Questions & answers

What impact may the impending legislation from the Committee on Foreign Investment in the United States (CFIUS) have on Chinese foreign direct investment?

I have heard that the committee is soon to transition from hammering out principles to legislative action. The committee seems particularly concerned about Chinese investment into the United States. Considering the political climate and the temperament of the current administration, should foreign investors be concerned?


Answers
  • December 13, 2017

    It is difficult to predict the outcome of legislation in the United States, especially the specific content, as the political process is subject to open debate and legislation that can change substantially on the way to enactment if enactment ever occurs. I suggest that Chinese (and other non-US) investors potentially interested in buying US companies consider CFIUS as a regulatory program intended to protect national interests of the United States, especially with regard to high technology that could be seen by US regulators as resulting in some potential cyberthreat or other strategic threat to the United States. More recently, there has been thought about making restrictions on buying companies in the US parallel to restrictions of the Chinese government on non-Chinese companies buying companies in China. The great majority of acquisitions will not be of concern to the United States from these critical perspectives.

  • Dan Flanigan

    Chair, Real Estate and Financial Services Department, Polsinelli
    December 07, 2017

    I believe you are referring to the pending legislation called FIRRMA that has been introduced by a bi-partisan group of U.S. Senate co-sponsors, which would expand CFIUS jurisdiction to consider additional types of transactions and make other reforms in the CFIUS process. Although foreign investors in some industries, especially tech investors, have cause for heightened concern, foreign investors in real estate should not be concerned unless an acquisition is near a national security facility-- like the Del Coronado Hotel sale to Anbang in 2016 aborted due to CFIUS concerns. In fact, FIRRMA could benefit certain types of foreign investor acquisitions by clearly recognizing exemptions and somewhat streamlining the CFIUS process.