Sifting through CFIUS — How the United States Reviews Foreign Fund Tech Investments

Session #1 * all sessions are identical

Seminar | December.09.2019 | 12:30pm - 2:00pm (Hong Kong Time)

Orrick Hong Kong

This seminar examines the impact of recent CFIUS reforms on private investment funds. Orrick’s Sook Young Yeu and Scott Peterman will discuss the regulatory hurdles and filing requirements created under the Foreign Investment Risk Review Modernization Act (FIRRMA) and how best to structure foreign investments in private equity and other investment funds to minimize CFIUS risks.

Description

FIRRMA, included as part of the United States National Defense Authorization Act for Fiscal Year 2019, was signed into law in August 2018. It expands CFIUS oversight beyond controlling transactions to a more nuanced category of non-controlling transactions by U.S. businesses with foreign persons. Going forward, private equity firms must carefully examine their CFIUS profile and the level and nature of their ownership in a broader range of investments in U.S. companies.

CFIUS has approval authority over non-controlling investments in companies involved with critical technology, critical infrastructure, and sensitive data regarding U.S. persons. It also has authority to review changes in investor rights that could lead to a covered transaction as well as certain real estate transactions and transactions that evade or circumvent CFIUS jurisdiction.

Subject to the satisfaction of specific management control and other criteria, Non-U.S. limited partners in private equity, venture capital, and hedge funds can qualify for an exclusion from CFIUS jurisdiction. Fund Managers must have a thorough understanding of the types of foreign investment that are and will be subject to review, and exemptions available to funds whose foreign investments meet exemption criteria.

Also, FIRRMA changes the CFIUS regime from a voluntary system to one where filings will be mandatory in certain circumstances. These filings must be made for transactions where a non-U.S. government acquires a "substantial interest" in a U.S. business. CFIUS may also require mandatory filings for investments in U.S. companies involved in certain critical technologies.

Listen as Sook and Scott discuss these and other reforms to CFIUS procedures and authority under FIRRMA, and the implications of those reforms for the structuring of private equity funds and joint ventures involving Non-U.S. investors.

Outline

  • CFIUS: authority before recent reform; M&A review
  • FIRRMA: policy concerns with other types of foreign investment
  • Expanded CFIUS authority
    • Non-controlling investments in companies involved in critical technology, critical infrastructure, and sensitive personal data
    • Deals involving real estate close to sensitive U.S. government facilities and air or sea ports
    • Changes in investor rights that would result in control of a U.S. business or a covered non-controlling investment
    • Transactions intended to evade or circumvent
  • Carve-outs for investment funds
  • Mandatory and voluntary declarations
  • Other significant changes

Benefits

Sook and Scott will review these and other high priority issues:

  • How does FIRRMA expand CFIUS’ authority to review foreign investment in the United States?
  • What types of investments are of most concern to CFIUS under the new regime?
  • How should investment funds respond to this new law?

CPT/CLE Credit

1 CPT/CLE credit is being accredited for this seminar. No CPD point will be accredited.

To register, please provide your name, company, title and email address at the above link by 6 December 2019.

Seats are available on a first-come, first-served basis. Walk-ins will NOT be accepted on the day of the seminar.

For questions about the seminar, please contact Becky Wong at +852 2218 9242 or [email protected].

CLE Credits Available: Y