Foreign Investment Law and Policy in Australia: A Critical Analysis

24 Pages Posted: 24 May 2014

See all articles by George Gilligan

George Gilligan

University of Melbourne - Centre for Corporate Law and Securities Regulation

Justin O’Brien

Harvard University - Edmond J. Safra Center for Ethics; University of New South Wales (UNSW)

Megan Bowman

King's College London – The Dickson Poon School of Law

Date Written: February 13, 2014

Abstract

Under Australia’s foreign investment review framework all foreign governments and their related entities should notify the federal government and gain approval before making a direct investment in Australia regardless of the value of that investment. Yet can Australia’s current policy settings be maintained in their current form given developments in global capital markets, in particular the rise of state capitalism. This paper sets out the Australian foreign investment legal and policy framework. It focuses closely on the national interest test and the manner in which it has been applied, with particular reference to the rising importance of China as a major trading partner. Focusing on empirical evidence of government decision-making under the Foreign Acquisitions and Takeover Act 1975 (Cth) and supporting policy documents, this paper makes recommendations for reform in three areas: (1) the national interest test and public opinion; (2) enhancing transparency and consistency; and (3) non-discrimination.

Suggested Citation

Gilligan, George and O’Brien, Justin and Bowman, Megan, Foreign Investment Law and Policy in Australia: A Critical Analysis (February 13, 2014). CIFR Paper No. 008/2014. Available at SSRN: https://ssrn.com/abstract=2440983 or http://dx.doi.org/10.2139/ssrn.2440983

George Gilligan (Contact Author)

University of Melbourne - Centre for Corporate Law and Securities Regulation ( email )

185 Pelham Street, Carlton, Building 106
Victoria 3010
Australia
+61 3 8344 1079 (Phone)

HOME PAGE: http://www.law-cclsr@unimelb.edu.au

Justin O’Brien

Harvard University - Edmond J. Safra Center for Ethics ( email )

124 Mount Auburn Street
Suite 520N
Cambridge, MA 02138
United States

University of New South Wales (UNSW) ( email )

Kensington
High St
Sydney, NSW 2052
Australia

Megan Bowman

King's College London – The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

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