U.S.: Final CFIUS Regulations and Guidance on National Security Considerations

On November 18, 2008, the U.S. Treasury Department, as chair of the Committee on Foreign Investment in the United States (CFIUS) and as required by the Foreign Investment and National Security Act of 2007 (FINSA), issued final regulations, effective December 22, 2008, reforming the process by which CFIUS conducts national security reviews of mergers, acquisitions, or takeovers of U.S. businesses by foreign persons (Final Regulations).  On December 8, 2008, Treasury published guidance regarding the types of transactions that CFIUS has reviewed that have presented national security considerations in the past (Guidance).  In general, CFIUS maintains broad discretion to conduct national security reviews of foreign investments in the United States.  The Final Regulations reflect Treasury’s efforts to balance national security interests and encourage foreign investment. As CFIUS carries out its responsibilities, it is clear it will conduct its national security review and determinations on a largely case-by-case basis.

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