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The globalisation of business means that many substantial Australian assets are the subject of interest from foreign investors. MinterEllison’s transactional lawyers have extensive experience in advising foreign investors looking to acquire Australian assets.
Foreign investment in Australia is regulated by the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA). The Australian Treasurer has wide discretion under the FATA to decline applications which are considered to be contrary to Australia’s national interest.
Our foreign investment specialist lawyers have in-depth knowledge of the Foreign Investment Review Board (FIRB) process and extensive experiences in handling FIRB applications on behalf of clients. We have advised on many unsolicited proposals to buy substantial assets from or to acquire control of listed Australian companies. We understand the law and what drives decision making within the FIRB.
In addition to the foreign investment regulations, we also have specialists to advise on any competition law issues, as well as taxation issues that need to be considered.
The Treasurer has recently emphasised that the Government has the right to force a divestment of an asset if a foreign purchaser fails to comply with their obligations under the recently introduced FIRB tax conditions.
As European banks pull back their global operations, Chinese banks eyeing higher yields are looking to establish a more dominant presence in the institutional banking market in Australia. These changing dynamics will lead to a significant change in the shape of the market, and we predict more M&A activity as a result in 2016/17.
Increased deal activity is likely in Australia's health and aged care sector in 2016, driven by investment interest from China, Australian players targeting outbound opportunities through joint ventures and partnerships and consolidation in the aged and home care services areas.
Today, the Treasurer announced the implementation of a 'standard' set of tax-related conditions that will apply to foreign investment clearances. This announcement is significant from a foreign direct investment perspective as it likely requires additional or more detailed upfront tax structuring advice prior to submission of a FIRB application, as well as a higher level of engagement with the ATO on FIRB applications.
Today, the Treasurer announced an order under the Foreign Acquisitions and Takeovers Act 1975 (Cth) blocking Archer Daniels Midland's proposed acquisition of GrainCorp on the basis that it is contrary to Australia's national interest. The Treasurer could have allowed the proposed acquisition to proceed with or without conditions but chose not to do so.
Following the call for public comments in April 2011, the National Development and Reform Commission (NDRC) and the Ministry of Commerce (MOFCOM) formally promulgated the Foreign Investment Industrial Guidance Catalogue (2011 Revision) (外商投资产业指导目录（2011年修订）) (the "2011 Catalogue") on 24 December 2011. The 2011 Catalogue will take effect from 30 January 2012 and replace the current version, which took effect in December 2007 (the "2007 Catalogue").
In this edition of Mergers & Acquisitions, we look at:
This article discusses the core components of Australia's foreign investment regime, namely an overview of the Foreign Acquisitions and Takeovers Act and the government's most recent Foreign Investment Policy guidelines.