Impact of FIRRMA on Real Estate Transactions: Concerns for Developers, Lessors, Lenders, and Fund Managers

CFIUS Review of Foreign Investment in Critical Infrastructure and Property Near U.S. Facilities, Filing Requirements

A live 90-minute premium CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
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Thursday, June 9, 2022

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

or call 1-800-926-7926

This CLE course will examine the Foreign Investment Risk Review Modernization Act (FIRRMA) and how it has affected real estate development, leasing, financing, and investment. The panel will discuss what constitutes "critical infrastructure" and "proximity," and the steps that should be taken to comply with the law. The panel will also discuss concerns for real estate investment funds that include foreign investors.

Description

CFIUS is an inter-agency committee authorized to review the national security implications of foreign investments in U.S. businesses and to block transactions or impose measures to mitigate any threats to U.S. national security. The Foreign Investment Risk Review Modernization Act (FIRRMA), enacted in August 2018, expanded the scope of transactions subject to the committee's review to include certain non-controlling investments in U.S. businesses that deal with critical infrastructure, critical technology, or the personal data of U.S. citizens.

FIRRMA also provided CFIUS with authority to review real estate transactions--including leases, sales, and concessions--involving air or maritime ports or in close proximity to sensitive U.S. government facilities. In November 2018, the committee launched a pilot program to require mandatory filings for non-U.S. investments in certain U.S. critical technology companies. Final CFIUS regulations implementing FIRRMA took effect in February 2020.

CFIUS review has become a necessary hurdle for a substantial share of real estate and critical infrastructure transactions involving foreign direct investment. This impact extends beyond acquisitions to include financing, leases, and the formation of investment funds. Any transaction relating to critical infrastructure, property proximate to U.S. government facilities, and facilities near sensitive U.S. national security installations will attract scrutiny.

Listen as our authoritative panel examines the expanded review powers of CFIUS under FIRRMA and how they must be addressed in real estate transactions. The panel will discuss property-level issues such as the meaning of "proximity" and "critical infrastructure," and issues fund managers must consider in soliciting or vetting foreign investors.

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Outline

  1. CFIUS and FIRRMA
    1. Expanded review and reporting requirements
    2. Foreign parties impacted
  2. Covered transactions in real estate context
    1. Critical infrastructure
    2. Proximity to government facilities
  3. Implications for real estate investment funds
    1. Due diligence of foreign investors
    2. Mandatory reporting, CFIUS review

Benefits

The panel will review these and other key issues:

  • How should counsel determine if a proposed property deal could be subject to CFIUS review?
  • What does a fund manager need to know about its investors to determine whether their involvement may impact the risk of CFIUS involvement or required mitigation?
  • Are there practical things investors, lessors, or lenders can do to reduce the risk of CFIUS involvement or reduce the impact on the value of the deal if CFIUS does become involved?
  • What are the practical steps and timelines for engaging with the regulatory process?

Faculty

Friedman, Robert A.
Robert A. Friedman

Partner
Holland & Knight

A former official with the U.S. Department of State, Mr. Friedman helps clients address a range of complex legal,...  |  Read More

Tzinova, Antonia
Antonia I. Tzinova

Partner
Holland & Knight

Ms. Tzinova practices in the areas of international trade, foreign direct investment and industrial security. She...  |  Read More

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