Brussels, Belgium

On Tuesday, November 20, the European Commission announced a political agreement with EU member states on a new framework for foreign direct investment (FDI) screening. The legal text for the framework still needs to be finalized and released. The announcement can be found here.

According to the Commission, the new framework will provide a mechanism for the Commission and EU member states to request information and raise concerns related to FDI screening, without restricting the ultimate authority of an individual EU member state to determine who can invest within its borders. The framework will also provide for “short business-friendly deadlines” and confidentiality requirements for EU members’ FDI screening regimes and will permit the Commission to issue opinions on FDI cases involving several Member states or EU-wide interests.

Currently only 12 of the 28 EU member states—Austria, Denmark, Germany, Finland, France, Latvia, Lithuania, Italy, Poland, Portugal, Spain, and the UK—have formal FDI screening systems in place. The new framework could provide a basis for the remaining EU members to develop such systems.

 

After the legal text is finalized, the framework still needs to be submitted for formal approval by the European Parliament and the Council of the European Union. Separately, the Commission is still conducting an in-depth technical study on current FDI flows related to strategic sectors and technologies for expected release before the end of the year.

In Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., the U.S. Supreme Court unanimously rejected the argument that two Chinese companies could not be found liable under the Sherman Act for conspiring to fix the price and quantity of vitamin C exported to the United States from China simply because the Chinese government submitted court filings stating that Chinese law required the companies to engage in such conduct.

In doing so, the Supreme Court expressly held that U.S. courts need not accept as conclusive and binding submissions by a foreign government that characterize or interpret its own law. Instead, U.S. courts must undertake a case-by-case analysis where they give “respectful consideration” to a foreign government’s submission but also conduct their “own research and consider any relevant material.”

Such a thorough and independent analysis, the Supreme Court determined, helps ensure that U.S. courts properly decide foreign law questions when adjudicating claims brought under U.S. laws.

The Supreme Court’s decision resolves a circuit split on the question of whether U.S. courts must defer to the submissions of foreign governments describing their own laws when presented with questions of foreign law. Prior to the Supreme Court’s Animal Science decision, the U.S. Court of Appeals for the Second and Ninth Circuits had held that U.S. courts were “bound to defer” to a foreign government’s interpretation of its own law whenever that interpretation was “reasonable” while other federal appellate courts had held that the weight given to a foreign government’s statements about its laws depended on the facts and circumstances presented by a case.

For more on the Supreme Court’s decision and its potential implications for U.S. and non-U.S. companies, please see Crowell’s Client Alert.