Authors: Steffen Hindelang (Uppsala University; CELIS Institute), Helene Schramm (CELIS Institute) and Liam McGrath (CELIS Institute) Most international rules governing foreign investment still breathe the air of the liberal, if not neoliberal era in which they were created. They place particular emphasis on the promotion and protection of foreign-owned property ...

Authors: Steffen Hindelang (Uppsala University; CELIS Institute), Helene Schramm (CELIS Institute) and Liam McGrath (CELIS Institute)    Introduction  As a starting point, a State enjoys broad authority to regulate the admission of foreign investment into its territory, including by reviewing, conditioning, or prohibiting a contemplated transaction before it is implemented. This can be motivated ...

Authors: Bart Wasiak (Arnold & Porter Kaye Scholer (UK) LLP) and Naina Gupta (Arnold & Porter Kaye Scholer (UK) LLP)    Introduction  Decisions concerning the screening of foreign direct investments (“FDI”) are often taken at the post-establishment phase—after the foreign investor already has made an investment in the host State—but may have an effect on the validity of ...

Author: Dr. Joshua Paine (University of Bristol)    Introduction  This post considers how States can design international investment agreements (“IIAs”) to prevent foreign investment screening measures from being subject to successful challenge under such treaties. It will demonstrate that there are a wide variety of strategies for insulating investment screening measures ...

Authors: Dr. Roland M. Stein (BLOMSTEIN) and Henriette Wohlschläger (BLOMSTEIN)     Introduction  In light of the prevailing tense global geopolitical climate, investments are no longer regarded exclusively as catalysts for growth and innovation, but instead as potential sources of security risk. As a key instrument for safeguarding national security as well as economic and technological sovereignty, ...

Authors: Xueji Su (University of Macau) and Alessandro Zocchia (University of Macau)    Introduction: The Pocket Veto Phenomenon  Investment screening involves a procedurally layered process involving notification, jurisdictional assessment, inter-agency consultation, risk analysis, possible mitigation negotiations, and final clearance or prohibition. In this setting, time is not a neutral variable. Delay can operate with the same practical ...

Author: Dr. Bálint Kovács (University of Szeged)    Introduction  With the widespread adoption of investment screening by Western states, there is increasing evidence as to the ways in which this tool of economic security is implemented. Investment screening accommodates an important exception to open market principles: the national security imperative. The ...

Author: Jonas Hallberg I. Legal Standards and Evidentiary Threshold Security assessments of a prospective investment necessarily involve an assessment of future contingencies; the evidentiary threshold cannot therefore be set unduly high.  The deciding body must collect classified and secret information from its security agencies. Normally this is done in the ...

Author: Dorieke Overduin (Sovereign Arbitration Advisors)    Introduction  In order to assess risks posed by foreign direct investments to national security, authorities must understand not only the target business, but also the investor, its ownership structure, sources of financing, governance arrangements, and potential foreign state involvement. As a result, investment screening procedures impose ...

Authors: Steffen Hindelang (CELIS Institute; Uppsala University), Helene Schramm (CELIS Institute) and Liam McGrath (CELIS Institute) Introduction  Foreign investment screening regimes are built on discretion. Screening decisions often turn on assessments of open-ended lists of risks to ‘national security’ – an inherently ambiguous concept (J Benton Heath 2022, p. 295), which is constantly evolving as States adjust to new threats ...