USA LAW AND PRACTICE Contributed by: George Casey, Heiko Schiwek, Elena Rubinov, Pierre-Emmanuel Perais, Clara Pang and Gregory Gewirtz, Linklaters LLP
Export Licences Export licences may be required before a US business can export or otherwise make available dual-use or defence-related products and tech- nologies to a foreign 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 appli- cable to business combinations are (each as amended): • the Clayton Antitrust Act (the “Clayton Act”), which includes the Hart-Scott-Rodino Anti- trust Improvements 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 notifica- tion procedure for certain business combina- tions, while the Sherman and FTC Acts prohibit certain anti-competitive conduct; the Clayton Act prohibits (among other things) anti-compet- itive transactions. The Sherman Act is enforced by the Department of Justice (DOJ), while the FTC Act is enforced by the Federal Trade Com- mission (FTC). The Clayton Act is enforced con- currently by both agencies. The HSR Act requires mandatory pre-closing waiting periods for deals valued at more than USD126.4 million in 2025 (adjusted annually), unless otherwise exempted. The agencies can take one of three courses of action when con- cluding their investigation:
that the FCC deny (or in some cases terminate) a licence or place conditions on the granting or transfer of ownership of a licence. In addition to these US authorities governing inbound foreign investment, the new Outbound Investment Security Program 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, quan- tum computing, and/or artificial intelligence. While the regime is nominally focused on US investments in Chinese entities, the scope of the regulations is much broader and can include non-US investors in which US persons are par- ticipating in making the investment decisions as well as non-Chinese investment targets that have substantial, affiliated operations in China. 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, technical data and services. All manufacturers, exporters and dis- tributors 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 they are never in fact exported. Moreover, products and services developed, produced or provided outside the USA may be subject to US export controls on a derivative basis, depending on the extent to which they incorporate other technologies subject to US export controls.
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