CFIUS Annual Report For Calendar 2022 reveals Several Significant Changes
Below are some key highlights from the latest CFIUS (Committee on Foreign Investment in the United States) Annual Report, released on July 31, 2023. This comprehensive report sheds light on the evolving landscape of foreign investments in the United States and introduces significant changes to the CFIUS regulatory framework.
Expansion of Covered Transactions:
One of the most notable changes is the expansion of covered transactions subject to CFIUS review. The new regulations now include certain real estate transactions involving critical infrastructure and those located in proximity to sensitive government facilities. This extension aims to safeguard national security interests against potential risks associated with foreign ownership of critical assets and properties.
Mandatory Declarations for Critical Technologies:
The 2023 CFIUS Annual Report introduces mandatory declarations for critical technology transactions. Companies involved in deals concerning critical technologies must file a declaration with CFIUS prior to closing the transaction. This measure is designed to enhance the committee's oversight and facilitate early identification of potential national security concerns.
Heightened Scrutiny on Emerging Technologies:
With a focus on emerging technologies, the report emphasizes the assessment of foreign investments in areas like artificial intelligence, biotechnology, and advanced telecommunications. These sectors play a pivotal role in national security and economic competitiveness, leading CFIUS to implement stricter scrutiny to safeguard sensitive technologies.
Strengthened Mitigation Measures:
To address identified risks effectively, CFIUS has intensified its use of national security agreements with parties to transactions. These agreements include mandatory mitigation measures that aim to protect critical assets, technologies, and sensitive information from potential exploitation by foreign adversaries.
Enhanced Collaboration with Allied Nations:
The CFIUS report underscores the increased coordination between the United States and its allied countries. This collaboration allows for a more holistic assessment of national security concerns arising from foreign investments. By working together, the allied nations can formulate cohesive responses to potential risks.
Extended Review Timelines:
CFIUS has made adjustments to review timelines to ensure thorough evaluations. This extension will provide the committee with more time to conduct in-depth assessments, especially for complex transactions that may have far-reaching implications on national security.
It is vital for companies considering or already engaged in foreign investments in the United States to remain informed about these changes and their implications. Compliance with the new CFIUS regulations is crucial to avoid potential penalties and other adverse consequences.
As always, we recommend seeking legal counsel and expert advice to navigate the evolving landscape of CFIUS regulations effectively. Staying vigilant and proactive in adhering to the regulatory framework will not only safeguard your investment interests but also contribute to strengthening national security.
Xiaomin Chen Selected 2023 Super Lawyer by Thomson Reuters for Outstanding Legal Excellence
A testament to his exceptional legal prowess and dedication to his clients, Xiaomin Chen has been honored with the prestigious title of "2023 Super Lawyer." This title recognizes his commitment to delivering outstanding legal representation and his consistent record of achieving favorable outcomes. This marks his twelfth consecutive year of being selected as a Super Lawyer.
Xiaomin Chen's career has been characterized by his deep understanding of the law and ability to navigate complex legal landscapes with finesse. His clients have consistently praised him for his sharp analytical skills, strategic thinking, and unwavering advocacy on their behalf.
The Super Lawyer title is awarded annually to a select group of attorneys who have demonstrated excellence in their practice areas. The rigorous selection process involves peer nominations, independent research, and a comprehensive evaluation of candidates based on factors such as professional achievements, legal expertise, and client satisfaction.
As a Super Lawyer, Xiaomin Chen continues to set a high standard for legal practitioners, inspiring others to strive for excellence and integrity in their legal practice.
Commerce to Remove 33 Parties from the Unverified List after Successful Completion of End-Use Checks
On August 21, 2023, U.S. Commerce Department’s Bureau of Industry and Security (BIS) announced that 33 parties will be removed from the Unverified List, 27 of which are based in the People’s Republic of China (PRC). The removals become effective upon publication on Aug 22, 2023. This move comes after the successful completion of meticulous end-use checks, a crucial process aimed at ensuring that sensitive goods are not diverted to unauthorized destinations or purposes.
As mentioned above, The Unverified List comprises parties for which the government has been unable to verify the legitimacy of transactions involving controlled items. These items, often with national security implications, require stringent monitoring to prevent misuse. The end-use checks, which involve thorough investigations into the actual destinations and intended purposes of controlled items, were carried out by the BIS in collaboration with various international partners.
BIS is taking this action because it was able to establish the bona fides – i.e., legitimacy and reliability relating to the end use or end user of items subject to the Export Administration Regulations (EAR) – of these parties through the successful completion of end-use checks. The entities' removal from the Unverified List also paves the way for smoother trade operations.
2023年8月21日，美国商务部产业与安全局 (BIS) 宣布，33 家企业将从 "未核查名单 "中除名，其中 27 家位于中国。移除名单于2023年8月22日生效。此举是在顺利完成最终用途检查之后采取的，这一重要程序旨在确保敏感货物不会被转用于未经授权的目的地或用途。
美商务部产业与安全局采取这一行动，是因其能够确定《出口管理条例》（EAR）中规定的与受出口管理条例管制的物项的最终用途或最终用户有关的诚信，即合法性和可靠性。而将这些实体从 "未经核查清单 "中除名亦为更顺畅的贸易运作铺平了道路。
CGCC Successfully Hosts “Current Hot Topics on Compliance for CGCC Member Companies in the U.S.”
On June 22nd, 2023, China General Chamber of Commerce-USA (CGCC) hosted “Current Hot Topics on Compliance for CGCC Member Companies in the U.S.,” as part of its Legal and Policy event series.
Taking place at the Bank of China Building in New York, the event brought together nearly 40 representatives from CGCC member companies for an afternoon of discussions surrounding the relevant compliance requirements, recent activities, and best practices.
Wei HU, Chairman of CGCC, President and CEO of Bank of China U.S.A., welcomed members to the event, emphasizing the timeliness of the topic, and wished everyone a happy holiday in light of the dragon boat festival.
Wei HU, Chairman of CGCC, President and CEO of Bank of China U.S.A.
Xiaomin CHEN, CGCC-USA General Counsel and Legal Counsel Committee Member, Managing Partner of DeHeng Chen, LLC in New York, moderated the high-level panel that featured three Squire Patton Boggs experts in the field, Michael A. Curto, Managing Partner (Washington DC office), Dan Waltz, Partner, and Edward J. Newberry, Global Managing Partner.
Xiaomin CHEN, CGCC-USA General Counsel and Legal Counsel Committee Member, Managing Partner of DeHeng Chen, LLC in New York
The event covered a broad range of topics that may impact CGCC member companies, including Piercing the Corporate Veil, Foreign Agents Registration Act (FARA), FCPA and Anti-Corruption, Data Security and Privacy Protection, Sanctions, Trade and Export Controls, etc.
Edward J. Newberry, Global Managing Partner, Squire Patton Boggs
Michael A. Curto, Managing Partner (Washington DC office),Squire Patton Boggs
Dan Waltz, Partner, Squire Patton Boggs
CGCC sincerely thanks Mr. Chen, Mr. Curto, Mr. Waltz and Mr. Newberry for their expertise and professional insights during the event.
About the CGCC Legal and Policy Event Series
Strengthening members’ understanding of recent developments within laws and regulations related to U.S.-China trade and investment, our Legal and Policy events invite renowned legal practioners to share their expertise and knowledge on timely legal topics such as compliance, taxation, labor, etc.
On June 22nd, 2023, Mr. Xiaomin Chen, the Managing Partner of DeHeng New York law office, and three partners of Squire Patton Boggs (SPB), Edward Newberry, Michael Curto, and Daniel Waltz, attended a panel hosted by the China General Chamber of Commerce (CGCC) at the Bank of China Building in New York. With the impact of China-US relations on China-US trade in recent years, Mr. Chen used hypotheses to introduce the hot topics that related to Chinese-invested companies’ legal compliance, and representatives of the member companies of CGCC interacted with Mr. Chen and SPB partners. The attorneys addressed the common concerns of Chinese-invested companies in practice, including the “piercing the corporate veil” principle, the Foreign Agents Registration Act (FARA), the Foreign Corrupt Practices Act (FCPA), information and data protection, sanctions, and trade and export controls. At the same time, the attorneys introduced the recent laws and regulations that have passed in the past two years or are to be legislated by the U.S. government and explained the relevant contents that involve Chinese- invested companies’ business in the U.S. Finally, the attorneys gave suggestions on improving the Chinese-invested companies’ legal compliance.
2023年6月22日，德恒（纽约）律师事务所主任陈小敏律师与Squire Patton Boggs（SPB）的三位合伙人，Michael Curto, Daniel Waltz, 和Edward Newberry参加了由美国中国总商会（CGCC）在纽约中国银行大楼举办的讲座。针对近年来中美两国关系对中美贸易产生的影响，结合CGCC各成员公司关心的热点问题，陈律师以案例形式引入各热点话题，各成员公司代表与陈律师及SPB的合伙人进行互动讨论。各位律师针对中资公司在实务中普遍关注的问题，包括“穿透公司面纱”原则、外国代理人登记法(FARA)、反海外行贿法案 (FCPA)、信息数据保护、经济制裁、外贸及出口管制等问题和相关法律规定进行探讨。同时，针对美国政府及部分州近两年已出台及拟出台的相关法律，对涉及到中资公司在美业务开展的内容进行讲解。最后，就中资企业的日常法律合规问题提出建议。
CFIUS EXPANDS JURISDICTION TO INCLUDE REAL ESTATE TRANSACTIONS
In a recent development, the Committee on Foreign Investment in the United States (CFIUS) has proposed new rules aimed at broadening its jurisdiction over real estate transactions. Under the proposed regulations, foreign purchases of real estate within a 100-mile radius of sensitive military installations could trigger a CFIUS review. The expansion seeks to enhance national security safeguards and ensure appropriate oversight of foreign investments. Written public comments on the proposal are due by June 5, 2023.
Expanded Scope and Definition
CFIUS has identified eight additional sites, classified as sensitive military installations, to be included in its list. The proposed rules define a "covered real estate transaction" as any purchase, lease, or concession that grants a foreign person at least three out of the four specified rights in "covered real estate":
1. Right to physical access
2. Right to exclude others from physical access
3. Right to improve or develop the parcel
4. Right to attach fixed or immovable structures or objects to the real estate
In the majority of cases, the acquisition or lease of a real estate parcel is likely to confer the requisite number of rights as outlined above.
Implications and Compliance
Upon finalization of the proposed rule, all covered real estate transactions within a 100-mile radius of the listed facilities will be subject to CFIUS review. Therefore, it is crucial for foreign investors contemplating any investment in the United States, including real estate purchases, to seek guidance from CFIUS counsel for interpreting the regulations. Even if the acquisition does
not involve a listed facility, acquiring a U.S. business near a sensitive government facility or a commercial building housing government tenants may warrant filing with CFIUS. Mandatory filings might be necessary for cases involving foreign government-controlled investors or certain sensitive industries.
CFIUS's proposed expansion of jurisdiction over real estate transactions aims to strengthen national security measures. Foreign investors are advised to consult CFIUS counsel to ensure compliance with the regulations, particularly when considering investments involving listed facilities or proximity to sensitive government sites. By adhering to the updated guidelines, foreign investors can navigate the regulatory landscape effectively and mitigate potential risks associated with real estate transactions in the United States.
Department of Treasury Releases CFIUS Enforcement and Penalty Guidelines
On October 25, 2022, the U.S. Department of Treasury released the CFIUS Enforcement and Penalty Guidelines (the “Guidelines”). Such Guidelines are a new step in the evolving development of CFIUS review procedures after the expansion of its staff and funding under the Consolidated Appropriations Act in March 2022, as our prior newsletter described.
The Guidelines clarify four issues: first, The Types of Conduct that may constitute a violation; second, the Sources of Information on which CFIUS Relies; third, the Penalty Process; fourth, Aggravating and Mitigating Factors.
First, the Guidelines point out three potentially unlawful conducts: Failure to File, Non-Compliance with CFIUS Mitigation, and Material Misstatement, Omission, or False Certification. Second, regarding the sources of information on which CFIUS relies, the Guidelines note that the committee considers a wide range of sources but emphasize three sources in particular: Tips, Self-Disclosure, and Requests for Information. Third, the Guidelines address that a violation does not necessarily lead to a penalty but outline two important steps in the penalty process: Notice; Contest and Assessment. Fourth, in determining the appropriate response to a violation, the Guidelines point out that CFIUS considers a series of aggravating and mitigating factors. The Guidelines list six relevant factors: Accountability and Future Compliance; Harm; Negligence, Awareness, and Intent; Persistence and Timing; Response and Remediation; Sophistication and Record of Compliance.
This is the first time that CFIUS clarifies its otherwise obscure procedures. However, this Guideline is non-binding and CFIUS retains broad discretion with respect to its enforcement and penalty decisions. Indeed, listing those potentially unlawful conducts may forewarn investors. To be sure, investors should be cautious in making their filing/non-filing decisions and be especially careful to ensure the completeness and accuracy of information submitted to CFIUS during the review process.
Department of Defense updated its Section 1260H list
On October 5, 2022, U.S. Department of Defense releases a new list of People's Republic of China (PRC) Military Companies – as required under Section 1260H of the National Defense Authorization Act for Fiscal Year 2021 (NDAA 2021). The first list was released last year in June, 2021. The Department of Defense is required, under Section 1260H(b)(1) of NDAA 2021, to annually report “Chinese military company” until December 31, 2030.
Although the text of the statute imposes an obligation to report annually, the Secretary of Defense is of the authority to decide additions or deletions to the list. The definitions provided in Section 1260H are broad and vague. The text of that statute does not exclude the possibility that any private Chinese company be labelled as “Chinese Military Company.” Indeed, Section 1260H(d)(1) to (3) of NDAA defines “Chinese military company” and “Military-civil fusion contributor” (MCFC) loosely. The definition of MCFC contains an all-encompassing definition under which an entity can be a “MCFC” whenever “the Secretary determines … appropriate.”
However, no trade restriction measures or any other forms of sanctions are stated in the list this time. Indeed, Section 1260H of NDAA only labels these companies as “CMC” without stating what sanctions or limitations to follow -- a scenario that is different from NS-CMIC list produced by the Biden administration and Section 1237 list produced by the Trump administration.
CFIUS Conference 2022 – updates on case review principles
In June 2022, the Committee of Foreign Investments in the United States (“CFIUS”) hosted their first ever conference for practitioners, many important notices were addressed at the conference.
To adapt to the ever-evolving national security landscape, CFIUS suggested that it would be smart for investors to be prepared for mitigation and expect any future re-negotiation of mitigation measures. To prepare for a CFIUS review, filing a shortened declaration instead of a full Joint Voluntary Notice (“JVN”) can be beneficial at times, however for investors from countries of concern, or when the petition involves other complex issues, a JVN would be expected.
With respect to data security, cases involving sensitive personal data (“SPD”) should be analyzed not only for its current access to SPD, but also for how these data collecting practices would change in the future. Genetic and Medical data are now concerned as “high risk”. CFIUS stated that they will continue to share investment screening data with allies of the United States, and work with them on collecting intelligence on foreign acquirers.
The Consolidated Appropriations Act on March 8th, 2022 funded 12 staff positions in the “Industry and Analysis” unit of the Commerce department’s International Trade Administration, The CFIUS review would become more in-depth around the protection of American technology, and investors should expect increasing mitigation orders, and more post-review questions.
最后，2022年3月8日的《综合拨款法案》为商务部国际贸易管理局的 "行业和分析 "部门提供了12个职位，CFIUS的审查将围绕防止技术外泄变得更加深入严谨，投资者预计会面临更多的缓解令，以及审查完结之后来自相关部门的后续跟进。
SEC published Sample Letter to China-Based Companies
On Dec 20, 2021, Division of Corporation Finance of SEC publish Sample Letter to China-Based Companies. Recent events have highlighted the risks associated with investing in companies that are based in or that have the majority of their operations in the People’s Republic of China (China-based companies). The Division of Corporation Finance believes that more prominent, specific, and tailored disclosure about these risks, and companies’ use of the variable interest entity (VIE) structure specifically, is warranted to provide investors with the information they need to make informed investment decisions and for companies to comply with their disclosure obligations under the federal securities laws. In light of these concerns, the Division is issuing comments to China-based companies seeking more specific and prominent disclosure about the legal and operational risks associated with China-based companies.
The Division’s comments focus on the need for clear and prominent disclosure regarding the structure of the company, including the relationship between the entity conducting the offering and the entities conducting the operating activities, risks associated with a company’s use of the VIE structure, and the potential impact on the company’s operations and investors’ interests if such structure were disallowed or the contracts were determined to be unenforceable. The Division’s comments also focus on additional legal, regulatory, and enforcement risks that may apply to investments in China-based companies, such as the potential impact of the Holding Foreign Companies Accountable Act and related rules and any necessary PRC permissions a China-based company may need to operate its business or offer securities to foreign investors. The illustrative sample letter contains sample comments that, depending on the particular facts and circumstances, the Division may issue to China-based companies. The Division urges companies to consider these sample comments and additional regulatory developments in this area as they prepare their disclosure documents.
该部门的意见集中于明确和突出披露公司结构的必要性，包括进行发行的实体和进行经营活动的实体之间的关系，与公司使用VIE结构相关的风险，如果这种结构被禁止，或合同被确定为不可执行，将对公司的运营和投资者的利益产生潜在影响。该部门的评论还关注了在中国投资公司可能面临的额外法律、监管和执法风险，例如《外国控股公司问责法》(Holding Foreign Companies accountability Act)和相关规定的潜在影响，以及中国公司在经营其业务或向外国投资者提供证券时可能需要获得的任何必要的中国许可。
U.S. BLACKLISTS 27 COMPANIES DUE TO SECURITY THREATS
美国因安全威胁将 27 家公司列入黑名单
The Bureau of Industry and Security (BIS) of the US Department of Commerce recently stated that for national security reasons, the US has blacklisted 27 foreign entities, 12 of which are from China. BIS stated in the rule published in the Federal Register: “In this final rule, BIS amended the Export Administration Regulations (EAR) and added 27 entities to the list of entities. These 27 entities have been identified by the U.S. government as violating countries. Security or foreign policy the interests of the United States," BIS said in the rules published in the Federal Register. In addition to these 12 Chinese entities, the list also includes entities from Japan, Pakistan, and Singapore, as well as one Russian entity. The list includes three subsidiaries of China Jiazhao Technology Co., Ltd. (an entity that was blacklisted in 2019) in China, Singapore, and Japan. The above facts are not difficult to see that the Biden administration has not relaxed the relevant control policies implemented by the previous government since it came to power. There is huge room for sanctions and the lack of legal basis is not ruled out. Chinese companies, especially technology companies, should maintain a high degree of vigilance, actively prepare, and earnestly study and implement compliance measures. In this way, we can plan to prevent problems before they happen, and establish the awareness of compliance for all employees of the company; second, even if they encounter possible sanctions, they can submit reliable evidence in time to defend themselves and get the company out of the sanctions list. For a long time, DeHeng New York office has been dedicated to serving the American compliance business of various large overseas companies, and has maintained close cooperation with top law firms in Washington, D.C., and has successfully completed various legal services delivered by clients many times. At the same time, DeHeng New York Attorney Xiaomin Chen has been serving as the legal counsel of CGCC for many years, and he is familiar with the latest policies and trends of all parties. We will make persistent efforts to provide professional and reliable legal services for various corporate entities in the process of implementing cross-border compliance strategies.
美国商务部工业和安全局 (BIS) 近期表示，出于国家安全考虑，美国已将 27 个外国实体列入黑名单，其中 12 个来自中国。BIS在联邦公报上发布的规则中指出：“在此最终规则中，BIS 修改了出口管理条例 (EAR)，将 27 个实体添加到实体清单中。这 27 个实体已被美国政府认定为违反国家安全或外交政策美国的利益，”BIS在联邦公报上发布的规则中说。除了这 12 家中国实体外，该名单还包含来自日本、巴基斯坦和新加坡的实体，以及 1 家俄罗斯实体。该名单包括中国嘉兆科技有限公司（一家于 2019 年被列入黑名单的实体）在中国、新加坡和日本的三个附属公司。
The SEC Finalizes the Filing and Disclosure Requirements in the Foreign Company Accountability Act
The U.S. Securities and Exchange Commission (SEC) said on December 2, 2021 that it had adopted an amendment to finalize the filing and disclosure requirements in the Holding Foreign Companies Accountable Act.
The SEC finalizes the filing and disclosure requirements in the Foreign Company Accountability Act. Companies with annual audit reports issued by a certified public accountant firm located in a foreign jurisdiction must submit documents to the SEC proving that it is not owned or controlled by a government entity within the foreign jurisdiction where the accountant firm is located.
The final plan of the "Foreign Corporate Liability Act" requires foreign companies to disclose their accounts to the US government, otherwise they may be delisted from the New York Stock Exchange and the Nasdaq Stock Exchange within three years.
This new regulation may result in the removal of more than 200 companies and make some Chinese companies less attractive to investors. In fact, the US government has required inspections of foreign listed companies' accounts since 2002, but China and Hong Kong are the only regions that do not allow inspections of accounts. This new rule of the US SEC aims to ensure that foreign companies listed in the United States, especially Chinese companies, abide by the rules of the United States. U.S. regulators worry that the lack of U.S. oversight will put investors at risk.
The rule will also require Chinese entities listed in the United States through a tool called variable interest entity (VIE) to enhance information disclosure.
美国证券交易委员会 (SEC) 于 2021 年 12 月 2 日表示，已通过一项修正案，以最终确定《外国公司责任法》中的备案和披露要求。
这项新规定可能会导致 200 多家公司被淘汰，并使一些中国公司对投资者的吸引力降低。事实上，美国政府从2002年就开始要求对外国上市公司的账目进行检查，但中国和香港是唯一不允许进行账目检查的地区。美国证券交易委员会的这项新规定旨在确保在美国上市的外国公司，特别是中国公司，遵守美国的规定。美国监管机构担心美国缺乏监管将使投资者面临风险。
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