CFIUS was established in 1975 by President Gerald Ford's Executive Order11858, pursuant to Section 721 of the Defense Production Act, initially to study and provide policy recommendations regarding foreign investment. Subsequent fears of Japanese investment—particularly a proposed purchase of Fairchild Semiconductor by Fujitsu—led Congress to pass the Exon–Florio Amendment in 1988, which empowered the President to reject deals pursuant to a review by CFIUS. The committee was granted formal statutory authority by the Foreign Investment and National Security Act of 2007 and further strengthened in 2018 by the Foreign Investment Risk Review and Modernization Act.[3]
CFIUS does not acknowledge which deals are under review nor require the involvement of any of relevant parties.[4] It utilizes classified information from the U.S. Intelligence Community and does not publicly announce its findings. There is no statute of limitations for CFIUS to exert jurisdiction over a transaction.[5] Companies and/or individuals that have failed to make an appropriate filing for their transactions, whether ongoing or complete, may sustain a penalty in certain circumstances; additionally, the foreign party may be forced to divest.[6]
Process
CFIUS is legally authorized to investigate and review transactions involving foreign investment and/or real estate transactions by foreign persons and/or entities in the United States.[7] CFIUS' primary concern in most reviews is that technology or funds from an acquired U.S. business might be transferred to a sanctioned country through its acquisition by the foreign party;[8] close scrutiny is particularly given to acquisitions of critical infrastructure, such as public health or telecommunications. CFIUS has investigated "restrictions on sale of advanced computers to any of a long list of foreign recipients, ranging from China to Iran",[9] including deals involving U.S. allies, such as the acquisition of United Defense by U.K. company BAE Systems in 2005. The vast majority of transactions submitted to CFIUS are approved without difficulty, but at least one deal involving an Israeli firm was cancelled once CFIUS began scrutinizing it.[10]
All companies proposing to be involved in an acquisition by a foreign firm are supposed to voluntarily notify CFIUS, although the committee may also unilaterally initiate a review, and maintains jurisdiction over "non-notified transactions" indefinitely, including those that have since been completed.[5] Upon notification, CFIUS has 45 days to authorize a transaction or begin a statutory investigation; if the latter is chosen, the committee has another 45 days to decide whether to permit the acquisition or order divestment. Most transactions submitted to CFIUS are approved within the initial 45-day period without the statutory investigation.[11] However, in 2022, roughly 56% of the 286 cases submitted to CFIUS proceeded to investigation, compared to about 40% of the 114 submitted a decade earlier.[12] If more investigation is necessary beyond the statutory period, parties are asked to withdraw and refile.
CFIUS serves as an administrative body to refer and advise the president should the transaction need to be rejected or limited; the law only grants the president authority to ultimately reject or limit the transaction within a 15-day presidential review period based on CFIUS recommendation. If the president does not take any action or needs more information than the 15-day presidential review period can provide, CFIUS can extend the presidential review period to additional 15 days or continue its investigation within its current statutory period or reset the statutory period if parties withdraw and refile. The president cannot act on a CFIUS recommendation outside the presidential review period provided by law.[13][14][15][16] If CFIUS approves the transaction, the parties involved will receive a safe harbor with respect to that transaction being investigated provided no CFIUS regulations and any mitigation orders, conditions, or agreements imposed by CFIUS are violated.
Civil penalties may result in up to $250,000 per violation or the value of the transaction, whichever is greater, on any persons and/or entities that willfully violated CFIUS regulations, and any mitigation orders, conditions, or agreements imposed by CFIUS. The actual penalties depend on CFIUS rules and the specifics of the violation.
History
In 1975, President Ford created the committee by Executive Order11858.[17][18] It was composed of the secretary of the treasury as the chairman, secretary of state, secretary of defense, secretary of commerce, the assistant to the president for economic affairs, and the executive director of the Council on Foreign Economic Policy. The executive order also stipulated that the committee would have "primary continuing responsibility within the Executive Branch for monitoring the impact of foreign investment in the United States, both direct and portfolio, and for coordinating the implementation of United States policy on such investment." In particular, CFIUS was directed to:[19]
arrange for the preparation of analyses of trends and significant developments in foreign investments in the United States;
provide guidance on arrangements with foreign governments for advance consultations on prospective major foreign governmental investments in the United States;
review investments in the United States which, in the judgment of the committee, might have major implications for United States national interests; and
consider proposals for new legislation or regulations relating to foreign investment as may appear necessary.
In 2018, President Donald Trump signed the Foreign Investment Risk Review Modernization Act (FIRRMA), which granted CFIUS new powers over particular types of FDI that mainly concern Chinese investors.[27][28] These include real estate investing, minority investments through private equity that provide access to U.S. tech companies' business information, and U.S.-Chinese joint ventures. CFIUS also gained more appropriations, staffing, authority to enforce a longer review period, and formalizes more thorough material agreement disclosure.[29] Trump's successor, President Joe Biden signed an executive order in September 2022 directing CFIUS to sharpen its scrutiny of foreign investment that could impact cyber security, quantum computing, biotechnology, and sensitive data.[30]
CFIUS has gained greater importance within the U.S. national security apparatus, primarily in the context of the ongoing trade war between the U.S. and China. The New York Times described the Committee as "powerful and unseen", observing its power to "kill the biggest multibillion-dollar global deals".[31] The number of deals reviewed by CFIUS has increased markedly since 2018,[32] as have the number of unilateral inquiries of non-notified deals.[33]
Reception
Press reports have repeatedly criticized CFIUS for its secrecy, referring to the Committee's investigations as a "black box."[34] Advocates for its current level of confidentiality argue that there are few alternatives, as CFIUS' work is based on classified national security information, which cannot be disclosed to the public.[35]
In February 2006, prior to the implementation of two major regulatory expansions (FINSA, 2007; FIRRMA, 2018), Richard Perle—a neoconservative in the Bush Administration's Department of Defense that falsely alleged an Iraqi WMD program—gave his opinion on CFIUS when he related to CBS News his experience with the panel during the Reagan administration: "The committee almost never met, and when it deliberated it was usually at a fairly low bureaucratic level."[36] However, expansions in power and heightened public interest in foreign direct investment since 2006 have reportedly required significantly elevated input from senior U.S. government officials across CFIUS agencies, reaching the highest tiers of government. [37][38]
Others emphasize the crucial role that foreign direct investment plays in the U.S. economy, and the discouraging effect that heightened scrutiny may cause. Foreign investors in the United States, much like U.S. investors elsewhere, bring expertise and infusions of capital into often-struggling sectors of the U.S. economy. In a February 2006 interview with the New York Times, another former Reagan administration official, Clyde V. Prestowitz Jr., noted that the United States "need[s] a net inflow of capital of $3 billion a day to keep the economy afloat. ... Yet all of the body language here is 'go away.'"[39]
2005: In June 2005 a CNOOC Group (a major Chinese state-owned oil and gas corporation) subsidiary (CNOOC limited, publicly listed on the New York NYSE and Hong Kong stock exchanges) made an $18.5 billion cash offer for American oil company Unocal Corporation, topping an earlier bid by ChevronTexaco. While this offer was not opposed by the CFIUS and the Bush Administration, it was criticized by several Congressmen and, following a vote in the United States House of Representatives, the bid was referred to President George W. Bush, on the grounds that its implications for national security needed to be reviewed. On July 20, 2005, Unocal Corporation announced that it had accepted a buyout offer from ChevronTexaco for $17.1 billion, which was submitted to Unocal stockholders on August 10. On August 2, CNOOC Limited announced that it had withdrawn its bid, citing political tensions in the United States.[44][45]
2006: State-owned Dubai Ports World's planned acquisition of P&O, the lessee and operator of many terminals, mostly for container ships, in several ports, including in New York-New Jersey and others in the US. This acquisition was initially approved by CFIUS and then President G.W. Bush, but was eventually opposed by Congress (Dubai Ports World controversy).
2010: Russian interests acquired a controlling interest in Uranium One, which has 20 percent of U.S. uranium extraction capacity.[46] The Nuclear Regulatory Commission approved the deal because Uranium One only has a license for uranium recovery, not uranium export.[47]
2012: Ralls Corporation, owned by the Chinese Sany Group,[48] was ordered by President Barack Obama to divest itself of four small wind farm projects located too close to a U.S. Navy weapons systems training facility in Boardman, Oregon.[49]
2016: President Obama blocked the buying by a Chinese company of the U.S. assets of the German company Aixtron SE.[50] Separately, the New York Times reported that "United States officials blocked" a $2.6 billion deal by Philips to sell Lumileds division to GO Scale Capital and GRS Ventures over concerns regarding Chinese applications of gallium nitride.[51]
2018: President Trump blocked Singapore-based Broadcom Limited from purchasing Qualcomm in a hostile takeover, citing national security concerns raised by CFIUS.[53]
2019: CFIUS requested that Chinese gaming company Beijing Kunlun Tech Co Ltd. sell Grindr, citing national security concerns regarding a database of user's location, messages, and HIV status, after the company acquired the gay dating app in two separate transactions in 2016 and 2018, both without CFIUS review.[54][55] Kunlun sold Grindr for about $608.5 million in March 2020.[56]
2020: President Trump threatened to ban TikTok via International Emergency Economic Powers Act and the National Emergencies Act,[57] but in August declared a September 15 deadline for a sale to an American company. TikTok successfully challenged the ban via federal court, and the Biden administration asked to delay the government's appeal of a federal district court judge's December injunction against the TikTok ban as President Biden undertakes a broad review of his predecessor's efforts to address potential security risks from Chinese tech companies and to allow CFIUS to review TikTok via its previous 2017 acquisition of musical.ly.[58][59]
Notifications and investigations
This section needs to be updated. Please help update this article to reflect recent events or newly available information.(October 2021)
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