Key Notes:
- The Treasury Department recently released guidelines specifying conduct that may be considered a violation of CFIUS regulations.
- The guidelines provide information about how CFIUS gathers information and the formal penalty process.
- They also indicate factors that CFIUS may consider in making an enforcement determination, including aggravating and mitigating factors.
On September 15, 2022, President Biden issued Executive Order (E.O.) 14083 to elaborate upon existing statutory factors and include additional national security factors the Committee on Foreign Investment in the United States (CFIUS or “Committee”) must consider in its review process of covered transactions. This marks the first time a president has issued a formal presidential directive on CFIUS-related matters since President Carter’s E.O. in 1975 which established the Committee.
The October 20, 2022, the Department of the Treasury, as the lead agency for the Committee on Foreign Investment in the United States (CFIUS or “Committee”), released written Enforcement and Penalty Guidelines that for the first time provide information on how the Committee assesses violations of the laws and regulations that govern foreign direct investment transactions that fall under its jurisdiction, including potential breaches of CFIUS mitigation agreements.