All companies engaged in M&A activity in the United States must plan for enhanced scrutiny from an increasingly aggressive DOJ and FTC, but non-U.S. companies, particularly Chinese companies, must also reckon with another U.S. regulatory regime with the power to scuttle their deals: the Committee on Foreign Investment in the United States, or CFIUS. CFIUS is a U.S. interagency body that assesses the risk to national security of transactions involving non-U.S. acquirers. Coincident with the trade war between the U.S. and China begun during the Trump Administration, CFIUS gained a host of new powers that enable it to investigate more transactions, and, if it deems necessary, impose national security-related conditions to closing or block transactions altogether. And interest remains high in the U.S. Congress and Executive Branch to create additional vector to scrutinize Chinese investment even beyond CFIUS. As such, this paper seeks to demystify CFIUS and offer practical guidance for attorneys and their non-U.S. clients on how to think about parallel DOJ/FTC and CFIUS review of a transaction.

Originally Published in the CPI Antitrust Chronicle, Mar. 2023, Vol. 3(2), pp. 51-60, available at https://www.competitionpolicyinternational.com/the-not-so-silk-road-the-proliferating-regulatory-obstacles-to-chinese-investment-in-the-u-s/.