The OIR also includes important exceptions and exclusions. These include, subject to specific conditions, certain bank lending and payment services, underwriting services, intellectual property licensing arrangements, passive investments in publicly traded securities and certain investment funds, equity interest buyouts, certain intercompany transfers and transactions involving committed but uncalled capital. These exceptions are technical and should be analyzed carefully, particularly where a U.S. person receives governance rights, access to non-public technical information or other rights beyond a purely passive economic interest.
The OISP will continue to evolve as Treasury promulgates implementing regulations under the COINS Act and considers the AFIP’s direction to review whether outbound restrictions should extend to additional sectors, transaction types or investment instruments. The current OIR preserves important exceptions, including for certain passive investments in publicly traded securities and investment funds, but investors should monitor whether Treasury narrows, clarifies or conditions those exceptions in future rulemaking.
Outlook for 2026 Greater differentiation among investors should be expected. Investors from allied and partner countries may benefit from process improvements and a more efficient review pathway where they can demonstrate transparency, compliance maturity and independence from foreign adversary actors. By contrast, investors linked to China or other foreign adversaries should expect heightened scrutiny, particularly in strategic sectors, sensitive real estate, data-rich businesses, critical infrastructure, emerging technologies and supply-chain-sensitive assets. As the AFIP framework takes shape and the OISP matures, investors should anticipate a more complex and demanding national security compliance environment. Based on our experience and data provided by the Committee, CFIUS imposed fewer mitigation measures in 2024, and the AFIP signals an interest in reducing unrestricted and overly complex mitigation agreements where narrower measures would be sufficient. At the same time, as the Nippon Steel/U.S. Steel precedent illustrates, the Committee’s mitigation toolkit may expand in novel directions for high-profile or sensitive transactions. Investors should remain alert to the possibility of structural conditions, enhanced governance restrictions, ongoing oversight mechanisms or other tailored measures where CFIUS identifies a serious national security concern. U.S. businesses subject to mitigation agreements should maintain effective NSA compliance programs, including governance, reporting, audit readiness, training, incident escalation and testing. CFIUS has multiple enforcement tools, including site visits, information requests and civil monetary penalties, and it has demonstrated a willingness to use them. The nearly US$88 million in penalties assessed in 2024, anchored by the US$60 million T-Mobile penalty, together with DOJ’s first federal district court action to enforce a CFIUS-related presidential divestment order, make clear that non-compliance with mitigation obligations, filing obligations, information requests or presidential orders can create substantial financial, litigation and execution risk. A sophisticated strategy that accounts for an investor’s objectives, the nature of the business of the underlying target company and the identity of the investment target, as well as mitigates potential national security risks, can make a significant difference. Moreover, companies with
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