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

  • 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

Investments in Luxembourg entities closed after September 1, 2023—including those signed beforehand—will need to factor in potential FDI filings in the Grand Duchy.  The Luxembourg FDI law establishes a mandatory screening system for non-EEA investments made on a lasting basis in legal entities incorporated in Luxembourg and carrying out critical activities.  Luxembourg follows in the footsteps of its Benelux counterparts that introduced new FDI regimes in the past two months.[1]Continue Reading Benelux FDI: Luxembourg FDI Screening Regime Enters Into Force

More than halfway through 2023, there is no easing in sight on the FDI front.

  • The game-changing EU Foreign Subsidies Regulation took effect. The first legislation of its kind ever entered into by a trading bloc.
  • FDI regimes in two key EU jurisdiction, The Netherlands and Belgium, have come into force, introducing far reaching screening mechanisms.
  • At the same time, the ECJ renders a decision that has the potential to counteract overly extensive FDI review practices of EU Member States.
  • Current practice trends and policy developments in the EU and on national level foreshadow tighter scrutiny of foreign direct investments in Europe.

Continue Reading Cleary Gottlieb FDI Newsletter: May–July 2023

On May 9, 2023, we wrote about Decree of the President of Russia No. 302 that created a framework for nationalization of Russian assets belonging to persons from “unfriendly” states (the “Decree”). At that time the only assets to which nationalization applied were the shares in strategic energy companies Unipro, controlled by the Government of

Since the current Italian cabinet was sworn-in in October 2022, it has applied the Italian foreign direct investment (“FDI”) regime in a few relevant cases, which appear to be the bellwether of the new government’s approach to FDI review.Continue Reading Italian FDI, When the Government May Rewrite Corporate Governance

Distributors of cattle, cocoa, coffee, oil palm, rubber, soy, wood and derived products will be subject to increased supply chain due diligence

Deforestation and forest degradation are drivers of climate change and biodiversity loss. Between 1990 and 2020, 420 million hectares of forest – an area larger than the European Union – were lost due to deforestation, the Food and Agriculture Organization of the United Nations (FAO) reported. The EU is responsible for 7-10% of global consumption of deforestation-linked crops and livestock products.Continue Reading EU Approves Ban on Products Linked to Deforestation

The first few months of 2023 have seen significant developments in the FDI landscape that will have a major impact on cross-border transactions. Deal makers need to be aware that the scope of FDI control is increasing:

  • With the United States taking major steps towards implementing an outbound FDI screening mechanism (which are echoed in Europe) and the European Commission further developing the EU Foreign Subsidies Regulation, new game changing regulatory frameworks take clearer shape.
  • Following the EU Commission’s calling of recent years, by the end of the year almost all EU member States will have adopted a national FDI screening regime.
  • On 27 April 2023, the UK Government published updated guidance that reflects its developing practice. Since January 2022, five transactions have been prohibited and 10 deals have been cleared subject to remedies.

Continue Reading Cleary Gottlieb FDI Newsletter: January–April 2023

On February 6, 2023, the European Commission (“Commission”) launched a public consultation on its proposed rules and procedures for merger and public procurement notifications under the EU Foreign Subsidies Regulation (“FSR”). Continue Reading Commission Consults on Notification Requirements and Process for EU Foreign Subsidies Regulation

Foreign direct investment (“FDI”) control has historically been centred on inbound FDI, meaning investment inflow into a country.  The tide is turning, as the United States seems ready to introduce an outbound FDI control mechanism, whereby capital outflow towards certain countries will be subjected to a screening process.  Similarly, the European Commission (“Commission”) 2023 Work Programme indicates that the EC will “examine whether additional tools are necessary in respect of outbound strategic investments controls”, and is “prepared to revise the EU’s FDI screening regulation.”Continue Reading Outbound Investment Screening Regime—EU May Follow In U.S. Footsteps