The standard does not name any specific country, but there is little doubt about who it is primarily intended for.
The President of the United States, Joe Biden, approves this Thursday an executive order that will strengthen the shielding of leading sectors such as quantum computing, artificial intelligence, biotechnology, massive data processing and cybersecurity, among others, against investment foreigner from rival countries.
He alleges for this reasons of national security.
Government sources stress that the United States welcomes foreign investment and, in fact, Biden has applauded and presented some large amounts in recent months.
However, "certain investments in the United States by foreign persons, particularly from competing or adversary nations, may present national security risks," they explain.
The United States already has a Commission on Foreign Investment (CFIUS) created in 1975 and chaired by the Secretary of the Treasury, currently Janet Yellen.
The new order builds on and explicitly recognizes that some countries use foreign investment to gain access to sensitive data and technology for purposes detrimental to the national security of the United States.
The pandemic, the Russian invasion of Ukraine and the growing strategic and economic rivalry with China have led the White House to point out some specific factors to take into account when supervising and authorizing foreign investment in the country.
In reality, the Commission could already reach the conclusion that these investments harmed national security and the powers already conferred by the law do not change, but the order establishes matters to take into account that will guide its action.
"We are sending a clear message," explain government sources, who point out that from now on the commission's analysis will focus more on matters such as data and the most advanced technology.
"Strengthening our supply chains and protecting them against foreign threats enhances our national security," Yellen said in a statement.
“It also reaffirms CFIUS's mission to protect America's technology leadership and the security of our citizens' sensitive data from emerging threats,” she said.
The Biden administration has also been considering placing limits on investments by US companies in some foreign countries to the extent that they may involve a transfer of critical technologies to rival powers.
An initiative in this sense foundered in Congress and for now there is no decision in this regard, but the analysis is still underway.
Biden already prohibited US citizens and companies last year from investing in 59 Chinese firms in the security and defense sector, with the aim of tackling the threats they pose to US national security.
The approved order now refers to foreign investments in the United States.
Five factors to consider
The decree directly indicates five groups of factors to be taken into account.
Firstly, the potential impact on supply chains, that is, investments that transfer to a foreign person the ownership, rights or control of certain manufacturing capacities, services, critical mineral resources or technologies that are essential for the national security in the broad sense.
It is an issue that has been brought into sharp relief by the pandemic and the global bottleneck in supplies it has produced.
Second, the effect of an investment in US technological leadership in areas such as microelectronics, artificial intelligence, biotechnology, quantum computing, advanced clean energy, and climate adaptation technologies.
The Commission will consider whether an investment "could reasonably lead to future advances and applications in technology that could undermine national security, and whether a foreign person involved in the transaction has links to third parties that may pose a threat to the national security of United States." Joined".
Third, trends in industrial investment that may become a threat.
The Government explains that an operation by itself may not seem dangerous, but it will pay attention to whether there are multiple acquisitions or investments in the same or related sectors.
The possible cybersecurity risks derived from foreign investments are the fourth factor that the order calls to take into account.
Lastly, the order underscores that data is an increasingly powerful tool for surveillance, tracking, tracing, and targeting of individuals or groups of individuals, with potentially adverse effects on national security.
The Commission should consider whether a foreign investment allows such information to be exploited to the detriment of national security, including through the use of commercial or other means.
Asked if these criteria send the message to China that the United States is no longer a country as open to its investments as it has been up to now, officials from the Biden government pointed out that the regulations are not specifically aimed at a specific country and that the operations will be analyzed case by case.
“There is nothing specific about China in this order.
Having said that, it will be important where the investments come from and who the investors are”, they added.
“Some countries exploit our open investment ecosystem to promote their own national security priorities in a way that is directly contradictory to our values and interests,” they explain.