The U.S. National Science and Technology Council (NSTC)[1] recently published an updated list of critical and emerging technologies (CETs) as part of an ongoing effort to identify advanced technologies that are potentially significant to U.S. national security.  We previously summarized the February 2022 list of CETs from the NSTC here.

Continue Reading Updates to the Critical and Emerging Technologies List Signal Refinement of Focus

The German FDI authority, the Federal Ministry for Economic Affairs and Climate Action (“BMWK”), has published the German FDI screening statistics for 2023.[1]

Continue Reading Overall number of German FDI screenings slightly dropped in 2023, but review follows the trends of prior years

As the second anniversary of the conflict in Ukraine approaches, the United States, the European Union, and the United Kingdom continue to focus on and tighten sanctions against Russia, with a particular emphasis on preventing circumvention and evasion of sanctions.  For example, 2023 ended with several significant regulatory developments, including the EU 12th package of sanctions against Russia, discussed in our earlier alert, and new U.S. sanctions-related authority targeting foreign financial institutions (“FFIs”) supporting Russia’s military-industrial base.  This update focuses on the latter development, which is a significant development for FFIs that remain engaged in business involving Russia, even if such business is undertaken outside of U.S. jurisdiction.

Continue Reading Impact of Recent U.S. Secondary Sanctions Authority Targeting Foreign Financial Institutions Supporting Russia’s Military-Industrial Base

The English court took a mixed approach to judicial intervention in a number of cross-jurisdictional cases last year, although some further (welcome) clarity has recently been provided by the Court of Appeal. Perhaps the most salient and recent example of this has been the Court’s perceived willingness to grant Anti-Suit Injunctions (“ASIs”) to restrain foreign proceedings brought in breach of a foreign-seated arbitration clause. These recent cases have largely arisen following Russia’s 2020 amendment to Article 248 of the Arbitrazh (Commercial) Procedure Code (“2020 Amendment”), which itself was a direct policy response to Western sanctions against Russian companies and individuals following Russia’s invasion of Ukraine.

Continue Reading Mixed-Interventionist Approach to Cross-Jurisdictional Issues arising from Sanctions

On February 1, the United States Court of Appeals for the Eleventh Circuit unanimously granted a preliminary injunction in Shen v. Simpson, enjoining enforcement of a Florida law regulating foreign ownership of U.S. land.  That law prohibits citizens of the People’s Republic of China who are not lawful permanent residents of the United States from purchasing certain real property in Florida.  The Eleventh Circuit’s ruling enjoined enforcement of the law against two individual plaintiffs, and the court held that those plaintiffs had shown a “substantial likelihood of success” on their claim that the Florida law was preempted by the Foreign Risk Review Modernization Act of 2018 (“FIRRMA”), the most recent federal statute expanding the authority of the Committee on Foreign Investment in the United States (“CFIUS”), including with respect to certain real estate transactions.  In concurrence with the majority, Judge Abudu wrote that the plaintiffs also showed a substantial likelihood of success on their argument that Florida’s law violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Continue Reading U.S. Circuit Court Finds that Florida Law Prohibiting Foreign Ownership of U.S. Land Likely Preempted by CFIUS Statute

On January 24, 2024, the European Commission (“EC”) adopted five initiatives as part of the European Economic Security Strategy unveiled in June 2023.[1]  The initiatives are aimed at bolstering the EU’s economic security interests.  Their main focus is a proposal for a new EU FDI Screening Regulation aimed at inbound investments.[2]  But the package also includes a white paper on outbound investment control (the “White Paper”),[3] launching a debate on whether and how to scrutinize investment outflows from the EU for the first time in the Union’s history.

Continue Reading EU Takes Time to Ready Outbound Investment Control Toolkit

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”.

In 2024, boards of directors face a well-established, complex and active global foreign direct investment (FDI) landscape in which transactions will regularly trigger multijurisdictional FDI filing and approval processes.  This is the case not only with respect to well-known FDI review regimes such as the Committee on Foreign Investment in the United States (CFIUS), but also with newly established, modified, and/or expanded non-U.S. FDI review regimes, particularly in Europe.  Indeed, as governments around the world have become increasingly empowered and willing to scrutinize, and in some cases prevent, transactions they deem objectionable, FDI approvals have become a significant regulatory issue for many cross-border transactions.

Continue Reading FDI Review Regimes are Well-Established and Active; Outbound Investment Regimes are on the Horizon

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”.

Continued volatility in geopolitical events this past year and corresponding responses in sanctions policies highlight the importance of integrating economic sanctions considerations in board agendas for 2024. In particular, boards of directors should be aware of the increasing global collaboration among sanctions authorities as well as the continuing expansion and application of sanctions in new domains such as digital assets. Sanctions developments can be expected to be particularly fluid in 2024 with respect to China, Russia and Venezuela.

Continue Reading Economic Sanctions: Developments and Lessons for Boards in 2024

On December 18, 2023, the European Union (the “EU”) imposed a number of new economic and individual restrictive measures in relation to Russia (the “12th Package”).[1]

Continue Reading Further EU Sanctions Against Russia: Council Adopts 12th Package
  • The UK Government consults on changes to the National Security and Investment Act.
  • The new Irish FDI regime was signed into law and is expected to come into force in Q2 2024.
  • An update on the state of Dutch FDI review confirms active enforcement and adds clarification on retro-active application.
  • Seemingly small but impactful changes of the French FDI regime ahead.
  • German courts overrule FDI decisions of the German FDI authority. Judicial protection is possible, but more likely succeed on the basis of procedural breaches.
  • The Italian Government vetoes an acquisition in the defense sector by French Safran.
  • The European Commission published its third annual report on EU FDI screening, providing an overview of FDI enforcement trends and statistics and also published the results of its consultation on the evaluation and revision of the EU FDI screening regulation.
Continue Reading Cleary Gottlieb FDI Newsletter: November – December 2023