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  • 1.

    What, in general terms, are your government’s policies and practices regarding oversight and review of foreign investment?

  • 2.

    What are the main laws that directly or indirectly regulate acquisitions and investments by foreign nationals and investors on the basis of the national interest?

  • 3.

    Outline the scope of application of these laws, including what kinds of investments or transactions are caught. Are minority interests caught? Are there specific sectors over which the authorities have a power to oversee and prevent foreign investment or sectors that are the subject of special scrutiny?

  • 4.

    How is a foreign investor or foreign investment defined in the applicable law?

  • 5.

    Are there special rules for investments made by foreign state-owned enterprises (SOEs) and sovereign wealth funds (SWFs)? How is an SOE or SWF defined?

  • 6.

    Which officials or bodies are the competent authorities to review mergers or acquisitions on national interest grounds?

  • 7.

    Notwithstanding the above-mentioned laws and policies, how much discretion do the authorities have to approve or reject transactions on national interest grounds?

  • 8.

    What jurisdictional thresholds trigger a review or application of the law? Is filing mandatory?

  • 9.

    What is the procedure for obtaining national interest clearance of transactions and other investments? Are there any filing fees?

  • 10.

    Which party is responsible for securing approval?

  • 11.

    How long does the review process take? What factors determine the timelines for clearance? Are there any exemptions, or any expedited or ‘fast-track’ options?

  • 12.

    Must the review be completed before the parties can close the transaction? What are the penalties or other consequences if the parties implement the transaction before clearance is obtained?

  • 13.

    Can formal or informal guidance from the authorities be obtained prior to a filing being made? Do the authorities expect pre-filing dialogue or meetings?

  • 14.

    When are government relations, public affairs, lobbying or other specialists made use of to support the review of a transaction by the authorities? Are there any other lawful informal procedures to facilitate or expedite clearance?

  • 15.

    What post-closing or retroactive powers do the authorities have to review, challenge or unwind a transaction that was not otherwise subject to pre-merger review?

  • 16.

    What is the substantive test for clearance and on whom is the onus for showing the transaction does or does not satisfy the test?

  • 17.

    To what extent will the authorities consult or cooperate with officials in other countries during the substantive assessment?

  • 18.

    What other parties may become involved in the review process? What rights and standing do complainants have?

  • 19.

    What powers do the authorities have to prohibit or otherwise interfere with a transaction?

  • 20.

    Is it possible to remedy or avoid the authorities’ objections to a transaction, for example, by giving undertakings or agreeing to other mitigation arrangements?

  • 21.

    Can a negative decision be challenged or appealed?

  • 22.

    What safeguards are in place to protect confidential information from being disseminated and what are the consequences if confidentiality is breached?

  • 23.

    Discuss in detail up to three recent cases that reflect how the foregoing laws and policies were applied and the outcome, including, where possible, examples of rejections.

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Established in 1988, Gilbert + Tobin is a leading independent corporate law firm and a key player in the Australian legal market. From our Sydney, Melbourne and Perth offices, we provide innovative, relevant and commercial legal solutions to major corporate and government clients across Australia and internationally, particularly in the Asia-Pacific region.

View more information about Gilbert + Tobin


Sydney
Level 35, Tower Two, International Towers
200 Barangaroo Avenue
Barangaroo
New South Wales 2000
Sydney
Australia
T: +61 2 9263 4000
F: +61 2 9263 4111


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