New UK Regime For National Security And Infrastructure Investments

Key Points

The Department for Business, Energy and Industrial Strategy published a Green Paper consulting on amendments to UK merger control and public interest intervention legislation to cover gaps in the current framework for reviewing transactions from a national security perspective. The proposal includes immediate short-term measures to lower merger control thresholds to just £1 million in revenues to capture additional transactions involving companies active in the military and dual-use as well as advanced technology sectors. The long-term proposal involves wholesale reform of the UK's investment review regime and considers both expanding the current voluntary notification system, and introducing mandatory notification for investments into essential infrastructure. On Thursday, October 17, 2017, the UK's Department for Business, Energy and Industrial Strategy published a proposal for national security and infrastructure investment review (the "Proposal"). The Proposal consults on both short-term and long-term measures for reforming the UK's investment review powers. The short- and long-term consultations have separate deadlines for response. The deadline for comments relating to the short-term reforms is November 14, 2017, and the long-term reforms deadline is January 9, 2018.

The UK government has promised reform of its national security review powers ever since its review of EDF and China General Nuclear's bid to construct a nuclear reactor at Hinkley Point, which was finally cleared by Theresa May's government in September 2016 despite reported concerns about Chinese involvement in critical energy infrastructure.. The Proposal explains that reform is necessary because the UK's current powers of review have been outpaced by developments to the UK's national security risk profile. The Proposal highlights new national security threats, including cumulative investments in industries allowing espionage, new risks associated with greenfield investments, the use of technology in cyber terrorism and investments in assets in physical proximity to critical infrastructure. The Proposal notes the need to strike a balance between greater review powers and the UK's desire to remain open and investment-friendly.

Critical infrastructure

'Critical infrastructure' has been a key phrase used by the government to describe the scope of the forthcoming changes to investment review. It mirrors the open-ended language used in the EU-level foreign direct...

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