Mandatory Reporting Requirements for Certain New Foreign Direct Investments in the US in 2015 Explored!
In late 2014, the Department of Commerce Bureau of Economic Analysis (BEA) re-instated the Mandatory Reporting Requirements for New Foreign Direct Investment in the United States (BE-13). The form is used to gather data on the acquisition, establishment, and expansion of U.S. businesses owned or controlled by greater than 10 percent by foreign investors. The information will be used for statistical analysis, research, and modeling purposes, and all reported data will be presented without disclosing the identity of individual investors.
In this two hour, LIVE Webcast, a panel of thought leaders and professionals assembled by The Knowledge Group will provide the audience with an over-view and in-depth discussion of the mandatory reporting requirements.
Key topics include:
- U.S. Foreign Direct Investment - An Overview
- Reporting Requirements of the New Foreign Direct Investment
- Determining a Foreign Direct Investment
- Mandatory Reporting Process
- Information Used for Statistical Purposes
- BEA Survey Requirements
- Identifying Affected Transactions
- Qualified and Eligible Person for Filing
- Sanctions for Violations of the Requirements
Amy E. D’Agostin, Counsel
Chadbourne & Parke LLP
- Introduction to International Investment and Trade in Services Survey Act and BEA
- BEA background and history and current focus of data collection being done by the agency (quick notes from BEA Advisory Committee Meeting held on Friday, May 8, 2015) including GDP data discussion
- Who must report/reporter discussion
- Introduction to BEA forms and requirements related to Foreign Direct Investment in the United States
- Introduction to BEA forms and requirements related to U.S. Direct Investment Abroad (note the requirements exist for reporting all U.S. direct investments abroad but the focus of the discussion will be on foreign direct investments in the United States)
- Discussion of penalties for non-compliance
- Current BEA reporting obligations based on May 31, 2015
- Summary of five-year survey
- Introduction to next speaker who will focus on BE-13
Brian P. Curran, Counsel
Hogan Lovells US LLP
- Placing BE-13 filings on acquisition checklists
- Determining which BE-13 forms to file, including how to deal with mergers
- Dealing with limited partnerships in BE-13s
- Knowledge of foreign investor’s ownership structure is critical to accurately completing BE-13s
- Confidentiality of BE-13 information submitted to BEA
- Penalties for non-compliance
- Importance of obtaining counsel’s advice
- Completing the form is not always simply an exercise of inputting names, dates, and data
- The forms are new to the public and to BEA, so BEA guidance is evolving as it receives input from filers
Thomas G. Appleman, Senior Principal
Who must file?
- Which form must be filed?
- What exemptions may apply?
- When are filings due?
- How will the filed information be used?
- What are the consequences of not filing?
William E. Turner II, Partner
Barack Ferrazzano Kirschbaum & Nagelberg LLP
Percentage Interest and Voting Securities Talking Points:
- Reporting trigger at 10% of voting securities or equivalent interests of non-corporate entities requires entity look through and analysis of associations
- There is some guidance on equivalent interests of non-corporate entities
- A U.S. business with independent management can trigger reporting requirements due to foreign investors
- Transactions less than $3 million and interest increases following a 10% investment transaction also require reporting but on shorter claim for exemption
- Although the BE-13 filing requirement applies without notification by BEA, our perception is that there is not substantial awareness of the rule, even within the bar
Matthew A. Jackson, Partner
Barack Ferrazzano Kirschbaum & Nagelberg LLP
Lease of New Facility:
- Because the BEA’s definition of a new facility is very broad BE-13 requirement to report “construction or lease of a new facility” captures much greater leasing activity than perhaps regulated parties realize
- No guidance regarding whether there are limitations on the type of leasing activity covered (and, verbally with us, BEA has indicated no such limitations) or how to value a lease for purposes of the $3M threshold
- Based on our communications with the BEA, the BEA working on guidance to clarify valuation of leases for purposes of the $3M threshold
- As a practical matter, it is unclear whether regulated parties are filing Forms BE-13D (or exemption claims)
Who Should Attend:
- Foreign Direct Investment Lawyers
- Foreign Direct Investors
- Compliance Officers
- Foreign Investment Advisers
- Business Owners
- Corporate Executives
- Corporate Lawyers
- Multinational Companies
- Private and Public Companies
- Other Related/Interested Professionals and Organizations
Thomas G. Appleman focuses his practice on inbound and outbound foreign direct investment and multi-national cross border mergers, acquisitions and joint venture transactions.
He also helps U.S. clients take their products and services into the global marketplace by expanding their operations into Europe, China, India, Mexico, Brazil, South Korea and countries with emerging markets including Pakistan and Slovakia, and represents foreign businesses in establishing operations and joint ventures in North America.
With his colleagues, Tom helps clients around the world with their global legal and business needs including planning and coordinating legal diligence reviews, navigating complex legal and regulatory requirements, securing tax and economic development incentives, licensing and protecting patents and other intellectual property, negotiating agreements with customers and vendors, meeting immigration requirements, navigating trade and custom issues, and facilitating dispute resolution.
Thomas G. Appleman focuses his practice on inbound and outbound foreign direct investment and multi-national cross border mergers, acquisitions and …
Will has 20 years of experience advising clients in mergers and acquisitions, joint ventures and capitalization and finance transactions. He assists investors in venture capital and real estate investments, and provides counsel to a number of non-U.S. companies and their U.S. subsidiaries. Will also has formed and advised numerous services- and capital-based limited liability companies, limited partnerships and other business entities.
Will has 20 years of experience advising clients in mergers and acquisitions, joint ventures and capitalization and finance transactions. He …
Matt advises domestic and international companies on mergers, acquisitions, dispositions and joint ventures. He represents clients in capital raising and financing transactions, such as public offerings, private equity transactions and debt financings. Matt’s practice also encompasses securities law compliance and disclosure matters, including reporting under the Securities Exchange Act. In addition, he has experience in shareholder control, buy-sell arrangements and other corporate formation matters for emerging businesses.
Matt advises domestic and international companies on mergers, acquisitions, dispositions and joint ventures. He represents clients in capital raising and …
Brian Curran advises clients on international trade compliance matters, including those involving the Export Administration Regulations (EAR), the International Traffic in Arms Regulations (ITAR), and economic sanctions programs administered by the Treasury Department’s Office of Foreign Assets Control (OFAC). Brian also has extensive experience advising clients on national security reviews conducted by the Committee on Foreign Investment in the United States (CFIUS). Prior to joining Hogan Lovells, Brian served for 10 years as an analyst with the Defense Intelligence Agency, where he held a TS/SCI clearance.
Brian Curran advises clients on international trade compliance matters, including those involving the Export Administration Regulations (EAR), the International Traffic …
Amy E. D’Agostino’s diverse corporate practice focuses on areas such as corporate governance, antitrust compliance, compliance with the FCPA/UK Bribery Act, compliance with International Investment and Trade in Services Survey Act (Bureau of Economic Analysis), transactional matters, licensing transactions, securities, strategic alliances, corporate partnering, tax planning and working with high-net-worth individuals in connection with their closely held domestic and international organizations.
Amy is an expert advisor related to compliance obligations required pursuant to the International Investment and Trade in Services Survey Act (the Act). Amy provides practical advice for limiting excessive public reporting burdens imposed by the government through the Bureau of Economic Analysis (BEA) which is an agency of the U.S. Department of Commerce. In 2013, Amy was called upon based on her expertise of this little known statute by Porzio, Bromberg & Newman, P.C. to assist the firm and its new compliance branch, Porzio Compliance Services, LLC to develop a compliance module to ease reporting burdens.
Amy handles corporate structuring, financing and tax planning for the entertainment industry and provides a broad range of corporate advice to media and entertainment companies.
Amy also has experience in advising tax-exempt organizations (including private foundations and trade associations), start-up ventures, due diligence matters, employment matters, intellectual property and negotiation.
Amy E. D’Agostino’s diverse corporate practice focuses on areas such as corporate governance, antitrust compliance, compliance with the FCPA/UK Bribery …
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About Miller Canfield
Miller Canfield is a full service global law firm representing clients in international transactions; mergers & acquisitions; joint ventures; international arbitration; export controls; real estate; economic incentives; intellectual property; public-private partnerships; and litigation. Clients include multi-national manufacturers, global retailers, financial institutions, public institutions including universities, and privately held companies in industries spanning automotive and next generation vehicles; consumer products; technology; financial services and more. Miller Canfield has 250+ lawyers in 16 offices in the U.S., China, Mexico and Poland and has an associated office in Canada. For more information, visit www.millercanfield.com.
About Barack Ferrazzano Kirschbaum & Nagelberg LLP
Founded in 1984, the vision of Barack Ferrazzano was to create a new model that departed from the standard "mega-firm" approaches and, instead, focused on delivering efficient, team-oriented services of the highest quality. This efficient structure and staffing philosophy allows the firm to build skillful teams designed to bring the strongest talent possible to every challenge. With a legal team of 40 attorneys, the firm’s Corporate & Securities Group represents public and privately held domestic and international companies, as well as investors and boards of directors, in a wide variety of corporate and securities law matters. The firm has been a strategic legal business partner to some of the most respected companies around the world, with clients spanning an array of industries including financial institutions, luxury goods, retailing, manufacturing, motor vehicle, transportation, wine and spirits, energy and high technology.
About Hogan Lovells US LLP
Hogan Lovells is a global law firm that helps corporations, financial institutions, and governmental entities across the spectrum of their critical business and legal issues globally and locally. We have over 2,500 lawyers operating out of more than 45 offices in the United States, Latin America, Europe, the Middle East, Africa, and Asia.
Our trade clients rely on us to handle issues such as export and import controls, economic sanctions, anti-bribery rules, foreign direct investment, trade agreement negotiations, and anti-dumping and subsidy cases. Lauded by Chambers Global for our “comprehensive knowledge of the trade world and its latest developments” and by Legal 500 for our ability to “craft analysis in a way that is useful in the real world,” our lawyers and advisors have helped bring leadership to international trade initiatives for several decades.
About Chadbourne & Parke LLP
For more than a century, Chadbourne & Parke has counseled innovators around the world. Chadbourne is a full-service law firm that leverages the extraordinary talent from 12 international offices to offer the highest caliber client service in more than 80 countries and across every region on the globe. Today, the firm is recognized internationally for groundbreaking work in emerging economies and our deep experience in energy and infrastructure, corporate and finance transactions, international disputes, and bankruptcy and financial restructuring.