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
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.
On 27 April 2023, the UK Government published updated guidance on its recently introduced national security and investment screening regime.Continue Reading UK National Security Regime: Enforcement Practice and Updated Guidance
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
Cleary Gottlieb partner Chase Kaniecki, associates Samuel Chang, Pete Young, William Dawley, and law clerk Stephanie Gullo co-authored the United States chapter in Lexology Getting the Deal Through: Foreign Investment Review 2023.
In addition to the maritime services ban targeting Russian Federation-origin crude oil, which we wrote about here, the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”) recently has taken actions related to, and having implications for, the international oil sector. Certain of those actions suggest a potential easing of oil sector-related sanctions on Venezuela while others show a continued focus on the Iranian oil sector.Continue Reading Recent OFAC Actions Related to the Oil Sector
On December 29, 2022, President Biden signed into law the Consolidated Appropriations Act, 2023 (the “Bill”), which allocated approximately $1.7 trillion in federal funding to various government agencies, including the U.S. Department of Commerce (“Commerce”) and the U.S. Department of the Treasury (“Treasury”).Continue Reading Potential Outbound Investment Screening Regime Receives Federal Funding
On September 9, 2022, the French Ministry of Economy (the “Minefi”) issued its first guidelines on the regulation of foreign investment control in France (“FDI Regulation”) (the “Guidelines”).
The Guidelines were eagerly awaited as certain provisions of the FDI Regulation leave room for discretion and there is no published decision-making practice on which the relevant stakeholders may rely. While the Guidelines do not constitute an element of hard law, they provide useful insight into the official interpretation of certain elements of the FDI Regulation. By contrast, clarifications regarding the identification of “sensitive activities” remain underwhelming.Continue Reading French Government Issues Guidelines on FDI Regulation
On October 20, 2022, the U.S. Department of the Treasury released its first-ever Committee on Foreign Investment in the United States (CFIUS) Enforcement and Penalty Guidelines (the Guidelines). The Guidelines provide background and context regarding (1) the types of conduct that can result in CFIUS-related violations, (2) how CFIUS gathers information regarding potential CFIUS-related violations, and (3) the enforcement process CFIUS follows with respect to CFIUS-related violations, including the factors that CFIUS considers in determining whether a penalty is warranted and the calculation of any such penalty.
Continue Reading U.S. Treasury Department Issues First-Ever Guidance on CFIUS Enforcement and Penalty Practices
On October 7, 2022, the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”) announced an interim final rule and a final rule imposing new export controls designed to restrict China’s ability to obtain advanced computing chips, develop and maintain supercomputers, and manufacture advanced semiconductors. According to BIS, the rules, which reflected consultation with close allies and partners, as well as private industry, and are being issued pursuant to the Export Control Reform Act of 2018, are part of the U.S. government’s ongoing review of export control policies toward China and follow several other regulatory and enforcement actions announced earlier this year (e.g., implementing multilateral export controls on advanced semiconductor and gas turbine engine technologies, on which we wrote about here).
Continue Reading The United States Tightens China-Related Export Controls on Advanced Computing and Semiconductor Manufacturing Items