CFIUS Notice of Foreign Direct Investment (FDI) in the United States
The Committee on Foreign Investment in the United States (CFIUS) is an inter-agency group created to review the national security implications of foreign investments in U.S. companies or operations.
As a result of the passage of FIRRMA in late 2018, the previously voluntary reporting provisions have been made mandatory in certain instances. Parties to a CFIUS covered transaction are required to file notice of the transaction in accordance with the CFIUS regulatory procedures or face the possibility of civil penalties.
CFIUS does not issue advisory opinions as to whether a transaction might be considered a covered transaction subject to review. Hence, parties to a transaction are encouraged to err on the side of caution. CFIUS will also not discuss whether a whether a potential transaction might actually raise national security concerns, so it is also important to proceed with experienced counsel that understands the requirements for filing the draft notice and other appropriate documents describing the transaction. In complex transactions, however, counsel can arrange to vet the completeness of a voluntary notice vis-a-vis certain pre-notice consultations with the committee staff.
Parties to a transaction that file a voluntary notice with CFIUS are required in every case to provide two types of certifications: A certification at the time of filing that covers the contents of the voluntary notice (§ 800.402(l)) and a certification at the conclusion of a review or investigation covering all additional information filed subsequent to the original notice (§ 800.701(d)). The review period lasts for 45 days, however, the the review cannot proceed to closure without the final certification, and therefore, rejection of the notice is possible, if the certification is not issued in a timely manner.