FDI in the Energy Sector

Introduction

The energy sector was one of the first industries in which foreign direct investment (FDI) occurred on a large scale globally. Consequently, the sector has also been one of the first in which legislative measures were introduced to regulate FDI. The scope of FDI in the energy sector and its regulation, however, has changed over time.^[2]

Initially, the exploration and production of hydrocarbon natural resources – oil, hard coal, lignite and natural gas – were at the centre of foreign investment and its regulation. Primarily, less-developed countries sought foreign capital and know-how to enable them to exploit their natural resources, while in turn Western companies, in particular large oil majors, were interested in broadening their global E&P portfolios. Legislation to regulate such investments was often enacted with the goal to ensure that the target countries would participate in the financial profits generated by foreign investment, but not primarily to protect national security.

A further wave of FDI in the energy sector occurred in the 1990s and was fuelled by the liberalisation of European energy markets and the (partial) privatisation of state-owned national incumbents. Investors not only from within the EU, but also from abroad, including the United States and Russia, sought to participate in the newly created markets. At that time, FDI was generally welcomed by national governments as it was considered to contribute to the liberalisation of the markets and to increase security of supply. At the same time, governments wanted to maintain a certain level of influence in the energy sector – mostly for reasons of industrial policy rather than national security – and often enacted ‘golden share’ or similar legislation to achieve that goal.

Currently, FDI in the energy sector is driven by two parallel developments. First, the transformation of the energy sector from hydrocarbon to renewable sources requires enormous investment in new infrastructure to generate ‘green’ electricity, hydrogen or biofuels and to transport the energy to the areas of consumption. In addition, existing energy generation, transportation and consumption infrastructure needs to become more ‘intelligent’, which requires substantial investment in its digitalisation. These investments often cannot be realised without FDI. Consequently, FDI in renewable and alternative power increased significantly globally even in the pandemic, while FDI in general decreased substantially during that period.^[3]

Second, and to some extent coinciding with the first development, there has been a global trend of governments using FDI for strategic goals. Such investments by state-owned, -sponsored or -influenced investors, in particular from China, but also from Middle Eastern countries, often focus on infrastructure and technology assets relating to the energy sector. Consequently, Western countries have significantly tightened their FDI control regimes over the past few years. With regard to investments in the energy sector, these regimes have become more focused on the investment’s potential impact on security of supply and infrastructure operation as well as on national security.

FDI screening and other means of foreign investment control in the energy sector

The historic development of FDI in the energy sector has resulted in a structure of FDI control that is to some extent different and more diverse than FDI regulation in other sectors.

On the one hand, almost all jurisdictions apply their general FDI control regimes also to investments in the energy sector. The details of these regimes in a number of major jurisdictions are addressed below.

On the other hand, there are often additional rules that are specific to investments in the energy sector. These include, first, national legislation that explicitly prohibits or limits (in terms of percentage shareholding) FDI in natural gas or electricity infrastructure or obliges the state to own entirely or at least control certain infrastructure or that restricts the ability of private investors to hold shares in such infrastructure.^[4] Second, ‘golden share’ laws sometimes allow governments, as minority shareholders in energy infrastructure and supply companies, to veto certain investment-related measures, such as share acquisitions or asset disposals, although there is a very tight legal framework for such legislation in the EU.^[5] Third, governments may actively seek to ‘(re-)nationalise’ companies and assets considered to be of relevant public interest by acquiring them from private investors to guarantee security of supply.^[6] Finally, rules on the general regulation of energy supply and transportation markets may contain elements of FDI control. Most notably, both the EU’s Electricity Directive^[7] and Natural Gas Directive^[8] include specific provisions on the certification of network operators that are controlled by persons from a third country outside the EU or EEA. As part of the mandatory certification process for such operators, national authorities also have to review whether granting the certification will ‘not put at risk the security of energy supply of the Member State and the Community’.^[9] The FDI element of this review is further illustrated by the fact that the decision regarding the impact of the certification on security of supply may not be taken by the energy regulator, but may be taken by ‘another competent authority designated by the Member State’,^[10] which often is the governmental entity that is also in charge of general FDI control, for example, in Germany the Ministry of Economics and Climate Action.^[11]

FDI screening concepts in key jurisdictions

The degree to which investments in the energy sector are captured by national FDI regimes varies between jurisdictions – both worldwide and within the European Union – to a not insignificant extent.

First, there are differences regarding the systematic scheme of the national review regimes. In that respect, the fact that an investment is energy-related may have an effect on either the country’s jurisdiction to review the transaction at all or, as in most countries, on the scope of the jurisdiction (e.g., in terms of what investments are caught) or review, in particular on whether an investment requires a mandatory pre-closing notification and approval or is (only) subject to a (potential) ex officio review.

Second, there are differences in terms of the activities in the energy sector that are captured by the national regimes. In this respect, regimes may:

• like in most countries, be primarily focused on, or limited to, FDI in energy-related infrastructure, such as generation and storage facilities, pipelines or refineries, or also extend to supply and retail activities;
• be limited to traditional activities such as exploration and production, generation, storage, transportation or supply of energy or fuels or also cover energy-related technologies and software; and
• be limited to the areas of electricity and natural gas or also extend to other hydrocarbon fuels, in particular crude oil or petroleum.

United States

In the United States, the Committee on Foreign Investment in the United States (CFIUS) has competence to regulate two types of foreign investment in the United States. First, CFIUS may regulate investments where a foreign person acquires ‘control’ of a US business. Second, CFIUS may regulate certain non-controlling investments where the investment relates to a ‘TID US business’ – a business involved with critical technologies, critical infrastructure or sensitive personal data of US citizens. Additionally, investments into a TID US business may trigger pre-closing mandatory filing requirements.

In the energy sector, these rules apply to a wide range of infrastructure, but not to supply activities. According to CFIUS regulations, the covered infrastructure includes electric power generation, transmission, distribution, and storage facilities, interstate oil and natural gas pipelines, natural gas underground storage facilities, LNG import or export terminals as well as refineries and crude oil storage facilities. In addition, investments in energy-related technologies may be deemed a critical technology transaction if the technology qualifies as an ‘emerging and foundational technolog[y]’. This is because the list of such technologies published by the National Science and Technology Council also includes ‘renewable energy generation and storage’.

Finally, investments in the energy sector – in particular in the renewables space – may be reviewable by CFIUS as covered real estate transactions if the real estate is located within a certain proximity (that can range up to 99 miles) of specified military or other sensitive government installations.

European Union and its Member States

There is no centralised FDI review at the EU level. Rather, FDI screening remains in the competence of the EU’s Member States, most of which have established national FDI review regimes. These regimes mostly allow for an ex officio review of FDI in all industry sectors but require a pre-closing notification and approval for investments in certain specified sectors. While the regimes are established and review is carried out at a national level, the national regimes and reviews are coordinated and, to some extent, aligned by the EU’s FDI Regulation.^[12]

Article 4(1) of the FDI Regulation specifies certain investment-related factors that EU Member States and the European Commission may consider when determining whether FDI is likely to affect national security or public order. The energy sector is covered by Article 4(1) of the Screening Regulation in three respects:^[13]

• Article 4(1)(a) of the Screening Regulation covers ‘critical infrastructure, whether physical or virtual, including energy, . . . and sensitive facilities, as well as land and real estate crucial for the use of such infrastructure’;
• Article 4(1)(b) of the Screening Regulation extends to ‘critical technologies . . . including . . . energy storage . . . and nuclear technologies’; and
• Article 4(1)(c) of the Screening Regulation applies to the ‘supply of critical inputs, including energy.’

While the FDI regimes of only a few EU Member States explicitly refer to or use the same wording as the FDI Regulation, most regimes use similarly broad and vague language to define the scope of activities in which they either have jurisdiction to review FDI or, like in most EU Member States, where FDI requires pre-closing notification and approval. However, the extent to which national regimes cover the energy sector varies; this is illustrated by a closer look at some EU Member States.

Examples of very broad regimes are Spain, Italy, France and Austria:

• The FDI regime in Spain essentially mirrors the wording of the FDI Regulation when it comes to defining the sectors in which FDI requires mandatory pre-closing notification and approval. The legislation broadly refers to critical infrastructure, whether physical or virtual, including energy, as well as land and real estate that are key to the use of such infrastructure, critical technologies, including energy storage, and the supply of critical inputs, in particular energy.^[14] As a consequence, almost all FDI into both energy infrastructure and energy supply activities will require a pre-closing notification and approval if the investment is above the investment size thresholds.^[15]
• The FDI laws and decrees in Italy – often referred to as the ‘Golden power rules’ – lead to a similar result. They provide for mandatory pre-closing notification and approval of FDI concerning ‘strategic assets’ in, inter alia, the sectors listed by Article 4 of the FDI Regulation. The government has subsequently enacted a number of decrees specifying what constitutes ‘strategic assets’, including decrees relating to ‘strategic assets’ in the energy, transport, and telecommunications sector^[16] and ‘strategic assets’ in the sectors enumerated in Article 4 of the FDI Regulation.^[17]
  • Under Decree 180, the national natural gas transmission network (including compression stations and dispatching centres), gas storage facilities, electricity and gas supply infrastructure from other countries, including onshore and offshore LNG regasification facilities, the national electricity transmission grid (including control and dispatching facilities) as well as management activities and essential properties relating to the use of these networks and infrastructures are captured as ‘strategic assets’.^[18]
  • Decree 179 expands the scope further to (1) infrastructure used as deposits for fuels, nuclear materials or radioactive waste and the technologies and infrastructure involved in the treatment, management and transportation of such items; (2) real estate critical for the use of the critical infrastructure; (3) coastal deposits of crude oil and petroleum products above a certain capacity threshold, LNG storage facilities above a certain capacity threshold, foreign supply oil pipelines and supply oil pipelines for intercontinental airports; (4) critical technologies (including platforms) for managing wholesale markets for natural gas and electricity; and (5) strategic economic activities carried out within the energy sector by companies with revenues and numbers of employees above certain thresholds.^[19]
• The FDI rules in France have a similarly broad application in the energy sector, but do not explicitly refer to or use the same wording as the FDI Regulation. They require prior approval for foreign investments occurring in ‘sensitive’ or ‘strategic’ sectors. These include ‘activities . . . likely to jeopardise public order and public safety, when they concern essential infrastructure, goods or services to ensure . . . integrity, security and continuity of supply of energy sources’.^[20]
• In Austria, the FDI regime also uses very broad and vague language when it comes to the energy sector. It requires pre-closing notification and clearance for FDI if the target company is active in, inter alia, the ‘operation of critical energy infrastructure’, ‘critical infrastructure (facilities, systems, assets, processes, networks, or portions thereof), including, but not limited to . . . energy’ if the investment relates to ‘land and real estate essential for the use of the infrastructures’ or to an area that could affect ‘security of supply of critical resources, including . . . energy supply’.^[21]

In contrast, the FDI regulations in Germany are an example of a regime with a rather technical approach to defining the energy-related activities where FDI requires a pre-closing approval and that does not cover (mere) supply or trading activities in that regard. The relevant FDI legislation generally refers to ‘operators of critical infrastructure’,^[22] but an annex to a further ordinance^[23] specifies the types of infrastructure assets that are considered critical in terms of infrastructure category and quantitative relevance. In the first respect, assets relating to the generation, transmission and distribution and trading of electricity, the production, transmission and distribution, storage and trading of natural gas, the production, refining, transmission and distribution, storage and trading of oil, including petrol stations, as well as the production and distribution of heat are covered. In the second respect, the annex provides for specific thresholds for each category of infrastructure. In addition to critical energy infrastructure, a pre-closing clearance is also mandatory if the target’s activities relate to software for the operation of critical infrastructure or smart-meter-gateways for energy networks.^[24]

Another example of a more tailored approach is the upcoming FDI regime in the Netherlands. The new Investment, Mergers and Acquisitions Safety Assessment Act was passed in April 2022 and is expected to come into force by the end of 2022 with transactions closed after 8 September 2020 being subject to a potential retroactive review.^[25] Under the new legislation, a pre-closing approval will be mandatory for acquisitions of undertakings active in ‘vital processes’ in identified sectors, including the energy sector or ‘sensitive technology.’ This regime will, however, not apply to every company in the energy sector, but only to those companies which, if they were to fail or cease to operate effectively, could lead to disruptions to the overall functioning of the sector. In addition, sector-specific rules under the Electricity Act 1998^[26] and the Natural Gas Act 2020^[27] already today allow the Dutch Ministry to review and eventually prohibit acquisitions of power generation installation above a certain capacity and undertakings managing such installations as well as LNG installations and LNG companies based on public safety or security of supply concerns.

United Kingdom

The national security screening regime in the United Kingdom under the National Security and Investment Act 2021 imposes mandatory filing obligations for investments in companies that are active in 17 specified sensitive areas.^[28] These sectors include ‘civil nuclear’, covering nuclear power production and related activities, and ‘energy’. The definition of ‘energy’ applies primarily to infrastructure for the generation of electricity, the storage and reception of natural gas, including LNG, as well as for the transmission and distribution of electricity and natural gas. In contrast, (retail) suppliers of electricity and natural gas are not within the scope of the legislation. In addition, the legislation also applies to certain infrastructure for the production, transportation and processing of fuel supplies.

China

In China, a negative list, which is released annually jointly by the National Development and Reform Commission (NDRC) and the Ministry of Commerce (MOFCOM), outlines the country’s restricted and prohibited sectors for FDI. Over the years, the number of sectors included on that list has decreased substantially. As part of that development, the restrictions on foreign investment in the energy sector have mainly been eliminated. Initially, foreign investment in coal, oil, gas, heat and power generation activities had been substantially restricted and was mainly, if at all, only possible in the forms of joint ventures in which a Chinese party needed to hold the majority stake. However, these restrictions were mostly abolished between 2017 and 2020. As a result, pursuant to the list effective 1 January 2022.^[29] FDI into the Chinese energy sector remains restricted essentially only with regard to the construction and operation of nuclear power plants, where the controlling stake in a joint venture must be held by a Chinese party.

Australia

In Australia, the energy sector is generally considered as a ‘national security businesses’ subject to FDI review under the Foreign Acquisitions and Takeovers Act. Guidance published by the Australian Foreign Investment Review Board (FIRB) provides further details on the specific investments in the areas of electricity, natural gas, liquid fuels (including crude oil and condensate, petrol, diesel and jet fuels) and energy market operators for which a mandatory notification is required, or a voluntary notification is encouraged. Generally, only investments in energy infrastructure are subject to mandatory notification, while acquisitions of electricity and natural gas suppliers are only subject to review following a voluntary notification, which is encouraged if certain thresholds are exceeded.^[30]

Canada

In Canada, there are no specific rules applicable to FDI in the energy sector. Rather, the general FDI control regime under the Investment Canada Act applies also to such investments.^[31] However, investments in the energy sector can be captured by the expanded national security review mechanism, which allows the government to review any transaction (including minority investments) in which there are ‘reasonable grounds to believe that an investment by a non-Canadian could be injurious to national security.’ According to the guidelines,^[32] these include investments in critical infrastructure, meaning any ‘processes, systems, facilities, technologies, networks, assets and services essential to the health, safety, security or economic well-being of Canadians and the effective functioning of government,’ including those in the area of energy and utilities.

Japan

In Japan, investments in the energy sector will often be subject to a pre-closing notification requirement. This is because the list of core designated business sectors relating to national security covers the areas of nuclear facilities, electricity (generation, transmission or distribution) and petroleum products (oil and natural gas).^[33]

Enforcement practice

Even though the energy sector has been in the focus of national FDI regulations for a long time, actual enforcement action has been rather limited. In fact, over the past decade there have been only a few publicly known formal FDI interventions in energy-related transactions in major jurisdictions, which mostly related to Chinese investments:

• In Australia, the government vetoed attempts by Chinese investors to acquire the country’s largest electricity and natural gas network operators. First, in 2016 the government opposed the sale of Ausgrid to State Grid Corp of China and Hong Kong’s Cheung Kong Infrastructure Holdings Group (CK) based on ‘national security issues . . . identified in critical power and communications services that Ausgrid provides to businesses and government’.^[34] Similarly, the government blocked CK Group’s bid to acquire APA Group in 2018, arguing that the acquisition would not be in the national interest because it would lead to an ‘undue concentration of foreign ownership by a single company group in our most significant gas transmission business’.^[35]
• In the United States, CFIUS intervention in the energy space has also been focused on Chinese investments and led to the collapse of two transactions.^[36] In 2017, Hong Kong-based investors Dragon Gem and Absolute Frontier abandoned plans to acquire a majority shareholding in PEDEVCO, a US company active in the development of oil and gas assets, due to CFIUS-related concerns.^[37] By the same token, Shenzhen Energy Group abandoned an attempt to buy three US solar power stations from Recurrent Energy due to CFIUS opposition.^[38] In contrast, two other transactions ultimately proceeded despite CFIUS scrutiny. First, in 2012, the President, on the advice of CFIUS, initially ordered the unwinding of the acquisition of wind farms owned by Terna Energy USA Holding Corporation located in close proximity to certain sensitive US Navy training areas by Ralls Corporation, a US company owned by Chinese investors. However, that decision was later overturned by a US court and the parties ultimately settled the case. Second, CFIUS approved China National Offshore Oil (CNOOC)’s bid to acquire Canada-based oil and gas company Nexen after a prolonged investigation and subject to undisclosed conditions in 2013.^[39]
• In 2018, the Canadian government vetoed the plan of state-owned China Communications Construction Co to acquire Aecon Group, a construction company with projects focused on the infrastructure, energy (including nuclear) and mining sectors, citing national security concerns.^[40]
• In 2016, the United Kingdom investigated plans by French EDF to form a joint venture for the construction and operation of the Hinckley Point C nuclear plant, in which China General Nuclear Power would hold a minority shareholding. The government ultimately approved the transaction, but only after it had reached an agreement with EDF that the government’s consent would be required for any sale of EDF’s majority interest in the Hinkley Point holding company.^[41] Most recently, on 29 September 2022, the Department for Business, Energy and Industrial Strategy imposed remedies on the indirect acquisition of a 35 per cent stake in Electricity North West by Redrock Investment, a state-owned Chinese company, under the new National Security and Investment Act 2021.^[42] The remedies restrict the sharing of information from Electricity North West to Redrock Investment and also limit Redrock Investment’s influence over appointments of some staff members.
• In Spain, the government approved IFM Global Investor’s acquisition of a minority shareholding in Naturgy Energy Group in 2021, subject to conditions.^[43] It is reported that those were imposed to safeguard planned investments in energy expansion and infrastructure by Naturgy until 2025, to ensure that IFM does not sell assets in excess of levels already approved by the board and that Naturgy will not be delisted and taken into full private ownership for at least three years.^[44]
• It is reported that the Italian government in 2019 cleared Australian fund First State Investments’ acquisition of Uniper Global Commodities’s share in OLT Offshore LNG Toscana, the operator of a floating storage and regasification unit for LNG, subject to undisclosed conditions.^[45]
• Most recently in April 2022, the German government intervened against the indirect acquisition of Gazprom Germania by JSC Palmary (Russia) and Gazprom export business services LLC (Russia).^[46] The Ministry of Economics temporarily appointed the German Federal Network Agency as fiduciary for Gazprom Germania, which had acted as a holding company for Gazprom’s activities in Germany and other European countries, including the operation of critical infrastructure for gas transmission, gas storage and gas trading. The order was issued after the acquisition of Gazprom Germania had not been notified under the German FDI rules and the acquirers had ordered the liquidation of Gazprom Germania. Pursuant to the order, the voting rights of the shareholders of Gazprom Germania have been transferred to the Federal Network Agency and the Agency has been authorised to remove members of the management and appoint new members and to issue instructions to the management. The right to manage and dispose of the assets of Gazprom Germania has also been restricted and was made subject to the approval of the Federal Network Agency.

There are likely various reasons for the limited amount of formal FDI intervention in the energy sector. First, as explained above, there has long been a climate in which FDI in the energy sector was generally welcomed, even if it came from countries that are now in the focus of heightened investment scrutiny. For example, in 2013, the German government did not object to the acquisition of sole control by Gazprom over significant German natural gas storage and supply assets and activities.^[47]

Second, governments are still often shareholders in energy supply and infrastructure companies. Therefore, they are either already involved in the selection of (foreign) investors or may opt not to approve a sale to an investor that is perceived unreliable. One example is the city of Antwerp’s decision to block the sale of a 14 per cent stake in Belgian electricity and gas distributor Eandis to Chinese group State Grid International Development, which it had to approve in its capacity as a shareholder in Eandis.^[48] Similarly, even if no government shareholders are involved, the anticipation of heightened FDI review may impact the selection of investors and deter (the selection of) investors from certain jurisdictions.

Finally, governments may have other – political, legal or economic – means at their disposal to prevent investments in the energy sector by unwelcomed investors. One example is the contemplated acquisition of a minority shareholding by Chinese state-owned company State Grid in 50Hertz, one of Germany’s four large electricity transmission system operators, in 2018. To prevent the acquisition, Belgian majority shareholder Elia exercised a right of first refusal and immediately sold the shareholding to the German state-owned development bank, Kreditanstalt für Wiederaufbau in a move arranged by the German government.^[49] Other examples concern governmental action to enact legislation in response to contemplated transactions. For example, France extended the list of sectors subject to FDI screening in response to plans of US company General Electric to acquire Alstom’s nuclear energy operations in 2014.^[50] Similarly, Slovakia passed new FDI legislation within one week in 2021 to address concerns that Russian state-owned bank Sberbank could acquire Slovenské elektárne, a partially state-owned electricity provider.^[51]

Notes