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哥伦比亚大学国际直接投资展望中文版都可以在我们的网站查看:
https://ccsi.columbia.edu/content/columbia-fdi-perspectives
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*Columbia FDI Perspectives*
Perspectives on topical foreign direct investment issues
Editor-in-Chief: Karl P. Sauvant ([log in to unmask])
Managing Editor: Riccardo Loschi ([log in to unmask])

*The Columbia FDI Perspectives are a forum for public debate. The views
expressed by the authors do not reflect the opinions of CCSI or our
partners and supporters.*

No. 310   July 26, 2021
*CFIUS and China in the post-COVID environment*
<https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=4d5279ac3c&e=763bcf158c>
by
Mario Mancuso* <#m_-2295913326082789904__edn1>

The COVID pandemic and China’s response to it have intensified US
suspicions and greatly strengthened—inside the executive branch, in
Congress, in the public—the appetite for a tougher line with China. This
shift has not abated with the new Presidential administration.

The Committee on Foreign Investment in the United States (CFIUS)
<https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=9304eeb80e&e=763bcf158c>
is uniquely positioned to deal with China: because CFIUS reviews the impact
of certain FDI transactions on US national security, it has the power to
approve, condition or frustrate Chinese investments into the US.

If not calibrated, however, post-COVID China suspicions may distort CFIUS’s
focus to the long-term detriment of US national security. Therefore, CFIUS
should discipline its risk analysis, find ways to improve the clarity of
its communications with the private sector and judiciously exercise its
powers to preserve its long-term institutional ability to carry out its
vital national security mission. There are at least four ways in which
CFIUS should continue to adapt its approach:

   - *Healthcare data under the microscope*. CFIUS has historically been
   interested in reviewing transactions with non-US investors involving US
   healthcare businesses where the personal health information of US citizens
   might be compromised. Today, CFIUS is enlarging its focus to include
   transactions that may compromise US genomic data. In addition to supporting
   China’s drive to become a global leader in biotech and precision medicine,
   certain member agencies of CFIUS believe that China may use such genomic
   data—together with previous US data exploitations—to target individuals
   with negative US national security consequences.
   - *Supply chain resilience. *CFIUS has shown increased interest in
   reviewing transactions that produce or deal in products critical to US
   supply chains, including especially pharmaceutical ingredients, minerals,
   advanced packaging, high-capacity batteries, and semiconductors. The
   premise of this policy interest is the strategic importance of resilience
   in an era of intense competition with China. But not all of these
   transactions involve the same risks, or to the same degree. CFIUS should
   redouble its efforts to make careful fact-specific determinations of the
   risk profile of (i) a given transaction, including with respect to the
   industry sector, nature of the national security vulnerabilities of the US
   business, and (ii) the prospective foreign buyer.
   - *China without illusions*. CFIUS is now less inclined to distinguish
   among different types of Chinese buyers (e.g., state-owned enterprises
   versus private companies) and between mainland Chinese and Hong Kong buyers
   for purposes of its “threat” profile assessments in M&A transactions. This
   is not to say that these distinctions are irrelevant. Rather, these
   distinctions are less salient in the context of a CFIUS review—an approach
   that may surprise business executives who have long used these distinctions
   to assess other types of legal risk (e.g., corruption risks) with respect
   to Chinese counterparties. Thus, one should expect that Chinese (and Hong
   Kong) private companies and investment funds will receive as much scrutiny
   as Chinese state-owned or affiliated actors. CFIUS should clarify for the
   private sector the basis for these short-form prudential judgements. While
   full transparency is unrealistic, it should be possible for CFIUS to
   provide clarity to the private sector by tethering its policy approach to
   information that is unclassified and/or already public, but not necessarily
   widely known. For example, the US executive branch could increase
   transparency on its general views on how market players in China operate by
   reference to China’s own official statements in this regard (e.g., *Opinion
   on Strengthening the United Front Work of the Private Economy*
   <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=a6aa6d7c23&e=763bcf158c>).
   This additional clarity would help the private sector better understand the
   likely salience of CFIUS for a contemplated transaction.
   - *CFIUS as an enforcer*. While CFIUS may compel parties to file with
   it, CFIUS has historically lacked sufficient means to do so, except in the
   most pressing cases. Today, however, CFIUS is better configured and better
   resourced to “pressure test” its jurisdictional authority by reaching out
   to transaction parties pre- or post-closing with respect to transactions
   that were not notified to it. This is an important tool that the CFIUS’s
   new office of Monitoring & Enforcement
   <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=436444e062&e=763bcf158c>
   should use to strengthen the systemic incentives for parties to comply with
   the CFIUS legal regime. Nevertheless, CFIUS should use this tool
   judiciously. In cases where non-notified transactions have been completed,
   certain legal rights will have been acquired by foreign persons. These
   rights may provide a legal basis to challenge CFIUS’s authority on
   constitutional and other grounds. While such legal challenges are rare and
   an uphill battle for plaintiffs, any credible threat of colorable
   litigation puts significant institutional pressure on CFIUS.

As with other crises, COVID has forced US security planners to think about
new vectors of risk. Given CFIUS’s unique contribution to US security, it
should carefully calibrate its risk post-COVID framework and resist a
reflexive, sweeping approach that could undermine long-term US security
interests. A more nuanced framework—with clearer communication and a
judicious institutional posture—will better advance US security interests
and may help reduce the policy gap between the US and its allies on Chinese
investment issues.

------------------------------
* <#m_-2295913326082789904__ednref1> The Honorable Mario Mancuso (
[log in to unmask]) is a former US Under Secretary for Industry and
Security, CFIUS decision-maker and senior Pentagon official; he is
currently a Senior Visiting Fellow for International Security at the Hudson
Institute and a senior partner at a leading international law firm. The
analysis of this *Perspective* draws on, *inter alia*, Mario Mancuso, *A
Dealmaker's Guide to CFIUS* (2019). The author would like to thank Mark
Feldman, Chase Kaniecki and Joachim Pohl for their helpful peer reviews.
*The material in this Perspective may be reprinted if accompanied by the
following acknowledgment: “Mario Mancuso, ‘CFIUS and China in the
post-COVID environment,’ Columbia FDI Perspectives No. 310, July 26, 2021.
Reprinted with permission from the Columbia Center on Sustainable
Investment (**http://ccsi.columbia.edu*
<https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=95669a1ebf&e=763bcf158c>*).”
A copy should kindly be sent to the Columbia Center on Sustainable
Investment at **[log in to unmask]* <[log in to unmask]>*.*

For further information, including information regarding submission to the
*Perspectives*, please contact: Columbia Center on Sustainable Investment,
Riccardo Loschi, [log in to unmask]

*Most recent Columbia FDI Perspectives*
<https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=314af916f9&e=763bcf158c>


   - No. 309, Rafael Ramos Codeço and Ana Rachel Freitas da Silva, “CSR in
   an Investment Facilitation Framework for Development: From a ‘race to the
   bottom’ to a ‘march to the to’,” Columbia FDI Perspectives, July 12, 2021
   - No. 308, Manjiao Chi and Zongyao Li, ‘China’s foreign investment
   complaint mechanism: A new beginning of foreign investment governance
   reform?,’ Columbia FDI Perspectives, June 28, 2021
   - No. 307, Karl P. Sauvant and Nancy N. Stephen, ‘Increasing
   transparency in investment facilitation: focused support is needed,’ June
   14, 2021

*All previous FDI Perspectives are available at
https://ccsi.columbia.edu/content/columbia-fdi-perspectives
<https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=38e68e599c&e=763bcf158c>*
.

*Other relevant CCSI news and announcements*

   - *On July 9, 2021*, Lisa Sachs spoke at a webinar entitled, “Resume
   SDG-aligned South-South Investments Beyond COVID-19,” jointly organized by
   the United Nations Office for South-South Cooperation (UNOSSC), the Finance
   Center for South-South Cooperation (FCSSC), and the China International
   Center for Economic and Technical Exchanges (CICETE). The discussion
   focused on how South-South responsible investments have contributed to
   progress made on the attainment of the SDGs from corporate perspectives.
   View the video of the event here
   <https://columbia.us6.list-manage.com/track/click?u=ab15cc1d53&id=84681562bf&e=763bcf158c>
   .

Karl P. Sauvant, Ph.D.
Resident Senior Fellow
Columbia Center on Sustainable Investment
Columbia Law School - Earth Institute
Ph: (212) 854-0689
Fax: (212) 854-7946
*Copyright © 2021 Columbia Center on Sustainable Investment (CCSI), All
rights reserved.*
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*Karl P. Sauvant, PhD*


*Resident Senior Fellow*
*Columbia Center on Sustainable Investment*
Columbia Law School - The Earth Institute, Columbia University
435 West 116th St., Rm. JGH 825, New York, NY 10027
| p: (212) 854 0689 | cell: (646) 724 5600 e: [log in to unmask]
| w: www.ccsi.columbia.edu | t: @CCSI_Columbia
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"Increasing Transparency in Investment Facilitation: Focussed Support is
Needed", "A Multilateral Investment Facilitation Agreement can Help
Advancing Development", *Investment Facilitation for Development: A Toolkit
for Policymakers*, "More Attention to Policies! Improving the Distribution
of FDI Benefits. The Need for Policy-oriented Research, Advice and
Advocacy", "More and Better Investment Now!", "Facilitating Sustainable FDI
in a WTO Investment Facilitation Framework: Four Concrete Proposals",
"Multinational
Enterprises and the Global Investment Regime: Toward Balancing Rights and
Responsibilities”, “The *WIR* at 30: Contributions to National and
International Policymaking", "An Inventory of Concrete Measures to
Facilitate the Flow of Sustainable FDI: What? Why? How?", "Insulating a WTO
Investment Facilitation Framework from ISDS", "The Case for an Advisory
Centre on International Investment Law", "The Potential Value-added of a
Multilateral Framework on Investment Facilitation for Development" are
available
at https://ssrn.com/author=2461782 .

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