CFIUS and FINSA: Hot Topics in 2016
Investments by foreign companies in the United States improve the US, foreign, and global economies. However, they also may adversely impact US national security, as determined by the Committee on Foreign Investment in the United States (CFIUS). CFIUS is authorized, pursuant to the Defense Production Act of 1950 as amended by the Foreign Investment and National Security Act of 2007 (FINSA), to review the national security implications of foreign investments in US businesses.
Common issues reviewed by CFIUS include proximity to sensitive government locations; defense and dual-use items, products and services for government contracts; technological leadership; impact on critical infrastructure; compliance with export restrictions; and ownership by foreign governments, military or prohibited individuals. One example of a high-profile transaction involved Ralls Corporation, an American company controlled by Chinese nationals, which was ordered by CFIUS to divest itself of its wind farms after the US Navy raised concern about their close proximity to US Navy airspace. In November, 2015, the Ralls litigation was settled on undisclosed terms.
In a two-hour LIVE Webcast, a panel of distinguished professionals and thought leaders assembled by The Knowledge Group will provide the audience with an in-depth review and discussion of the recent updates and the latest trends and insights with regard to CFIUS treatment of foreign investments in the US in 2016.
Key issues that will be covered in this course are:
- Background and History
- Whether to File
- CFIUS Process
- Emerging Trends in CFIUS Reviews
- CFIUS, Bilateral Investment Treaties, and Other Foreign Investment Reviews
Background and History
- Events which lead into formation of CFIUS and FINSA (1974 - 2007)
Brian P. Curran
- CFIUS - statutory basis, membership, and role
- Covered Transaction
Whether to File
William A. Newman
- To file or not to file?
Brian P. Curran
- Whether to file
- Hypothetical transactions (to illustrate when to consider filing)
- Foreign buyer factors
- Target factors
Larry G. Franceski
- Transaction timeline planning (including developing the necessary personal identifier information)
Mark J. Maier
- Negotiate and update the NSA and supporting documents in parallel with each other in order to keep the NSA and affiliate authorities in synch. Avoid developing these documents sequential over long periods of time.
- How it works: Steps and Options
- When to file
William A. Newman
- Overview of the content of the voluntary notice
- Best practices for the preparation of the voluntary notice
- Key responses to be included in the voluntary notice
Brian P. Curran
- CFIUS review process timeline
Larry G. Franceski
- Transaction document provisions (conditions and covenants) on CFIUS issues
- Coordination with parties’ government relations and public relations efforts
Emerging Trends in CFIUS Reviews
Mark J. Maier
- Regarding proximity, practitioners should analyze any current or changing energy demand requirements, government facilities that might be impacted and incorporate ways to mitigate that impact including distribution diversity, local generation and grid resiliency.
- CFIUS National Security Agreement (NSA) are not blank checks for warrantless wiretaps or searches.
Brian P. Curran
- Emerging trends
- Duration of reviews
- Breadth of CFIUS’s jurisdiction
- Balancing Act: National Security and Business Interest
Mark J. Maier
- CFIUS’ recent guidance defers to the risk mitigation conducted by other agencies. For DOD classified contracts, this requires separate, parallel and sometimes conflicting FOCI risk negotiations, mitigation and operations under the NISPOM. However, DOD and CFIUS may take notice of and resolve insufficient risk mitigation by the other agencies. Highly classified activities require customized accommodations.
CFIUS, Bilateral Investment Treaties, and Other Foreign Investment Reviews
- Bilateral Investment Treaties
Larry G. Franceski
- Brief comparison of CFIUS process to reviews in other jurisdictions ( e.g., Investment Canada Act and FATA in Australia)
- In connection with either legislative or Bilateral Investment Treaty topics, discuss US-China Economic and Security Review Commission’s report(s) and recommendations?
Who Should Attend:
- Attorneys (Foreign Investment; National Security, International Trade Practice)
- Compliance Officers
- Compliance Professionals
- Target Companies for Foreign investment
- General Counsel
- Regulatory and Policy Managers
- Senior Management
- Prospective investors in U.S. Companies and Their Advisers
- Other Related/Interested Professionals and Organizations
Larry Franceski has been a partner in the Washington, D.C. office of Norton Rose Fulbright since 1989. Larry has more than 35 years of experience advising domestic and foreign businesses in acquisitions, dispositions and other commercial transactions throughout the United States and around the world. He regularly assists foreign companies in analyzing and addressing US national security concerns and related governmental requirements for investments in regulated or sensitive industries, including filings with the Committee on Foreign Investment in the United States and other governmental agencies. Larry is a graduate of Louisiana State University and Harvard Law School.
Larry Franceski has been a partner in the Washington, D.C. office of Norton Rose Fulbright since 1989. Larry has more …
Having spent 10 years as a Defense Intelligence Agency analyst with a TS/SCI clearance, Brian Curran retains his keen interest in national security issues. Today, Brian uses that experience every day at Hogan Lovells to represent foreign multinationals and investors in national security reviews before the Committee on Foreign Investment in the United States (CFIUS), including companies based in China, Israel, Singapore, Japan, France, Spain, Luxembourg, the Netherlands, Germany, Canada, and the United Kingdom. Brian has a deep understanding of complex matters involving export controls, economic sanctions, and CFIUS reviews.
Having spent 10 years as a Defense Intelligence Agency analyst with a TS/SCI clearance, Brian Curran retains his keen interest …
Dr. Kasraie is a founding member of Kasraie & Fodor, LLC. He has well over 30 years of legal and executive business experience in several industries, including banking, finance, energy, real estate, manufacturing, recycling, IT, and pharmaceuticals. He has resolved legal, financial, corporate and political issues in a number of foreign countries, including the UAE, U.K., France, Germany, Switzerland, Finland, Netherlands, Italy, Russia, Romania, Turkey, Poland, Republic of Georgia, Egypt, Morocco, Kuwait, India, Pakistan, Peoples' Republic of China (“PRC”), Taiwan, and Canada. He has been Financial & Economic Advisor to city governments of PRC, since 1997. He holds several advanced degrees, including a J.D. and a Ph.D. in engineering.
In the late nineties, Dr. Kasraie co-founded the law firm of Marchman & Kasraie, LLC. The firm was active in corporate and security law, international law, and family law. He was managing member of the law firm. In 2012, he co-founded the law firm of Kasraie & Fodor, LLC, with similar activities.
Dr. Kasraie is a founding member of Kasraie & Fodor, LLC. He has well over 30 years of legal and …
In addition to leading Kaye Scholer’s recognized National Security practice, Mark is a US Army Colonel and Army North’s emergency preparedness officer for the State of Maryland where he works with federal, state and local agencies to save lives, reduce damage and improve homeland security. He has also conducted highly classified intelligence and special operations, been a battalion commander and has combat tours in Iraq and Afghanistan. For 13 years prior to becoming an attorney, Mark was an electrical engineer and tested telecommunications, designed networks, customized applications and started an early-generation systems integration business in Germany, Denmark, Australia and Boston. With his diverse background, Mark helps clients in the technology, energy and transportation sectors mitigate risks, obtain government approvals and ensure the ongoing performance of foreign investments, government contracts and commercial deals for their critical infrastructure.
In addition to leading Kaye Scholer’s recognized National Security practice, Mark is a US Army Colonel and Army North’s emergency …
Bill Newman advises Barton’s clients on the structuring and execution of sophisticated business and securities transactions. He actively represents operating businesses, investment funds and individual investors across a wide variety of industries, including financial services, investment management, real estate, information technology, media, marketing, life sciences, software, manufacturing and distribution. Bill assists emerging growth companies in accessing US capital markets, using his expertise with the SEC’s rules as well as the regulations of the major US securities exchanges and the US over-the-counter securities markets.
Bill often is involved with mergers and acquisitions and joint ventures on behalf of Barton’s clients. His mergers and acquisitions experience includes representing investment funds in the purchase and sales of portfolio companies. He has considerable expertise regarding inbound investments in the United States and inbound acquisitions of U.S. businesses, including regulation by the Committee on Foreign Investment in the United States (CFIUS), an area in which he has written and presented extensively.
Bill Newman advises Barton’s clients on the structuring and execution of sophisticated business and securities transactions. He actively represents operating …
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