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Review Of All Foreign Business Investment In New Zealand

24 July 2020

Under new urgent measures legislation, an overseas person must now obtain a direction order before acquiring any property used in carrying out a business or acquiring any significant interest in a NZ entity. The Overseas Investment (Urgent Measures) Amendment Act 2020 has wide reaching ramifications for any transaction with an overseas connection.

COVID-19 brought a number of challenges to the New Zealand economy. Covid-19 has placed businesses under pressure, and one result of that pressure is the fall in value of such businesses. Many consider the falling business values create the potential for overseas persons to acquire ownership or control of business assets important to New Zealand’s economic recovery at prices that do not reflect the long-term value of these businesses.

Temporary Emergency Notification Scheme

To manage the risks that may be posed by foreign investment, the Overseas Investment (Urgent Measures) Amendment Act 2020 came into force on 16 June 2020. As well as long term amendments to overseas investment in NZ, a temporary risk management scheme was introduced so the Government could review all business transactions with an overseas connection.

How it works

Here is how the scheme works:

Notification: Overseas persons must notify the Government of any call-in transactions. Notifications may be completed online.


What needs to be notified: Call-in transactions have a wide application and include the acquisition by an overseas person or an associate of:

Investment in companies, trusts, and other entities

        • 25% or more of shares, securities, or other interests (including new incorporations)
        • a controlling interest
        • an increase from a 25% interest to 50% or more.

Direct investment in businesses and other property investment in:

        • any business
        • any business assets
        • equipment or machinery used in a business (for example, equipment leased to another business)
        • intellectual property (for example, change of ownership of New Zealand trademarks)
        • any other property used in a business (for example, property leased to a business) 

which amounts to a change in control of a business.

Ministerial review: The Minister reviews call-in transactions to determine if there are significant national security or public order risks, or it is contrary to New Zealand’s national interest.

Orders: Following a review, the Minister must make one of the following orders:

        • Direction Order – notifying that the acquirer may give effect to the transaction with or without conditions
        • Prohibition Order – prohibiting the transaction
        • Disposal Order – requiring disposal of sensitive assets previously acquired
        • Statutory Management – recommend any person who owns sensitive assets be placed into statutory management.

Timing: The Minister must make an order within 40 working days. It is hoped only 10 working days will be needed. However, the time required can be extended up to 70 working days.

Direction Order required: No call-in transaction can proceed without a Direction Order.

Who must notify: All overseas persons and associates and may include:

        • non-residents
        • overseas companies
        • companies with 25% overseas ownership
        • trusts controlled by overseas trustees or appointers
        • companies with 25% overseas control (for example, overseas directors).

Published: The notices will be published in the Gazette and on an internet site.

Offence: A failure to give notice or to give effect to a call-in transaction without a Direction Order is an offence and liable to a fine of up to $100,000.

Application: The regime does not apply to transactions entered into before the 16th of June 2020.

Concerns
You should watch out for:

• new company incorporations with overseas shareholders
• changes in ownership of overseas parent companies
• leased assets

Review

The Temporary Emergency Notification Regime will be reviewed on the 31st of July 2020 (45 days after the Amendment Act came into force) to ensure it is not broader than necessary.

Summary

The Temporary Emergency Notification Scheme should be considered for all transactions with an overseas connection. There is no materiality threshold.

If you have any queries or would like advice on issues relating to this article, please do not hesitate to contact Mike Roberton, Deirdre Norris or Ah Song Sunwoo.