By Deepakshi Aeran
ABSTRACT
Covid-19 has locked up the world over. For such a deadly virus, not a single nation is safe. This condition is not the first time in the world. Earlier world encountered this form of deadly virus known as “influenza / Spanish flu” in 1918. After battling and coming out of that situation after 100 years, here stands a new challenge in front of the world. The question is that how this crisis has turned out for various nations. Covid-19 has hit the nations hard irrespective of it being a developed or developing ones; in every aspect possible. Stock markets have plummeted and many companies have to struggle with the economic damage. There is a great deal of uncertainty in global chains.
This article aims to bring light on how the pandemic has affected the Foreign Direct Investments and how governments are handling the havoc to come out of it with minimal damage, and may be taking some advantages for future.
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INTRODUCTION
Over the years, every nation government is altering their policies with respect to Foreign Direct investment[1] to improve their economy and to enforce condition on their achievement. The Emerging trend of increasing Foreign Direct Investment is too focused on the national safety concerns, for example last year UK government involvement was in the future contract between Advent International and Cobham plc.
In recent years, countries such as the United States have interfered in proposed foreign direct investment (FDI) transactions to resolve national security issues, with a particular focus on China. The Covid-19 pandemic not only impacted on healthcare and critical infrastructure from an FDI viewpoint, but also undermined companies in other sectors and made them easy targets for creditors and opportunistic buyers[2].
Furthermore, due to Covid -19 many countries have amended their foreign direct investment polices to control or to protect their economy. Companies those who are interested in multinational business they have to be aware of these new polices
Similarly, the article further deals with how various countries are working out with their policies and guidelines, like EC, UK, AUSTRALIA, INDIA etc.
EUROPEAN UNION
Just at beginning of April 2020, Germany adopted legislation that would allow regulatory authorities to examine whether the acquisition would lead to a likely disorder of public order or security (instead of a real threat to public order or security). While this amendment was recommended prior to the spread of Covid-19, Germany also proposes to raise the number of sectors in which FDI will require a primary focus, a move that appears to be driven by the pandemic.
Spain[3] has also formally introduced a provision for prior governmental approval for:
- Non-EU investors purchasing 10% or more of or gaining management rights in or controlling Spanish companies engaged in sectors such as telecommunications, data processing or storage, electoral or financial infrastructure and sensitive facilities, vital technologies and dual-use products (such as robots and semiconductors, as well as biotechnology) supply of key contributors (such as raw materials and food safety) and sectors with access to or ability to monitor sensitive information;
- Foreign direct investment where the investor is owned explicitly or implicitly by the government of another country.
Italy – one of the worst impacted by Covid-19 – has also extended the scope of sectors in which FDI would require a prior government inspection.
Prior to the pandemic, there was a growing propensity for the Italian Government to use its powers to review the FDI. However, on 7 April 2020, the Italian Government dramatically expanded its authority, both to new sectors and to sectors already subject to the FDI rule.
Specially, prior approval is now needed for acquisitions of 10% or more by non-EU-controlled investors in new sectors – banking, insurance, food and health. The inclusion of health (and likely insurance) as a strategic field seems to be a necessary reaction to the pandemic. It is interesting that these tougher guidelines have also been applied to EU-controlled investors by the end of the year.
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The French FDI regime has already been greatly improved by introducing the pre-planned changes that followed the pandemic. These wholesale amendments took effect on 1 April 2020 and, in short, expanded the spectrum of investment protected by the scheme, increased the list of strategic sectors to which the scheme applied, required substantive details to be given for approval, and increased penalties for non-compliance.
However, it was announced on 28 April 2020 that France would reduce the control limit for acquisition of non-European investors’ share capital of strategic French listed companies to 10% by the end of the year (against 25% at present).
This represents a major step-change from the pre-1st April 2020 regime by further restricting the control threshold, which was reduced to 25% just a few days earlier by the pre-planned reforms previously mentioned.
The whole reform comes in the sense of the French Government’s declaration of its intention to shield national companies from the danger of overseas takeovers during the COVID-19 crisis. Moreover, the French government has recently highlighted its comprehensive use of FDI powers in barring the acquisition by the US Teledyne of the French company Photonis (which develops applications for military use) – although the decision was not linked to COVID-19, it nevertheless represents a significant milestone.
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UNITED KINGDOM
The National Security and Investment Bill was released in the Queen’s Speech on 19 December 2019. The latest legislation follows the introduction of an EU system that would replace the current powers of the UK Government to deal with mergers and acquisitions under the Enterprise Act 2002.
The UK government will have power to “scrutinise investments and consider the risks that can arise from hostile parties acquiring ownership of, or control over, businesses or other entities and assets that have national security implications.”[4]
New powers apply to transactions in any industry, irrespective of the profitability or market share of the parties. The United Kingdom Government’s proposals are currently lacking in detail, but appear to build on those set out in its 2018 White Paper, which was included in the Advent / Cobham Agreement Warning. The three main components of the proposed law are as follows:
- A notification system allowing businesses to flag deals with potential security concerns to the government for quick, efficient screening.
- Powers to mitigate risks to national security – by adding conditions to a transaction or blocking as a last resort, plus sanctions for non-compliance with the regime.
- A safeguarding mechanism for parties to appeal where necessary.[5]
AUSTRALIA
Given that Europe was declared to be the epicentre of the Covid-19 pandemic in March, the above-mentioned steps may have been anticipated. However, countries in other continents have also taken serious measures – for example, Australia has temporarily amended its FDI legislation with effect from 29 March 2020 in the national interest to deal with the economic implications of the spread of Covid-19, Following which all potential foreign investments subject to the Foreign Acquisitions and Takeover Act 1975[6], where the other requirements for notification are met, would now require prior regulatory approval, irrespective of size or existence of the foreign investor.
A number of temporary but substantial changes to the Australian FDI system were announced on 29 March 2020. The Australian Government described these steps as “important to safeguard national interest as the outbreak of coronavirus exerts intense pressure on the Australian economy and businesses” and thus indirectly recognised the possibility of taking over the troubled Australian economy. These adjustments effectively make all FDI subject to review for the duration of the pandemic by reducing the financial criterion for review in terms of target valuation to AUS$0.
This represents a significant constriction of the system, especially when combined with the already relatively low cut-off for review (20 per cent or lower in some cases). Moreover, this is a particularly significant change for investors from countries that have free trade agreements with Australia (such as the USA) – those investors may initially benefit from a criterion of approx. AUS$1.2 billion for investments in some (non-sensitive) industries.
The Australian reforms are thus broadly extended to all international investors (to the possible advantage of domestic investors) and are in contrast to the more focused approach adopted in Spain, France and India.
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THE UNITED STATES OF AMERICA
In response to COVID-19, the United States Government has not proposed any new restrictions on foreign investment in U.S. companies or any amendments to the authority of the Committee on Foreign Investment in the United States (CFIUS), an interagency government committee approved to investigate such transactions involving foreign persons.
However, as a consequence of defaults on loans, debt restructuring and investment opportunities, the pandemic may put those forms of lending transactions into the public eye of the CFIUS review that would otherwise normally escape scrutiny.
In addition, international investors seeking opportunities in this environment should be conscious that investments made under the aegis of lending or funding transactions that still be subject to transactions or investments protected by the CFIUS assessment[7].
INDIA
The trajectory of history is always influenced by unpredictable shocks, and the outbreak of COVID-19 is one such epoch-defining occurrence that restores international trade order and global supply chains. In the framework of multinational firms, in particular Multi-National Corporations (MNCs), trying to hedge potential output shocks, India has emerged as a promising and significant alternative link in the current global supply chains. The larger geopolitical scenario, India ‘s liberal FDI policy, the government’s sectoral and institutional reforms, both at central and state level, and India ‘s wide and greater than the mean consumer market are among the many factors that underscore India ‘s attractiveness as an FDI destination.
In India, the development of the manufacturing sector has been largely hampered by the legacy of property, labour and logistics, the most critical factors of development. The Government is building a land pool of about 461,589 hectares for new projects, dramatically reducing transaction costs for investors. India is also pursuing wide-ranging reforms on labor issues. Reforms in these crucial factors of production have opened up several opportunities for foreign investors to invest in India by sending out positive signals.
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Creating a strong base is a sine qua non for the growth and stability of the manufacturing sector, and investment in the sector needs to expand significantly to the maximum. A good reward system is known to be effective in channelling new investments. Recently announced production-linked incentive schemes for cell phone manufacturing, pharmaceuticals and medical devices have created a high level of interest among investors attempting to steal opportunities in these sectors. These schemes were developed with the intention of creating scale and size, with vertically integrated units, in the Indian manufacturing sector. Similar, initiatives for other sectors of strength are underway, and once unveiled, these schemes would further improve India ‘s position as a feasible alternative to China[8].
India is among the most liberal FDI policies in the world, where foreign investment of up to 100 per cent is allowed on an automatic basis in most sectors of the economy.
Foreign investment in only a few economic sectors is subject to limits on approval conditions or foreign investment ceilings. The number of sectors that are not open to FDI is small, and there are only a few industries, such as agriculture, where foreign investment is only approved for a restricted set of activities.
In addition, in the recently launched ‘Atma Nirbhar’ scheme[9], the honourable Finance minister launched a range of FDI related reforms. A declaration of an rise of up to 74% in FDI investment in the defence manufacturing sector is reflective of the government’s positive intention in the sense of FDI.
Over the period, the liberal FDI policy framework has helped India reap benefits of a greater inflow of foreign investment, which has risen faster than the country’s GDP growth rate. India’s GDP was $479 billion in 2001, and it is now $2.72 trillion. Around the same time, FDI inflows in India increased from $4.03 billion to $73 billion[10].
It is said that opportunities lie in adversity India is trying to leverage its plan to drive economic growth with a powerful manufacturing engine fuelled by rewards to attract FDI, and a wide domestic market. Moreover, with a renewed drive for changes, India is signalling pathways to the world that we welcome businesses.
CONCLUSION
The changes and developments made by various countries highlight the need for investors to carefully consider foreign investment. There may be many more changes and additions to the FDI policies to come and what restrictions we see is might be just the tip of an iceberg. Countries are posing restrictions and along with it trying to protect their economic and national interests as the virus is continuously spreading.
FDI is a major part of every economy and Covid-19 has really shackled the economies to the core. It is important for the nations to protect the domestic markets before focusing on foreign investments. And therefore, it is possible that other countries also impose barriers to its FDI, may be stricter, in long term in order to navigate through the storm.
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[1] OECD (2008), Benchmark Definition of Foreign Direct Investment, 4th edition, www.oecd.org/investment/fdibenchmarkdefinition.htm
[2] https://taxguru.in/finance/corona-impact-indian-economy.html
[3]Royal Decree-Law 8/2020, 17 March 2020: https://www.lexology.com/library/detail.aspx?g=177aae39-e8f4-4916-912c-5d5f758f1367
[4] Available at, https://www.lexology.com/library/detail.aspx?g=b6dbafd1-2b1b-4610-9260-ebf535b834a6
[5] Available at, https://www.mayerbrown.com/en/perspectives-events/publications/2019/11/uk-government-remains-committed-to-adopting-new-national-security-review-legislation
[6] Available at ministers.treasury.gov.au.
[7] Available at, https://www.reedsmith.com/en/topics/coronavirus-covid-19-resource-center-need-to-know-business-legal-issues
[8] Available at, https://www.mondaq.com/india/financing/923078/covid-19-impact-government-of-indiaamends-foreign-direct-investment-policy-to-regulate-chinese-investments-into-india
[9] Available at, https://www.prsindia.org/report-summaries/summary-announcements-aatma-nirbhar-bharat-abhiyaan
[10] Available at, https://www.news18.com/news/opinion/india-to-emerge-as-favourable-fdi-destination-post-coronavirus-2732193.html