Baker Botts lawyers are experienced in assisting clients with a broad spectrum of issues related to foreign investment in the United States. As the investment community finds increasing opportunities for revenue and growth in U.S. companies, it is paramount that parties to foreign acquisitions, mergers or takeovers understand the increasingly complex laws, national security interests and political dynamics governing those transactions. Foremost among those challenges is the review process of the Committee on Foreign Investment in the United States.
Our lawyers work seamlessly with various professionals throughout the firm to offer clients full-scale counseling on matters implicating the Committee on Foreign Investment in the United States (CFIUS). CFIUS matters commonly require the services of our International Trade, Global Security, and Government Relations Practice groups. These groups include professionals with recent federal government experience on Capitol Hill and at high levels of the U.S. Department of State, the U.S. Department of Justice, the U.S. Department of Transportation and national security agencies.
Our professionals have worked with leaders around the world, from heads of state to local mayors, on some of the most challenging issues of recent times relating to the security needs and concerns of both private and public enterprises. We have provided advice to businesses as well as their directors, officers and managers, that has enabled them to minimize liability exposure, maximize efficiencies and productivity, mitigate or eliminate vulnerabilities and maintain business continuity and legal compliance.
Baker Botts’ ability to help our clients navigate the CFIUS review process is attributed largely to our focus on devising and implementing a strategy that relies on our in-depth understanding of our clients’ businesses, our experience in national security affairs and a dedication to preparation. This is particularly crucial to companies that face known challenges with CFIUS. Depending on the client’s needs, this strategy may involve multiple foreign investment opportunities, or it may focus on one transaction. In the end, it is important to devise a strategy that draws from several lessons learned from past CFIUS experiences.
Parties to foreign investment transactions, to the greatest extent possible, should be aware of any potential third-party commercial interests (i.e., competitor interests). Problems can arise outside of the CFIUS review process, when a U.S. third-party competitor couches its self-interested business concerns under the auspices of national security. Competitor interests, for instance, ultimately led to the unraveling of both the Dubai Ports World transaction and another transaction involving China National Offshore Oil Corporation Ltd. and Unocal . In both cases, lobbying efforts by competing U.S. companies heightened national security concerns with the U.S. government and caught the transacting parties off guard.
Understanding the political dynamic in the U.S. is also crucial to navigating the CFIUS process. Politics plays a large role in CFIUS matters, and it can have a detrimental effect on a transaction involving foreign investment in the United States. In fact, it is now common for CFIUS agencies to inquire whether the parties have met with members of Congress and, if so, whether those members have raised any concerns.
We believe that preparation is crucial to any successful outcome. For U.S. investment efforts, it may mean a more aggressive public outreach effort. This may include, for instance, obtaining more surrogates to speak on behalf of the company, or making the case that the company will provide more jobs for Americans. It may include increased outreach within the federal government and other influential players in Washington, D.C. At the very least, it requires the preparation of questions and answers for public relations purposes, congressional and other third-party contact sheets and other materials that will ensure that the company responds properly and timely to any requests or challenges. Baker Botts is well-suited to provide advice on all of these matters.
Select CFIUS Representations:
- Represented U.S. oil refining company in obtaining CFIUS clearance of the purchase of a U.S. refining facility by a Chinese-owned company
- Represented Chinese information/communications solutions provider before CFIUS in acquisitions of U.S. IP assets and in acquisition of joint venture with U.S. IT security software company
- Represented leading Japanese electronics company in a CFIUS review of its acquisition of certain U.S. semiconductor manufacturing facilities of a large U.S. IC company
- Represented leading Japanese robot manufacturer in a CFIUS review of its acquisition of its U.S. partner’s 50% joint venture interest in a U.S. robotics company
- Represented client in material handling industry before CFIUS in connection with the purchase of all its stock by a Japanese company; prepared Joint Voluntary Notice to CFIUS and represented client in CFIUS review; obtained CFIUS clearance of the transaction; conducted review of products, facilities and technology for purposes of identifying and classifying export-sensitive items
- Assisted Kuwait Petroleum Corporation in obtaining clearance from CFIUS for a multi-billion dollar joint venture between a subsidiary of Kuwait Petroleum Corporation and The Dow Chemical Company
- Represented Russian-owned industrial gas company in a CFIUS review of its acquisition of a U.S. cutting edge fuel cell development company
- Represented large Russian metals producing corporation in a CFIUS review of its acquisition of a large U.S. metals company
- Represented Russian energy company before CFIUS in connection with an acquisition of interests in U.S. off-shore blocks