What Biden’s executive order means for U.S. investors in China

by | Aug 11, 2023 | Financial

The U.S. and Chinese flags hang outside the Goldman Sachs headquarters in New York on Dec. 16, 2008.Chris Hondros | Getty Images News | Getty ImagesBEIJING — The Biden administration’s long-awaited executive order on U.S. investments in Chinese companies leaves open plenty of questions on how it will be implemented.Its 45-day public comment period gives U.S. investors significant potential to influence any final regulation, analysts said.”The executive order obviously gives an outline of what the program’s scope is going to be like,” said Brian P. Curran, a partner, global regulatory at law firm Hogan Lovells in Washington, D.C.”It’s not even a proposed rule. It’s not a final rule.”U.S. President Joe Biden on Wednesday signed an executive order aimed at restricting U.S. investments into Chinese semiconductor, quantum computing and artificial intelligence companies over national security concerns.Treasury Secretary Janet Yellen is mostly responsible for determining the details. Her department has published a fact sheet and a lengthy “Advance Notice of Proposed Rulemaking” with specific questions it would like more information on.Businesses can share information confidentially as needed, according to the advanced notice, which is set to be formally published on Monday. The notice said it is only a means for sharing the Treasury’s initial considerations, and will be followed by draft regulations.”The final scope of the restriction, to be defined by the Treasury Department after public consultations, including with U.S. investors in China, will be critical for the enforcement of the order,” said Winston Ma, an adjunct professor at NYU Law and a former managing director of CIC.So what’s banned?This week’s announcements don’t explicitly prohibit U.S. investments into Chinese businesses, but the documents indicate what policymakers are focused on.The U.S. transactions potentially covered include:Acquisition of equity interests such as via mergers and acquisitions, private equity and venture capital;Greenfield investment;Joint ventures;Certain debt financing transactions.The forthcoming regulations are not set to take effect retroactively, the Treasury said. But the Treasury said it may request information about transactions completed or agreed to since the issuance of the executive order.”We’ve been advising clients leading up to the issuance of the executive order, it does make sense to look at your exposure to the kinds of transactions that have the potential to be covered by the regime,” Curran said.Any plans to invest in the sectors named in the public materials should come under ad …

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