The House Financial Services Subcommittee on Monetary Policy and Trade considered expert testimony on reforming the Committee on Foreign Investment in the United States ("CFIUS").
CFIUS evaluates proposed transactions that could result in a foreign entity gaining control of a U.S. business. Based on its evaluations, CFIUS is able to recommend that the President reject a transaction or take other mitigating action.
In addition to calling for the allocation of additional resources for CFIUS, panelists made several recommendations to improve operational effectiveness and efficiency.
- Rod Hunter, former Special Assistant to the President and Senior Director of the National Security Council, called for increased collaboration with foreign governments and warned against expanding CFIUS jurisdiction to include technology controls, arguing that doing so could encourage investment in high-tech research and development to move offshore.
- The Honorable Theodore W. Kassinger, former Deputy Secretary of the U.S. Department of Commerce, encouraged "adherence to basic principles" of CFIUS operations, and emphasized the importance of welcoming foreign investments and subjecting them to regulation "only to protect vital national interests."
- Dr. Derek M. Scissors, Resident Scholar at the American Enterprise Institute, argued that the U.S. must "find a way to incorporate China-specific investment restrictions without harming ourselves or long-time investment partners."
- Dr. Scott Kennedy, Deputy Director at the Center for Strategic and International Studies, suggested limiting transfers of technology to China and broadening the CFIUS' mandate to include transactions where foreign parties obtain a minority stake, especially in cases where high-priority technologies are involved.
- Admiral Dennis C. Blair, Co-Chair of the Commission on the Theft of American Intellectual Property and former National Intelligence Director for the National Security Council, argued that the CFIUS process should be reformed "to include an intellectual property protections evaluation." He also called for approval of the Foreign Investment Risk Review Modernization Act of 2017 ("FIRRMA"), a bipartisan bill introduced last year in Congress intended to broaden the range of transactions involving foreign investments in U.S. companies that are subject to review, blocking or unwinding by CFIUS. FIRRMA would expand the types of covered transactions to include certain joint ventures (either within or outside the U.S.), minority position investments in U.S. companies, and purchases of real estate located near U.S. military or other government installations.
Commentary / Joseph V. Moreno
Unsurprisingly, a great deal of attention during the hearing on CFIUS reform focused on the dangers of Chinese investment in U.S. companies that could contribute to the diminishment of the United States' long-term financial and technological advantages. China's flavor of capitalism blurs the line between state-owned enterprises and private companies, and Chinese advances into the U.S. economy must be viewed through the lens of its government's stated desire to catch up and eventually overtake the U.S. as the world's largest economy. Regardless of whether FIRRMA eventually becomes law, companies involved in mergers, acquisitions, and other "covered transactions" involving investments in a U.S. business by a foreign entity should anticipate increased scrutiny going forward.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
