CFIUS Shifts Focus of ‘Critical Technology’ Mandatory Notifications to Export Controls
September 22, 2020
On September 15, 2020, the U.S. Department of the Treasury published a final rule (the “Final Rule”) significantly changing the scope of the Committee on Foreign Investment in the United States (“CFIUS”) mandatory notification requirements for foreign investments in U.S. critical technology businesses and expanding it to investments in all industries.
The Final Rule, which is basically the same as (but does resolve some ambiguities in) the May 2020 proposed rule, eliminates the current limitation of mandatory critical technology notifications to targets active in specified industries and instead focuses on whether the target develops, tests, or manufactures technologies that would require a license for export—whether or not the technologies are in fact exported or sold to third parties (e.g., proprietary manufacturing technologies)—to the jurisdiction of the investor and any entity in its chain of ownership, effectively creating different mandatory notification requirements for different countries. The Final Rule also clarifies the ownership rules used to determine when an investor linked to a foreign government is required to file with CFIUS for an investment in a sensitive U.S. technology, infrastructure, or data business. The Final Rule applies to all transactions entered into (i.e., binding agreement signed, public offer launched, proxies solicited, or options exercised) after October 15, 2020.
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