Foreign investment review
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WHAT DOES MEET OUR
NAVIGATING THE COMPLEX WORLDWIDE NAVIGATING MANAGING A SELECTION
AN UNCERTAIN FOREIGN
THE NEW REGULATORY REVIEW OF AN UNCERTAIN THE FIR OF OUR
CLIMATE MEAN INVESTMENT
NORMAL LANDSCAPE INBOUND M&A CLIMATE PROCESS EXPERIENCE
FOR YOU? TEAM
Navigating the The complex Worldwide
Foreign new normal regulatory
landscape
review of
inbound M&A
investment
review
Our global capabilities Navigating What does Managing
an uncertain an uncertain the FIR
climate climate mean process
for you?
A selection of Meet our
our experience foreign
investment
team
WHAT DOES MEET OUR
NAVIGATING THE COMPLEX WORLDWIDE NAVIGATING MANAGING A SELECTION
AN UNCERTAIN FOREIGN
THE NEW REGULATORY REVIEW OF AN UNCERTAIN THE FIR OF OUR
CLIMATE MEAN INVESTMENT
NORMAL LANDSCAPE INBOUND M&A CLIMATE PROCESS EXPERIENCE
FOR YOU? TEAM
Navigating the ‘new normal’
for foreign investment
Businesses are operating in a different and uncertain climate for
cross-border M&A. COVID-19 has accelerated the already heightening Foreign investment review decisions
are always based on highly subjective
scrutiny of foreign investment. criteria. Yet, the review authorities
work behind closed doors and
We have witnessed a period of unprecedented scrutiny of
FDI flows under different scenarios on the effectiveness without public explanation of their
foreign investment issues and geo-political change, leading to a
tidal wave of legislative changes, proposed and enacted in most of public health and economic policy measures decisions. A company is best served,
major economies. then, by counsel that has extensive,
1.5
direct experience with complex cases,
COVID-19 has accelerated these changes. It has also driven the
steep downward trend for foreign direct investment (FDI) in
Base = H2 2019
from both the outside and the inside.
the first half of 2020, creating uncertainty around foreign
1 This is where Freshfields shines.
investment opportunities in the coming term.
US$tn
Aimen Mir, Partner,
Foreign investment restrictions vary and are rapidly developing 0.5 Former Deputy Assistant Secretary of
around the world. Against this backdrop, you need a law Investment Security in charge of CFIUS
firm that has cutting-edge experience advising on complex Washington DC
and difficult cross-border transactions across all the key 0
H1 H2 H1 H2 H1 H2 H1 H2 H1 H2 H1 H2 H1 H2
jurisdictions to ensure your investments are successful. 2015 2016 2017 2018 2019 2020 2021
Year
Our global team of foreign investment experts has just that. Optimistic Middle Pessimistic Source: OECD FDI statistics database and OECD projections
2
WHAT DOES MEET OUR
NAVIGATING THE COMPLEX WORLDWIDE NAVIGATING MANAGING A SELECTION
AN UNCERTAIN FOREIGN
THE NEW REGULATORY REVIEW OF AN UNCERTAIN THE FIR OF OUR
CLIMATE MEAN INVESTMENT
NORMAL LANDSCAPE INBOUND M&A CLIMATE PROCESS EXPERIENCE
FOR YOU? TEAM
Our experts can guide you
through this increasingly
complex regulatory landscape
We are particularly experienced in advising on complex and difficult
cross-border transactions, providing an integrated and co-ordinated 2020 has seen a further increase of
governmental powers to screen and
approach to obtaining foreign investment, merger control and potentially intervene in cross-border M&A.
other regulatory approvals across multiple jurisdictions. It is therefore critical to conduct a foreign
investment filing risk assessment
We combine the various types of advice and expertise needed Our specialists also work closely together to ensure a joined-up up front and factor this into deal
to lead to a successful outcome in these challenging matters, foreign investment review approach and strategy across structuring and planning.
including legal, regulatory, political communication and jurisdictions, which is becoming increasingly important
Alastair Mordaunt,
stakeholder analysis skills. as agencies themselves seek to co-ordinate more. Partner, Hong Kong
We have foreign investment specialists based in numerous Where necessary, we work with a trusted network of local law
countries globally who are leaders in their home jurisdiction, firm partners whose jurisdictional experience in foreign
and many have previously worked as regulators in government investment and antitrust complements our expertise.
and are intimately familiar with the review of foreign
In addition, we have cultivated an international network of
investments from the ‘inside’.
highly experienced public relations and communications
Our specialists enable us to offer our clients unique insights consultants with whom we regularly engage, and we often
into the rapidly evolving foreign investment laws, and help our recommend these experts to our clients as part of our
clients understand the complexities of the current economic integrated team.
and political climate to enable them to make the right moves
for their business.
3
WHAT DOES MEET OUR
NAVIGATING THE COMPLEX WORLDWIDE NAVIGATING MANAGING A SELECTION
AN UNCERTAIN FOREIGN
THE NEW REGULATORY REVIEW OF AN UNCERTAIN THE FIR OF OUR
CLIMATE MEAN INVESTMENT
NORMAL LANDSCAPE INBOUND M&A CLIMATE PROCESS EXPERIENCE
FOR YOU? TEAM
A growing number of jurisdictions
worldwide review inbound M&A
Over 100 jurisdictions now
have foreign investment review
laws, and rules are constantly
being tightened – in particular
in this time of COVID-19.
Foreign investment law follows in the footsteps of
merger control law and has been spreading around
the world at a fast pace. Like in merger control, global
transactions require global strategies to be successful
and mitigate concerns of governments, which
themselves seek to co-ordinate their enforcement.
Frank Röhling, Partner, Berlin
4
WHAT DOES MEET OUR
NAVIGATING THE COMPLEX WORLDWIDE NAVIGATING MANAGING A SELECTION
AN UNCERTAIN FOREIGN
THE NEW REGULATORY REVIEW OF AN UNCERTAIN THE FIR OF OUR
CLIMATE MEAN INVESTMENT
NORMAL LANDSCAPE INBOUND M&A CLIMATE PROCESS EXPERIENCE
FOR YOU? TEAM
Navigating an uncertain climate
Key foreign investment review issues for dealmakers
1 2 3 4
A wider range The range of A wide range of Governments
of buyers are industry sectors transactions are are more willing
becoming affected affected is growing triggering interest to intervene
The rise of protectionist sentiment Reviews increasingly involve deals that Foreign investment rules will There has been an uptick in deals
means that screening rules are are outside the ‘obvious’ national often have lower (or no) financial failing as a result of regulatory
increasingly being applied against security sectors such as the military thresholds than merger control, issues, whether foreign investment
foreign investors from any third and defence. The list of critical sectors and may capture minority, or antitrust related. This trend can
country, not just from jurisdictions in many jurisdictions can be extensive, non-controlling investments. be expected to continue.
perceived to be particularly ‘risky’. but not always clearly defined.
We are seeing increased scrutiny of transactions on national security grounds, with new rules on the horizon expected
to result in more transactions being subjected to government intervention. In 2020, widening of the rules to capture additional
transactions means that all types of buyer should assess the risks of intervention, irrespective of their country of origin.
Michele Davis, Partner, London
5
WHAT DOES MEET OUR
NAVIGATING THE COMPLEX WORLDWIDE NAVIGATING MANAGING A SELECTION
AN UNCERTAIN FOREIGN
THE NEW REGULATORY REVIEW OF AN UNCERTAIN THE FIR OF OUR
CLIMATE MEAN INVESTMENT
NORMAL LANDSCAPE INBOUND M&A CLIMATE PROCESS EXPERIENCE
FOR YOU? TEAM
What does an uncertain climate mean for you?
FOREIGN INVESTMENT
Deal Deal Risk of
Disclosure Exit
timetable certainty remedies
More burdensome foreign Unpredictability as authorities Relevant body may require Authorities may impose Adds complexity to exit strategy
investment regimes and more test new areas of security internal documents and remedies if there are national as potential purchasers may
rigorous review processes concerns and grapple with extensive information over security concerns. raise foreign investment
leading to longer pre-closing political pressure – adding ownership structure, whether review concerns.
Remedies may conflict with
periods – can become a gating greater risk of intervention, purchasers have received
business strategy (eg may be
issue for transactions with even from ‘friendly’ countries. foreign government subsidies,
forced to dispose of strategic
no antitrust issues or transaction rationale and
assets or prevented from
where antitrust clearances target activities – with
making changes to workforce,
are received quickly. enhanced inter-governmental/
headquarters or R&D spend).
cross-agency co-operation.
6
WHAT DOES MEET OUR
NAVIGATING THE COMPLEX WORLDWIDE NAVIGATING MANAGING A SELECTION
AN UNCERTAIN FOREIGN
THE NEW REGULATORY REVIEW OF AN UNCERTAIN THE FIR OF OUR
CLIMATE MEAN INVESTMENT
NORMAL LANDSCAPE INBOUND M&A CLIMATE PROCESS EXPERIENCE
FOR YOU? TEAM
Managing the foreign investment review process
Meet with
Consider government Be active,
counterparty Is filing customers and not passive, in
risk mandatory or agencies shaping risk
advisable?
assessment
Identify
Carefully time
sensitivities of
engagement
government Anticipate
Consider risk with government
early and speak to
threatened
concerns.
parties will
PLAN cry foul ENGAGE Don’t hide
the ball
Show how
to satisfy both
Structure deal
commercial and
to manage risk Use language
Consider effect government
interests familiar to
of on
government
deal timeline
officials
Consider Focus on
risk allocation resolution, not
between disputation of
parties concerns
7WHAT DOES MEET OUR
NAVIGATING THE COMPLEX WORLDWIDE NAVIGATING MANAGING A SELECTION
AN UNCERTAIN FOREIGN
THE NEW REGULATORY REVIEW OF AN UNCERTAIN THE FIR OF OUR
CLIMATE MEAN INVESTMENT
NORMAL LANDSCAPE INBOUND M&A CLIMATE PROCESS EXPERIENCE
FOR YOU? TEAM
A selection of our experience
We have experience navigating foreign investment A group of private equity firms KKR on the acquisition of
regimes across the globe and institutional investors on a co-controlling stake in
the US$3.4bn takeover of Axel Springer.
satellite telecommunications
company Inmarsat.
Vossloh on the divestment London Stock Exchange Group Airbus on the US$1.2bn sale Wencan, a specialist in the Volkswagen, on the CFIUS Infineon Technologies
of its locomotives business to a on the proposed US$27bn of Airbus Defence Electronics manufacture of aluminium alloy auto review of its investment in Argo on its acquisition of Cypress
subsidiary of the state-owned acquisition of Refinitiv, a financial to KKR. components, on its acquisition AI, the autonomous vehicle Semiconductor Corporation.
China Railway Rolling Stock markets and infrastructure of Le Bélier, a leading publicly listed platform company.
Corporation (CRRC). business (ongoing). aluminium auto parts company in
France and supplier of aluminium
parts to the aerospace industry.
A leading Canadian
institutional investor
Midea on its €4.5bn bid AB InBev on its £71bn Comcast Corporation on the AABB on the
leading US$6.4bn
Canadian sale of its
institutional The ANTA and FountainVest
for the German robotics acquisition of SABMiller. global merger control and public power gridinbusiness
investor to Hitachi.
connection with consortium
company KUKA. The transaction was the third interest aspects of its £30bn several investments in on the €4.6bn acquisition
largest in corporate history. public bid for Sky. multinational industrial of Amer Sports.
manufacturing groups. 8WHAT DOES MEET OUR
NAVIGATING THE COMPLEX WORLDWIDE NAVIGATING MANAGING A SELECTION
AN UNCERTAIN FOREIGN
THE NEW REGULATORY REVIEW OF AN UNCERTAIN THE FIR OF OUR
CLIMATE MEAN INVESTMENT
NORMAL LANDSCAPE INBOUND M&A CLIMATE PROCESS EXPERIENCE
FOR YOU? TEAM
Our global co-ordination team
ASIA-PACIFIC CONTINENTAL EUROPE UNITED KINGDOM UNITED STATES
Alastair Mordaunt Frank Röhling Michele Davis Aimen Mir
Partner, Partner, Partner, Partner,
Antitrust, Antitrust, Antitrust, Antitrust,
Competition Competition Competition Competition
and Trade and Trade and Trade and Trade
Alastair is a co-head of the Asia antitrust Frank is a partner in our antitrust, Michele is a partner in our London office. Aimen is a partner in our Washington office.
practice and also co-heads the firm’s foreign competition and trade, global investigations Her practice covers all aspects of EU and UK With more than a decade of experience
investment skills group. He specialises in and regulatory practices, based in Berlin. competition law and she specialises in merger shaping and implementing US national
international cross-border merger review and He also co-heads the firm’s foreign investment control and foreign investment reviews. security and investment policy, Aimen focuses
foreign investment-related work. His extensive skills group. Frank focuses on all aspects of Michele has particular experience of advising on the national security review of foreign
experience both at the regulator and as a competition matters, often advising on global clients in the regulated sectors, including investments conducted by the interagency
private practitioner across three continents merger and foreign investment reviews. energy and utilities, water and telecoms. Committee on Foreign Investment in the
gives him a deep understanding of working He has worked in several offices around the As well as London, she has also spent time United States (CFIUS), US technology transfer
effectively with regulators and devising network, in-house (Nestlé) and for on secondment in our Beijing, Brussels and and export control policy, and other national
successful strategies for his clients governmental agencies. Washington DC offices. security and foreign policy-based regulation
in the context of transactional work. of international business transactions.
He joined the firm after serving in several
leadership roles in CFIUS and the US
Department of the Treasury.
1 2 9WHAT DOES MEET OUR
NAVIGATING THE COMPLEX WORLDWIDE NAVIGATING MANAGING A SELECTION
AN UNCERTAIN FOREIGN
THE NEW REGULATORY REVIEW OF AN UNCERTAIN THE FIR OF OUR
CLIMATE MEAN INVESTMENT
NORMAL LANDSCAPE INBOUND M&A CLIMATE PROCESS EXPERIENCE
FOR YOU? TEAM
Key contacts by region
ASIA-PACIFIC CONTINENTAL EUROPE AND UNITED KINGDOM UNITED STATES
Alastair Mordaunt Kaori Yamada Frank Röhling Juliane Hilf Michele Davis Alex Potter Aimen Mir Christine Laciak
Partner, Partner, Partner, Partner, Partner, Partner, Partner, Special Counsel,
Hong Kong Tokyo Berlin Düsseldorf London London Washington DC Washington DC
Hazel Yin Ninette Dodoo Aude Guyon Jérôme Philippe Andreas von Bonin Rafique Bachour
Partner, Partner, Counsel, Partner, Partner, Partner,
Beijing Beijing Paris Paris/Brussels Brussels Brussels
Gian Luca Zampa Ermelinda Spinelli Stephan Denk Maria Dreher
Partner, Counsel, Partner, Counsel,
Rome Milan Vienna Vienna
Álvaro Iza Alexander Viktorov Paul van den Berg Winfred Knibbeler
Partner, Counsel, Partner, Partner,
Madrid Moscow Amsterdam Amsterdam
1 2 10WHAT DOES MEET OUR
NAVIGATING THE COMPLEX WORLDWIDE NAVIGATING MANAGING A SELECTION
AN UNCERTAIN FOREIGN
THE NEW REGULATORY REVIEW OF AN UNCERTAIN THE FIR OF OUR
CLIMATE MEAN INVESTMENT
NORMAL LANDSCAPE INBOUND M&A CLIMATE PROCESS EXPERIENCE
FOR YOU? TEAM
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and the offices and associated entities of the UK LLP practising under the Freshfields Bruckhaus Deringer name in a number of jurisdictions, and Freshfields Bruckhaus Deringer US LLP,
together referred to in the material as ‘Freshfields’. For regulatory information please refer to www.freshfields.com/support/legalnotice.
The UK LLP has offices or associated entities in Austria, Bahrain, Belgium, China, England, France, Germany, Hong Kong, Italy, Japan, the Netherlands, Russia, Singapore, Spain,
the United Arab Emirates and Vietnam. Freshfields Bruckhaus Deringer US LLP has offices in New York City, Silicon Valley and Washington DC.
This material is for general information only and is not intended to provide legal advice.
© Freshfields Bruckhaus Deringer LLP, September 2020, 08316You can also read
