As of October 15, 2020, the critical technology mandatory filing requirement under the regulations of the Committee on Foreign Investment in the United States (“CFIUS”) closely tracks US export licensing requirements. This development in the foreign investment space aligns with the US government’s initiative to promote innovation and the protection of US technologies for national security purposes, as set out in the National Strategy for Critical and Emerging Technologies, released on October 15.
Filings with CFIUS are now mandatory for certain investments in US critical technology businesses if the technologies would require a “U.S. regulatory authorization” for export to the foreign investor or certain foreign persons in the ownership chain. More information regarding the final rule issued by the US Treasury Department to implement this modification to the filing requirement can be found on our sister blog, here.
Under the CFIUS regulations, “critical technologies” are defined by reference to certain US export control regimes, including the International Traffic in Arms Regulations and the Export Administration Regulations (“EAR”). Critical technologies controlled under the EAR will eventually include those items considered “emerging and foundational technologies” that the US Department of Commerce will identify pursuant to the Export Control Reform Act of 2018.
On October 5, 2020, the US Department of Commerce added six recently developed or developing technologies to the Commerce Control List (“CCL”) of the EAR. Although the rule title announced “Implementation of Certain New Controls on Emerging Technologies,” the technologies controlled on October 5 are not the long-awaited “emerging and foundational technologies.” Rather, they are items that governments participating in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies agreed to control at a meeting in December, 2019. That said, because these technologies are now subject to multilateral controls on the CCL, they are “critical technologies” for CFIUS purposes. These new CCL designations and resulting CFIUS implications illustrate the importance of US export controls review in the early stages of transactional due diligence and CFIUS risk assessment.