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How to Complete Foreign Direct Investment Projects Amid the Pandemic

investment

How to Complete Foreign Direct Investment Projects Amid the Pandemic

The coronavirus pandemic has created significant challenges for companies with foreign direct investment (FDI) projects in their pipeline. Restrictions on travel, immigration, and budgets are making it harder to make in-person visits to potential sites, bring over key executives, and solidify project financing amid an uncertain economy. But whether a project is in the site selection stage or a company is already in operation and considering additional investment, companies have plenty of options to keep their strategic projects moving. The key is to revisit the initial strategy, adapt to changing times by utilizing virtual tools, and consider all options with immigration and project budgets – including the potential for new incentives.

Revisit the Strategy

New investments in foreign jurisdictions are almost always long-term decisions. However, as global markets shift and new trends emerge, companies should revisit these decisions for projects in the pipeline to ensure the long-term strategy still makes sense. In most cases we have advised on, the answer is yes. But the scope may need to change.

The pandemic has caused businesses across industry sectors to take a fresh look at their supply chains and corporate footprints. In some cases, this has resulted in strategic changes. For example, some manufacturers that had previously been planning one large facility but experienced disruptions in the supply chain may now consider multiple smaller facilities to help diversify their footprint and be closer to key markets. Other companies who previously planned North American distribution facilities have pivoted to assembly or manufacturing. But as an overarching observation, many companies that had a clear strategic reason to enter or expand in the U.S. are finding they now have an even stronger argument to do so.

It is also important for companies to consider feasible time frames for making informed location decisions and starting operations. After a company decides to undertake a project, it can be two to three years before the company is producing a product. During the planning stages, companies should build in time for location evaluation, machinery and equipment orders, construction, hiring and training. Factoring in this lead time is critical as companies react to today’s markets but also continue proactive planning for the future.

Adapt With Virtual Site Selection

Without a doubt, the collapse of international travel has had a huge impact on site selection. But this is one area of the pandemic that has a silver lining: it has accelerated a shift toward enabling more of the site selection process to happen virtually, and it has improved the quality of those virtual tools.

Prior to COVID-19, many of the more innovative economic development organizations (EDOs) were already creating cutting-edge digital portfolios for their communities in response to enhanced online activity by site selectors and companies. It is now more fundamental for EDOs to develop virtual showcase pieces on available properties, which often include videos and drone footage, high definition site photos, and other due diligence materials. These tools make it easier for companies and consultants to review potential properties from the comfort of their home office at any time of day, and positions the community to get a site or building on the short-list for the next project. Site selection consultants can also help companies virtually evaluate a potential site using GIS mapping tools and digital data sets, packaged into an online storybook portal that simulates an in-person visit.  This virtual approach has proven to be extremely valuable for teams working odd hours, whether that’s due to different time zones or the need to supervise children during remote school days.

It’s clear that in this virtual environment, corporate decisionmakers have more considerations than ever when it comes to making site location decisions. Not being able to inspect a site in-person or meet face-to-face makes it even more critical to have trusted partners on the ground in the United States – partners who are looking out for a company’s best interest, eliminating risk and helping the company consider all options. Working with consultants and attorneys who understand the process, the resources available, and the roadblocks will give companies the best chance of success.

Navigating Immigration Restrictions

One of the most important aspects of FDI projects – bringing executives over to help oversee them – can be a challenge because of closed consulates around the world. Some consulates in Asia are not even scheduling visa interviews until December, whereas before the pandemic it would take seven to 10 days to get an interview. A variety of immigration restrictions remain in effect under the Trump administration as well.

But business immigration is slowly opening back up, and companies still have the necessary tools to bring essential workers to the U.S. Based on what country the foreign national is coming from and the immigration attorneys can help companies fashion creative solutions. Even if the category in question faces a ban, it’s possible to secure a waiver for high-level executives who are essential to keep the business running. With all immigration needs though, companies should plan for additional vetting and longer timeframes than in the past.

Companies should also carefully plan for their personnel’s return trip. Certain countries are requiring their citizens to quarantine for 14 days after they return from the U.S., which can outweigh the benefits of shorter trips to the States. There have also been instances where a country has denied entry from U.S. travelers, creating a risk of key personnel getting stuck. To avoid surprises, companies should work through these considerations before sending travelers overseas.

Adjusting to Budget Challenges

Companies trying to reduce expenses as they weather an extremely uncertain economic climate have several options with FDI projects. In some cases, they can adjust the scope of their project where that project is a critical element of the company’s long-term strategy.

Another option for companies that were planning on a greenfield project is to consider acquiring another company or starting a partnership instead. These options can sometimes reduce costs and time compared to starting from the ground up. But there are downsides to consider as well, including less control over the particulars of the facility, such as labor quality and availability, utility costs, taxes and more. There can also be potential surprises as the pandemic makes certain targets’ financial situations harder to gauge.

Before adjusting scope, companies already in the midst of new projects or who have had recent projects should explore how incentives at the state or local level could be impacted – negatively or positively. A variety of counties and states in the Southeast U.S., for example, are adjusting incentives programs to better fit the reality of remote work and maintain economic development. Some companies may also have a need to renegotiate incentives to avoid potential clawbacks as a result of change in strategy, a delayed project or reduction of force. Consultants and attorneys can help companies explore their options and develop solutions.

Bottom Line

Companies that stay aligned with their strategic plan, take advantage of virtual tools, and partner with experienced advisors can still implement FDI projects successfully. Forward-thinking businesses in the position to keep long-term investments moving will be in an even stronger position once the pandemic ends and will have a head start on competitors who remained in cost-cutting mode.

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Sam Moses and Michael Chen are international business attorneys at Parker Poe, and Morgan Crapps is a site selection and economic development consultant at Parker Poe Consulting. They can be reached at sammoses@parkerpoe.com, michaelchen@parkerpoe.com, and morgan@parkerpoeconsulting.com.

CFIUS

Treasury Proposes Filing Fees for CFIUS Voluntary Notices

On Monday, March 9, 2020, the U.S. Department of the Treasury (“Treasury Department”) published a proposed rule in the Federal Register establishing a tiered filing fee system for parties filing voluntary notices with the Committee on Foreign Investment in the United States (“CFIUS”). The proposed rule accompanies other recently implemented regulations issued by the Treasury Department that implement the Foreign Investment Review Modernization Act of 2018 (“FIRRMA”), effective since February 13, 2020.  We have previously summarized the FIRRMA implementing regulations here and here.

FIRRMA expanded the scope of transactions subject to CFIUS review and modernized the review process. FIRRMA also authorized CFIUS to collect filing fees up to the lesser of 1 percent of the value of a transaction or $300,000. The proposed rule establishes a fee structure intended, according to the Treasury Department, to “not discourage filings and…allow parties to continue the practice of determining whether to file a voluntary written notice based on an evaluation of the facts and circumstances of the transaction.” The fees were set to only be a small proportion of the value of any transaction, in order to avoid discouraging voluntary filings. Under the proposed fee structure, the required fees are in proportion to the value of the transaction, as follows:

The same fee structure applies to both foreign investments under Part 800 and real estate transactions under Part 802. Fee requirements are only in place for voluntary CFIUS notices, however, and there are no filing fees for declarations or for unilateral reviews of transactions self-initiated by CFIUS. Accordingly, parties for whom the filing fee would be particularly burdensome, or parties engaged in low-risk transactions, can take advantage of the mandatory or voluntary declarations authorized by CFIUS under Parts 800 and 802.

The proposed rule requires parties to pay the fee at the time a notice is filed, so parties must calculate the total value of a transaction prior to filing. To calculate the value of a transaction, parties should include “the total value of all consideration that has been or will be paid in the context of the transaction by or on behalf of the foreign person who is a party to the transaction, including cash, assets, shares or other ownership interests, debt forgiveness, services, or other in-kind consideration.” Because transactions often include consideration paid in securities or non-cash assets, the rule provides the following guidance:

-Value on national securities exchange: value is calculated based on the closing price on the national securities exchange on which the securities are primarily listed on the trading day immediately prior to the date the parties file a notice with CFIUS. If the security was not traded the day prior to the date of filing, then the last published closing price will apply.

-Non-cash assets, interests, or services or other in-kind consideration:  value is calculated based on the fair market value as of the date the parties file the notice.

-Lending transaction: value is calculated based on the cash value of the loan or other similar financing arrangement.

-Conversion of contingent equity interest previously acquired by a foreign person: value is calculated including the consideration that was paid by or on behalf of the foreign person to initially acquire the contingent equity interest in addition to any other consideration.

-Real estate leases: value is calculated by the sum of fixed payments to be paid by the foreign person over the term of the lease; variable payments that depend on an index or rate over the term of the lease, measured by using the index or rate as of the date of the filing of the notice; and any non-cash or in-kind consideration to be provided by the lessee to the lessor over the term of the lease, as reasonably determined as of the date of the notice.

In light of the calculation requirements, the proposed rule also adjusts the content requirements for joint voluntary notices, requiring parties to provide the value of the transaction and the methodology used to calculate the value, along with the applicable fee.

Because parties are required to pay applicable fees at the time the notice is filed, CFIUS is authorized to delay its review until and unless the fee has been paid. In general, CFIUS will not require parties to submit double payments if it requires parties to withdraw and re-file a notice, absent a material change to the transaction or a material inaccuracy or omission in the initial filing. The proposed rule also allows for fee refunds in certain limited circumstances.

CFIUS will refund the filing fee if it later determines that the notified transaction is not a covered transaction, and it may issue partial refunds if parties can demonstrate that they paid a higher filing fee than required by the tiered fee structure. Notably, CFIUS has not indicated that it will refund the filing fees if a transaction is blocked.  Although CFIUS is also authorized to waive fees, it may only do so under “extraordinary circumstances relating to national security,” and the proposed rule states that it anticipates infrequent partial or total waivers.

The proposed fee schedule has not yet gone into effect, and it will only apply after the Treasury Department publishes its final rule.  Interested parties have until April 8, 2020, to submit comments on the proposed rule. Specifically, the Treasury Department has solicited comments from the public “on the impact of the proposed tiered fixed-fee structure and whether additional tiers or additional features should be considered.”

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By Ryan Fayhee, Roy (Ruoweng) Liu, Alan G. Kashdan, Tyler Grove and Sydney Stringer at Hughes Hubbard & Reed LLP

uae

The UAE Foreign Direct Investment (FDI) Law

For a great many years, global businesses have viewed the United Arab Emirates as an attractive global investment market. With a strong presence of high-net-worth consumers and a geographically strategic location from which to distribute throughout the Middle East and North Africa, the UAE is rife with opportunity.

Yet, many international corporations could not own companies outright in the UAE and were restricted to a maximum ownership of 49%. Ownership laws, however, are now being revisited to diversify the country’s economy beyond the energy sector, which has been the source of UAE wealth for decades. But precisely the degree to which economic liberalization is taking place is very much based on one’s perspective.

Background

The United Arab Emirates (UAE), a federation of seven Emirates (member states), has served as a global centre for trade for centuries. However, most global businesses had often expressed discomfort with the country’s investment laws which, despite allowing 100 percent foreign ownership of businesses in the country’s Free Trade Zones (FTZs), stipulated that at least 51 percent of a company established  within the UAE, and outside a Free Trade Zone, must be owned by UAE citizens, or companies wholly owned by UAE citizens.

In addition, agency and distributor laws require that only a local commercial agent could sell products in the UAE market; and only UAE citizens or companies wholly owned by UAE citizens could register with the Ministry of Economy as commercial agents. Regulations also prevent the termination, or non-renewal, of a commercial agency contract unless the principal has a material reason to justify the termination or non-renewal; and the principal must often approach a court to terminate a contract.

Legislating Economic Diversification

The most recent Trade Policy Statement issued by the UAE through the World Trade Organization’s Trade Policy Review mechanism in 2016 stated the country aims to drive towards economic diversification by being less reliant on the oil sector and to increase its attractiveness to foreign investment.

The UAE enacted Federal Law No. 19, the Foreign Direct Investment Law (FDI Law) in November 2018. To promote and develop the investment environment and attract foreign direct investment in line with the developmental policies of the country, the Law established a framework for the country’s Cabinet to mandate which sectors and activities of the economy would be eligible for 100 percent foreign ownership. However, a list of eligible economic sectors and activities was not published by the UAE Cabinet until July 2019.

The list comprised of 122 economic activities across 13 sectors that would be eligible for up to 100 percent foreign ownership. The decision simultaneously conveyed that each emirate (member state of the UAE) could determine the percentage of foreign ownership under each activity suggesting that foreign ownership levels could vary from emirate to emirate. It was also clarified that oil & gas production and exploration sectors, air transport, and security and military sectors would be excluded from the purview of the FDI Law.

A Method of Recourse

It is also of interest that news reports indicate that for activities that are not included in the list of activities/sectors eligible for 100 percent foreign ownership, companies could approach the government for permission for a higher level of ownership; and that approvals may be granted on a case-by-case basis. The sectors that would allow 100 percent foreign ownership include:

-Space

-Renewable Energy

-Agriculture

Manufacturing

-Road Transport & Storage

-Hospitality and Food Services

-Information and Communication Services

-Professional, Scientific and Technical activities

-Administration and Support Services

-Education

-Healthcare

-Art & Entertainment; and

-Construction

For those businesses that do qualify under the FDI law, their products will be treated as being of UAE origin and therefore, eligible for such treatment under international agreements to which the UAE is a party. This is a privilege that is not available to goods manufactured by foreign-owned companies based in UAE Free Trade Zones. In addition, they can transfer abroad operating profits and proceeds from sale of investment or other assets.

Measuring Success

The Emirate of Dubai has reported that it has attracted US $12.7 billion in foreign direct investment (FDI) in the first half of 2019 thereby ranking the emirate third globally in FDI capital flows into Greenfield Projects. Also, in October 2019, Dubai assumed the presidency of the World Association of Investment Promotion Agencies (WAIPA), a global entity that works for the smooth flow of cross-border investments.

Although it is still too early to gauge the impact of the FDI Law and other developments, the consensus is that the UAE has taken steps to accelerate foreign direct investment into the country. It remains to be seen whether further steps such as changes to the agency and distributor laws, and changes to regulations related to the termination of agency contracts will be implemented to enhance the attractiveness of the UAE to foreign investors.

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JC Pachakkil is a senior consultant in Global Trade Management at trade services firm Livingston International.

foreign investment

New Foreign Investment Restriction Regulations Cement CFIUS Reform

One of the emerging focal points of the U.S.-China trade war involves the implementation of updated foreign investment restrictions in key U.S. industries. 

On September 17, 2019, the Department of the Treasury issued proposed regulations to implement the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), legislation that sought to reform and expand the scope of foreign investment reviews conducted by the Committee on Foreign Investment in the United States (CFIUS). CFIUS, an inter-agency committee chaired by the Treasury Department with the authority to review, modify and potentially reject certain types of foreign investment that could adversely affect U.S. national security, has undergone a significant overhaul during the past year in the wake of FIRRMA becoming law in August 2018. It is now more vital than ever that companies understand how their business can be affected by the updated CFIUS regulations when they are seeking or negotiating a merger, acquisition, real estate investment or even a non-controlling investment from a foreign investor.

Typically, CFIUS reviews are voluntary and are conducted for merger or acquisition transactions where a non-U.S. company or a foreign government-controlled entity obtain a controlling interest in a U.S. company. If CFIUS determines that a covered transaction presents a national security risk, it has the authority to impose certain mitigating conditions before allowing the deal to proceed and can refer the transaction to the President for an ultimate decision. 

However, FIRRMA updated and expanded the scope of CFIUS jurisdiction to authorize reviews of additional types of non-controlling foreign investments based on the type of U.S. company involved. The implementing regulations proposed in September 2019 are set to take effect February 13, 2020, and while the CFIUS reform regulations are motivated by concerns directly related to China, the impact of FIRRMA will be felt globally and the new rules will not be tied to or affected by impending trade negotiations. U.S. businesses, particularly those involved in critical technologies, real estate, infrastructure and data collection or maintenance, must take heed of how the updated rules will affect their global business decisions moving forward.

New Regulations for TID Companies Effective February 2020

Effective February 13, 2020, CFIUS will be authorized to review “covered control transactions,” (all foreign acquisitions resulting in direct control in a U.S. business, which CFIUS already had jurisdiction over), as well as non-controlling “covered investments” by a foreign person in a U.S. critical technology, critical infrastructure or sensitive personal data company. The new rules refer to these as “TID U.S. Businesses” (Technology, Infrastructure and Data), or to be more specific, a company that engages in one of the following categories of activity: 

-produces, designs, tests, manufactures, fabricates or develops one or more critical technologies;

-owns, operates, manufactures, supplies or services critical infrastructure; or

-maintains or collects sensitive personal data of U.S. citizens that may be exploited in a manner that threatens national security.

“Critical technologies” include defense articles or defense services under the International Traffic in Arms Regulations, certain nuclear-related products regulated by the Nuclear Regulatory Commission Controls and certain technologies on the Commerce Control List under the Export Administration Regulations. In addition, “critical technologies” will include certain “emerging technologies” that are yet to be defined, and the Commerce Department’s Bureau of Industry and Security is currently reviewing at least 17 technology areas that are anticipated to result in new controls (including bio-tech, artificial intelligence, microprocessors, positional navigation and timing technology, quantum computing and additive manufacturing (3D printing)). 

“Critical infrastructure” includes key industry subsectors such as telecommunications, utilities, energy and transportation. “Sensitive personal data” is defined to include ten categories of data maintained or collected by U.S. businesses that (i) target products or services to sensitive populations (including U.S. military members and federal national security employees); (ii) collect or maintain such data on at least one million individuals; or (iii) have a business objective to collect such data on greater than 1 million individuals and such data is an integrated part of the U.S. business’s primary product or service. The categories of data include types of financial, geolocation and health data. 

Non-Controlling Covered Investments

Under the new regulations, CFIUS will be authorized to review non-controlling covered investment in TID U.S. Businesses. A “covered investment” includes scenarios where a foreign investor obtains:

-access to material non-public technical information;

-membership or observer rights on the board of directors or an equivalent governing body of the business or the right to nominate an individual to a position on that body; or

-any involvement, other than through voting of shares, in substantive decision making regarding sensitive personal data of U.S. citizens, critical technologies, or critical infrastructure.

Filing a CFIUS declaration for a non-controlling covered investment will remain a largely voluntary process, and parties will be able to file a notice or submit a short-form declaration notifying CFIUS of a covered investment in order to receive a potential “safe harbor” letter (after which CFIUS in most scenarios will not initiate a review of a transaction). 

However, if a foreign government holds a “substantial interest” in the foreign investor that obtains a “substantial interest” in a TID U.S. Business, a CFIUS filing will be mandatory. The updated regulations provide that a foreign government is considered to have a substantial interest in the foreign investor if it holds a 49% direct or indirect interest, whereas a foreign person will obtain a substantial interest in a TID U.S. Business if it obtains at least a 25% direct or indirect interest. CFIUS is also authorized to mandate declarations for transactions involving certain types of critical technology companies. 

The proposed rules also include a “white list” provision providing CFIUS the authority to designate certain “excepted investors” and “excepted foreign states” that may be eligible for an exclusion in connection with non-controlling covered investments. 

Global Impact: How Does This Affect My Business? 

The most important practical effect of the updated regulations is the breadth of U.S. companies standing to be impacted or affected by new foreign investment restrictions. U.S. businesses and industries that have previously never had to consider filing a CFIUS declaration, including healthcare companies, tech start-ups, related infrastructure industries, venture capital funds, emerging technology companies and manufacturers, and any company with access to sensitive consumer data, will now have to contemplate the implications of a CFIUS review when considering even passive foreign investment. Robust due diligence on potential investors will be more important than ever to ensure compliance with both mandatory and voluntary CFIUS declaration filings. Cross-border deals will be a costlier and more time-consuming process that will require acute attention to detail when drafting the contractual rights afforded to foreign investors. 

If you have any questions about the impact of the updated CFIUS regulations or how they may affect your company, please contact a member of Baker Donelson’s Global Business Team for additional information.

___________________________________________________________________

Joe D. Whitley is a shareholder at Baker Donelson, chair of the Firm’s Government Enforcement and Investigations Group and former General Counsel at the Department of Homeland Security. He can be reached at jwhitley@bakerdonelson.com

Alan Enslen is a shareholder with Baker Donelson and leads the International Trade and National Security Practice and is a member of the Global Business Team. He can be reached at aenslen@bakerdonelson.com

Julius Bodie is an associate with Baker Donelson who assists U.S. and foreign companies across multiple industries with international trade regulatory issues. He can be reached at jbodie@bakerdonelson.com

 

2019 China-California Business Forum Focuses on Sub-National Cooperation

California’s trade and investment involvement with Chinese provinces will take the spotlight at the third annual 2019 China-California Business Forum scheduled for June 5th in Los Angeles. An estimated 150 top Chinese business leaders are expected to attend with the goal of developing
business opportunities between California and Chinese business leaders.

“As the Chinese Secretariat of the China Provinces and U.S. California Joint Working Group on Trade and Investment Cooperation, CCCME together the seven member provinces all attach great importance to the China-California Business Forum and will actively participate in it as always. Over the past few years, as it has become an important platform of facilitating more exchanges and cooperation between Chinese and Californian businesses, the Forum has been fully recognized by Chinese enterprises and has become an annual focus of China-U.S. sub-national cooperation,” said Liu Chun, Vice President of CCCME.

The forum will take place in downtown at the Millennium Biltmore Hotel and dedicate a full day of various sessions discussing trade and investment, clean-tech, cross-border e-commerce, advanced manufacturing, and more.

“Sub-national cooperation is the foundation of China-U.S. economic and trade relations. The China-California Business Forum plays an important role in promoting this cooperation. The Forum is a joint effort by both sides. It not only brings business opportunities, but also enhances China-U.S. sub-national exchanges and cooperation. I look forward to welcoming more Chinese and California business leaders at the event,” said Amb. Zhang Ping, Chinese Consul General in Los Angeles.

Despite previous trade tensions between the two economy’s, business executives are displaying optimism for both sides to reach an agreement through bilateral trade discussions. This year’s Business Forum will ultimately support efforts to strengthen ties and develop mutually beneficial business initiatives.

“California was the number one recipient of foreign direct investment from China, totaling more than $16 Billion in 2017. We are also home to a vibrant Chinese American community. This forum will build on our strong business and cultural ties, strengthen our international partnerships, and grow our economy.” Said Lt. Governor Eleni Kounalakis.


PORT OF VANCOUVER USA’S BOARD GREENLIGHTS 2018 STRATEGIC PLAN

The Port of Vancouver USA Board of Commissioners on Sept. 11 unanimously approved the port’s 2018 Strategic Plan, which includes a new vision statement and outlines 20 goals and 66 strategies to guide the port’s activities and budget for the next decade.

The plan was developed over 11 months with broad public and stakeholder input, including advisory panels, public open houses, commission meetings, public workshops and hundreds of public comments.

“We appreciate all the time and energy our community has put in as we’ve created our new strategic plan,” says CEO Julianna Marler. “We heard from hundreds of people, both within the port and across our community. Their perspectives helped us develop a balanced plan so we can continue to advance as an organization while achieving our state-directed purpose and our mission of creating economic benefit through leadership, stewardship and partnership in marine, industrial and waterfront development.”

The port first developed a strategic plan in the early 2000s and updated it each year as necessary. By 2017, the port needed a new plan to address organizational change, including completion of many key initiatives; marine and industrial business growth; identification of new projects; and changes in staff and elected leadership.

The 2018 Strategic Plan is available at www.portvanusa.com/key-projects/strategic-plan.

 

 

 

 

How US tax overhaul has led to increased international investment and M&A activity

The limit on interest deductibility is impacting the way that firms finance domestic mergers and acquisitions which is fueling the existing trend for US companies to pursue foreign M&A.

Why invest in foreign companies?

Growing a business internationally has always been attractive to US companies. Businesses are still structuring for tax purposes, however the main reasons for going abroad are now; the desire to find new markets with more customers, access fresh talent and technology and optimize international supply chains. Foreign markets can be an attractive destination for leading US brands given that if you can succeed in the world’s most competitive consumer market you may find you thrive in less developed economies.

 

Deduction changes

With the recent tax reforms in the US, there have been some changes in the way deductions can be applied affecting the financing of domestic mergers and acquisitions. Often mergers are at least partially funded with debt which would be paid off in the form of a dividend. The dividend would be deductible making it a tax efficient way of financing the acquisition.

This deduction has been reduced greatly in the 2018 US tax reform. Companies were previously unrestricted in the amount of interest they could deduct before tax, but now there is a cap deduction of 30% of their 12-month earnings before interest, taxes, depreciation, and amortization (EBITDA). After 2021, the limitation becomes even more constraining by switching to 30% of EBIT only – that is, the deductions for depreciation and amortization are removed from the calculation, lowering the cap even further.

The deduction applies only when acquiring domestically, so not when buying a foreign company. You can still get the full deduction on dividends for a foreign owned corporation. Based on the current interpretation of the legislation, if you are looking to finance via debt, buying a foreign company will still allow you to benefit from this type of funding mechanism.

Why foreign M&A is more attractive

For insights and an introduction to M&A and carve-outs, take a look at the “M&A and Carve Outs from A to Z” eBook.

Other elements of the tax reform are also likely to drive further M&A and make it more likely that US firms look abroad for these acquisitions:

  1. The tax reform was structured to incentivise businesses to bring money back to the US if they are holding historic earnings off-shore. This windfall of foreign held monies will enable some companies to invest more, with a portion of this spending likely to fuel M&A.
  2. Related incentives to bring money back to the US have also reduced the tax on repatriation of future foreign earnings. Meaning that the return of investment for these foreign assets is improved.

What we are hearing from our clients is that US companies will continue to look to the global market as a way of leveraging faster growth and diversifying their business.

TMF Group

TMF USA are experts when it comes to M&A and international expansion, supported by a strong global presence in more than 80 countries worldwide. While there are always challenges when it comes to foreign investment the recent tax reform has introduced a whole new set of considerations. Please get in touch to find out how we can support your business achieve its global ambitions.

Find out how our services allow our international clients to maintain focus on what matters most to them.

Senators Urge FTA Investment Protections Purged

Washington, D.C. – Five Democratic members of the House Ways and Means Committee have written to the White House urging President Barack Obama to exclude foreign investment protections from major free trade agreements such as the Transatlantic Trade and Investment Partnership (TTIP).

The five argue that such protections “might undermine buffers against future financial crises” and damage public support for future free trade deals.

The House Ways & means Committee has Congressional jurisdiction over trade issues.

Foreign investment protection is hot-button topic in the TTIP trade deal, prompting the European Union to call a halt to talks on the investment-related components of the proposed pact while the bloc’s 28 members consult “more widely.”

The letter follows a similar letter sent last week by three U.S. senators to U.S. Trade Representative (USTR) Michael Froman asking him not to include investment protection rules in the proposed 12-nation Trans-Pacific Partnership (TPP).

“The consequence would be to strip our regulators of the tools they need to prevent the next crisis,” said the letter, which also cautioned against rules “limiting the use of capital controls or allowing open access for risky financial products.”

Among the letter’s signatories was 2016 presidential hopeful Senator Elizabeth Warren (D-MA), who said such rules would expose “critical” U.S. financial regulations to challenge and dissuade policymakers from writing rules that impact foreign banks.

In response, a spokesman for the USTR said the TPP “would in no way limit the ability of governments to put in place strong consumer protections or to regulate financial markets” and would include “specific provisions protecting regulation.”

12/29/2014

EU Proposes Regional Strategic Investment Fund

Los Angeles, CA – Responding to an increasingly sluggish regional economy, the European Union will create a strategic investment fund that could generate up to $386 billion in private- and public-sector money to upgrade infrastructure, jumpstart the EU’s sluggish economies and ignite job growth.

“The EU must stimulate and modernize its economy, or risk falling farther behind global competitors like the U.S. and China,” said European Parliament President Martin Schulz.

The plan, approved by leaders of the 28-nation EU at their one-day summit meeting in Brussels earlier this week, calls for use of EU seed money to leverage up to 15 times more in private funds for the new European Fund for Strategic Investments with plans to have  it in operation and approving new investment projects by mid-2015.

German Chancellor Angela Merkel said investments fostered by the strategic fund “must go into projects for the future, particularly, for example, in the digital economy or where we aren’t so good on the world market as we should be.”

Investment in areas like schools, universities, green energy and infrastructure is key “if we want Europe to be an economic champion in the future,” she said.

The plan is not without its critics, however, with some EU leaders warning that despite its multi-billion dollar price tag, the proposed investment fund “may not be big enough” to win over wary investors.

“This package looks like creative accounting for the moment,” said Lithuanian President Dalia Grybauskaite, who helped draft a summit communiqué  noting that the strategic fund will accept contributions from EU member states. For the fund to launch, it would also require approval by European legislators.

12/19/2014

China Proposes Three New Foreign Trade Zones

Los Angeles, CA – Beijing has announced its given the go-ahead to the construction of three new foreign trade zones in Guangdong, Fujian and Tianjin, all modeled on the zone set-up in Shanghai last year.

Officials said the new FTZ will apply “replicable” practice from Shanghai in investment, trade and financial services to the rest of the country and shorten the “negative list” – the sectors where foreign investment is banned or restricted, the cabinet said.

Announcement of the new FTZs comes on the heels of Beijing’s proposed cutting from 79 to 35 the number of sectors restricted or off limits to foreign investors.

After one month for soliciting opinions, the new guidelines will be submitted to the State Council and are expected to come into force by the end of the year.

Sectors with reduced restrictions include steel, ethylene, refining, papermaking, coal chemical equipment, automotive electronics, lifting appliances, electric transmission and transformation equipment, branch railway lines, subways, international ocean shipping, e-commerce, finance companies and chain stores, according to government sources in Beijing.

In addition, the number of sectors currently limited to joint ventures and partnerships has been cut from 43 to 11, while those requiring a majority Chinese investment have been cut from 44 to 22.

Agriculture, high technology, advanced manufacturing, energy efficiency and environmental protection, new energy and modern service industries are encouraged, the sources said.

From January to September of this year, the value of China’s foreign direct investment decreased by 1.4 per cent to $87.3 billion from the same period the year before.

12/15/2014