USA LAW AND PRACTICE Contributed by: George Casey, Heiko Schiwek, Elena Rubinov, Vinita Sithapathy, Kristina Trauger, Pierre-Emmanuel Perais, Clara Pang and Gregory Gewirtz, Linklaters
EAR and ITAR The primary US export control regimes are the Export Administration Regulations (EAR) and ITAR. The EAR govern most commercial items, including those with both civilian and military applications (“dual-use” items). ITAR governs defence-related products, tech- nical data and services. All manufacturers, exporters and distributors of these defence items are required by ITAR to be registered with the DDTC. Note that products, technical data and services can be subject to export controls under the EAR or ITAR even if never exported. Moreover, products and services devel- oped, produced or provided outside the USA may be subject to US export controls depending on the extent to which they incorporate other technologies subject to US export controls. Export licences Export licences may be required before a US business can export or otherwise make available dual-use or defence-related products and technologies to a for- eign entity, including a foreign acquirer with whom the relevant technology is shared (one type of “deemed export”). 7.5 Antitrust Regulations In the USA, the main antitrust regulations applicable to business combinations are (each as amended): • the Clayton Antitrust Act (the “Clayton Act”), which includes the Hart-Scott-Rodino Antitrust Improve- ments Act of 1976 (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 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
requirements with implementation of security policies addressing technical, physical and operational secu- rity concerns. DDTC The DDTC is part of the Department of State and regu- lates foreign ownership or control of manufacturers, service providers, exporters and brokers whose activi- ties are governed by the International Traffic in Arms Regulations (ITAR), a set of export controls governing military items. The DDTC requires pre- and post-clos- ing notifications of new or changed foreign owner- ship or control of ITAR registrants. The DDTC cannot block a transaction, but non-compliance with ITAR can cause revocation of a company’s registration. Team Telecom 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 even terminate) a licence or place conditions on the granting or transfer of ownership of a licence. Other Regimes In addition to the aforementioned US authorities gov- erning inbound foreign investment, the new Outbound Investment Security Program (OSIP) took effect on 2 January 2025. The new regime 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 and/or AI. While the regime is nominally focused on US invest- ments in Chinese entities, the scope of the regulations is much broader and can include non-US investors in which US persons are participating in making the investment decisions and non-Chinese investment targets that have substantial, affiliated operations in China. The passage of the Comprehensive Outbound Investment National Security Act of 2025 (COINS Act) at the end of 2025 codifies and revises the scope of the OISP, subject to implementing regulations that will be issued – possibly incrementally – between the beginning of 2026 and the first quarter of 2027.
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