Global Merger Control and Foreign Direct Investment Considerations Associated With Cross-Border Transactions

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Recent developments regarding global competition enforcement and foreign direct investment, or FDI, review regimes have created uncertainty for cross-border transactions. Specifically, global merger control authorities have become increasingly aggressive in “calling in” transactions under so called “voluntary” regimes and a number of FDI review regimes recently have been established or expanded. These developments have resulted in more complicated due diligence processes, global merger control and FDI filing analyses, and contract negotiations associated with cross-border transactions. To ensure that cross-border transactions can be successfully completed, this added complexity demands the exercise of judgment and close coordination between the parties and their respective antitrust and FDI teams. This article summarizes the recent developments regarding the global merger control environment and global FDI review regimes, highlights the practical implications of these developments for parties involved in cross-border transactions, and discusses the overlapping considerations created by the global merger control and global FDI review regime analyses.