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From Fretting Takeovers to Vetting CFIUS: Finding a Balance in U.S. Policy Regarding Foreign Acquisitions of Domestic Assets

Posted by on Tuesday, October 16, 2012 in Notes, Vol. 39 No. 4, Volume 39, Volumes.

Merger law in the United States has historically relied on a system of private ordering with as little intervention from the federal government as possible.  This scheme lies in stark contrast to the merger law of many other developed nations and, as such, has become a trademark of U.S. corporate law.  Recent events, however, have brought into question the system’s desirability in cross-border transactions where foreign entities are investing in U.S. assets.  Proponents of reform argue that the federal government should become more involved in the approval process for these transactions given increased concerns of national security, while opponents argue that welcoming foreign investment is a hallmark of U.S. foreign policy not to be changed.  This Note suggests a reform addressing both of these concerns in the hope that, when the next such transaction is called into question by U.S. politicians, the concerned parties will have a well-established legal doctrine to guide them.

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