CFIUS

The most controversial issues regarding EU international investment agreements are, on the one hand, the actual extent of the EU’s exclusive external competence over international investments and, on the other, the opportunity to include investor-state dispute settlement (ISDS) clauses in these agreements. The former issue is mainly a legal question, and it especially concerns the inclusion of portfolio investments in the EU’s exclusive external competence. In this respect, this article seeks to provide some insights on the opinion that the European Commission has recently requested from the Court of Justice on the free trade agreement between the EU and Singapore on the basis of the latest developments in the case law of the Court of Justice of the European Union. By contrast, the second issue is mainly a political question and focuses on the inclusion of ISDS in the investment chapter of the Comprehensive Trade and Economic Agreement (CETA) between the EU and Canada. In this respect, while highlighting the main criticisms of the inclusion of ISDS in CETA, it is argued that the right response to European concerns about ISDS provisions in CETA and in TTIP should not be the removal of ISDS from those agreements. Instead, in order to reduce the asymmetric conditions related to the regulatory powers of the parties to CETA, it would be opportune to ask whether it may be appropriate to adopt, in the EU, a system of control on foreign investments like the one existing in Canada and in the United States. In particular, it is demonstrated how the solution can be found in Articles 64(2) and 207(2) TFEU that could be used to adopt a regulation establishing an EU committee on foreign investment in charge of the review of inflow investments coming from non-EU countries in order to protect the EU’s general interests—first, EU security and welfare—just as the Committee on Foreign Investment in the United States and the Minister of Industry of Canada already do.

In 2007, the U.S. Congress passed the Foreign Investment in the United States Act (FINSA), the most recent in a series of calibrations to a basic regulatory framework that is now nearly 40 years old. FINSA has particularly significant effects on investment by sovereign wealth funds (SWFs) and state-owned enterprises (SOEs). Indeed, FINSA is properly understood as a response to SWF and SOE activity, and is designed to provide a framework in which U.S. regulators can weigh the particular risks presented with investment by state-controlled entities. Although in general FINSA has performed ably and as intended in its first five years of implementation, balancing the risks associated with SOE and SWF investment in a competitively neutral way has historically been a challenge, and now seems to be even more challenging after the passage of FINSA.

In September, the EU Commission presented a proposal for the establishment of a common framework for the screening of non-EU FDI, which has recently been a hot topic in Europe. This Perspective tries to confront the Commission’s proposal with other solutions, including the establishment of a European Committee on FDI.

At the center of foreign investment regulation in the United States is a critical but relatively quiet committee of executive agencies: the Committee on Foreign Investment in the United States. This committee serves an increasingly important role as the U.S. draws hundreds of billions in foreign investment every year, some of it coming from state-controlled entities such as sovereign wealth funds, state-controlled pension funds, and state-owned enterprises. U.S. regulation of investment by these state-controlled and affiliated entities is continually evolving to meet the changing foreign investment landscape. This Note reviews the process of review, recent changes in the process, and the continued evolution of foreign investment regulation in the U.S., particularly as it applies to investment by state-controlled and affiliated entities.

Investments by sovereign wealth funds ('SWFs') - pools of capital accumulated by and under the control of sovereign states, mostly from the Persian Gulf and East Asia - in European and North American companies have changed dramatically both in scope and in nature in the last few years. This article examines the screening mechanisms in place, recently changed, or currently under consideration by the United States, France and India. While by no means an exhaustive or even representative survey, this sample highlights how different jurisdictions apply varying degrees of scrutiny to FDI in an age of increased sovereign-directed investments. As such, it illustrates some of the key issues an investor and its advisers may wish to examine when contemplating a potentially sensitive investment such as the role of the executive in the review, the availability of judicial review in national or transnational courts, the definition of key concepts such as foreign investment/investor, and the sectors regarded as sensitive. For each jurisdiction, the article examines: (1) the governing law and recent changes thereto; (2) the screening mechanisms including (i) the composition of the review body, (ii) key concepts such as 'foreign investment', (iii) the industries subject to review, and (iv) review timelines and other key features of the review process; and (3) notable recent deals or public controversies.

The text deals with the relation between foreign investment and security in the domestic debate in the United States. Arguments based on the notion of “economic security” suggest the adoption of protectionist measures that would represent a rupture in terms of the principles and the liberal bias that distinguish the foreign investment policy in the U.S. since the post-war. These concerns led to the approval of the Foreign Investment and National Security Act (FINSA) in 2007 that reformed the Committee on Foreign Investment in the United States, responsible for monitoring and investigating mergers and acquisitions of U.S. companies by foreign investors, based on the implications for national security. It is observed the defense of the traditional policy of open doors by the Executive and the Treasury Department, because of the systemic implications and the sensitivity of the U.S. to economic interdependence. However, the debate has generated effects on the behavior of other actors in the international system, such as “investment protectionism” in OECD countries, and as with the relation between trade and investment that guided the United States strategies in the GATT/WTO negotiations, the axis “investment and security” will possibly affect multilateral negotiations. Therefore, this article analyzes the concept of economic security, identifies positions on domestic policy on the reform of CFIUS since its creation in 1970 until the reform of 2007, and discusses their significance from the standpoint of international politics.