集微访谈 |Alex Haffner：“霸王条款”加上海外投资干预，英国半导体还想蒸蒸日上？

集微网消息，在往期的集微访谈栏目中，爱集微有幸采访了FladgateLLP商业、体育和知识产权团队合伙人Alex Haffner。集微访谈就关于英国《国家安全和投资法案》的推出提出了海外投资、产业保护和并购等一系列问题，收到了十分有启发的答复。

问：现在我们开始吧。这个问题关于英国的NSI Act《国家安全和投资法案》对半导体并购会产生怎样的影响？

答：我认为在某种程度上有趣的是，第一个被审查的重大案件与中国所有权有关，因为英国《国家安全和投资法案》（NSI Act）显然是由于对中国投资英国的担忧而推出的，这已经不是什么秘密了。我认为我们不知道的是，如果另外一个第三方国家投资英国产业，会不会出现类似的情况？英国政府会如何对待这种情况？我觉得这并不是一个简单的答案。换句话说，为下次决策开创先例是因为产业的原因？还是因为收购者的身份？我认为这是一个基础的问题。英国政府通常一直对海外投资持开放的政策，英国被视为一个重要的适合经商的好地方。

一方面，这个政策原则仍然存在，但在这个特定的产业中，很显然存在着战略性的关注和因素。问题是这些关注和因素是否更重要，还是投资者的身份更重要。这是一个根本性的问题。

问：为何NSI Act能够影响一个已经宣布完成的交易？

答：因此在该法案生效时，法案中有一个条款规定其可以适用于 2022 年 1 月 1 日之前的任何交易。这是一个特别的规定，因为这是政府的决定，因为他们希望该法案适用于自 2020 年 11 月以来已经生效的交易。因此，他们有能力在收回已经完成的交易。换句话说，他们可以回溯从 2020 年 11 月以来发生的交易，对设计国家安全的问题提出疑虑，并要求相关方提供信息，然后做出决定进行审查。

这就是这个案子发生的情况。这是一项非常具体的法律条款，可追溯适用于该法案，适用于英国的《国家安全和投资法案》，这起交易是在该法案生效前完成的。但由于该法案的追溯规定，使得此交易被纳入了审查范围。这样讲清楚了吗？

我的意思是，这种做法是有法律依据的，因为它已经被写入法规了。你说得对这种立法方式很不寻常，但唯一避免这种情况的方法是在立法阶段提出异议，但是一旦政府通过了该法规，这就非常难以实现。而现在它已经成为法案的一部分，那么可以被执行。这就是法律的逻辑。

问：在未来，是否会有更多国家推出类似NSI Act的法案？

答：我认为，现在这种将回溯规定写入法案中的做法在不同的司法辖区中已经非常普遍。美国显然有这样的规定。许多其他国家也有，比如澳大利亚、加拿大以及欧洲等地。现在这种做法在许多不同的司法辖区中得到应用。因此，我认为这种做法将会变得愈发普遍。

问：这个问题关于博通英国如何应对期收购VMware所面临的审查？

答：好的，需要记住的是，这项交易正在被许多不同的监管机构审查。特别是，目前主要有三个机构正在进行调查，有关市场竞争的调查也在进行中。美国联邦贸易委员会（FTC，Federal Trade Commission）进行了第一项调查。然后是欧洲委员会，该委员会负责欧盟所有成员国的管辖范围，但不包括英国，因为英国显然已经在“脱欧”之后退出了欧盟。

接下来是英国竞争与市场管理局（CMA）进行的调查。欧盟委员会和美国联邦贸易委员会（FTC）的调查时间比英国更长，因此即将要做出最终结论了。但每个机构都非常担忧这场交易。实际上，三个机构的担忧非常相似。事实上，我认为这三个机构很可能会相互交流调查结果，这种情况非常普遍。因此，博通公司(Broadcom)决定将在相同条件下应对所有的这些调查。这就是为什么它在英国的调查中没有妥协的原因。英国竞争与市场管理局开展了第一阶段的审查，并对这场交易表示强烈担忧。这与欧洲委员会和美国联邦贸易委员会的担忧相似。英国竞争与市场管理局表示博通公司有5天时间想出办法来解决这一问题或是缓解担忧。

博通表示他们没有任何解决方案。因此，博通决定进行第二阶段的审查，并在第二阶段解决问题。换句话说，他们希望就这笔交易对市场竞争带来的影响与欧洲和美国有关机构进行辩论。因此，博通现在基本上是在与三个监管机构进行同样的战斗，博通真正的态度是它们不想在这个阶段作出承诺，而是想把重点放在这是否真的损害了市场竞争力。然后根据这方面的调查结果，他们将不得不决定是否作出承诺或是什么承诺使这项交易得到批准。

问：那您认为对于博通来说哪家监管机构最有挑战性？

答：说实话，我认为他们都在追求同一个目标。这些调查同样具有挑战性，因为正如我说的那样他们在某种程度上相互合作。虽然他们的调查在时间上不是并行的，但从实质和策略的角度来看，它们几乎是并行的。

我认为这些调查都很具有挑战性。在这些调查机构中，美国监管机构可能是最具挑战性的，因为他们可能是此类收购方面最严厉的监管机构。此外，由于硬件和软件的接入，还存在政治问题。这笔交易有趣的地方在于它是一次垂直合并。在竞争法中，我们将合并分为横向合并和纵向合并。横向合并是指同一市场上的各方之间的合并。而纵向合并则指业务相关但独立的市场之间的合并。而这里的情况就是如此，因为VMware显然是一家软件提供商，而博通则是提供硬件的公司。因此，监管机构正在审查的是，通过建立垂直关系博通是否会对上游或下游的软件市场造成不利影响。

监管机构主要担心的是软件和硬件之间的互操作性，以及博通是否具备能力和动机使其他竞争对手更难与VMware实现协同工作。VMware在软件市场上非常重要，所以这是调查的重点。

问：您认为英国使用“国家安全”的理由来撤回已经批准的并购交易是够足够公平？

答：这是一个很棘手的问题。我认为这一决定表明，国家安全是一个非常宽泛的概念，并且涉及许多不同的事情。简单来说，国家安全意味着是否存在对信息和技术获取的担忧，这显然与之前的案例有关。因为这次合并涉及到与外国政府有关的联系，或者至少所有权都与外国政府有关联，特别是中国政府，因此引发了对技术流向他国的担忧。

但那个案例有趣的地方不仅在于技术获取的问题，还在于行业发展及谁应该负责行业的发展。同样，一个非常重要的战略产业是否应该由外国投资者和外国政府掌控。

那个案例带给我们的教训是，国家安全是一个非常广泛且有弹性的概念，政府可以根据需要灵活运用，并可以将它应用于许多不同的领域。英国政府表示，它理解人们对其权力范围的担忧，并将很快发布更多的指导方针来说明这些权利范围的具体含义。但可以肯定的是，这一决定尤其引起了投资者的担忧。

问：如何评价英国准备在威尔士恢复半导体集群？

答：我认为答案是英国政府肯定希望这个行业得到扩展，这在战略和政治层面都非常重要，从供应安全的角度来看，这也具有一定的意义。在疫情期间，我们看到了在供应链问题上出现的各种挑战，这使得安全保障这个问题变得更加突出。

所以我认为这是非常重要的。我想英国政府面临的问题是这个投资是否应该与任何第三方合作，或者是否应该做出决定谁是一个好的投资者。这是一个非常棘手的政治问题。但正如你在那个决定中所看到的那样，英国政府持有某种特定的观点，但他们肯定认为该行业非常重要。此外，也有很多关于软银（Softbank）旗下的ARM公司的讨论。英国政府一直在积极争取，希望该公司在英国上市，而不是在美国上市。这也被视为谁应该掌控这个重要战略产业的问题。所以在ARM那里也存在类似的问题。

问：对于准备并购的企业来说，您认为他们应该提前进行怎样的准备来规避例如NSI Act带来的法律风险?

答：这种做法具有重要的影响，他们真正需要做的是在完成交易之前就对这些问题进行审查并将其纳入尽职调查范围内。这非常重要。因此，我认为这应该成为任何引发《国家安全法》的交易中所包含的风险因素。为避免后续出现任何意外，这应该作为尽职调查程序的一部分。需要记住的是，英国法案的执行方式是，如果一笔交易符合门槛要求，就必须获得政府的批准，如果你的交易符合要求，那么你必须通知英国政府，否则就无法完成交易。因此，事先弄清楚是否适用该法规非常重要。他们需要事先评估风险，并从像我这样的律师那里事先获得建议。他们需要确保自己知道风险所在。

问：您认为目前在英国并购最大的风险在哪？

答：是的。我认为实际上更多的是关于现有制度，他们会对现有制度进行调整。正如我所说，他们已经在仔细研究这个问题了，他们正在思考如何向人们提供指导。因此，我认为未来我们将看到更多的努力投入到现有法案中。这样可以使其更加清晰，也更能适应政府的需求。这就是我们将会看到的。

问：在NSI Act之后英国将如何吸引半导体投资?

答：正如我之前解释的那样，我是说这是一种平衡。一方面，必须对投资持开放态度，并采取措施……当然了，这不仅涉及政策问题，还涉及经济和激励措施问题。英国一直试图在其法律体系上保持灵活性。例如，在税收制度方面，它为人们投资提供了各种激励措施。

因此，我认为我们将继续看到英国采用经济政策来吸引投资。但现在政府已经建立了保障机制，用于可能需要采取战略行动的情况，这一保障机制肯定会继续存在。因此政府已经表示需要明确其意图来确保透明度，并将专注于尽可能清晰地阐明如何实施政策，以确保英国在投资方面的吸引力。同时，政府也将保留这些权力，并在必要时予以行使。

以下是采访原文（英文）：

Q:My next question is about the uk's, nsi act. So how will the nsi act impact to the semiconductor mna and the interactions of an act like the nsix accelerate the declarations of the ecosystem of semiconductor industry.

A: I think in a way, it was interesting that the first big case that was looked at was in relation to, obviously Chinese ownership, because obviously, it's no secret that the NSI Act was motivated in some material part by concerns about Chinese investment into the UK I think what we don't know is if another third party states were to invest in the UK industry, would that similarly be?You， how would that be treated by the UK government? I don't think there is an easy answer to that. So in other words, does the next period decision set a precedent because of the industry? Or is it because of the identity of the acquirer? I think that's the fundamental question. I the UK government is always generally had a policy of being open to investment from overseas. The UK is seen as an important a good place to do business.So that on the one hand, that's policy principle is still in place, but obviously that in this particular industry, there are strategic concerns and aspect. The question is whether those concerns are more important, or whether it is the identity of the people who are investing there is more important. That's the fundamental issue.

Q:Okay, to be honest, i'm not good question. Ii don't know a lot about the law very well. But in my impressions, the law or bills usually does not in investigate the behavior that occurred before the implementation, or we said the lax prospects, none respects. Is that right? I i'm not really sure about that, including the trip acts from the united states. It's all the same. But what confuse me is that the nsa heads came into effect in the january 2022, but according to the xpds press release, it has completed the transition to create a new approach wafer fab in july Twenty, twenty, 21.Before the nsix came to effect, can I explain why nsix is able to affect the transition that is already being completed。

A:So when the act came into force, there was just a provision in the act, which said that it could apply to any transactions prior to 1st of January 20, 2002, there was a particular provision, because that was a government decision that because that they said that they wanted the act to apply to transactions which had already taken effect as from November 2020 onwards. Therefore, they had the ability, and so they gave themselves the ability to what they call in transactions， so in other words, to look back at transactions that were had happened in the period since November 2020, and decide if they had any concerns as the national security to ask the parties to give information and then to make a decision.And that's what happened in this case. So it's a very specific piece of, it's just a specific to this piece of legislation which said that could apply retrospectively that was in the act, in the nsi， so you're absolutely right that this transaction happens before the act came into force. But it was caught because of the provisions of the acts, the retrospective provisions of the act.I mean it had legal basis because it was put into the statute.so the legislation, so you're right. It is unusual, but I mean, the only way to avoid that would be to challenge the legislation, but that's very difficult to do it once the government has passed the legislation. So now it's in the act, it's able to be enforced. That's the way it works.

Q:So do you think this situation will be extend to another loss or learn? Or other countries? Maybe learn french? So they may be well copied the same act.

A:I think so, these acts like in it are very common now across different jurisdictions. The us obviously has one. And many other economies have on Australia, Canada, in Europe, many of the countries that there's a European equivalent as well. It's being used in many different jurisdictions. Now. So I think it's definitely something that we'll see more.

Q:That's fine. Okay, let me check my checklist. That's fine. Sure. Let's look good. So let's get started. Let's start our interviews. So my first question is about the broken and being where as the case of the broken view, where broken decline of any undertakings to cma so how is it still outcome would be affected by the broken decision if they give the offer or decline the offer to undertakings.

A:Okay, so it's important to remember that, this transaction is being looked at by many different regulators. In particular, there are three main investigations going on, competition investigations going on. There is one by the FTC in America. That was the first one to be initiated. Then there is the European commission, which has jurisdiction for all of the member states of the European union and not the UK anymore, because obviously the UK it is outside of the EU now following Brexit.And then the UK competition and markets authority or CMA, so the European commission and the FTC of their investigations have been ongoing for longer than the UK so they are nearer to their conclusion. But each of those authorities has raised significant concerns with the transaction. And the concerns they've raised are similar, really for all three authorities. And in fact, I think it's likely, in fact, common that all three authorities will be talking to each other about their investigations, that's very common in these situations. So I think what Broadcom has decided is that it will fight all of these investigations on the same terms. And that is why it has not in the UK investigation. What happened was the CMA carried out its phase one review. It raised concerns, significant concerns with the transaction. They are similar concerns to the ones raised by the European commission and the FTC in the US and they then said to Broadcom what you have now 5 days to come up with undertakings to remedy or concerns.And Broadcom said, we don't have any undertakings office. So what they've done is they said, let's go to phase two and let's fight it out in phase two. In other words, let's have the same debates that we are having with the European and the American authorities about the competitive impact of this transaction.So do you see they are basically now fighting the same battle with each of the three regulators? That's and really what they are saying is we're not, we know we don't want to give undertakings at this stage. We want to focus on whether this really does harm competition. And then depending on what the findings are in that regard, they will then have to decide whether they give undertakings or whether undertakings are needed to get this transaction cleared.

Q:Okay, Which side do you think is the biggest challenges for broken? As you just mentioned? They have three sides, the cma and un and us maybe. Yeah.

A:To be honest with you, I think they are all set on the same thing. They're equally challenging because as I said, they are really in a way they are collaborating with each other. And their investigations are almost, they're not running in parallel timing wise, but they are running in parallel from a substantive point of view, from a tactical point of view.So I think they are all challenging. I think the US one is probably the most challenging because that they are probably the fiercest authority in regards to these type of mergers. And there are obviously political issues as well, because of the access to this, that these the hardware and the software as well built in. What's interesting about this transaction is that it is a vertical merger. What I mean by that in competition law, we have horizontal mergers and vertical mergers. Horizontal mergers are those between parties in the same market. Vertical mergers are where there are. They are in related but separate markets. And that is the case here, because VMware obviously is a software provider, whereas Broadcom a is obviously providing the hardware. So they are looking what the authorities are looking at is the whether by having the vertical relationship, Broadcom can harm competition on either the upstream market or the downstream market for software.Their concerns are mainly around the interoperability between the software and the hardware, and whether Broadcom will be able and incentivized to make it more difficult for other of their competitors to integrate with VMware, because of VMware is very important in the software market. So that is the focus of the investigation.

Q:My next question is about the in nxp period.the last the last November experience officially claims that they are shocked by the US UK the government's decision in to order to divest investment of the 86 % of its semiconductor wafer factories in South Wales, known as the nwf new port wafer fab. This year has been broke the bulk you, British government. Do you believe the national security grounds are fair enough?

A:That's a difficult question. I think what the decision showed is that that national security is a very broad concept and came in many different things. In simple terms, it means whether there are concerns about access to information and technology with which obviously was relevant in that case. Because of the fact of the merge are being linked, or at least ownership in ownership turns being linked to foreign government, particularly the Chinese government and concerns about, therefore, access to technology going into other states’ hands.

But what was interesting about that case was it's not just about the access to the technology, it's also about development of the industry and who should be in charge of development of the industry. And again, should it be, a very important strategic industry be under the control of a foreign, potentially of foreign investors and foreign governments.And that's the lesson from that case, is that national security is a very broad elastic concept, which the government can flip, it has flexible. It feels it's flexible enough to use it in many different ways. I'm...the UK government has said that it understands concerns about the scope of its powers, and it is actually going to give more guidance very shortly on what those powers mean. But certainly that decision cause some concern amongst investors in particular.

Q:besides what's your opinion on the british government's ambition to restore restoration of the semiconductor in wales? Because before the x and pds have trying to trying to mna the nwf I believe it's not pro. Touch a male, it's not profitable. The nf nwf is losing money before the next video, try expire, trying to mna it. So, yeah, that's true.

So so what's your opinion about the british government ambitions to restoration the semiconductor in wales? Because if they can, they have abilities to resolve it, maybe there's no need the xp they are trying to cooperate or investments. The end of that.

A:I think the answer is that they definitely want to the industry to expand and to be is very important strategically and politically, it has consequences as well from a security of supply perspective. We saw this coming into prominence during covid and all of the issues that arose in terms of supply chain.So I think it's very important to teach you. I guess the question for the UK government is, should that investment be allowed to occur with any third parties or a should there be a decision taken on Who is a good investor? That was right. That's a really difficult political question. But as you saw in that decision, they came on. They came to a particular view, but they certainly see the industry is very important. There's also been a lot of discussion about ARM which is owned by Softbank. And the UK government has lobbied very hard for that company to be listed in the UK rather than in the us and it's sort of in a connected way. It's again seen as who should have control over this important strategic industry.

So it's similar ARM issues are playing out there as well.

Q:of okay do for the companies prepare. So for the company prepare for the mergers and mna to mna folks or. So what kind of preparation do you think they should make in advance to avoid such a legal risk? Because it。

A:It has big consequences, what they really need to do is they need to look at these issues before they end the transactions. They need to include these issues in that due diligence. It's very important. So I think this needs to be a risk factor that is included in any transaction that triggers the National Security Act. It should be included in the, as part of the due diligence process to avoid any surprises later on. It's important to remember that some the way the UK Act works is that if a transaction meets the thresholds, its mandatory to get clearance from the government, you have to, if your transaction meets the thresholds, you must make a notification, and you're not allowed to complete the transaction.So it's very important that whether that is the case in advance.Yeah, they need to look at the risk in advance why they need to look at the risk in advance. They need to check, and they need to get advice from lawyers like myself in advance, you know. They need to make sure they know what the risk is.

Q:So everything, yes. For the companies, they you give me a second. Let me think about the question. Can you just describe more specific about the legal risk? The users, can you predict the future? Maybe UK want wants to have more acts to control for the night for the national security or something else to, to avoid the merge.

A:Yeah. I think really, it's more about the existing regime, and they will adapt the existing regime. As I say, they are already looking at it carefully. They are giving thought to how to give guidance on it to people. So I think we will see more effort put into the existing act in the future. So it can be made more clear, but also more adaptable for governments needs. So that's what we will see.

Q:My last question is, can you explain in detail you about how UK will play a role to attracting investment and does something like the nsi act in the future, because you have already said the UK wants to investment, happy to investment of the semiconductor, even outside the countries from another country, such as the us some us china may maybe, but they have the nsax so some companies maybe don't don't want to, they are fair about the nsax like that.So how the UK will play a role from both sides?

A:Yeah. As I tried to explain in a few times, I mean it's a balance. Really? There's, on the one hand, being open for investment and making the... and of course. It's not just about policies, also about economics and incentives. And the UK has always tried to be flexible in terms of its regime. And we see that in terms of its tax regime, for example, where it has various incentives for people to invest.

So I think we will continue to see that use of economic policy. But now there is this safeguard that is very much in place for the government to intervene, where it thinks it's strategically necessary for it to do so. And that will definitely continue to be the case. So the government has said that it recognizes that it needs to be clear about its intentions. And so that's what it will focus on doing, is trying to be as clear as it can be about how it implements policy in order to preserve the attractiveness of the UK from an investment point of view, that so it will continue to do that. But at the same time, it will keep these powers in place to use when it feels able to do so.