Update on Investment Screening – October/November 2021

EU – Launch of consultation platform on the EU-US Trade and Technology Council (TTC)

On 18 October 2021, following the inaugural meeting in September, the European Union and the United States set up an online consultation platform for stakeholders to involve in shaping the transatlantic cooperation under the TTC. The platform will allow stakeholders to share their views and make proposals on the work ahead. After a simple registration, everyone will be able to have their voice heard in the work of the ten working groups including the one on investment screening. Furthermore, interested parties will be provided with updates on the progress of the working groups.

If you are interested in sharing your views on the online consultation platform or in gaining further information, you may have a look at the press release of the Commission here. 

EU – CJEU rules intra-EU ad hoc arbitration agreements identical to BIT arbitration clauses to be incompatible with EU law

On 26 October 2021, the CJEU issued its ruling in Case C‑109/20 (Republic of Poland v PL Holdings) finding that ad hoc arbitration agreements between a Member State and an investor of another Member State, which are identical to an arbitration clause contained in a bilateral investment treaty, are invalid as they violate EU law. The CJEU essentially extended the reasoning in Case C-284/16 (Slovak Republic v Achmea) for bilateral investment treaties (BITs) to ad hoc arbitration agreements identical to clauses set out in the BITs.

It is the second time within a short period that the CJEU extends the reasoning of Case C-284/16 (Slovak Republic v Achmea) underlining that intra-EU investment arbitration violates EU law. If you are interested in more information about the ruling in Republic of Poland v PL Holdings, you can consult the entire ruling here.

Sweden – Final report of the inquiry of foreign direct investments proposes new law on investment screening

On 1 November 2021, the final report of the inquiry of foreign direct investments has been published. In addition to a study on foreign direct investment in Sweden, an analysis of the terms and factors of the EU-FDI Screening Regulation, the report also contains a proposal for a new law on foreign investment screening. According to the proposal, the new law would cover investments from third as well as from EU countries that may have implications on Swedish security interests. A mandatory notification is required for investments resulting in the investor acquiring 10 per cent or more of companies that carry out an activity in one of the sensitive sectors. The latter include essential services (important for the maintenance of important societal functions), activities related to the processing of raw materials, processing of personal data, emerging technologies and activities related to dual-use products. The Inspectorate of Strategic Products would be responsible for the screening of foreign direct investments and decide whether the transaction may be carried out or not. It may also approve the investment subject to conditions. Any breach of the obligations under the new law would be subject to penalty fees.

If you want to know more about the report and the proposal for an investment screening law, you may consult them in Swedish here.

UK – Further guidance on the obligations under the National Security and Investment Act published

On 15 November 2021, the government published further guidance to clarify the obligations of businesses under the National Security and Investment Act. This shall help businesses in particular to understand whether their investments are subject to mandatory notification and what they need to expect going through the screening process (i.e., information requests).

For further information on the guidance under the National Security and Investment Act as well as on the act itself, you may consult the press release here.