Private Enforcement of FDI Screening Laws: Litigation and Quantification of Damages in Court

FDI screening and Golden Power Laws are, at their core, a matter of national security and public order in all Member States. The panel will explore the right of private parties to enforce such laws, both by providing insights to public authorities regarding potential breaches or non-compliance, and by asserting violations of their subjective rights resulting from such breaches. Vetoes or conditions imposed by national governments on prospected transactions may trigger contractual liability between the parties (especially if contractually unprepared) and, in case of breach of a prescription, may even result in tort liability to third parties, paving the way for FDI-related class actions. Private enforcement of FDI laws raises issues of jurisdiction in cross-border transactions, applicable law, legal standing, disclosure of evidence, and the identification and quantification of damages. Amid rising geo-political tensions, FDI screening and Golden Power laws have become central to complex M&A transactions worldwide, with growing exposure to strategic litigation risks.