Doing Business in the United States

Doing Business in the United States

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).

Critical Resources

After Election 2016: 5 Legal Issues to Watch in 2017

The dismantling of Obama-era laws and regulations, broader deregulation, and economic and political nationalism were and remain themes of the 2016 U.S. Election and presidential transition period. Donald Trump and members of the incoming Republican-controlled Congress have singled out for repeal or significant modification the Affordable Care Act (aka “Obamacare”) and the Dodd-Frank Wall Street Reform and Consumer Protection Act, along with trade, immigration, foreign affairs, and environmental laws, regulations, and policies. If taken, these actions will not only effect legal changes in specific areas, they will create legal and policy voids that may be filled by U.S. states and localities, foreign governments and multilateral and non-governmental organizations, and the private sector. Five legal and business issues and dynamics to watch in 2017 are highlighted here.

Foreign Investment in the United States

5 Legal and Business Issues to Watch in 2017

Published on January 2, 2016, MassPoint Legal and Strategy Advisory’s 5 legal and business issues to watch in 2017, from administrative law (and the Congressional Review Act) to the treatment of foreign investment in the United States to the role of the private sector on environmental, social, and governance issues in light of shifting U.S. policy and legal stances after the 2016 Election.

Agriculture Investment

Proposals to Curb Foreign Investment in the United States Gain Steam After Election

Acquisitions of U.S. businesses by SOEs, particularly Chinese SOEs, have been a key focus of concern about foreign investment in the United States. Chinese and other SOEs would be well-advised to acquaint themselves with the gathering focus in Washington on their U.S. investments, commercial activities (post-acquisition), and sovereign immunity under U.S. law and in U.S. litigation—non-Chinese SOEs should not assume that they will not be subjected to the same or similar scrutiny. At minimum, SOEs—Chinese and non-Chinese—may be well-served by understanding the origins of some Trump transition team (and later administration) proposals and/or their linkages to prior proposals. Privately-owned foreign enterprises should also take note, as sentiments about foreign investment in the United States may also directly or indirectly affect their planned or future investments (including, perhaps, favorably, if SOEs are (to an extent) taken out of competition for U.S. assets as a result of legal, policy, or political measures adopted in the United States).

CFIUS

Hdeel Abdelhady Quoted on U.S. Election Impact on Foreign Investment

Hdeel Abdelhady was quoted in Islamic Finance News, on the potential impact of the U.S. Election outcome on Islamic finance and investment in the United States. She said: “Trump’s rhetoric and proposals — such as the ‘Muslim ban’ (which is legally problematic and impracticable) and other politically opportunistic invocations of Islam and Muslims — would likely carry over and create an inhospitable environment for Islamic finance, including because Trump’s candidacy appears to have normalized, in some quarters, anti-Muslim, anti-‘other’ speech and conduct . . . even if Trump — a self-styled ‘dealmaker’ — were inclined to support wholly or partially Islamic investments in the US (such as the CityCenterDC mixed use development located less than a mile from both Trump’s recently opened DC hotel and the address to which he aspires, 1600 Pennsylvania Avenue), the atmosphere and supporters he has cultivated as a candidate would likely be impediments.”

Doing Business in Emerging Markets

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

To deprive SOEs of the tactical advantage of asserting sovereign immunity in U.S. courts, Senator Chuck Grassley (R-IA) introduced on September 14 the State-Owned Entity Transparency and Accountability Reform (STAR) Act of 2016, “a bill to improve the Foreign Sovereign Immunities Act of 1976, and for other purposes.” Specifically, the STAR Act would remove a level of specificity required to link a specific legal entity to commercial activity by amending the FSIA to make “commercial activity . . . attributable to any corporate affiliate of the agency or instrumentality that (A) directly or indirectly owns a majority of shares . . . and (B) is also an agency or instrumentality of a foreign state.”

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