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Maria Alejandra (Jana) del-Cerro is an associate in Crowell & Moring's Washington, D.C. office. She is a member of the firm's International Trade Group. Jana's practice focuses primarily on counseling and defending clients with respect to U.S. export controls, including the International Traffic in Arms Regulations (ITAR), the Export Administration Regulations (EAR), and the sanctions programs administered by the Office of Foreign Assets Controls (OFAC), as well as the U.S. Antiboycott Laws and the Helms-Burton Act.

On September 15, 2022, the Biden Administration issued a new executive order (“EO”) and accompanying fact sheet, designed to sharpen the current U.S. foreign investment screening process as administered by the Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”). [1] This EO is the first to specifically identify certain additional national security factors for CFIUS to consider when evaluating transactions involving foreign investors. 

While the EO does not expand the jurisdiction of CFIUS or establish new requirements, the EO formally directs CFIUS to focus on transactions that could give foreign parties access to U.S. technologies, data, or critical supply chains that the Biden Administration has identified as important for maintaining U.S. economic and technological edge. The EO does not mention any specific country, but underscores the threat posed by inbound investments “involving foreign adversaries or other countries of special concern,” which may appear to be only economic transactions for commercial purposes but could “actually present an unacceptable risk to United States national security due to the legal environment, intentions, or capabilities of the foreign person, including foreign governments involved in the transaction.” [2]

Continue Reading Biden Administration Announces Presidential Directive on Sharpening Foreign Investment Screening by CFIUS