Pre-Conference Workshop
7 June 2023
Workshop A
08:00–09:30 (Registration Opens 07:30)
Exclusive In-House Executive Primer on Foreign Direct Investment: What Every Company Needs to Know about Doing Business in Europe
microphone-alt Jason Hewitt, European Counsel, Skadden, Arps, Slate, Meagher & Flom (UK) LLP, United Kingdom
No deal goes through without an FDI review, and many deals will require filing in multiple jurisdictions. During this in-house counsel primer, delegates will gain an introduction to the FDI process and insights into the most challenging transactions. — Inhouse representatives only!
• An overview of European Commission regulations authorities
• Crash course in how regimes differ across member states
• What types of transactions will trigger an FDI filing
• Examining the challenges when navigating a multi-jurisdiction filing
• Disclosing sensitive personal information as part of a FDI filing
Continuing Education Legal Credits
Day One – Main Conference
7 June 2023
9:00 Registration Opens
9:45
Co-Chairs’ Opening Remarks
microphone-alt Dr. Roland M. Stein, Partner, Blomstein, Germany
Michele Davis, Partner, Freshfields Bruckhaus Deringer LLP, United Kingdom
10:00
Interview on Foreign Subsidies Regulation
microphone-alt Jani Ringborg, Member of the Legal Service, European Commission
10:30
Anticipating the Impact of Foreign Subsidies Regulation: How New Investigation and Enforcement Tools Could Block and Dissolve FDI Transactions
microphone-alt Christopher Graf, Partner, Dentons LLP, United Kingdom
Hans-Jörg Niemeyer, Partner, Hengeler Mueller, Belgium
The European Commission is implementing its Foreign Subsidies Regulation (FSR) as an enforcement tool to intervene in transactions that distort the competition market, effective July 2023. Companies operating in the EU, that have received direct or indirect financial contribution from a non-EU country will be subject to an investigation, and particularly companies involved in M&A transactions.
EARN CLE CREDITS
Accreditation will be sought in those jurisdictions requested by the registrants which have continuing education requirements. This course is identified as nontransitional for the purposes of CLE accreditation.
ACI certifies this activity has been approved for CLE credit by the State Bar of California.
ACI certifies this activity has been approved for CLE credit by the New York State Continuing Legal Education Board.
ACI has a dedicated team which processes requests for state approval. Please note that event accreditation varies by state and ACI will make every effort to process your request.
Questions about CLE credits for your state? Visit our online CLE Help Center at www.americanconference.com/accreditation/cle/
• Exploring what types of M&A transactions will be investigated by the Commission
• How will the Commission assess if the businesses operating in the EU have been backed by foreign subsidies
• How will the Commission evaluate whether there has been distorted competition in the internal market
• Examining how the Commission can impose redressive measures, block deals / public awards and even dissolve concentrations already concluded
11:30 Networking Break
Defense, Aerospace & National Security: Legal, Regulatory, and Compliance Professionals
The Hurdles to Investing in Emerging Technology Sectors: Multi-Jurisdictional Perspectives on the Newest National Security Threats- from Semi-Conductors to Artificial Intelligence
microphone-alt Michael S. Considine, Deputy Assistant Secretary, Office of Foreign Investment and National Security, Office of International Science and Technology Collaboration, Office of Research, Technology, and Economic Security, U.S. Department of Energy, United States
Marcus Clark, Partner, Johnson Winter Slattery, Australia
Antonia Tzinova, Partner, Holland & Knight LLP, United States
This session will examine how different member states evaluate the national security risk of an FDI involving emerging and critical technologies and materials. Delegate will hear how these transactions may be handled differently, how timelines will be affected, and how companies can invest in emerging technology sectors.
• Military applications
• Cyber Security, Data security and breach
• Bio Tech
12:30
The Latest Mitigations Strategies Address Emerging FDI Challenges
microphone-alt Steven Klemencic, Managing Director, Berkeley Research Group, United States
Julie A. Soloway, Partner, Blake, Cassels & Graydon LLP, Canada
Dr. Christian von Wistinghausen, Partner, ADVANT Beiten, Germany
• Examining how thresholds and requirements might vary depending on the size of the stake acquired, the assets and target revenues
• Structuring cross-border M&A transactions
• Managing the implications of tight deadlines: Advisability of pre-notification contacts with relevant authorities
• Which regulations come into play during the transaction and after?
• Key insurance considerations affecting transactions
• Special considerations for preparing transaction documents when risk is being transferred from one party to another
13:15 Networking Luncheon
14:30 INTERACTIVE DISCUSSION GROUPS
Remedies in Practice, Nightmare Scenarios and Strategic Solutions
microphone-alt Michele Davis, Partner, Freshfields Bruckhaus Deringer LLP, United Kingdom
Pablo Figueroa, Partner, Pérez-Llorca Law Firm, Spain
Veronica Roberts, Partner, Herbert Smith Freehills LLP, United Kingdom
Your opportunity to drive the conversation! During this interactive session, delegates are invited to join a small group discussion table of their choice to unpack real-world instances of how remedies are being applied to transactions, from a variety of perspectives. Delegates are encouraged to bring their experiences to the table for a facilitate constructive conversation. Delegates will have the option to rotate tables at 20-minute intervals.
TABLE ONE: Anti-trust remedies versus FDI remedies
• Assessing a merger from the anti-trust perspective compared to assessing from an FDI perspective
TABLE TWO: Remedies Across Jurisdictions
• What types of remedies are being imposed, in which jurisdictions and what is the justification
TABLE THREE: Foreign Subsidies
• What types of remedies will be used, and how will they differ from anti-trust and FDI remedies
15:45 Networking Break
16:00
Case Studies: Surprising Lessons from the Most Significant, Recent Transactions — and What They Reveal for Future Deals
microphone-alt Dr. Roland M. Stein, Partner, Blomstein, Germany
Ivan A. Schlager, P.C., Partner, Kirkland & Ellis, United States
• Exploring the Italy Prime Minister’s use of the “Golden Power” to stop Rosatom’s attempted acquisition of Faber Industrie (2022)
• Italian Supreme Court vetoes Syngenta’s (ChemChina) attempted acquisition of Verisem
• UK government blocks £63 million ($76 million) Nexperia’s acquisition of Newport Wafer Fab
• Germany approved Chinese company Cosco to 24.9% buy stake in three shipping terminal in Hamburg port
16:45
General Counsel Panel: What Keeps You Up at Night?
microphone-alt Ansgar Schoenborn, Corporate & Antitrust, M&A Legal, Axel Springer SE, Germany
Pete Komorowski, Vice President, SoftBank, United States
Moderated By:
Nancy A. Fischer, Partner, Pillsbury Winthrop Shaw Pittman LLP, United States
• When to hire outside counsel, and how to choose the correct representation for your company
17:30
End of Day One Cocktail Reception
7:00 Registration Opens
8:00
Co-Chairs’ Opening Remarks
8:05
Earlier Riser Interview on CFIUS
microphone-alt Michael S. Considine, Deputy Assistant Secretary, Office of Foreign Investment and National Security, Office of International Science and Technology Collaboration, Office of Research, Technology, and Economic Security, U.S. Department of Energy, United States
Steven Klemencic, Managing Director, Berkeley Research Group, United States
8:45
Status Report on Outbound Controls in the European Union
microphone-alt Bruno Lebrun, Partner, Janson Law Firm, Belgium
The European Commission announced in 2022 that it will reexamine whether additional tools are needed regarding outbound strategic investment controls. This announcement comes on the heels of a similar United States’ proposed legislation, the National Critical Capabilities Defense Act (NCCDA). During this session delegates will hear how proposed outbound controls could affect investments into China and Russia.
9:15
Cross-Border Information Sharing Among Member States and Five Eyes
Partners: The Scope of Coordination Across Jurisdictions — and What Can Trigger Additional FDI Reviews
microphone-alt Ana-Maria Popa, Case Handler, Foreign Investment Department, Romanian Competition Authority, Romania
Pierre Marie Voegeli, Deputy Head - Foreign Direct Investments Screening, French Treasury (DG Trésor), Ministère de l’Économie, France
Laura Black, former Director of Policy and International Relations, (CFIUS), U.S. Department of the Treasury, Senior Counsel, Akin Gump Strauss Hauer & Feld LLP, United States
Local government authorities have the ability to review and clear transactions from non-EU investors and EU-investors.
• Examining the process through which information is shared between member states and the with the Commission
• When will the Commission request more information from a member state regarding a transaction
• How to share classified data between member states
10:00 Networking Break
10:15 UNEXPECTED TRENDS
What’s Now Raising National Security Concerns and Risks
Posed By “Non-Traditional” Industries: How a Broader Scope of Transactions Are Being Flagged and Scrutinized – From Yoghurt and PPE to Stake-Building Transactions
microphone-alt Robert A. Friedman, Partner, Holland & Knight LLP, United States
Rebecca Vikjær-Andresen, Partner, Attorney, Poul Schmith/Kammeradvokaten, Denmark
• What is a national security concern, from food to Personal Protective Equipment (PPE)
• Stake building transactions, at what point will the government review corporate transactions, and/or a controlling stake in a company, a look at French telecom Altice acquiring 12% stake in BT Group
• Examining the de minimis exemption, how it can change throughout the course of a deal, and how that can impact an FDI filing
11:00
The Finer Points of Merger Control in FDI Transactions for the Latest Pitfalls to Avoid for Multi-Jurisdictional Filings
microphone-alt Pedro Callol, Partner, Callol, Coca & Asociados, Spain
Dr. Andrea Pomana, Partner, Mayer Brown Europe-Brussels LLP
• Examining if a filing is necessary, voluntary filings versus cautionary filings
• Where do you file: which jurisdictions require a filing, and exploring multi-jurisdiction filing
• How to interpret the “legitimate interest” clause
• Analysing the member countries’ power of the review, or not review, and a cooperation agreement
• When to follow the EU Commission policies, and when to follow the member state(s) policies
11:45 Networking Break
12:00
One Year Review: United Kingdom’s National Security and Investment Act (NSI)
microphone-alt Jacqui Ward, Director of National Security and International, United Kingdom
Sarah Ward, Partner, Walker Morris LLP, United Kingdom
One year after the implementation of the United Kingdom’s National Security and Investment Act (2022), this session will review trends in transactions including number of transactions, timelines for completing a review, and what types of transactions are raising concerns.
• Analysing how the policy is working in practice, if it is working as planned, and what adjustments can be anticipated
• How will British investors be treated by EU member countries, now that the UK is a third-party country?
12:30
PR Nightmare Scenarios and Their Hidden Lessons: Navigating Bad Press and Politics Affecting High-Profile Deals
microphone-alt Alec Burnside, Partner, Dechert LLP, Belgium/United Kingdom
John Davies, Senior Advisor, Brunswick Group, United Kingdom
• High-profile transactions, negative media attention, and when to hire a communication firm
• How global trends, economic changes, political interplay, and third-party submissions will affect your deal
• Engaging with government
• The role of a communication firm in a multi-jurisdiction deal, and interacting with various players
13:15
Closing Remarks from the Co-Chairs Conference Concludes
Post-Conference Workshop
8 June 2023
Workshop B
14:00–17:30 (Registration Opens 13:30)
How to Write M&A Contracts for a Transaction that Will Trigger a FDI Security Review
microphone-alt Vincent Brenot, Partner, August Debouzy, France
Matthew Yeowart, Counsel, Davis Polk, United Kingdom
This interactive session will provide hands-on practical tools for writing contracts for mergers and acquisitions when the deal will be subject to a security review.
• Running anti-trust considerations and clearance at the same time
• Writing the contract to match the circumstances
• A friendly purchaser vs a red-flag purchaser
• Standard contract vs adapting a contract to fast moving regulatory changes and emerging laws
• Sample clause
• Virtual considerations
• Lifecycle of the transaction
• Identifying your purchaser
• Identifying the filings
• Working out the timescale
• Evaluation the risk