NATIONAL SECURITY AND INVESTMENT ACT 2021: A NEW UK REGIME FOR SCREENING TRANSACTIONS

Proposed acquirers of certain shares or voting rights in entities in the most sensitive areas of the economy will be required to pre-notify and obtain prior clearance for their acquisitions from the Secretary of State ("notifiable acquisitions"). Notifications are to be made to a dedicated government unit – the Investment Security Unit (ISU) – through a digital portal. 

A notifiable acquisition can occur with the acquisition of 25% or more of the shareholding or voting rights in an entity. The following will also be caught:

• increases in shareholding or voting rights from less than 25% to more than 25%; from less than 50% to more than 50%; and from less than 75% to more than 75%
• the acquisition of voting rights allowing the acquirer to pass or block a corporate resolution governing the entity's affairs.

The seventeen sensitive sectors where the mandatory notification regime will apply are: advanced materials, advanced robotics, artificial intelligence, civil nuclear, electronic communications, computing hardware, critical suppliers to government, critical suppliers to emergency services, cryptographic authentication, data infrastructure, defence, energy, engineering biology, military and dual use goods/technologies, quantum technologies, satellite and space technologies and transport.

A notifiable acquisition that is completed before being cleared by the Secretary of State will be void and the acquirer may be subject to criminal or civil penalties for completing the acquisition without clearance.

The Secretary of State will have the power to "call in" acquisitions of control over qualifying entities or assets (“trigger events”) which give rise, or may give rise, to a national security risk, in order to undertake a full national security assessment. The call-in power may be exercised in respect of notified and non-notified transactions.

Trigger events occur where a person gains control of a qualifying entity or asset:

• Qualifying entities include, for example, companies, limited liability partnerships, other bodies corporate, partnerships, unincorporated associations and trusts, but not individuals. An investor gains control where it:
   
  • increases its shareholding or voting rights in the entity to more than 25%, 50% or 75%; or
  • acquires the ability to pass or block a corporate resolution governing the entity's affairs; or
  • acquires the ability to materially influence the policy of the entity.
    
    
• Qualifying assets cover land, tangible or moveable property, and ideas, information or techniques which have industrial, commercial or other economic value such as trade secrets, databases, algorithms, designs, software.  An acquirer gains control of an asset where it acquires the ability to use the asset, or to direct or control how it is used (or to do these things to a greater extent than previously). Asset acquisitions are not subject to mandatory notification, but may be called in.

The call-in power may be exercised during the five years following the trigger event (acquisition of control), but subject to a limit of 6 months from the time the Secretary of State became aware of the trigger event. The call-in power may also be used retrospectively, once the secondary legislation has brought the NSIA fully into effect ,  in order to call in trigger events that took place after 12 November 2020 (when the Bill was introduced), even if they took place before the new regime commences. The long-stop date for these retrospective call-ins is five years from the commencement date, but this can be reduced to six months by informing BEIS of the transaction prior to that date.  In practice, this is already leading many of our clients to inform the ISU about deals with any kind of national security implication.

According to the draft Statement of Policy Intent, when exercising the call-in power the Secretary of State will consider the following risks:

• Target risk – the nature of the target and whether it is in an area of the economy where the government considers risks are more likely to arise. The economy is split for these purposes into three levels of risk:
  • core areas – the seventeen sensitive sectors where national security risks are more likely to arise (and mandatory notification applies for some types of trigger event);
  • core activities – primarily within the core areas, with regulations to identify specific activities where risks are most likely to arise and the call-in power most likely to be used; acquisitions of entities (not assets) involved in these activities will be subject to mandatory notification, but acquisitions of assets that are closely related to those activities are more likely to be called in than other asset acquisitions;
  • the wider economy – trigger events in the rest of the economy are considered unlikely to pose national security risks and are only expected to be called in on an exceptional basis.
    
    
• Trigger event risk – the type and level of control being acquired and how this could be used in practice, for example whether it might involve:
  • gaining control of a crucial supply chain
  • obtaining access to sensitive sites
  • potential for disruptive or destructive actions, espionage, inappropriate leverage.
    
    
• Acquirer risk – the extent to which the acquirer raises national security concerns; will be assessed on a case by case basis covering factors such as:
  • who is in ultimate control of acquirer
  • track record of acquirer in relation to other acquisitions/holdings 
  • whether acquirer is in control of other entities within a sector or owns significant holdings within a core area (as this increases their potential leverage)
  • any relevant criminal offences or known affiliations of any parties directly involved in the transaction.

There will be a voluntary notification system for acquisitions which fall outside the mandatory regime, to encourage notifications from parties who consider that their trigger event may raise national security concerns.  A draft notification form (the file name of which suggests it is specifically applicable to the voluntary process) is currently available here.

Where a mandatory or voluntary notification is made the Secretary of State will have 30 days to call it in for full assessment.

Where a call-in notice is given (on a notified or non-notified transaction) there will be a 30 working day assessment period for deciding whether to impose remedies or take no further action. That period may be extended by a further 45 working days if more time is required and any additional period that may be agreed between the Secretary of State and the acquirer.

The assessment may result in:

• notification that no further action will be taken; or
• final orders to prevent, remedy or mitigate the national security risk – these could encompass behavioural or structural remedies, or in the more extreme cases (such as where the target represents a crown jewel in the UK's national security infrastructure) the blocking of transactions or full unwinding and 'put back' to the seller.

There will be a process for appealing the Secretary of State's decision to the High Court on the basis of judicial review.

Fines of up to the higher of 5% of worldwide turnover or £10 million, and/or imprisonment of up to five years, may be imposed for failure to comply with the new regime.