USA LAW AND PRACTICE Contributed by: George Casey, Heiko Schiwek, Elena Rubinov, Kristina Trauger, Pierre-Emmanuel Perais, Clara Pang, Gregory Gewirtz and Vinita Sithapathy, Linklaters
changed foreign ownership or control of ITAR regis - trants, mainly to confirm that foreign investors or other foreign parties are not improperly afforded access to ITAR-controlled technology. Like the DCSA, the DDTC cannot block a transaction, but non-compliance with ITAR compliance can cause revocation of a compa - ny’s registration. Team Telecom is a multi-agency panel led by the Departments of Justice, Homeland Security and Defense, which conducts national security- and law enforcement-related reviews of foreign applications for certain telecommunications licences granted by the Federal Communications Commission (FCC). Team Telecom can recommend that the FCC deny (or in some cases terminate) a licence or place conditions on the granting or transfer of ownership of a licence. The OISP, which took effect on 2 January 2025 fol - lowing a 2023 executive order and is managed by the Department of the Treasury, either prohibits or requires notification of US-led investments directly or indirectly supporting certain activities by entities in or controlled from China that relate to semiconductors and microelectronics, quantum computing or AI. The scope of the regulations is broad, and can include non-US investors in which US persons are participat - ing in making the investment decisions and non-Chi - nese investment targets that have substantial affiliated operations in China. The Comprehensive Outbound Investment National Security Act of 2025 (the “COINS Act”) codified and changed the scope of the OISP but will only come into force as implementing regulations take effect. 3. Recent Legal Developments 3.1 Significant Court Decisions or Legal Developments Recent judicial decisions have clarified when Dela - ware courts may apply the most demanding standard of judicial review – entire fairness. However, in March 2025, the Delaware state legislature amended the Delaware General Corporation Law (DGCL) to codify certain holdings and to remove ambiguities relating to transactions involving controlling stockholders or conflicted management (the “Amendments”). In cre -
ating safe harbours for transactions involving inter - ested directors/officers or controlling stockholders, the Amendments were passed in part to maintain and enhance Delaware’s reputation as the most attractive jurisdiction in which companies may seek to incorpo - rate or reincorporate. The Amendments: • codified certain safe harbour procedures that shield directors, officers and controlling stockhold - ers from claims for damages or equitable relief in connection with conflicted director and officer as well as conflicted controlling stockholder transac - tions (see 8.3 Business Judgement Rule ); • introduced a comprehensive definition of a “con - trolling stockholder” and limited the scope of controlling stockholders’ fiduciary duty liability in providing that a controlling stockholder can only be liable for damages for a breach of duty of loyalty, acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or any transaction from which the person derived an improper personal benefit; and • modified and supplemented rules applicable to stockholder books and records to reduce increas - ingly costly and burdensome stockholder demands related to books and records inspections. Although the Amendments faced constitutional chal - lenge, the Delaware Supreme Court ultimately upheld their constitutionality in an opinion issued on 27 Feb - ruary 2026. 3.2 Significant Changes to Takeover Law Significant changes to the pre-merger notification form under the HSR Act took effect on 10 February 2025. The new HSR form added several filing require - ments to the old form, including: • more burdensome document production require - ments; • new narrative requirements;
• information on directors and officers; • expanded corporate disclosures; and • new foreign subsidies disclosures.
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