CFIUS expansion bill raises eyebrows

Restrictions on Chinese investment, for instance, disrupt not just sources of capital for American startups but their plans to expand, grow and do new things.” Scott Kupor, managing partner, Andreessen Horowitz

US experts have expressed concerns about a bill to greatly expand the power and scope of the Committee on Foreign Investment in the United States (CFIUS), an interagency panel that reviews foreign direct investment for national security risks.

The Foreign Investment Risk Review Modernization Act of 2017 (FIRRMA) was introduced in both the Senate and House in late 2017 to broaden the jurisdiction of CFIUS to new sectors and new types of investments; enhance CFIUS’ authority to suspend transactions; and implement mitigation measures and target investment from “countries of special concern”, notably Chinese acquisitions in the technology sector.

Clay Lowery, managing director of Rock Creek Global Advisors LLC, said on Thursday that the bill uses vague language, duplicates existing export-control authority and will be overly burdensome to implement for both the private sector and the government.

He noted that many terms are left undefined or ill defined in the bill, such as “critical technology company”, emerging technologies and even the meaning of intellectual property.

In a hearing at the House Committee on Energy and Commerce Subcommittee on Digital Commerce and Consumer Protection on Thursday, Lowery said FIRRMA will make CFIUS duplicate the work by the much larger US export-control regime in place.

“This bill seems to suggest that CFIUS — a group of roughly 100 people who don’t have subject matter expertise — will be able to do that better than the roughly 500 people we have in Defense, Commerce and State that are already working on these export-control issues every day,” he said.

Lowery, who served as assistant secretary for international affairs at the US Treasury from 2005 to 2009, overseeing CFIUS, believes FIRRMA will overwhelm the workload at CFIUS and greatly slow the process.

He warned that the bill should not have the “unintended consequences of chilling investment in the US and harming our competitiveness around the world”.

Scott Kupor, managing partner of California-based private venture capital firm Andreessen Horowitz, expressed that overly and broadly restricting the movement of foreign capital and investment in the name of national security will have adverse effects for US global technological leadership.

“Restrictions on Chinese investment, for instance, disrupt not just sources of capital for American startups but their plans to expand, grow and do new things,” he wrote on the firm’s website on Wednesday.

Kupor, who is also chairman of the National Venture Capital Association, said that when panels like CFIUS aren’t used for security but rather for nationalist protectionism under a different name, it becomes a concern for the future of US innovation.

Reid Whitten, managing partner of law firm Sheppard Mullin, criticized the US government for “frantically throwing up barriers to foreign investment, particularly from China”.

He expressed that if FIRRMA and other restrictions are imposed on Chinese investment, Chinese FDI in the US may look very different.

“It may look like facing the outside of a very high wall,” Whitten wrote in a recent article.

Chinese FDI in the US plunged 36 percent to $29.4 billion in 2017 from $46.2 billion in 2016 and was expected to decline further in 2018, partly due to China’s control on capital outflow and partly due to the increasing US government restrictions on Chinese FDI into the US, according to a report by Rhodium Group and the National Committee on US-China Relations.