Five jurisdictions have rewritten their foreign investment screening regimes in the last 18 months. The pattern is consistent: broader definitions of critical sectors, lower notification thresholds, and longer statutory clocks.
Deal lawyers should be doing three things now.
First, screen early. A filing assessment should be a standing item on the first deal call, not a footnote to the signing checklist. The cost of a missed notification is no longer a theoretical fine — it is unwind.
Second, allocate risk in the merger agreement. The reverse termination fee is no longer the right tool for every regulatory failure. Specific performance covenants, hell-or-high-water clauses with carve-outs, and time-based walk rights each have a place.
Third, plan the remedy package before the regulators ask. A buyer that arrives at Phase II with a credible divestiture buyer already identified is a buyer that closes.
The firms that win cross-border deals in 2025 are not the firms with the largest antitrust teams. They are the firms whose deal teams and regulatory teams sit on the same call from day one.
Written by Elena Marchetti, Managing Partner.
This article is for general information only and is not legal advice.