Foreign direct investment benefits the U.S. economy, but particular investments can raise national security concerns. Congress and the President have created a mechanism to review proposed investments, to incorporate mitigating measures into particular deals, and to stop deals that are ultimately unacceptable.
Last winter this system may or may not have adequately addressed the security issues when Dubai Ports World tried to buy the parent company of P&O Ports North America, a firm operating port facilities in the U.S. It failed spectacularly in heading off a political firestorm.
Since then, even in the absence of new legislation from Congress, the U.S. has ratcheted up its scrutiny of foreign investments. David Marchick lays out exactly how in Swinging the Pendulum Too Far: An Analysis of the CFIUS Process Post-Dubai Ports World (National Foundation for American Policy Policy Brief, January 2007).
Remember the way the investment review system works. The Committee on Foreign Investment in the U.S. (CFIUS) is an interagency committee, chaired by the Treasury Secretary. CFIUS includes agencies responsible for the economy, as well as those more concerned with security. CFIUS can review a transaction if one of the parties asks it to, or it can start a review on its own - even after a deal is completed. Often, companies involved in a transaction that may have security implications consult informally with CFIUS staff before any formal request for review is made. If companies think there will be security issues, they may request a review and work through mitigation issues to clear the air, and reduce the likelihood of a future CFIUS intervention - which could result in a required divestiture.
Once a transaction is "notified" to CFIUS, the committee has 30 days to complete an initial review. CFIUS might not see any concerns, it may identify both concerns and adequate mitigation measures, or it might identify insuperable difficulties and the parties may withdraw from the transaction. If the 30 day period ends, and concerns still exist, CFIUS can begin a secondary review (called an "investigation"), lasting up to 45 days. The 45 day secondary review is required if an acquiring company triggers two conditions: it is (a) owned by a foreign government, and (b) the deal raises security concerns. Ultimately, at the end of a secondary review, CFIUS reports to the President, who has 15 days to decide if a transaction can be allowed to go through.
Dubai Ports World went through this process at the end of 2005 and the start of 2006. A review was completed, but the 45 day investigation wasn't triggered, even though Dubai Ports World was owned by a foreign government. CFIUS evidently believed, after the review, and in light of any mitigating conditions that were required, that it was not a deal that raised security concerns. Then everything blew up. (I reviewed the Dubai Ports World CFIUS process up to the start of the controversy last march in Countdown to controversy: Dubai Ports World, Ben Muse, March 6, 2007).