Alguns países fazem o controle prévio dos investimentos estrangeiros. Angola e Ìndia me vêm a cabeça. Em países com este tipo de regulação, só são aprovados investimentos que o governo considera importantes ou pertinentes.
No Brasil, vige o sistema oposto. Qualquer investimento é bem-vindo, com algumas restrições. Entre as restrições, estão setores ou regiões sensíveis em termos de segurança nacional, e outros setores econômicos que poderiam aceitar investimentos estrangeiros perfeitamente, mas que são vetados devido a posturas ideológicas do governo (por exemplo: terras rurais, setor de saúde, aviação).Sempre achei que os EUA adotassem a mesma política que o Brasil. Mas hoje aprendi que eles possuem uma agência de controle de investimentos. Só que a submissão prévia a ela não é obrigatório.
Contudo, a tal agência acaba de obrigar uma empresa indiana do setor de certificação digital a DESINVESTIR nos EUA, alegando razões de segurança nacional.
Uma situação como esta poderia ocorrer no Brasil, por meio de um ato administrativo da Junta Comercial, ou do Ministério da Justiça, ou do Ministério da Indústria. Ou mesmo diretamente pela presidência da república. Mas casos desse tipo são raríssimos.
EUA... cada dia mais caminhando para a intervenção total sobre a economia e sobre a vida das pessoas. Onde é que vocês vão parar?
http://www.jdsupra.com/legalnews/cfius-invokes-national-security-in-order-37449/?utm_source=JFB&utm_medium=facebook&utm_campaign=internationallaw
FIUS Invokes National Security in Ordering Indian Company to Divest Equity in U.S. Company
Before
investing in the United States, foreign companies and their U.S. targets should
consider the role of the Committee on Foreign Investment in the United States
(“CFIUS”), a federal interagency committee empowered to review foreign
investments in United States companies for national security concerns.
If a proposed
transaction presents national security concerns, CFIUS has the power to require
the parties to mitigate those concerns, or, if they cannot be mitigated, to
block the transaction. And if a transaction has not been submitted for
pre-closing review, CFIUS can revisit closed transactions and order
post-closing mitigation measures, including divestiture.
CFIUS’s broad
authority came into focus again last week, when Polaris Financial Technology
Ltd., headquartered in Chennai, India, announced that CFIUS had ordered it to
divest its 85.3 percent ownership stake in U.S. company IdenTrust Inc., which
provides digital identification authentication services, including to banks for
electronic account management systems and to U.S. government agencies for secure
cloud computing.
The Polaris
misadventure is one of several in recent years in which parties elected to
close a transaction without CFIUS review, only later to find CFIUS taking
action. For parties to cross-border transactions, what should you know
about the recent CFIUS activism?
1.
The risks of closing a transaction without review by CFIUS have never been more
substantial.
To be sure,
the CFIUS process is “voluntary” in that no law is broken by parties who do not
notify CFIUS of their transaction. But CFIUS scans the press, reports
filed with the Securities and Exchange Commission, and other sources to
identify transactions that were not voluntarily submitted for CFIUS
review. As Polaris discovered, CFIUS increasingly initiates post-closing
reviews, impacting those transactions and the reputations of the parties
involved.
For instance,
in 2011, Huawei Technologies of China was made to divest the assets of
U.S.-based 3Leaf Systems, a cloud computing technology company. Huawei
had apparently believed the small $2 million acquisition was free from CFIUS’s
jurisdiction as it involved only assets, but the inclusion of less than
one-third of 3Leaf’s employees reportedly led CFIUS to conclude that it had
jurisdiction. This was not Huawei’s first brush with CFIUS, having
previously been blocked from investing in 3Com, 2Wire and Motorola.
CFIUS,
concerned about possible espionage, has also ordered divestitures of Chinese
investments in wind farm and mining projects proximate to U.S. military installations
— i.e., nothing about the nature of the U.S. business itself indicated a
national security concern, yet CFIUS blocked the transactions. Does this
mean that if a French private equity firm acquired a U.S. popsicle stick
manufacturer with a plant proximate to a undisclosed U.S. intelligence
facility, about which both parties were unaware, CFIUS could order
divestiture? In theory, yes.
When parties
who skirt the process are later “invited” by CFIUS to engage, suspicion about
their motives may prove impossible to dispel.
What is
clear is that parties to a transaction remotely within the scope of CFIUS’s
jurisdiction forego CFIUS’s voluntary review process
at
considerable risk to their investment objectives and reputation. For some
companies, like Huawei, the costs of error seem
incalculable.
2.
The nature of national security is evolving and CFIUS will reach to assert
jurisdiction in even questionable cases.
Polaris’s
acquisition of IdenTrust presented features that called for CFIUS review, given
the nature of the service (cybersecurity), the industry sectors (financial
services, U.S. government agencies), and the United States’ complicated
relationship with India. But in other matters, “national security” — a
term loosely tethered by equally vexing concepts such as “critical
infrastructure” and “critical technologies” — is an expanding universe whose
outer limits are hard to perceive. Consider the acquisition of Smithfield
Foods by the Chinese Shuanghui International Holdings Limited, a CFIUS-reviewed
transaction that left many scratching their heads about what national security
concerns are presented by a pork producer.
The importance
of other endeavors to the national security will evolve, including clean
technologies that gain importance for the nation’s energy requirements; new
payment systems that alter the financial system; biomedical advances that
disclose new vulnerabilities; social media technologies that change how we
interact; “Big Data” that opens new windows on who we are; and all manner of
other technologies that were inconceivable a short generation ago. The
relationship of each to the national security will present difficult
questions.
Where CFIUS
does perceive a national security concern, it will assert jurisdiction aggressively.
Because the parties to a transaction can offer little resistance when CFIUS
takes an interest, only those transactions falling well outside the scope of
what is a “covered transaction” under the CFIUS regulations will be safe from
review.
3.
CFIUS reviews are taking longer to complete, with repercussions that spread
beyond CFIUS’s mandate.
CFIUS has
unfortunately done little to make the review process more inviting or
expeditious for parties who submit to it. A CFIUS review is subject to an
initial 30-day review period, after which CFIUS can initiate a second
“investigation” phase of up to 45 additional days.
In 2007, when
roughly 4 percent of filed cases were the subject of an investigation, it was
safe for parties to plan around the likelihood that CFIUS would clear their
transactions within 30 days. Yet in 2011, the most recent year for which
figures are available, roughly 36 percent of filed cases — over one in
three — were sent to the investigation phase. The resulting delays
can frustrate the acquirer’s desire to close a transaction quickly. For
example, CFIUS’s investigation in 2012 of SAP’s proposed acquisition of the
cloud-based human capital management firm SuccessFactors required SAP to extend
its tender offer deadline.
Parties can
also expect intrusive questions during a CFIUS review, including some
suggesting that CFIUS’s constituent agencies are advancing their independent
regulatory objectives. Not infrequently, information learned by CFIUS
within the review process leads to further questions from its member agencies,
includingoutside the CFIUS review and even after its conclusion.
Careful preparation in advance of a CFIUS filing can moderate these risks.
* * * * * *
IRS Circular
230 Disclosure: To ensure compliance with requirements imposed by the IRS,
we inform you that any U.S. tax advice contained in this informational piece
(including any attachments) is not intended or written to be used, and may not
be used, for the purpose of (i) avoiding penalties under the Internal Revenue
Code or (ii) promoting, marketing or recommending to another party any
transaction or matter addressed herein.
