Tomorrow's Global Business

Scott Flicker

March 06, 2017

By Paul Hastings Professional

Scott Flicker

The pace of Chinese outbound M&A is clearly accelerating, with the U.S. remaining the most stable and desired destination for Chinese companies looking to hedge against domestic asset devaluation and support business and technological growth.

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Increased Chinese investment in U.S. industries that are seen as “sensitive” or “critical” has also resulted in an uptick in CFIUS reviews of Chinese deals, leading to greater focus by deal parties on how the CFIUS process affects their timing and outcomes. The more sophisticated the target, the more likely a CFIUS filing will be warranted and entail a lengthy and searching review. In some cases (such as Fairchild Semiconductor’s recent rejection of a bid from China Resources Microelectronics and Hua Capital Management), U.S. firms are actually walking away from lucrative Chinese offers out of concern that the takeover might not survive CFIUS review.

To address these issues, Chinese investors are exploring non-U.S. companies with a strong tech or engineering base. But this has its limitations. First, the U.S. is still home to a substantial number of companies undertaking cutting-edge R&D in technology and related areas. Second, even acquiring a non-U.S.-based company can generate CFIUS risks if the acquisition has U.S. business operations. This was the reason why CNOOC’s acquisition of Canadian company Nexen triggered a major CFIUS review—the target had operating assets in the Gulf of Mexico. Chinese outbound investors must be aware of the full range of potential CFIUS exposures in assessing potential deals.

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