March 29, 2020, monetary thresholds for "notifiable actions" and "significant actions" were reinstated and significant changes were made to the FIRB regime. Scope – Screening Mechanism – origin of FDI The FIRB examines proposals and advises the Australian government on whether those proposals are (review of intra- or extra-EU FDI) suitable for approval under the government's policy. Whether a proposal is required to be submitted to Are there any loopholes? FIRB by the investor depends on the monetary value, the nature of the investment, and type of investor. www.dlapiper.com UKG/105118479 9 Scope – screening thresholds The applicable legislation provides that certain foreign investment proposals can be subject to compulsory Please indicate notably whether it covers solely or voluntary notification. controlling investments or also portfolio A compulsory notification is required where the proposal constitutes both a notifiable action and significant investments. action, or a notifiable national security action. A voluntary notification applies where the proposal constitutes a significant action or a reviewable national security action. Generally, a minimum 20% interest in a target is needed before FIRB approval is mandatory. Voluntary notification will typically apply in the case of the acquisition by a foreign person of a 10% interest or more in a target’s securities or in the assets of a business. Asset value thresholds also apply and depend on the nature of the asset and the acquirer. Scope – sectors covered Special thresholds apply if the target of the acquisition operates a national security business or is an agribusiness. In those cases any direct interest in a target that meets the applicable monetary threshold will require FIRB approval. The monetary threshold is nil if the acquirer is a foreign government investor or where the target