New U.S. government data shows a massive drop in acquisitions of U.S. businesses by Chinese investors, particularly in critical technologies, evidence of the chilling effect of the Trump administration’s heightened scrutiny of Chinese investments.
The data, released by the Committee on Foreign Investment in the United States, provides evidence of the impact of strained U.S.-China relations on U.S. inbound Chinese investment. It also sheds light on the practical impact of recent reforms bolstering CFIUS’s powers.
In 2019, China was not the biggest source of transaction notices filed to CFIUS, a position it had held since 2011. Instead, that distinction fell to Japan, which filed 46 notices to CFIUS. This indicates that inbound Chinese investment to the U.S. for the year was lower than previous years, as CFIUS had fewer Chinese transactions to review, according to Darshak Dholakia, a partner at Dechert in Washington, D.C.
According to its annual report to Congress for 2019, published on July 31, CFIUS reviewed 25 Chinese transactions last year, a more than 50% drop from 55 the previous year and 60 in 2017. There was also a corresponding drop in Chinese investment in critical technologies, from eight acquisitions in 2018 to just three last year.
“Most of these publicly notified transactions that have received CFIUS scrutiny and CFIUS has either killed the deal through onerous mitigation measures or President Trump has recommended blocking the deal—those overwhelmingly have involved critical technologies,” Dholakia said.
In March, President Donald Trump blocked the acquisition of U.S. hotel management software company StayNTouch Inc. by Chinese company Beijing Shiji Information Technology Co. through a presidential order. Although there were no such orders issued in 2019, according to the CFIUS report, five of the six presidential orders issued over CFIUS’s 40-year history were issued in the last eight years. Moreover, five of the six orders related to Chinese investments.
According to a Rhodium Group report published in May, Chinese investment in the U.S. in 2019 fell to $5 billion, its lowest level in more than a decade. In addition to growing CFIUS scrutiny, the report also cited China’s restrictions on outbound investment and worsening U.S.-China relations as significant headwinds for Chinese investors.
CFIUS reviews foreign investment for national security risks. According to Cooley, examples of transactions that CFIUS typically scrutinizes include those involving U.S. businesses that have contracts with the U.S. government, as well as transactions that would result in foreign control over critical infrastructure.
Comprising nine government agencies, including the Department of Justice and the Department of the Treasury, CFIUS has the power to recommend the president block or unwind transactions as well as modify transactions by imposing mitigation measures.
In recent years, CFIUS has seen its review powers bolstered, most notably in 2018 with the passage of the Foreign Investment Risk Review Modernization Act. Some of the main changes include a greater focus on foreign investment in U.S. critical technologies, as well as the introduction of mandatory filing requirements for certain transactions, including those involving critical technologies.
“This discussion about how to properly frame CFIUS’s jurisdiction has been caught up in a larger discussion about cybersecurity, IP theft, resilience of American critical infrastructure, and sufficiency of its national industrial base,” said Jeremy Zucker, co-chair of Dechert’s international trade and government regulation practice based in Washington. D.C.
Chinese investors should pay close attention to CFIUS’s tightened filing requirements as a result of FIRRMA, Zucker said. He pointed out that CFIUS has seen its budget significantly expanded, which has led to the establishment of a new office dedicated to reviewing transactions that are not voluntarily submitted to CFIUS for review.
“There is more monitoring of the investment universe than ever, so a decision not to file is a riskier decision than it used to be. If the goal is to be able to close the deal with confidence that the U.S. government won’t interfere, then it’s certainly wiser to seek that clearance on a preclose basis than to close and then hide and hope that the government won’t come looking for you later,” Zucker said.
In recent years, CFIUS has unwound Chinese acquisitions of U.S. businesses several years following their completion. In March, Chinese company Kunlun was forced to divest from its acquisition of gay dating app Grindr in 2016 following a CFIUS review. Earlier this month, Trump issued an executive order banning TikTok from the U.S. market following a CFIUS review of the Chinese video-sharing platform’s acquisition of U.S. social media app Musical.ly in 2017.
Zucker believes Chinese investment in the U.S. is still possible, as long as Chinese investors are proactive in addressing known concerns of the U.S. government. These include whether the Chinese investor is an operating entity in the same industry as the investment target; the commercial merits of the investment; and the ultimate ownership of the investor itself.
“The most important thing for Chinese investors to do [moving forward] is to try put themselves in the shoes of U.S. government officials reviewing their investments,” Zucker said. “We’re representing Chinese investors in front of CFIUS right now, and we certainly are not under the impression that those investments are doomed.”