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United Kingdom: New UK “CFIUS” regime kicks in – commencement of National Security and Investment Act

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On 4 January 2022, the new UK foreign investment review regime under the National Security and Investment Act (“NSI Act“) came into force, completing the overhaul of the UK’s foreign investment rules and commencing operation of a standalone foreign investment screening regime for the first time in the UK.

The new rules require businesses and investors to submit mandatory notifications for certain acquisitions of and investments in companies active in 17 key sectors of the economy. They also grant the UK Government extensive powers to investigate and impose conditions on a wide range of transactions (including both corporate investments and asset transactions) on national security grounds.

Here are our five key takeaways from the NSI Act:

  1. From 4 January 2022, a mandatory notification must be made for acquisitions and investments in companies that carry out activities in 17 key sectors of the UK economy. It will also be possible to submit voluntary notifications outside these sectors and for a broader range of transactions. Notifications will be submitted to the UK Government’s recently established Investment Security Unit via a new online portal.
  2. From 4 January, the UK Government will also be able to “call in” transactions for in-depth review where it suspects they give rise to a national security risk, including in respect of transactions that closed since 12 November 2020. At the end of an assessment period, the UK Government will either clear, impose conditions on, or unwind or block an acquisition.
  3. The jurisdictional criteria in the NSI Act are extremely broad, and the new regime catches the acquisition of intangible assets such as IP, certain minority investments, non-UK transactions and even internal corporate reorganizations.
  4. Businesses will need to self-assess whether they must submit a mandatory filing. Non-compliance with the mandatory regime risks significant criminal and civil sanctions, while mandatorily notifiable investments that complete without being cleared under the NSI Act will be void.
  5. Acquirers, sellers and parties providing finance should carefully assess the risk profile of their transactions and consider the possibility of review and any potential remedies or conditions that may be imposed, particularly where transactions involve: (1) businesses that supply or support defence or security related services, critical infrastructure, or strategic or emerging technologies, (2) buyers with higher risk characteristics, or (3) acquisitions providing a high degree of control over, or transfer of, a target’s sensitive activities.

For further details on the new NSI Act, and how it may affect your business, please read our full client alert here.

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Author

Samantha Mobley is a senior partner in the Competition, Trade & Foreign Investment Practice of Baker & McKenzie's London office and a member of the London office Management Committee. She is a former chair of Baker McKenzie's Global Antitrust and Competition Group, a team of over 300 competition and antitrust specialists worldwide. Samantha is a member of Baker McKenzie's India Steering Committee.

Author

Sunny Mann is a Partner in Baker McKenzie's London office and co-leads the UK Compliance and Investigations Practice, as well as the UK International Commercial and Trade Practice. Both these practices are ranked Tier 1 by Legal 500 UK. He has also worked in our Firm's Washington DC, New York and Sydney offices. Sunny also advises many clients on risk matters in India. He advises clients (including numerous FTSE 100 and Fortune 100 businesses) on compliance and investigations with respect to export controls, trade sanctions and anti-bribery rules. The Legal 500 ranked Sunny as a “Leading Practitioner", and as "excellent", with a ‘calm’ and "very practical" approach. The India Business Law Journal also noted that Sunny is "excellent and has deep experience in India". He is a Visiting Professor at the College of Europe, the leading institute for post-graduate European studies, where he teaches a course on Corporate Compliance.

Author

Tristan is a Partner at Baker McKenzie, advising clients on sanctions and export controls, anti-bribery and corruption and other corporate compliance risks. He provides compliance advice to clients across these risk areas, including in the context of complex cross-border transactions, as well as supporting clients in the management of related internal and external investigations. Tristan has advised clients in respect of investigations by the Serious Fraud Office, the Office of Financial Sanctions Implementation (OFSI), the National Crime Agency, HM Revenue & Customs, and the Competition and Markets Authority, as well as in related investigations by overseas agencies, including the US Department of Justice and the Office of Foreign Assets Control (OFAC). He also counsels clients in the design and implementation of their corporate compliance programmes.
Tristan is the UK head of Baker McKenzie’s market leading international trade practice, which is ranked as Tier 1 by Legal 500 and Band 1 by Chambers UK. He is personally ranked as a Leading Individual for ‘Trade, WTO, Anti-dumping and Customs’ by Legal 500 and for ‘Sanctions’ by Chambers UK. He is the EMEA Chair of the firm's Investigations, Compliance & Ethics practice.
Tristan also advises clients – including multinationals, private equity, SOEs and SWFs – on the impact of national security policy and regulation on their business and transactional strategy, and has supported clients on numerous filings under the UK National Security and Investment Act, as well as coordinating strategy and national security filings before multiple other European and non-European agencies.

Author

Zeyang Gao is an associate in Baker McKenzie's Competition, Trade and Foreign Investment Department in London. Zeyang trained at Baker McKenzie and qualified in September 2020. Zeyang has also worked on secondment in the EU Competition & Regulatory Affairs practice of Baker McKenzie's Brussels office.

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