Australia’s foreign investment rules are notoriously complex, with a number of variables – such the nature and country of origin of the investor, the investment structure, whether the transaction is onshore or offshore, the type of transaction (eg, shares versus assets) and the industry sector – all combining to dictate whether the transaction is caught by Australia’s foreign investment rules and, if so, whether the approval is mandatory or voluntary only. G+T’s foreign investment lawyers turn this complex web of regulation into plain English, helping investors:
- determine whether approval is required or is advisable;
- identify the risks inherent in a transaction from the government’s perspective, address those proactively in the application and understand the impact on other government processes, such as merger clearance;
- navigate the application process; and
- negotiate conditions and change of control consents from government agencies that may be required as a prerequisite to receiving approvals.
Over the years, G+T has made numerous submissions on changes to the Foreign Acquisitions and Takeovers Act and the Foreign Acquisitions and Takeovers Regulations, including working with several industry bodies, and was instrumental in obtaining regulatory changes, such as the business exemption certificate. One of our partners is an active participant on the Law Council’s Foreign Investment Committee, contributing to numerous submissions, and we are thought leaders in the space, with numerous publications including our own foreign investment guide, and Australian chapters in Getting the Deal Through – Foreign Investment and the Global Competition Review’s forthcoming publication on foreign investment.
The transaction-based nature of our corporate practice means that Gilbert + Tobin has successfully handled countless foreign investment applications, meaning we have insight into not just the letter of the law, but the ways that the Foreign Investment Review Board (FIRB) applies it, FIRB’s likely views on different transactions, and the nitty-gritty of the review process.
Our Foreign Investment in Australia experience includes:
- Numerous Australian, US and European private equity funds (many of which are deemed to be foreign persons or even foreign government investors because of their investor bases) in connection with foreign investment approvals required for both direct and indirect acquisitions of Australian businesses - including Pacific Equity Partners, Crescent Capital Partners, Quadrant Private Equity, The Carlyle Group, TPG Capital, Oaktree Capital, Anchorage Capital Partners, CarVal, Rubicon Technology Partners, various Canadian pension funds and others, including in relation to highly sensitive sectors like healthcare, defence and data handling.
- A private equity consortium in connection with its acquisition of a telecommunications company with Australian government contracts.
- Alinta on compliance with its parent entity’s foreign investment approval.
- Yancoal on its dual listing on the Hong Kong Stock Exchange, allowing numerous Chinese foreign government investors to be allocated shares.
- Anheuser-Busch Inbev on the foreign investment approval for the $16 billion sale of Carlton & United Breweries to Asahi (the largest M&A transaction in Australia in 2019) and on the foreign investment approval for its US$107 billion takeover of SAB Miller (the largest takeover in the world in 2016).
- Resource Capital Funds Management on the foreign investment approval for a renewable exemption certificate, which was the first of its kind in Australia.
- Ansell on the foreign investment approval for the US$600 million sale of its sexual wellness business to Humanwell Healthcare (Group) Co., Ltd. and CITIC Capital China Partners III, L.P.
- Twynam Agricultural Group on the disposal of its agricultural properties, water entitlements and associated agribusinesses at Jemalong, Forbes and Merrowie, Hillston, which were the first to receive FIRB approval after the advertising policy changes.
- Harbour Energy on its aborted $14.4 billion bid for Santos Limited.
- GrainCorp in connection with ADM’s bid to acquire Graincorp.
- Pacific Equity Partners and the Carlyle Group on the foreign investment approval for the $1.23 billion acquisition of iNova Pharmaceuticals.
- Cover-More Group on the foreign investment approval for its $741 million acquisition by Zurich Insurance Group by scheme of arrangement.
- Oceanwood on the foreign investment approval for its proposed acquisition of Norske Skog out of a distressed sale.
- Oaktree in relation to various foreign investment approval matters for its acquisition of the Blue Sky Funds Management business.
- Fetch TV in connection with various foreign investment approvals.
- Singtel Innov8 on its acquisition of an interest in Data Republic.
- Vitol in relation to the foreign investment approval for its acquisition of the Shell Australia downstream business.
Read more about the key issues in Foreign Investment in Australia.
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