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Rod Hunter

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On February 28, President Biden issued Executive Order 14117 (the EO) directing the US Attorney General and other agencies to promulgate regulations that restrict and, in some cases, prohibit transactions that might involve the sharing of sensitive personal data and government-related data with “countries of concern” (currently China, including Hong Kong and Macau, Russia, Iran, North Korea, Cuba, and Venezuela). In tandem, the Department of Justice (DoJ) issued an Advance Notice of Proposed Rulemaking (ANPRM)…

On February 1, 2024, the U.S. Court of Appeals for the Eleventh Circuit granted a limited preliminary injunction enjoining enforcement against two Chinese national plaintiffs of a new Florida law (SB-264) that restricts certain foreign persons from owning real property on grounds that the plaintiffs have a “substantial likelihood” of prevailing in their argument that federal foreign investment regulation pre-empts the state law. This litigation over the 2023 Florida law, which comes at a time…

On May 11, 2023, the Committee on Foreign Investment in the United States (“CFIUS”) issued a Frequently Asked Question (“FAQ”), which calls into question the use of “springing rights,” a broadly used instrument to expedite financings while complying with mandatory filing requirements. The FAQ addresses the timing for when a filing must be made for a transaction triggering a mandatory filing. Since implementation of the mandatory filing requirements, transaction parties have used springing or deferred…

On October 20, 2022, the US Treasury Department released the first Committee on Foreign Investment in the United States (“CFIUS”) Enforcement and Penalty Guidelines (the “Guidelines”). The Guidelines provide visibility into factors CFIUS considers when assessing violations of CFIUS laws and regulations, and determining potential penalties. The Guidelines are applied by the Monitoring and Enforcement office, which is part of the US Treasury Department’s Office of Investment Security. The Guidelines apply when CFIUS assesses the…

On August 2, 2022, the Committee on Foreign Investment in the United States (“CFIUS” or “the Committee”) released its annual report for calendar year 2021 (the “Annual Report”). The Annual Report provides data concerning transactions filed with CFIUS in 2021, the first full calendar year following the introduction of the implementing regulations for the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”). Reflecting the increasingly routine nature of CFIUS, investors from a broad range…

On September 15, 2022, the President issued an Executive Order (“EO”) directing the Committee on Foreign Investment in the United States (“CFIUS”) to prioritize certain factors in its assessment of risks associated with a foreign investment.  This EO does not modify the CFIUS process or impact its jurisdiction, but it essentially codifies the Biden administration’s approach to CFIUS reviews.  In doing so, the EO provides insight to businesses into how CFIUS will analyze transactions before…

The EU-US Trade and Technology Council (“TCC”), set up at the June 2021 EU-US Summit, held its first meeting on 29 September 2021 in Pittsburgh, USA. The objectives of the TCC are to “coordinate approaches to key global technology, economic, and trade issues; and to deepen transatlantic trade and economic relations, basing policies on shared democratic values”. The TCC Inaugural Joint Statement (the “Joint Statement”) discusses outcomes in respect of five key areas including export…

On July 26, 2021, the Committee on Foreign Investment in the United States (“CFIUS”) released its annual report for calendar year 2020 (the “Annual Report”).  The Annual Report, which provides data on transactions filed with CFIUS in 2020, shows procedural improvements to the CFIUS process following full implementation of the Foreign Investment Risk Review Modernization Act (“FIRRMA”) on February 13, 2020. Short-form declaration filings are up by 35% from 2019 and CFIUS has cleared over…

With global foreign investment scrutiny on the rise, not least in the current COVID-19 environment, obtaining concise, accessible advice has never been more important. Enter Baker McKenzie’s bespoke Foreign Investment Review Evaluation (FIRE) tool. FIRE is a Baker McKenzie analysis platform that answers 51 detailed questions on foreign investment review regimes across 26 key jurisdictions. It is updated in real time and provides depth and legal certainty for companies. FIRE is an automated database. Users…

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…