NEW ENHANCEMENTS TO CFIUS

The Committee on Foreign Investment in the United States (CFIUS) is a multi-US Government agency committee through which the US government investigates foreign investment into US companies to determine if that investment might compromise US National security. There have been slight changes, that is, enhancements of the CFIUS focus. This blog addresses those changes.

On September 15, 2022, President Biden signed Executive Order (EO) 14083 to compliment the many EOs and other directives guiding CFIUS. EO 14083 more clearly defines National security concerns from the Biden administration’s perspective by describing specific emerging and evolving threats to the US, particular US vulnerabilities, and risks in exploiting these vulnerabilities by a bad actor.

SUPPLY CHAIN DISRUPTION

One such enhancement noted in the EO considers US National security risks, which might be in play relating to foreign investment even from allies and partner countries based on their ties to actors of concern. Simply put, an investment into a US company that produces technology which may have been protected from CFIUS before these enhancements may now be scrutinized by the Committee if it appears that the investor can maliciously cause supply-chain issues for a US company involved in one of the sectors noted in “Sector Identification” below.

A key target of the EO is to ensure that foreign investment in US companies does not have the potential to adversely disrupt stable, existing supply chains, access to raw materials, or US manufacturing capabilities.

A key factor to determine if the foreign investment is problematic is whether there are existing multiple sources of supply (alternatives) and how much influence will the “new investor” have over supply chain disruption. CFIUS will more closely scrutinize and more likely require a CFIUS filing with the Committee regarding the sectors noted below if the foreign investment might influence multi-industries/sectors.

SECTOR IDENTIFICATION

CFIUS must now scrupulously assess threats related to foreign investment in a US company involved in the following sectors even if the investor is from an allied or partner country:

1. Microelectronics
2. Critical materials (rare elements)
3. Artificial intelligence
4. Biotechnology
5. Quantum computing\advanced clean energy
6. Climate adaption technologies
7. Parts of the industrial agriculture base

FUTURE APPLICATION OF TECHNOLOGY

Another significant enhancement allows the Committee to consider future advancements and applications of a technology to determine if future applications of that technology could be disrupted by a foreign investor. The White House Office of Science and Technology Policy is tasked with the periodic update of the list of technology covered under CFIUS to make this futuristic determination.

ADDITIONAL MISCELLANEOUS ENHANCEMENTS

1. Whether this investment by a foreign person or entity is part of a series of transactions by the investor in a single industrial sector (an attempt to influence one sector);
2. Does this transaction in any way enhance the cyber-attack capabilities of a country or entity putting the US in jeopardy; and
3. Are there third-party ties to the investing company or entity that might compromise US national security?

Expect more CFIUS filings related to foreign investment and more scrutiny by the US Government if a “wrong” decision is made not to file.