미국의 외국인투자규제법의 동향과 시사점* - “Foreign Investment and National security Act of 2007”을 중심으로 -

On July 26 2007, United States President George W Bush signed into law the Foreign Investment and National Security Act of 2007 (FINSA), revising US national security reviews of foreign investment in US companies. FINSA will make the foreign investment reviews more rigorous, particularly for transactions in certain sensitive sectors, including critical infrastructure and technologies, as well as transactions involving an entity controlled by a foreign government. FINSA is a response to the controversies surrounding China National Offshore Oil Corporation’s (CNOOC) unsolicited bid for Unocal in July 2005 and Dubai Ports World’s (DPW) February 2006 attempt to acquire port facilities in the United States. Both transactions generated intense political opposition and heightened interest in national security issues arising from foreign acquisitions by state-owned entities of US companies. FINSA modifies the operation of the interagency Committee on Foreign Investment in the United States (CFIUS), which reviews the national security implications of foreign acquisitions, mergers and investments in US companies. FINSA amends the CFIUS review process by: (i) expanding the concept of “national security” to expressly include transactions involving critical infrastructure (including energy assets) and critical technologies; (ii) heightening CFIUS scrutiny for all transactions involving entities controlled by foreign governments; (iii) empowering CFIUS with the authority to negotiate, impose and enforce conditions necessary to mitigate any threat to national security arising from a transaction; (iv) eliminating the safe harbour that protected transactions cleared by CFIUS from future scrutiny, if parties to the transaction intentionally and materially breach any term of a mitigation agreement and CFIUS determines that no other remedies are available to remedy such breach; (v) formalizing CFIUS’ consultations with Congress, and (vi) amending the mechanisms used to withdraw and re-file notices. FINSA does not change the voluntary nature of the CFIUS filing process. This trends of FINSA are very suggestive to Korean legislation about the foreign investment. Especially I think the member of the foreign investment Committee must be added, the concept of the national security must be enlarged and the superintendence of National Assembly must be strengthened.