Common Causes Of CFIUS Agreement Non-Compliance And Enforcement Risk

Following the update to the Committee on Foreign Investment in the United States ("CFIUS" or the "Committee") Enforcement and Penalty Guidelines, the Committee has continued to signal its intention to more heavily leverage enforcement authority as a means to punish and deter non-compliance with requirements imposed under CFIUS Agreements. Particularly for matters that present comparatively increased risk (e.g., sensitivity of data; volume of data; level of foreign investor's activity) or public profile, independent third-party oversight, usually in the form of a third-party monitor or auditor, has become a tool for both agreement-wide compliance assessments as well as specifically tailored investigations into areas of known or suspected non-compliance. Especially for the latter, at times it may be the case -- though certainly is not always the case -- that the investigation is partially intended to inform the breadth and impact of any identified non-compliance as well