Why Westminster Must Reconsider the UK’s New Foreign Investment Review Framework
In early January, the National Security and Investment (NSI) Act became law, expanding the United Kingdom government’s power to block foreign investments for perceived security risks. While the government is right to take national security concerns in sensitive industries seriously, the new investment review framework’s expansive scope and lack of accountability risks harming Britain’s reputation as a global economic hub open to foreign investment.
As in the European Union and the United States, growing foreign investment in British high-tech industries — especially from China — has strengthened calls for increased scrutiny of foreign investment in recent years. The NSI Act, which applies to 17 sectors ranging from nuclear energy to quantum technologies, will allow the government to impose remedies or block transactions if a specific investment results in voting shares beyond predefined thresholds or the acquisition of broadly defined “assets.”
However, the NSI Act is overly broad in scope, meaning many potential investments that carry no national security risk could face burdensome and unnecessary scrutiny under the new investment review framework. Instead of targeting specific national security risks within certain industries, the NSI Act targets broadly defined sectors from “artificial intelligence” (AI) to “computer hardware.” For example, an investment resulting in 25 percent foreign ownership of an AI-enabled translation or language-learning app, which carries little security risk at all, could be subject to cumbersome and unnecessary national security review under the new law.
The vague statutory language, combined with the NSI Act’s extraterritorial application, means that companies with foreign headquarters could be subject to frivolous investigation by the UK’s newly established Investment Security Unit. Even internal restructuring or a merger between two foreign companies could be subject to review on the basis of even a flimsy UK nexus, such as whether one of the companies “distributes goods to a UK company.”
Potential penalties, which can be as high as five percent of a firm’s global turnover, are also set too high. Worse still, these penalties can be imposed retroactively, meaning deals completed up to five years earlier can be suddenly subject to investment screening long after the fact. These features mean that the UK’s new investment review process can become more arbitrary and cumbersome than the existing regimes in France, Germany, and even the United States.
Even worse yet, not all decisions taken by the Investment Security Unit will be subject to judicial review, so many of its decisions cannot even be appealed. Like the UK’s Competition and Markets Authority (CMA), the Investment Security Unit is unlikely to face accountability for its potentially arbitrary national security determinations. As my colleague Iain Murray points out, a CMA decision can only be overruled by the Competition Appeals Tribunal in cases where “the CMA acted irrationally, illegally or with procedural impropriety.” However, most appeals are ultimately decided in the CMA’s favour because such reviews tend to focus on procedural flaws rather than on substantive legal issues.
Read the full article at The Australian Institute of International Affairs.