USA Law and Practice Contributed by: Elena Rubinov, George Casey, Heiko Schiwek, Vinita Sithapathy, Pierre-Emmanuel Perais and Clara Pang, Linklaters LLP
EAR and ITAR The primary US export control regimes are the Export Administration Regulations (EAR), which govern most commercial items (including those with civilian and military applications), and ITAR, which governs defence-related products, technical data and ser- vices. All manufacturers, exporters and distributors of these defence items are required by ITAR to be registered with the DDTC. Export controls cover vari- ous items for E&I projects, including nuclear-related materials and technologies, encryption technology protecting systems or customer data, and advanced materials used in such projects. Export licences Export licences may be required before a US business can export or make available dual-use or defence- related products and technologies to a foreign entity, including a foreign acquiror with whom the relevant technology is shared (one type of “deemed export”). 5.5 Antitrust Regulations In the US, the main antitrust regulations applicable to business combinations are: • the Clayton Antitrust Act (the “Clayton Act”), including the HSR Act; • the Sherman Antitrust Act (the “Sherman Act”); and • the Federal Trade Commission Act (the “FTC Act”). The HSR Act prescribes a pre-merger notification procedure for certain business combinations, while the Sherman and FTC Acts prohibit certain anti-com- petitive conduct. The Clayton Act prohibits (among other things) anti-competitive transactions. The Sher- man Act is enforced by the DOJ, while the FTC Act is enforced by the FTC. The Clayton Act is enforced concurrently by both agencies. The HSR Act requires mandatory pre-closing wait- ing periods for deals valued at more than USD126.4 million in 2025 (adjusted annually), unless otherwise exempted. The agencies can take one of three cours- es of action when concluding their investigation: • let the parties close their transaction within a year; • require parties to enter into consent agreements as a condition to clearance, including remedies
nesses that hold facility security clearances and other uncleared defence contractors and subcontractors. The DCSA does not approve transactions, but failure to receive FOCI mitigation could lead to the DCSA terminating a contractor’s facility clearance or covered contract. DDTC The DDTC regulates foreign ownership or control of manufacturers, service providers, exporters and bro- kers whose activities are governed by the International Traffic in Arms Regulations (ITAR). The DDTC requires pre- and post-closing notifications of new or changed foreign ownership or control of ITAR registrants. The DDTC cannot block a transaction, but non-compli- ance with ITAR can cause revocation of a company’s registration. Team Telecom Team Telecom is a panel that conducts national secu- rity- and law enforcement-related reviews of foreign applications for telecommunications licences granted by the Federal Communications Commission (FCC). Team Telecom can recommend that the FCC deny or terminate a licence or limit the granting or transfer of a licence. Outbound US Investments The Outbound Investment Security Program (OIP) regulates certain US-led investments in businesses engaged in developing or producing semiconductors, AI, and/or quantum computing technology. Additionally, the OIP (effective from January 2025) either prohibits or requires notification of US-led investments directly or indirectly supporting cer- tain activities by entities in or controlled from China that relate to semiconductors and microelectronics, quantum computing, and/or AI. While the regime is nominally focused on US investments in Chinese enti- ties, the scope of the regulations is broader and can include non-US investors in which US persons are participating in making the investment decisions, as well as non-Chinese investment targets with substan- tial, affiliated operations in China.
442 CHAMBERS.COM
Powered by FlippingBook