Proposals to Curb Foreign Investment in the United States Gaining Steam After the U.S. Election
Proposals to Curb Foreign Investment in the United States Gain Steam After the U.S. Election November 18, 2016 | Download Full Publication Pre-…
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).
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.”
Muhammad Ali: Self-Made Man and Internationalist Who Was Beloved in the Middle East Made His Mark on American Law
It has been reported that Muhammad Ali’s final resting place is marked with a gravestone that bears only his name. “In keeping with [the] Muslim tradition” of simple funerary practices, “there are no dates or loving tributes.” This is most appropriate, as Muhammad Ali needs no special inscriptions or tributes. The name he chose for himself as a young man is the epitaph that describes him best. “Worthy of all praises, most high.”
Do State Regulators Have Authority to Enforce OFAC Sanctions?
The enforcement of OFAC-administered sanctions by a state agency—even against banks by a banking regulator operating in a dual banking system—raises fundamental constitutional and other legal questions. Chief among them is the overarching question of whether U.S. states have authority to directly or effectively enforce OFAC-administered sanctions, particularly independently and prior to enforcement by competent federal authorities—namely OFAC. This question and some of the legal issues and policy and practical considerations appertaining to it are discussed in detail in a forthcoming publication. This document provides a summary preview of some of the key legal issues discussed in that publication. Additional summary previews may be provided separately.
New Rules of Business Conduct Regulation Require Fresh Risk and Compliance Thinking
Traditionally businesses have looked to contractual terms, industry groups, legislatures, regulators and other conventional authorities to identify and manage commercial, legal, and compliance requirements and risks. In today’s interconnected, information rich, and reputation-conscious business world, this model is outdated and insufficient. It creates blind spots that can expose businesses to commercial, legal, and compliance risks from sources that traditional models ignore, misunderstand, or underestimate. In the same ways that the internet and social media have enabled non- “establishment” actors to communicate and amplify political messages, these and other tools of the information/new media age have enabled non-traditional actors to effectively influence business conduct standards. As a result, constituencies and issues that not so long ago were marginal or viewed as niche or inconsequential are now relevant, and for some businesses and industries they are integral.
Foreign Investment in U.S. Agriculture Under Scrutiny
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 agrochemicals.”With Chinese buyers, record-setting deals, and industry-leading acquisition targets in the mix, the Smithfield and Syngenta transactions provide the ingredients needed to stir media interest and controversy about foreign investment in and affecting the United States. Beyond deal optics, a more interesting, strategically-oriented, and potentially consequential policy and public discourse about foreign investment in U.S. agriculture is emerging in the United States, at least in some quarters