CFIUS Reform
WHAT IS IT?
The Committee on Foreign Investment in the United States (CFIUS) is an interagency committee tasked with reviewing potential foreign investments in the U.S. and determining whether such investments pose a risk to national security. The CFIUS review process has not been modernized in nearly a decade. The Foreign Investment Risk Review Modernization Act (FIRRMA) would update the CFIUS review process to address 21st century national security concerns, like investment-driven technology transfers designed to sidestep the Committee’s limited jurisdiction. Specifically, FIRRMA would:
- Expand the CFIUS jurisdiction to include certain joint ventures, minority position investments, and real estate transactions near military bases or other sensitive national security facilities.
- Update the Committee’s definition of “critical technologies” to include emerging technologies that could be essential for maintaining the U.S. technological advantage over countries that pose threats, such as China.
- Allow foreign investors to submit “light filings” to CFIUS for certain types of transactions.
- Add new national security factors for CFIUS to consider in its analyses.
- Authorizes CFIUS to exempt certain otherwise covered transactions if all foreign investors are from a country that meets certain criteria, such as being a U.S. treaty ally and having a mutual investment security arrangement.
THE AIC’s POSITION
The AIC understands the important work CFIUS does to protect U.S. interests. CFIUS reform may help to ensure it meets modern demands, but we urge reform to be focused and well-tailored. It should not interfere with passive foreign investments made by U.S. private equity funds. While the mission of CFIUS is important to safeguarding U.S. interests, any reforms must be focused and tailored appropriately. In particular, CFIUS reforms should avoid needlessly interfering with passive foreign investments in U.S.-managed private funds. Limited Partners (LPs) in private funds are completely passive investors. LPs have no rights to direct the General Partners (GPs) of private funds on where to invest. LPs also do not get access to sensitive technological information from portfolio companies owned by the funds in which they invest. Investments in private funds by passive foreign investors do not compromise any American national security concerns. The AIC is working with policymakers in Congress and the Administration to ensure that updates to CFIUS will not needlessly compromise the ability of passive foreign investors to continue investing in U.S. funds.
