What are the latest developments?

On 20 July 2021, the UK Government announced that the National Security and Investment Act 2021 (“NSI Act” or “Act“) will enter into full force on 4 January 2022. To help businesses and investors prepare for the commencement of the regime, the Government also published alongside this announcement a series of further guidance notes and materials (see here).

As mentioned in our previous blog posts on this topic (see here, here and here), the NSI Act, initially introduced before the UK Parliament on 11 November 2020, will establish a new standalone UK foreign investment regime and significantly expand the Government’s powers to screen investments on national security grounds. The Act was enacted on 29 April 2021, however only certain miscellaneous provisions were brought into force from that point, and the substantive regime still required further secondary and implementing legislation to be operative. The Government’s announcement effectively confirms that these will be in place, and the regime will commence, on 4 January 2022.

The key features of the regime are as follows:

  • Broad jurisdictional nexus criteria to catch investments, including, for certain investments into non-UK businesses;
  • Mandatory notification for qualifying investments in 17 sensitive sectors (which will be void if they close prior to clearance), with voluntary notification also potentially advisable for certain investments outside these sectors.  The mandatory filing requirement is triggered both for UK and non-UK investors alike;
  • A power for the UK Government to “call in” for review qualifying investments (regarding both deals notified to it and deals in the wider economy that do not need to be notified) that give rise to national security concerns;
  • Investments that are reviewed will either be cleared, subjected to conditions, or unwound or blocked; and
  • Possibility of significant criminal and civil sanctions for non-compliance.

The Act received minimal changes in the UK Parliamentary process, and enjoyed broad cross-party support. The only significant amendment in this process was the removal of a separate 15% notifiable event threshold from the Act’s jurisdictional provisions. This removal means that, once the regime commences, the lowest threshold beyond which transactions in the 17 sensitive sectors will be mandatorily notifiable will be 25% shares or voting rights for an acquirer (or the ability for an investor to secure or block a class of resolution).

The Government has been keen to stress that the UK remains open for foreign investment, and our experience to date of dealing with the Investment Security Unit – the UK Government body responsible for administering the regime – has been largely positive. However, the NSI Act remains one of the broadest and most aggressive investment review regimes globally. While its intervention and assessment practice under the regime remains to be seen, it is to be hoped that the UK Government is true to its word in calling in for review only a very small proportion of deals genuinely harmful to national security, and speedily clearing all other notified investments.

How we can help

Baker McKenzie’s Foreign Investment Review team has substantial expertise in liaising with UK Government stakeholders and advising a range of clients on all aspects of the NSI Act. Stay tuned to our Foreign Investment and National Security Blog for the latest updates and developments, and please do contact our team below directly if you have any questions on the implications of the NSI Act for your next deal. We will also be producing a client alert on the latest developments regarding the Act – if you are interested in receiving this please contact Alex Phillips to be added to our mailing list.

Finally, as part of our 2021 Virtual Annual Compliance Conference, Baker McKenzie is hosting two webinars on foreign investment rules. The first will address the NSI Act in detail, while the second will cover global developments in foreign investment restrictions. Both webinars will be held on Thursday 7 October 2021. To register, please click here and select sessions 17 and 18 – we look forward to having you there!

Author

Samantha Mobley is a partner in the EU, Competition & Trade Practice of Baker & McKenzie’s London office and a member of the London office Management Committee. She headed Baker McKenzie’s Global Antitrust and Competition Group, a team of over 300 competition and antitrust specialists worldwide for six years. Samantha has significant experience of advising on the implications of foreign direct investment rules for cross-border transactions. She has advised a number of companies on the implication of the reduced UK national security thresholds, as well as coordinating the global foreign investment review aspects of a proposed $12 billion joint venture between a FTSE100 company and a Fortune 500 corporate. Samantha is a Who’s Who Legal 2020 Leading Individual for Foreign Investment Review.

Author

Sunny Mann is a Partner and leads the EMEA and UK International Trade team, ranked Tier 1 by Legal 500. His practice includes a focus on national security, foreign investment, export controls and trade sanctions matters. He has worked on a number of foreign investment review cases, including obtaining clearance for a high profile acquisition triggering potential defence and national security concerns, one of the very few cases to go through a full UK statutory review. In the Legal 500, Sunny is ranked as a "Leading Practitioner".

Author

Alexander is an Associate in Baker McKenzie’s London office in the EU, Competition & Trade Practice. He has experience advising private equity and industry clients on foreign investment rules in a range of sectors (including consumer goods, media and technology).

Author

Ross Evans is a member of the EU, Competition and Trade team in London, who specialises in advising companies in the technology, telecoms, engineering, and fintech sectors on how to manage a rapidly changing landscape of competition/antitrust, trade law, and national security and investment regimes. He regularly advises clients in relation to UK public interest intervention rules and national security and investment issues, and on global foreign investment review strategy, leveraging his expertise in trade and export control laws and competition merger control regimes, and an in-depth understanding of emerging technologies.