Page 59 - The CFIUS Book

3.4. Presidential Review
If CFIUS does not close its investigation, it must send a report to the President requesting a presidential review of the transaction. In that review, the President will determine whether to suspend, prohibit, or impose conditions on the transaction. The President has up to 15 days to conduct the presidential review and publicly announce a determination. The 15-day period is calculated starting on the earlier of (a) the date on which the investigation of the transaction is complete, or (b) the date on which CFIUS refers the transaction to the President. As with the review and investigation conducted by CFIUS, the presidential review seeks to determine whether credible evidence supports that the foreign person exercising control over a U.S. business might take action that threatens national security.
The statute creating CFIUS requires the President to make two findings in order to suspend or prohibit a covered investment, as follows:
1. There is credible evidence that leads the President to believe that the foreign interest exercising control might take action that threatens to impair the national security; and
2. Provisions of law other than section 721 and the International Emergency Economic Powers Act (IEEPA), do not, in the judgment of the President, provide adequate and appropriate authority for the President to protect the national security.63
In the past, CFIUS transactions have rarely reached the presidential review stage. From the enactment of the CFIUS statute in 1988 to 2015, only two transactions reviewed by CFIUS reached presidential review. In many cases, parties voluntarily withdrew
THE CFIUS BOOK
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