In recent months, U.S. Department of Justice (“DOJ”) leadership reiterated their intention to continue focusing on prosecuting crime by companies and responsible individuals, in particular in areas relating to national security. To this end, DOJ recently has amended or formalized policies intended to incentivize companies to report criminal misconduct, cooperate in DOJ’s criminal investigations and remediate. In line with that trend and as previewed last month by the Principal Associate Deputy Attorney General, the DOJ officially announced its New Safe Harbor Policy for Voluntary Self-Disclosures Made in Connection with Mergers and Acquisitions (“M&A Safe Harbor”).Continue Reading DOJ New Safe Harbor Policy for Voluntary Self-Disclosures in M&A
Foreign direct investment policies around the globe continue to adjust to the changing geo-political environment. In particular, the US and the European Union as well as certain Member States are in the process of revising their investment screening regimes, including the introduction of new tools such as outbound investment screening and the European Foreign Subsidies Regulation. Generally, the focus of these policy adjustments is on Chinese investments.Continue Reading The evaluation of the German FDI Regime – Cornerstones of potential revisions revealed
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.Continue Reading Benelux FDI: Luxembourg FDI Screening Regime Enters Into Force
On August 9, 2023, the Biden Administration issued the long-awaited Executive Order on Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern (the “EO”) and accompanying Advance Notice of Proposed Rulemaking (the “ANPRM”) setting forth the proposed contours of an outbound investment regime targeting China. Under the proposed regime, U.S. persons would be prohibited from making, or required to notify the U.S. government regarding, certain investments in entities engaged in certain activities relating to semiconductors and microelectronics, quantum information technologies, and artificial intelligence (“AI”) in “countries of concern” (presently limited to China, Hong Kong, and Macau). The United States currently has the authority to review inbound foreign investment through the Committee on Foreign Investment in the United States (“CFIUS”).Continue Reading U.S. Government Unveils Proposal for Outbound Investment Regime Targeting China
Russian legislative and executive branches have passed new acts further restricting the rights of foreign shareholders of Russian businesses.
First, on July 24, 2023 it was announced that President Putin continued to work on the draft of the Decree that would provide the state with the preemptive right to acquire Russian assets of foreign companies exiting Russia. The draft Decree has not been published yet, but it is understood that the preemptive rights will apply only to (i) the strategic companies specifically listed by the Russian Government, and (ii) the joint stock companies in which the state is also a shareholder. This would be the next step that allows for the nationalization of the businesses of exiting foreign investors.Continue Reading Suspension of Rights of Foreign Shareholders and Grant of Pre-emptive Rights to the State to Acquire Russian Assets of Foreign Companies Exiting Russia
The Committee on Foreign Investment in the United States (CFIUS) recently published its 2022 Annual Report, which provides information regarding transactions reviewed by CFIUS in 2022. Key takeaways from the 2022 Annual Report are below.Continue Reading CFIUS Releases 2022 Annual Report – Key Takeaways
On July 26, 2023, the U.S. Department of Justice’s National Security Division, the U.S. Department of Commerce’s Bureau of Industry and Security, and the U.S. Department of the Treasury’s Office of Foreign Assets Control jointly issued a compliance note summarizing voluntary self-disclosure policies applicable to U.S. sanctions, export controls, and other national security laws.
On July 7, 2023, the Governmental Commission for Control over Foreign Investments (the “Governmental Commission”) adopted a new set of conditions for exits by investors from “unfriendly” jurisdictions (those that have imposed sanctions against Russia) (the “Decision”). The Decision provides substantial updates of the clearance process with respect to the sale of shares and participatory interests in Russian companies by parties from “unfriendly” jurisdictions, as well as the payment of dividends to such foreign parties.Continue Reading Russian Countermeasures: The Governmental Commission Imposes Additional Conditions on Exits by Investors From Unfriendly Jurisdictions
On 11 July 2023, the UK Government published its second Annual Report on the National Security and Investment Act 2021 (the “Act”).
The Annual Report begins with an introduction by Oliver Dowden MP, the Deputy Prime Minister, who is the formal decision-maker under the Act in his role as the Secretary of State in the Cabinet Office. This introduction seeks to reassure investors that the Act is a “light-touch, proportionate regime that offers companies and investors the certainty they need to do business, while crucially protecting the UK’s national security in an increasingly volatile world.”Continue Reading UK National Security Regime: Annual Report 2023 and Observations on Recent Practice
The EU FSR filing forms have been adopted and the regime is now in effect. Businesses must prepare to notify qualifying M&A deals and public tenders from October 12.
This alert provides an overview of the FSR’s rules, procedures and filing requirements.
On July 19, Cleary Gottlieb and Oxera will host a webinar on practical…