On April 11, the U.S. Department of the Treasury (“Treasury”), as Chair of the Committee on Foreign Investment in the United States (“CFIUS”), issued a Notice of Proposed Rulemaking (the “Proposed Rule”) that would modify and expand CFIUS’s mitigation and enforcement authority. Continue Reading Treasury Issues Proposed Rule to Enhance CFIUS Mitigation and Enforcement

  • The European Commission proposes a revised EU FDI Screening Regulation
  • EU takes time to ready Outbound Investment Control Toolkit
  • German FDI reviews dropped in 2023, but FDI review activity follows the trends of prior years
  • Italian FDI reviews in 2023 remained consistently high, despite the end of the extraordinary provisions enacted in connection with the Covid-19 outbreak
  • UK: NSIA decisions, Telegraph Media Group public interest review, and new legislation prohibiting foreign state ownership of newspapers
  • In the U.S., updates to the Critical and Emerging Technologies list signal refinement of focus for CFIUS.

Continue Reading Cleary Gottlieb FDI Newsletter: January – March 2024

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

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 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

On December 7, 2023, the U.S. and Mexican governments signed a Memorandum of Intent (“MOI”) agreeing to cooperate and bolster foreign investment screening.  Both countries have expressed a commitment to establish a bilateral working group for the exchange of information and best practices on foreign investment, with the goal of helping Mexico develop a CFIUS-like screening regime and strengthening the collective security of the United States and Mexico.    Continue Reading United States and Mexico to Bolster Cooperation in Foreign Direct Investment Screening