On February 13, 2022, the Office of Investment Security of the U.S. Department of Treasury, which administers the Committee on Foreign Investment in the United States (CFIUS), published a final determination finding that (1) the United Kingdom of Great Britain and Northern Irelands and (2) New Zealand have the met the criteria for remaining an “excepted foreign state” under the CFIUS regulations because they “have established and are effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security. Determination Regarding Excepted Foreign States, 88 Fed. Reg 9190 (Feb. 13, 2023); Determination Regarding Excepted Real Estate Foreign States, 88 Fed. Reg. 9190 (Feb. 13, 2023).
The status of “excepted foreign state” confers advantages to investors from those states that meet defined criteria in the CFIUS regulations. Investors from excepted foreign states that meet the regulatory criteria are deemed “excepted investors” and are allowed an exception to mandatory filing requirements and an exception from CFIUS authority over certain non-passive but non-controlling minority investments. Pursuant to the requirements of the CFIUS regulations, for a state to be an “excepted foreign state,” CFIUS must determine that the foreign state is “effectively utilizing a robust process to analyze foreign investments for national security risks and to facilitate coordination with the United States on matters relating to investment security.” 31 C.F.R. §§ 800.1001(a), 802.1001(a). See 31 C.F.R. § 800.214 (defining excepted real estate foreign state); 31 C.F.R. § 800.218 (definition excepted foreign state). The Department of Treasury has published a list of factors that CFIUS will generally consider in making such determination. See Department of Treasury, Factor Determinations Under § 800.1001(a)/ § 802.1001(a).
The current list of excepted foreign states/excepted real estate foreign states are as follows:
- New Zealand
- United Kingdom of Great Britain and Northern Ireland