Outbound Investment from China Holds Concerns About Investment Review

Our latest post last week referenced the June 2009 Peterson Institute policy brief discussing China’s outbound foreign direct investment, authored by Daniel H. Rosen and Thilo Heinmann. The paper points out that global economic turbulence has made potential outbound investors in China hesitant to go abroad, citing three compelling pieces of evidence:

  • The value of approved nonfinancial overseas projects announced in Q1 2009 decreased to $3.7 billion from more than $10 billion in Q1 2008.
  • A recent study reported that more than 50% of Chinese firms are scaling back their overseas investment plans. 
  • Chinese government has withheld approval for deals in the financial sector and chastised firms in other sectors for their overseas investment plans.

The brief predicts that despite these “short-term anxieties,” OFDI by China will increase substantially in both the medium and long terms. The key driver behind the increase is China’s need to transform its model for achieving internal growth from domestic manufacturing alone to more integrated activities carried on internationally. 

 

If, however, there is reluctance or unwillingness on the part of Chinese firms to make outbound direct investments, then to what extent are these attitudes attributable to changes in investment review policies of investee nations.

 

The issue of review policies by recipient nations is taking central stage. The brief predicts that China’s OFDI will increasingly target higher-value assets in advanced economies, such as high technology firms. As it targets these businesses, governments and businesses alike may raise national security rationales to impede the investments. In anticipation of this transformation the brief warns that potential recipients of Chinese investments may use national security inappropriately as a basis for blocking investments and requests clarity as to which business sectors are not available for OFDI investment. 

 

With specific reference to the U.S., the brief notes that earlier efforts to expand the U.S. investment review system to include economic security were resisted. The discussion, however, is restarting. This reaction is due to the perception that China’s government is robustly involved in its nation’s businesses. The brief argues that

  • Chinese executives need clear U.S. policy to determine beforehand whether bids may be rejected on national security grounds and
  • greater clarity on this issue would benefit the United States by maximizing its asset values and preventing retaliatory treatment abroad.

The brief points out that many governments have tightened investment rules in recent years in response to increased outbound investments from China and the Middle East. A chart included makes the point convincingly: 

On that basis, the brief asserts that in many countries investment protection is growing, investment rules lack transparency and domestic interest groups affect the review process. The attempted takeover of Unocal by Chinese National Offshore Oil Corporation and the involvement of Huawei Technologies in Bain Capital’s attempted acquisition of 3Com Corporation are cited as examples.  As a result, politicized reviews are an obstacle in the view of outbound investors. 

 

Businesses throughout OECD economies are likely to receive investment offers from Chinese firms in the near future. Consequently, the brief advises that it is imperative, in light of the many benefits to arise from China’s OFDI, that each country, including the U.S., consider the broad image of policy issues and articulate an approach conducive to that incipient inbound investment.

 

Last week also brought reports that Chinese security officials had detained four Rio Tinto executives on grounds that the four had stolen state secrets.  According to the Australian CEO World blog, the arrests have shocked both the business world and the Australian government.  Sources cited in the blog attributed the arrests to sensitivities in the Chinese leadership arising from economic stagnation and a search for scapegoats.  Australian press is reporting that China’s spy and security agencies have been promoted to top strategy-making positions for the purpose of managing China’s economy through the downturn.  Demonstrating that virtually every issue has an OFDI aspect, however, the China Securities Journal reported that shortly before last Thursday’s detentions the state-controlled Aluminum Corporation of China (Chinalco) bought $1.5 billion of Rio Tinto shares.  

 

The international reactions and press allegations are likely to make Chinese executives and officials even more reluctant to proceed with their OFDI plans and affect the receptivity of recipient economies as well. Resolution of the conflict will provide greater insight into when and in what ways expanded OFDI by China may materialize.  

Identifying Those Mergers, Acquisitions and Investments That Are Subject to U.S. Government Regulation

Analysts and others who follow mergers, acquisitions and other foreign direct investment into the United States can often be frustrated in their attempt to learn what inbound deals are being subjected to U.S. governmental scrutiny.  Other than occasional press releases, little useful information that is transaction-specific seems to be available. There was press coverage of  the proposed merger transaction among affiliates of Bain Capital Partners, 3 Com Corporation and Huawei Technologies of China in 2007 and 2008.  That transaction did not survive govenmental scrutiny.  More recently, in mid-May of this year, Rio Tinto and Chinalco announced that they had obtained U.S. government approval for both the proposed issue of convertible bonds to Chinalco and the indirect minority investment in Kennecott Copper Coporation, as contemplated by their February 2009 strategic transaction. 

The Committee on Foreign Investment in the United States, known by its acronym CFIUS, is the regulator that oversees foreign direct investment, make certain limited information available.  On November 14, 2008, CFIUS, sent its most recent Annual Report to Congress.  CFIUS operates under The Foreign Investment and National Security Act of 2007, or FINSA .  FINSA mandates that CFIUS prepare and send this report.    One month later, CFIUS made available to the public an unclassified version of the report  that presents only aggregate information.  The 2007 Annual Report  covers the years 2005, 2006 and 2007, when there was considerably more inbound M&A and inbound investment activity into the U.S., as well as more cross-border transaction activity generally, than currently.

The unclassified version of the report does not identify the foreign persons or the U.S. businesses involved. The data is segmented by business sector of the U.S. business and by nationality of the foreign person. There is no specification of whether the basis of the national security considerations was the nexus of the U.S. business with U.S. national security or the identity of the acquiring foreign party.

Some of the data in the report, however, is helpful in determining those standards that buyers and sellers are following. CFIUS’ annual report states that, in 2007, parties filed 138 notices of transactions with CFIUS. The unclassified version of the report provides only aggregate data with respect to the filed submissions. To summarize, for 2007:

  • of the 138 filed notices, ten notices (7%) were withdrawn during the CFIUS national security review and five (4%) were withdrawn during the CFIUS national security investigation;
  • the parties to three of the five transactions that withdrew their filings during investigation subsequently refiled them, and the refilings led to conclusion without action;
  • the parties to two other transactions withdrawn during investigation abandoned their transactions; and
  • the parties to the remaining withdrawn application restructured the transaction such that the foreign party no longer gained control over the U.S. person.

The report does not indicate whether or how many of the transactions that were withdrawn during the national security review were later resubmitted with or without restructuring. Unlike 2006, when the President acted to suspend two transactions, the President did not suspend or prohibit any transactions during 2007.

In response to FINSA’s mandate that the report provide “[s]pecific, cumulative and, as appropriate, trend information,” the annual report presents aggregate statistics regarding 313 transactions for the period 2005 through 2007. In summary, during those three years, 24 notices (8%) were withdrawn during the CFIUS national security review, 15 notices (5%) resulted in investigations and 2 notices (1%) resulted in a Presidential decision. Although the statistics indicated that the number of notices filed increased year-to-year from 64 to 111 to 138, the data, presented below, show no other clear trends. 

Source:  CFIUS 2008 Annual Report

To put these numbers of filings in to context, the number of transactions in which foreign buyers acquired U.S. business were substantially larger. CFIUS filings were made only in a small fraction of cases. According to Capital IQ, there were 657 completed inbound acquisition transactions in 2005, 889 in 2006 and 1,076 in 2008. The percentage of these transactions as to which the parties filed CFIUS notices were 10% in 2005, 12.5% in 2006 and 12.8% in 2007, or an overall percentage of 11.9% for the three-year period. The trend line is moving upward, although only slightly so.

Pursuant to the mandate in FINSA, the report analyzes the notices that were filed during the three-year period by business sector and the countries originating the transactions. This is the data that may be most useful to determine what parties have chosen to voluntarily submit their notices. The business sectors represented and the most-often reported business segments within those sectors, measured by percentage of the total 313 filings, were:

 Source:  CFIUS 2008 Annual Report

Business sectors of business segments with respect to which parties made filings, but not in statistically significant (i.e., 5% or more) numbers, included:

  • Chemical (within Manufacturing)                   –      12 filings
  • Primary metal (within Manufacturing)           –         7 filings
  • Machinery (within Manufacturing)                  –       16 filings

Within the 51 Computer and Electronic Product segment filings were filings by businesses that manufacture semiconductors and other electronic components (21 filings) and that manufacture navigational, measuring, electromedical and control instruments (13 filings). Within the 52 Professional, Scientific and Technical Services segment filings were businesses that provided architectural, engineering and related services (21 filings) and that provided computer systems designed related services (also 21 filings). 

Because FINSA prohibts CFIUS from presenting transaction-by-transaction data, parties looking for  precedent or practices by others will benefit by keeping these statistics in mind.  Given the business risks for failing to file the voluntary notice, the parties are well-advised to make conservative judgments and build compliance with the filing process into their deal budgets and timelines.  Qualified legal advisors can assist buyers, sellers, investors and investees in complying with U.S. government review efficiently and effectively.