Sullivan & Cromwell offers clients practical expertise regarding the U.S. laws affecting international trade and investment, and has advised on more transactions involving the acquisition of U.S. assets by non-U.S. entities than any other firm globally. We regularly address questions arising under Exon-Florio and the regulations thereunder, including representing clients during the review of a transaction by the Committee on Foreign Investment in the United States (“CFIUS”). The Firm also regularly assists clients in complying with economic sanctions administered by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and has significant experience advising clients, particularly non-U.S. issuers registering with the SEC, on issues arising under the U.S. Foreign Corrupt Practices Act (“FCPA”).
Our experience advising on foreign investment in the United States predates the adoption of the Exon-Florio Amendment to the Defense Production Act of 1950 and the formal creation of CFIUS and its role in reviewing foreign investments. Regularly advising on, and helping to structure, acquisitions to ensure compliance with CFIUS standards and processes, the Firm has achieved an impressive record of success in obtaining the necessary regulatory determinations and approvals on behalf of our clients.
S&C also regularly advises clients on compliance with U.S. economic sanctions laws and export controls affecting both U.S. and non-U.S. businesses. As a consequence of the United States’ policies adopted following the events of September 11, 2001, the regulations regarding non-U.S. businesses have been expanded and their enforcement has become more frequent, forceful and important. Our long-standing experience with sanctions and the enforcing agencies, coupled with the Firm’s expertise in finance and investment, make us especially well positioned to handle such matters.
Compliance with the FCPA, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related laws is another important area of our practice. Our lawyers not only represent clients in enforcement actions, but also in establishing and upgrading structures, procedures and compliance programs adapted to avoid violations of these increasingly important laws and norms in the field of international investment and trade.
Selected transactions in which the Firm advised on Exon-Florio matters include:
- Citigroup in its sale of approximately $12.5 billion in stock to the Singapore Investment Corporation (Singapore) and several other investors, and separately, in its sale of approximately $7.5 billion in securities to the Abu Dhabi Investment Authority (United Arab Emirates);
- Merrill Lynch in its sale of approximately $2.5 billion in new shares to Temasek Holdings (Private) Limited (Singapore) through Temasek’s participation in a $8.5 billion public share offering; in its sale of approximately $6.6 billion in stock to Kuwait Investment Authority (Kuwait) and others; and in its sale of approximately $6.2 billion in a private placement of common stock with Temasek Holdings (Private) Limited (Singapore) and Davis Selected Advisors L.P.;
- China Investment Corporation in its purchase of $5.6 billion of Preferred Equity Purchase (“PEPS”) Units from Morgan Stanley;
- Ontario Teachers’ Pension Plan Board (Canada) with respect to its acquisition of ports terminals in New York and New Jersey as part of its purchase of the U.S. and Canadian port facilities of Orient Overseas (International) Limited of Hong Kong for $2.35 billion;
- Macquarie-led investor group (Australia) in its $1.6 billion acquisition of U.S. utility Duquesne Light Holdings;
- Chiron in connection with its $6.6 billion acquisition by Novartis (Switzerland);
- Neptune Orient Lines Limited (Singapore) in its $825 million acquisition of APL Limited; and
- Philips (The Netherlands) in various transactions involving electronic products and components.
Selected representations involving other foreign investment issues and regulatory agencies include:
- Export Development Canada, Koninklijke Philips Electronics and others on U.S. economic sanctions laws and export controls affecting both U.S. and non-U.S. businesses;
- Various clients on foreign investment issues, including right of establishment, exchange and repatriation controls, nationalization and expropriation, political risk insurance, sensitive payment issues and sovereign immunity questions;
- Koninklijke Philips Electronics in ITC patent-based Section 337 proceedings; and
- Broken Hill Proprietary Company Limited and Koninklijke Philips Electronics in quasi-judicial antidumping, countervailing duty and escape clause proceedings.
Selected representations in FCPA investigations include:
- A major European financial institution in investigations by the Department of Justice, the New York County District Attorney and the Independent Inquiry Committee into possibly illicit payments made in connection with the United Nations Oil-for-Food Programme;
- A major U.S. insurance company in connection with alleged violations of the FCPA by an employee;
- A major European oil company in SEC and DOJ investigations of possible violations of the FCPA arising from its employment of a consultant who allegedly made payments to secure business in Iran; and
- A U.S. subsidiary of a Japanese company in connection with FCPA compliance and with internal investigations of allegations of FCPA violations.