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Global rules on foreign direct investment (FDI)
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
United States | Publication | December 21, 2021
On Friday evening, December 17, the Sixth Circuit Court of Appeal, in a 2-1 decision, dissolved the Fifth Circuit's earlier stay of the federal OSHA “vaccine-or-test” Emergency Temporary Standard (ETS).
At bottom, Judge Jane Stranch (authoring the principal opinion) found that OSHA had acted within its Congressionally-conveyed authority, had a proper prima facie basis for adopting the ETS as it did, and satisfied the regulatory prerequisites for an ETS. Moreover, the Court held the Commerce Clause and other cited constitutional doctrines were not violated.
The Court placed extraordinary emphasis on OSHA's 153-page preamble to the ETS as laying an adequate foundation to justify its existence (akin in our view to "Chevron deference" to the presumed expertise of an administrative agency).
The dissent took great exception to these conclusions and found compelling the Fifth Circuit's stated reasons for imposing the stay.
In dissolving the stay, the Sixth Circuit said nothing about the deadlines originally articulated in the ETS or how employers should now proceed to implement its requirements. On Saturday, December 18, OSHA issued a public statement, noting, “[t]o account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
Petitions for review of the Sixth Circuit’s decision have already been filed in the US Supreme Court. More are expected. Justice Kavanaugh, who has jurisdiction over the Sixth Circuit, has requested the government to respond by December 30 to petitioners’ requests to reinstitute the stay. Justice Kavanaugh has authority to grant petitioners’ applications and stay the ETS pending review by the entire Court. He could also refer the matter to the full Court for a decision on the stay.
It is now predicted that some action by SCOTUS will be taken during the first week in January in order to provide some level of predictability to the affected employer community.
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Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
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On February 2, 2024, the Belgian Presidency of the Council of the European Union confirmed that the Committee of Permanent Representatives had signed the Artificial Intelligence (AI) Regulation, referred to as the AI Act. Approval by the EU Parliament followed on 13 March 2024, and the AI Act is likely to appear in the EU’s Official Journal around May 2024. The AI Act aims to establish a stringent legal framework governing the development, marketing, and utilisation of artificial intelligence within the region, thereby marking a significant advancement in the regulation of this burgeoning domain.
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The EU’s Artificial Intelligence Regulation, commonly referred to as the AI Act, is expected to come into force during the summer of 2024 (the AI Act). The AI Act will be the first comprehensive legal framework for the use and development of artificial intelligence (AI), and is intended to ensure that AI systems developed and used in the EU are safe, transparent, traceable, non-discriminatory and environmentally friendly.
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