Foreign Investment 2020 (Part Two): Proposed Regulations Will Expand CFIUS's Review of Real Estate Transactions and Bring More Certainty to the Investment Community (Chinese version)

Morrison & Foerster LLP

2019年9月24日,美国财政部(“财政部”)在美国《联邦公报》上公布了美国外国投资委员会(CFIUS)为实施《外国投资风险审查现代化法》(FIRRMA)制定的拟议条例。本所就该拟议条例发表多篇新法速递,本文是其中第二篇。

FIRRMA实施后有许多值得注意的变化,其中之一是进一步扩大了CFIUS对房地产交易的审查范围,即除了会导致外国投资者控制美国企业的房地产交易外,FIRRMA架构下,CFIUS管辖范围内的房地产交易类型进一步扩大,包括租赁、出让以及收购邻近军事设施及其他指定设施的房地产(包括已开发和未开发的土地)。根据财政部在《美国联邦法规》第31编第800章和第802章中拟新增的规定,在下列情况下,房地产交易可能受到CFIUS的审查:

  • 对美国企业的传统型控制如果一项房地产交易能够导致外国投资者“控制”美国企业(如收购、控股性少数股权投资、一些长期租赁等),那么该交易属于第800章新规定项下的“涵盖交易”。该规定与CFIUS现行条例下的相关规定基本一致。
  • 适用于美国TID企业的新规定:如果一项房地产交易不能使外国投资者取得对美国企业的控制权(即非控股性少数股权投资),但能够使外国投资者对涉及关键技术、关键基础设施或美国公民个人敏感数据的美国企业(“美国TID企业”)享有特定权利,则该交易属于第800章新规定项下的“涵盖交易”。该规定在许多方面与现行CFIUS关键技术试点计划的相关规定类似。
  • 适用于其他房地产交易的新规定:如果一项房地产交易不属于以上任何一种情况,由外国投资者购买、租赁或向外国投资者出让房地产,且同时符合下列条件,则该交易属于新增第802章项下的“涵盖房地产交易”:
    • 该交易涉及位于机场或海港内的,或邻近军事设施或其他美国政府设施的房地产;并且
    • 该交易使外国投资者对该房地产享有某些特定权利。

邻近指定军事及政府设施是决定交易是否属于第802章项下涵盖房地产交易的关键要素。对于第800章项下的交易,邻近程度则不是判断交易是否属于涵盖交易的决定因素,但在CFIUS进行有关涵盖交易是否会引起(美国)国家安全问题的风险分析时,邻近程度很可能仍是一个考虑因素。

本文将对可能受到CFIUS拟议条例第802章影响的交易进行重点分析。虽然拟议条例可能会扩大CFIUS审查的房地产交易范围,但是这些规定同时也为房地产外国投资提供了必要的澄清,反映出了CFIUS致力于将其审查范围限制在可能引起国家安全问题的交易的范围之内。

CFIUS拟议条例中房地产相关规定的重点如下:

  • 新增CFIUS涵盖交易类别:CFIUS将对《美国联邦法规》第31编新增第802章项下规定的涵盖房地产交易进行监管。第800章中的一般性规定将仍然有效,并适用于属于第800章项下涵盖交易的房地产交易。实际上,根据第802章的新规定,属于第800章项下涵盖交易的房地产交易将被明确豁免CFIUS在第802章下的审查。
  • CFIUS审查范围内的房地产交易类型增多:新规定下的“涵盖房地产交易”将适用于房地产买卖、租赁或出让合同,包括未开发或未使用的土地。在拟议条例颁布前,CFIUS管辖权一般只限于购置美国企业运营中的房地产所有权的交易。
  • CFIUS申报仍为自愿,允许简易声明:对于第802章项下所有的涵盖房地产交易,CFIUS没有强制申报要求,当事人可以选择提交简易声明或传统的完整申报程序,相关程序及时间要求与第800章项下交易的相关要求相同。
  • 非常邻近的定义更加明确:涉及非常邻近敏感军事及政府设施的房地产的交易一直是CFIUS的核心关注点。在现行CFIUS规定下,当事人可以自行(不一定准确地)确定房地产是否非常邻近上述敏感设施。拟议条例的附件按名称顺序列明了此类设施,条例同时明确定义了“非常邻近”,以界定第802章项下的涵盖房地产交易。
  • 财产权利亦是主要考虑因素:除邻近程度外,第802章项下CFIUS的管辖权还取决于外国投资者是否可以通过交易取得“财产权利”。在判断某项交易是否属于第802章项下涵盖交易时,特定房地产承租方的敏感性或房地产的用途并非考虑因素,但在CFIUS对第800章和第802章项下的涵盖交易进行国家安全审查时,这些因素很可能仍然具有重要意义。
  • 房地产交易的豁免情形:对于涉及下列因素的交易,拟议条例制定了重要的豁免规定:“城市化地区”的房地产;购置单户住宅;租赁或出让仅用于某些商业目的的房地产,以及涉及相对较小规模商业办公场所的特定交易等。

什么是涵盖房地产交易?

判断第802章的新规定是否适用于涉及美国境内房地产的特定交易,取决于下列定义和分析:

  • 涵盖房地产交易:除下文所述的豁免情形外,涵盖房地产交易指:
    • 外国投资者购买、租赁或向外国投资者出让涵盖房地产,且
    • 上述购买、租赁或出让会使外国投资者获得至少三种财产权利(定义见拟议条例)
  • 同时,如果一位外国投资者现有财产权利的变更会使该外国投资者获得至少三种下列财产权利,则该变更可能属于涵盖房地产交易,无论是否存在与该变更有关的购买、租赁或出让行为。
  • 涵盖房地产指下列房地产:(i) 属于条例定义的机场或海港,或位于该等机场或海港内的房地产,或(ii) 位于下列范围内的房地产:
    • 非常邻近(即1英里范围内)拟议条例附件A第1部分和第2部分列明的特定美国政府设施;
    • 附件A第2部分列明的更敏感设施的延伸范围(即99英里范围内);
    • 与附件A第3部分列明的设施有关的任何国家或地区;或
    • 附件A第4部分列明的设施临海一侧12海里范围内。
  • 财产权利指下列权利和能力,无论是否行使,且无论是否与他人共享:
    • 实际出入房地产;
    • 阻止他人实际出入房地产;
    • 改进或开发房地产;或
    • 在房地产上附着固定或不可移动的建筑物或物体。
  • 再次强调,成为涵盖房地产交易的前提条件是,外国投资者必须取得至少三种上述权利。

哪些房地产交易不属于拟议条例管辖?

如果一项房地产交易不属于以上定义的“涵盖房地产交易”,或属于“豁免房地产交易”,则该交易不受CFIUS拟议条例第802章的制约。

除不符合“涵盖房地产交易”定义中邻近程度或财产权利标准的交易外,下列交易类型也不属于第802章项下的涵盖房地产交易:

  • 证券承销商买入证券;
  • 与忠诚、保证或意外事故责任有关的普通保险合同;或
  • 外国投资者为购买、租赁或出让涵盖房地产等目的而延长抵押、贷款或类似融资安排期限,除非即将发生或实际发生的违约或其他情况有可能使外国投资者取得权益和权利,而导致该交易构成涵盖房地产交易。

“豁免房地产交易”包括:

  • 由“豁免房地产投资者”进行的购买或租赁,或对“豁免房地产投资者”进行的出让。依据定义中规定的若干条件,“豁免房地产投资者”通常是来自一个或多个被CFIUS指定为“豁免房地产外国国家”的外国国家。
  • CFIUS条例第800章项下涵盖的房地产交易,即外国投资者藉以取得下列权利的房地产交易:(1) 取得对美国企业的“控制权”,并/或(2) 根据第800章的拟议规定,通过投资取得与涉及关键技术、关键基础设施或个人敏感数据的美国企业有关的特定权利。
  • 涉及位于“城市化地区或城市集群”内的涵盖房地产的交易,除非该房地产属于机场或海港,或位于机场或海港内,或“非常邻近” (1英里范围内)附件A第1部分和第2部分列明的设施。
  • 涉及单户住宅的交易。
  • 向外国投资者租赁或出让的房地产位于机场或海港内,且合同规定房地产的用途限于零售、住宿或食品服务。
  • 涉及相对较小规模商业办公场所权益的特定交易。如外国投资者承租的大楼建筑面积少于总面积的10%,且占该大楼租户数量的比例小于10%。
  • 涉及由某些印第安人团体所有的或为某些印第安人团体群体托管的房地产的交易。

上述豁免情况中有几项为房地产投资者以及在美国从事购置房地产生意的外国企业提供了有意义的指引。例如,某些交易可能由于邻近城市地区附近军事或敏感设施,而属于第802章项下涵盖房地产交易的范围,但城市化地区和城市集群内交易的豁免将使有关规定更明确。另外,对涉及单户住宅的交易以及涉及较小规模商业办公场所权益的交易的豁免,将把常规商业交易排除在第802章管辖范围之外。

然而如上所述,对于房地产交易是否存在潜在国家安全问题(如外国投资者获得对美国企业的控制权),从而属于CFIUS其他规定项下的管辖范围,仍有必要进行评估。CFIUS也可能对故意逃避或规避CFIUS管辖的交易宣示管辖权。

拟议条例效力

目前,拟议条例尚未生效。财政部高级官员已于2019年9月27日主持公众电话会议简介会,介绍拟议的房地产相关规定并解答疑问。本新法速递包括了在财政部简介会上提供的信息。公众意见征询期已于2019年10月17日结束,财政部将制订并发布最终规则,预计于2020年2月生效。

美富日后将发表更多文章,就拟议条例的其他重点内容为客户提供深入剖析及实务指引。美富亦将在CFIUS拟议条例终稿以及其他实施条例(包括美国商务部2018年《出口管制改革法》实施条例等)发布时,持续提供最新消息。

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.