The Need For Cfius To Address Homeland Security Concerns

The Committee on Foreign Investment in the United States (CFIUS) is comprised of nine members, two ex officio members, and other members as appointed by the President representing major departments and agencies within the federal executive branch. While the group generally has operated in relative obscurity, the proposed acquisition of commercial operations at six U.S. ports by Dubai Ports World in 2006 placed the group's operations under intense scrutiny by Members of Congress and the public. Prompted by this case, some Members of the 109th and 110th Congresses questioned the ability of Congress to exercise its oversight responsibilities given the general view that CFIUS's operations lack transparency. Other Members revisited concerns about the linkage between national security and the role of foreign investment in the U.S. economy. Some Members of Congress and others argued that the nation's security and economic concerns have changed since the September 11, 2001, terrorist attacks and that these concerns were not being reflected sufficiently in the Committee's deliberations. In addition, anecdotal evidence seemed to indicate that the CFIUS process was not market neutral. Instead, a CFIUS investigation of an investment transaction may have been perceived by some firms and by some in the financial markets as a negative factor that added to uncertainty and may have spurred firms to engage in behavior that may not have been optimal for the economy as a whole. On July 12, 2016, Senator Charles Grassley introduced S. 3161 to include the Secretary of Agriculture as a permanent member of the CFIUS and to include the national security impact of foreign investments on agricultural assets as part of the criteria the Committee uses in deciding to recommend that the President block a foreign acquisition.

Under what conditions might a foreign acquisition of a US company constitute a genuine national security threat to the United States? What kinds of risks and threats should analysts and strategists on the Committee on Foreign Investment in the United States (CFIUS), as well as their congressional overseers, be prepared to identify and deal with? This study looks at three types of foreign acquisitions of US companies that may pose a legitimate national security threat. The first is a proposed acquisition that would make the United States dependent on a foreign-controlled supplier of goods or services that are crucial to the functioning of the US economy and that this supplier might delay, deny, or place conditions on the provision of those goods or services. The second is a proposed acquisition that would allow the transfer to a foreign-controlled entity of technology or other expertise that might be deployed in a manner harmful to US national interests. The third potential threat is a proposed acquisition that would provide the capability to infiltrate, conduct surveillance on, or sabotage the provision of goods or services that are crucial to the functioning of the US economy. This study analyzes these threats in detail and considers what criteria are needed for a proposed foreign acquisition to be considered threatening. Ultimately, the vast majority of foreign acquisitions pose no credible threat to national security on these grounds.

In recent years, China, the US, and the EU and its Member States have either promulgated new national laws and regulations or drastically revised existing ones to exert more rigorous government control over inward foreign direct investment (FDI). Such government control pertains to the establishment of an ex-ante review regime of FDI in the host state in sectors that are considered as ‘sensitive’ or ‘strategic’, with an aim to mitigate the security-related implications. This book conducts a systematic and up-to-date comparative study of the national security review regimes of China, the US, and the EU, using Germany as an exampling Member State. It answers a central research question of how domestic law should be formulated to adequately protect national security of the host state whilst posing minimum negative impacts to the free flow of cross-border investment. In addition to analyzing the latest development of the national security review regimes in aforementioned jurisdictions and identifying their commonalities and disparities, this book establishes a normative framework regarding the design of a national security review regime in general and proposes specific legislative recommendations to further clarify the law. This book will be of interest to scholars in the field of international and comparative investment law, investors who seek better compliance programs in the host state, and policymakers who aim for high-quality regulation on foreign investment.