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Global rules on foreign direct investment (FDI)
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
On January 1, 2021, major reforms were effected to the Australian foreign investment framework, which apply to any foreign investments subject to the Foreign Acquisitions and Takeovers Act 1975 (the Act) occurring on or after January 1, 2021.
Under the Act, particular “significant actions” must be notified to the Foreign Investment Review Board (FIRB) prior to the foreign investment action. Notifiable actions are those that acquire a direct interest in an Australian entity or Australian business that is an agribusiness; acquire a substantial interest in an Australian business; or acquire an interest in Australian land. Whether or not an action is deemed “significant” varies depending on the type of action and the particular circumstances. Specifically, significant actions require a (i) change of control for entities or an Australian business, and (ii) a certain monetary threshold to be met.
The reform introduced a new category of “notifiable national security actions”, where a $0 threshold is applied. “Notifiable national security actions” are actions that involve:
A “national security business” is broadly defined as one involved in or connected with a “critical infrastructure asset”, telecommunications, defense or a national intelligence community (of either Australia or a foreign country), or their supply chains.
The Treasurer is able to make divestment orders and unilaterally impose new conditions or vary existing conditions after FIRB approval has been granted. This power is subject to various requirements, including:
The Treasurer is now also granted the power to unilaterally extend the decision period by up to 90 calendar days.
Non-compliance with the FIRB regime can result in significant fines for both corporations and individuals, including up to 10 years imprisonment for individuals.
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Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
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