July 14, 2022
National Security: Key Takeaways From Inaugural CFIUS Conference
CFIUS recently held its first ever conference, which included speakers from a variety of member agencies. This Holland & Knight memo says that the conference confirmed both that nature of national security concerns in foreign investment transactions is evolving and that the U.S. remains committed to an open investment environment. The memo highlights five key takeaways from the conference. This excerpt discusses one of them – the continuing expansion in CFIUS’s review of non-notified transactions:
Speakers emphasized that, since the enactment of FIRRMA, the Committee has continued to expand resources to identify and review non-notified transactions. At the same time, CFIUS officials did note that typically non-notified transactions are referred to CFIUS by other agencies. CFIUS also learns of transactions through the media, SEC filings and tips from the public.
Requests for information from CFIUS regarding non-notified transactions are not meant to be antagonistic, speakers said. As a first step, they aim to confirm whether the Committee has jurisdiction. Even though not required, parties are encouraged to provide relevant information for the CFIUS risk assessment analysis. Speakers emphasized that the majority of non-notified inquiries do not result in a request for a formal filing and that it is key to provide CFIUS with prompt responses for the benefit of the business and the Committee.
The memo points out that there is no statute of limitations for CFIUS jurisdiction over non-notified transactions and says that CFIUS officials confirmed that conducting a CFIUS analysis and risk assessment is now a de facto requirement in every foreign investment transaction.
– John Jenkins