20 May 2011

Australia's M&A landscape

Mark Paganin talks about Australia's M&A landscape.

Australia's M&A landscape 
Mark Paganin, Partner, Corporate Advisory / M&A

How does Australia compare against other resource-rich countries as a destination for foreign investment?

Well I think the short answers to that is "favourably". As a destination and we are really looking here at sovereign risk, and everything that sovereign risk is about - not in our minds - but for the foreign investors: what's important to them before they invest in a foreign jurisdiction?

What is we believe and from experience and observations is that we would be definitely in the lower quartile on the sovereign risk on the global stage, particularly to countries like from Africa and Asia and to important other like destinations. To a lesser extent, but it has been a more recent phenomenon, South America is starting to find company growing in inbound investment from that destination as well.

We've a stable government, and an understanding electorate. Quite honestly, I say that because I think the electorate understands the benefits of foreign investment and the importance for the Government to have a level playing field while at the same time managing and protecting our national interest and any interests that are fluid and evolve from time to time from the electorate - what's important to them at this stage and what may be important in another 5, 10 15 years - because these projects are not short-term.

So the difficulty will be from a sovereign risk point of view, the Government's ability and the electorate to predict the future and to have safeguards in place to protect those potential concerns.

Are there any bottlenecks that we should be looking at to stay competitive?

If you come to Australia you see some of the expenses - the labour shortages, the skill shortages, the regulatory bottlenecks - but they tend to be from transactions and inbound investment around environment and around other approvals.

Bottlenecks, such as expenses, project blow-outs in costs, we're seeing that a lot now. Leaving the foreign exchange rates of the more recent times aside, this is just a natural function of foreign investment and the magnitude of that investment in Australia. Those bottlenecks, I'd say, are secondary to the primary investment decision to move into Australia.

There's not a reason not to invest in Australia, but it is a matter that needs to be, not only for foreign investors to be conscious before they invest, but to work with their Australian counterparts to manage during the process Government relations and consultations are most important during the process.

There still seems to be some uncertainty about the operation of the Foreign Investment Review Board - is that perception warranted?

My view is that it is a perception. Quite honestly the Foreign Investment Review Board has been comparatively transparent to the like organisations in other countries.

The Foreign Acquisitions and Takeovers Act is very clear legislation, and then of course, where the uncertainty may derive from is a case-by-case scenario on the policy and implementation of that policy.

The Government, through the Canberra Office of the Treasury, is most open to consultation for transactions that are particularly sensitive, or may be particularly sensitive to foreign and national interests in Australia.

There are very few cases, quite honestly, which the Foreign Investment Review Board has rejected. There has been some high-profile examples of course - the Singapore Stock Exchange/Australian Stock Exchange proposed merger - but the Foreign Investment Review Board has been most open and they tend to deal with any concerns in consultation with the foreign investor by way of undertaking the conditions to approvals. They seem to have worked perfectly and they have been published, the market and the investors know about them. Now there is a precedent and a pattern of themes of conditions and undertakings which then will help manage again the expectations of foreign investors before they invest in Australia. So I think it's a perception rather than reality and they are there to protect Australia's national interests, and they are a Government and there is an electorate and they have concerns.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.