USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn
CFIUS tends to focus on transactions involving the defence industry, emerging technologies, critical infra - structure, and the mass collection of sensitive person - al data. While CFIUS’s enabling legislation and regu - lations apply equally to acquirers of all nationalities, acquirers with ties to China have tended to receive greater scrutiny. If CFIUS determines it has national security concerns about a given transaction, it can negotiate with the parties to put in place measures that mitigate those concerns (eg, limiting access to sensitive systems or facilities to US personnel) or it may recommend that the President block the transac - tion altogether. A Presidential block is rare – fewer than ten transac - tions have been blocked in the 40-plus years CFIUS has been in existence. However, in May 2024, Presi - dent Biden issued a presidential order to require the divestiture of real estate related to a cryptocurrency mining facility near a Wyoming Air Force base, which had previously been acquired by Chinese nationals without CFIUS review. In January 2025, President Biden issued another pres - idential block to prohibit the acquisition of US Steel by Japanese steelmaker Nippon Steel. The parties brought an action in federal court to challenge the block on procedural grounds. Before taking office, both in his campaign and after the election, President Trump publicly opposed the acquisition of US Steel by a non-US buyer, and committed to blocking the transaction. But since taking office, President Trump directed CFIUS to conduct a further, de novo review to determine whether further presidential action would be appropriate – including, for example, abrogation of President Biden’s block order. On 13 June 2025, President Trump issued an Executive Order allowing the parties to close but still subject to a National Secu - rity Agreement. Nippon Steel completed its USD14.9 billion acquisition on 18 June 2025, and the parties subsequently dismissed their federal litigation. President Trump’s announcement of an America First Investment Policy by executive order on 21 February 2025 suggests a continued aggressive CFIUS policy, particularly with respect to investments by Chinese entities.
CFIUS has historically focused on inbound invest - ment. In January 2025, pursuant to President Biden’s August 2023 Executive Order, a new Outbound Invest - ment Program (OIP) took effect to regulate outbound investments, focusing on investments into China in the areas of semiconductors and microelectronics, quantum information technologies, and artificial intel - ligence. The OIP that has taken effect is significantly scaled back from the broad programme announced in President Biden’s 2023 executive order. The OIP was largely codified in the Comprehensive Outbound Investment National Security Act of 2025 (COINS Act) on 18 December 2025 when President Trump signed the FY 2026 National Defense Authorization Act (NDAA) into law. The COINS Act expanded the scope of the OIP in several ways. • In addition to covering semiconductor technology and microelectronics, artificial intelligence, and quantum information systems, the COINS Act also includes high-performance computing and super - computing and hypersonic systems. • In addition to the People’s Republic of China (including Hong Kong and Macau), the COINS Act also covers Cuba, Iran, North Korea, Russia, and Venezuela under the Maduro regime as a “country of concern”. • The COINS Act also grants the US Treasury express rule-making authority for “prohibited” and “notifiable” technologies. • The COINS Act also clarifies the scope of excep - tions and exemptions: (a) any transaction the value of which the Secre - tary determines is de minimis; (b) any category of transactions that the Secre - tary determines is in the national interest of the United States; (c) transactions involving certain publicly traded securities; (d) certain transactions by limited partners or their equivalent in investment funds and other pooled investment vehicles; (e) “ancillary transactions” (including underwing services) undertaken by financial institutions; (f) full buy-out transactions by US persons of cov - ered foreign persons; (g) certain “secondary transactions”; (h) “ordinary or administrative business transac -
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