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This blog posted an article titled “Setting The Record Straight: The U.S. Is Open For Chinese Business; Don’t Worry Too Much About National Security Reviews” on December 12, 2009. Two weeks later Northwest Non Ferrous International Investment Co., Ltd. (“Northwest”) dropped its plans to acquire a Nevada mining company because a national security review under the Foreign Investment National Security Act “FINSA” was coming to an unfavorable conclusion. We do not stand corrected.

The rejection of the Northwest acquisition was based on unique facts and not because of opposition to Chinese investment generally. Chinese companies should not let this case dissuade them from acquiring companies and otherwise investing in the United States.

Northwest proposed to acquire control over a mining company, Firstgold Corp., all of whose operations are adjacent to Naval Air Station Fallon, the U.S. Navy’s premier tactical air warfare training center. The Navy opposed a company owned by the Chinese Government having control of property from which its most sensitive training activities might be monitored. Also in that area are other security and military assets so sensitive that the U.S. Government treats even their identities as classified information.

Due to the sensitive nature of the government installations, any acquisition by a foreign company, including companies based in NATO countries, would have raised national security concerns. Whether China created more concern is entirely speculative and ultimately unknowable. However, Chinese companies should not view the CFIUS result in this case as based on an objection focused on China, but rather as based on the serious national security concerns it definitely presented regardless of the foreign country. FINSA requires CFIUS to consider whether the acquiring company is state-owned. However, given the serious national security concerns raised by the location of Firstgold’s facilities, the result likely would have been the same even had the acquirer been a private company.

Northwest’s lawyers have described extraordinary but failed efforts to make the acquisition compatible with national security concerns. Their memorandum to Northwest, published on the New York Times website, reports that the Committee on Foreign Investment in the United States (“CFIUS”) looked closely at all kinds of scenarios to mitigate the national security concerns, but concluded that none of them would be feasible because all four of Firstgold’s properties are located adjacent to Naval Air Station Fallon or other military sensitive locations.

The lawyers’ report demonstrates that CFIUS’ goal is not to block investments. Instead, CFIUS seeks to mitigate national security concerns. The exceptional facts in this case are that all of the operations to be acquired raised concerns. When national security is at issue, it usually affects some part of the deal and can be mitigated. Here, all of the deal was implicated; mitigation (such as spinning off some part of the deal while preserving the essential economic value) apparently was impossible.

Northwest acted wisely in this case, seeking a CFIUS review before investing because of uncertainties about national security. Reportedly, Firstgold did not want to request CFIUS review. Northwest could have invested, only to have CFIUS recommend and the President of the United States undo the deal, not because of animus toward Chinese investment, but because of the serious implications for national security.

It is important not to misinterpret the Northwest case. It proves the utility and wisdom of early CFIUS review, not an objection to Chinese investment. Notwithstanding CFIUS’ rejection of Northwest’s proposed acquisition of Firstgold, the United States remains one of the economies most open in the world to foreign investment, including from China.
 

        2009年12月12日,本博客刊登了《美国向中国企业敞开大门,请勿过分担心国家安全审查》。两周后,Northwest Non Ferrous International Investment Co., Ltd. (简称Northwest)因在根据《外国投资和国家安全法》展开的国家安全审查中面临不利裁决,而被迫放弃并购位于内华达州一矿产公司的计划。

        拒绝Northwest的并购计划有其特殊背景,并非反对所有中国投资。中国企业不应因为这一事件而放弃在美投资、并购企业的计划。

        Northwest提议并购Firstgold Corp.矿产公司,而这一公司的作业地点紧邻海军的Fallon飞行基地,这是美国海军最重要的飞行作战训练中心。不出意料,海军反对中国政府拥有的企业控制这一产业,此处可监控美国海军最敏感的训练活动。此外,这一地区还有其他属于美国政府列为保密信息的军事、安全设施。

         因为这些政府设施非常敏感,所以即使是北约国家的公司并购这一产业也会引发国家安全担忧。中资企业是否引来更多担忧则纯属猜测、无法得知。但是,中国公司不应视这一国家安全审查建立在反对中国基础之上,而是建立在不分国别的国家安全考虑基础之上。《外国投资和国家安全法》要求国家安全审查考虑收购企业是否为国有企业。但是,因为Firstgold处于敏感地点,即使是私营企业试图并购这一公司也会受阻。

        Northwest的律师称为通过国家安全审查他们付出很多努力,最终仍然失败了。《纽约时报》刊登的律师备忘录指出外国投资委员会仔细审查了各个可减轻对美国国家安全威胁的方案的每个细节,但是认为没有一个方案可行,因为Firstgold的四处产业都紧邻海军Fallon基地或是其它敏感军事设施。

         律师的报告显示外国投资委员会的目标不是为了阻碍投资。相反,外国投资委员会寻找减弱对国家安全造成不利影响的措施。此并购的特殊情况在于并购涉及的所有的产业都影响国家安全。通常,如果只有并购的某一部分涉及国家安全,且可减弱其不利影响。但是这一并购却不是这样,减弱不利影响(如除去并购的某一部分、仅保留关键部分)也不可行。

        Northwest采取了明智的处理方式,因为对是否能通过国家安全审查感到不确定,而在投资前就寻求国家安全审查。据报道,Firstgold不想申请国家安全审查。Northwest可以买下Firstgold产业,但最终美国总统在外国投资委员会的建议下还是会否决这一并购。否决不是因为仇视中国,而是因为并购将对国家安全造成负面影响。

        避免错误理解Northwest案件非常重要。它证明了先前的国家安全审查的重要性和明智性,而且这些审查并非反对中国投资。虽然外国投资委员会否决了Northwest并购Firstgold的计划,美国仍是世界上对外资最开放的国家,仍欢迎中国投资。

 (翻译:朱晶)