Recently, there have been significant developments related to U.S. foreign investment review. Currently, the Committee on Foreign Investment in the United States (CFIUS) conducts reviews of inbound investments in U.S. businesses that could raise national security concerns. In 2018, the Foreign Investment Risk Review Modernization Act (FIRRMA) revolutionized the CFIUS process, creating jurisdiction over real estate transactions and minority investments and mandating filings for certain critical technology transactions. More recently, however, three significant developments will impact the risk landscape of foreign investment review. These developments make the risk review process increasingly complex.
- First-Ever CFIUS Executive Order
On September 15, President Biden signed Executive Order (EO) 11858, the first-ever EO related to the foreign investment review process. While the EO does not change the law or regulations related to CFIUS review, it puts companies on notice that CFIUS will be emphasizing certain factors in future reviews. Given this policy announcement, parties to transactions subject to CFIUS jurisdiction must recognize that past CFIUS determinations will not necessarily allow them to predict future outcomes. The EO discusses the national security concerns related to cyber security and personal data, topics that have been of increasing concern to the U.S. government for the last several years.
