FinCEN Expands Geographic Targeting Orders

August Geographic Targeting Orders Cover Funds Transfers and Hawaii Luxury Residential Real Estate   On August 22, 2017, the Financial Crimes Enforcement Network (FinCEN) issued revised Geographic Targeting Orders (GTOs) designed to combat money laundering and related financial crimes in select U.S. residential real estate markets. The GTOs further expand the scope of GTOs issued in January 2016, expanded in July 2016, and renewed in February 2017. In tandem with the August GTOs, FinCEN issued an Advisory to Financial Institutions and Real Estate Firms and Professionals (the “Advisory”) and FAQs. This Business Update outlines the key provisions of the August GTO. For information about this Business Update or MassPoint’s related… Read More

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State-Owned Enterprises and Anti-Corruption Enforcement

Anti-Corruption Enforcement and State-Owned Enterprises: Understand Unique Risks and Incentivize Compliance State-owned enterprises (SOEs, including sovereign wealth funds) are prominent players in international business. Given their ownership, SOEs have garnered scrutiny for their lack of transparency and heightened anti-corruption and anti-money laundering risk, as have individual SOE executives and other personnel who qualify as Politically Exposed Persons. In connection with commercial activities, SOEs are not protected in most cases by sovereign immunity. Thus, SOEs can, like their privately-owned counterparts, be subject to foreign legal processes. Given the greater scrutiny around SOEs and some of the high profile enforcement actions involving them directly or indirectly (for example, the 1MDB case), anti-corruption… Read More

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U.S. Senators Raise National Security Concerns About Foreign Investment in U.S. Real Estate

U.S. Senators Ask GAO to Assess CFIUS' Approach to Foreign Investment in U.S. Real Estate Senators Seek Review of CFIUS' Capacity and Approach to "Full Range of National Security Issues" Posed by Foreign Investment in U.S. Real Estate On May 17, 2017, U.S. Senators Ron Wyden (D-OR), Claire McCaskill (D-MO), and Sherrod Brown (D-OH)—respectively ranking members of the Senate Finance; Homeland Security and Government Affairs; and Banking, Housing, and Urban Affairs Committees of the U.S. Senate—asked the Government Accountability Office (GAO) to review the approach taken by the Committee on Foreign Investment in the United States (CFIUS) to foreign investment in U.S. real estate and to "assess whether and how CFIUS… Read More Continue Reading

Public Hearing: Chinese Investment in the United States: Impacts and Issues for Policymakers

  On January 26, 2017, the U.S.-China Economic and Security Review Commission will hold a public hearing on Chinese Investment in the United States: Impacts and Issues for Policymakers. This hearing follows the Commission's November 2016 Annual Report to Congress, in which the Commission recommended, among other things, a bar on investment in the United States by Chinese state-owned enterprises (for background, see MassPoint's November 2016 Business Update, Proposals to Curb Foreign Investment in the United States Gaining Steam After the Election and MassPoint's April 2016 Business Update, Foreign Investment in U.S. Agriculture Under Scrutiny). Hearing background and information (as published by the Commission) "This is the first public hearing the Commission… Read More Continue Reading

Proposals to Curb Foreign Investment in the United States May Be Gaining Steam After the U.S. Election

Pre- and Post-Election Scrutiny of Foreign Investment in the United States, Particularly by Chinese and Other State-Owned Enterprises Major acquisitions of U.S. businesses by foreign firms have in recent years garnered increasing attention and push back in the United States. Acquisitions of U.S. businesses by state-owned enterprises (SOEs), particularly Chinese-owned, and their subsequent commercial activities have generated the most attention and backlash. In response to high value takeovers of U.S. businesses in sectors that have national security value or otherwise touch national interests—such as technology and agriculture—members of Congress, industry associations, and others have demanded, among other measures, modifications to the U.S. national security-based foreign investment review process, carried out… Read More

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Senate Bill Makes it Easier to Litigate Against State-Owned Enterprises in U.S. Courts

State-owned enterprises (SOEs) have in recent years become more active in cross-border investment and other commercial activity. The raised visibility has attracted public and official scrutiny of SOEs’ corporate structures and governance, as well as the implications of SOE-involved transactions for antitrust/competition, national security, and consumer affairs. More recently, some lawmakers and private sector actors have turned their attention to the issue of whether SOEs should be permitted to assert sovereign immunity as a litigation tactic. Under established U.S. law—the Foreign Sovereign Immunities Act of 1976 (FSIA)—foreign states and their “agencies and instrumentalities” generally enjoy immunity, but they are not immune from the jurisdiction of U.S. courts in cases based on… Read More

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Foreign Investment in U.S. Agriculture Under Scrutiny

Foreign Investment in U.S. Agriculture Raising National Security Concerns The 2013 sale of American pork producer and processer Smithfield Foods to China’s Shuanghui International aroused concern among some U.S. lawmakers. The $4.7 billion deal ($7.1 billion including debt), was and remains the largest acquisition of a U.S. business by a Chinese entity. This year, some U.S. lawmakers are again raising concerns about a Chinese firm’s acquisition of an agricultural company: the proposed $43 billion acquisition by state-owned China National Chemical Corporation (ChemChina) of Syngetna AG , the Swiss agrochemicals company that does substantial business in the United States. If completed, the Syngenta deal would “transform ChemChina into the world’s biggest supplier of pesticides and… Read More Continue Reading