Key Takeaways
- New outbound investment controls likely to focus on semiconductors, AI, and quantum computing.
- Biotechnology and battery technology investments overseas may not be subject to the upcoming proposed controls.
Will We Ring in the New Year with Outbound Investment Restrictions?
As we close out a wild year for international trade regulation,[1] after hearing much talk about outbound investment review mechanisms, we may see a final dramatic change before the ball drops. Since the summer, we have talked here about potential outbound investment reviews (reverse CFIUS? SUIFC?). And while there have been reports of potential action by both Congress and the Biden Administration on outbound investment, it is all the more possible to see executive action before a new Congress takes seat.Continue Reading Will We Ring in the New Year with Outbound Investment Restrictions?
CFIUS Proposes Rules to Implement FIRRMA
Key Takeaways:
- Technology Infrastructure and Data. CFIUS will focus its review on investments in critical Technology, critical Infrastructure, and sensitive personal Data (“TID Businesses”).
- Critical technologies is defined to include certain items subject to export controls along with emerging and foundational technologies under the Export Control Reform Act of 2018.
- CFIUS provides a very helpful list of critical infrastructure and functions to help assess whether any business is a TID Business. We reproduce most of this list at the end of this blog article. (Sneak preview: telecom, utilities, energy, and transportation dominate the list.)
- The proposed regulations provide much-needed guidance on what constitutes sensitive personal data and also seek to limit the reach of the definition so it does not cast too wide a net over transactions in which CFIUS really should have no national security concern.
- Exceptions for Certain Countries. Investors from certain countries may be excepted from CFIUS jurisdiction when making non-controlling investments.
- New Set of Rules for Real Estate. In a companion piece, CFIUS proposed for the first time a detailed set of rules related to investments in real estate. We will cover this in a separate blog article to be published in the near future.
- Expansion of Short-Form Declaration Use. The proposed rules provide parties the choice to use a short-form declaration for any transaction under CFIUS jurisdiction in lieu of a long-form notice.
- Comments Due by October 17, 2019. Members of the public may submit comments on the proposed regulations any time between now and October 17, 2019. Final regulations must be adopted by CFIUS and become effective no later than February 13, 2020.