On October 20, 2022, the U.S. Department of the Treasury issued non-binding enforcement and penalty guidelines offering insight into how the Committee on Foreign Investment in the United States assesses and penalizes violations of the legal authorities authorizing the national security review of cross-border investment transactions. The guidelines address three categories of potentially unlawful conduct, focus on three particular sources of information relied upon when determining whether a violation has occurred, outline the key steps in the penalty process, and discuss six factors that may be considered as aggravating and mitigating factors. While the guidelines confirm practitioners’ understanding of the CFIUS process, including the importance of identifying the need for mandatory filings and timely making such filings, and respect for all of the terms of mitigation agreements, they highlight certain items CFIUS appears to be newly focused upon, such as tips and self-reporting.
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