The Australian government has denied Hong Kong-based CK Hutchison Group’s $9.5 billion proposal to acquire Sydney-based pipeline operator APA Group.
The veto followed the government’s 2016 ban of a joint bid by CK Hutchison and state-owned Chinese power company State Grid Corp. for a majority stake in electricity distributor Ausgrid.
In his final decision, issued last Tuesday, Treasurer Josh Frydenberg said CK’s proposal to buy APA will be “contrary to the national interest” as it will result in “a single foreign company group having sole ownership and control over Australia’s most significant gas transmission business.”
Australia is by no means alone in its national security concerns over acquisitions—mostly by Chinese companies. The U.S. has blocked several deals through the Committee on Foreign Investment of the United States (CFIUS), an inter-agency committee tasked with reviewing inbound investments. And the recently enacted Foreign Investment Risk Review Modernization Act, which requires U.S. businesses in 27 different industries involved in certain “critical technologies” to file a declaration to CFIUS if they accept foreign investments, could lead to more.
And now the EU is also getting in on the act, having just approved a law that will create an alert mechanism for future foreign investments in Europe and a centralized database of current investments. However, the law differs from CFIUS in that it will leave the final decision of approving deals to individual member states.
The Australian deal, had it gone through, would have been the second-largest ever takeover of an Australian company, and would have made CK the largest gas pipeline operator on Australia’s east coast.
Frydenberg made the decision based on recommendation from the Australian Foreign Investment Review Board, or FIRB, an advisory body that examines foreign investment into Australia. FIRB disapproved the deal in spite of the green light given by the Australian Competition and Consumer Commission, the country’s antitrust watchdog, after CK agreed to divest significant gas assets in Western Australia.
CK was advised on this deal by an Allens team that included Melbourne partners Wendy Rae, who specializes in foreign investment clearances, and Ted Hill, who focuses on competition law and infrastructure regulatory matters.
APA was advised by King & Wood Mallesons with a team including Sydney partner Vishal Ahuja, who specialized in regulatory work related to the energy and infrastructure sectors including ACCC clearances.
The Treasurer’s national interest rationale in the APA decision was similar to the reasoning given in the Ausgrid deal, which then Treasurer Scott Morrison said was ”contrary to the national interest … on the grounds of national security.” Frydenberg succeeded Morrison as Treasurer in August of this year when the latter became Prime Minister of Australia. Both are members of Australia’s conservative Liberal Party where Morrison is now serving as party leader with Frydenberg as his deputy.