Ioannis Kokkoris discusses the national security statutory framework and regulatory regimes governing mergers and acquisitions of domestic assets by foreign acquirers in the United States and United Kingdom, contrasting enforcement records and providing criticisms of the two.
By placing restrictions on certain types of transactions and outlining clear procedural rules for entities under review, the United States and United Kingdom provide clarity to both the investment and legal communities on their approach to reviewing transactions in the telecommunications, food, financial, defense, and technology industries, among others, that trigger national security concerns.
However, Kokkoris concludes that in the United States, despite CFIUS’s increased powers, the lack of transparency surrounding its reasoning in the review process creates an uncomfortable unpredictability for dealing parties, which would benefit from more detailed rationales.
Shortly after Nazi Germany invaded Poland in 1939, President Franklin D. Roosevelt issued a proclamation of a “limited” national emergency. This proclamation cited no statutory or inherent authority. Alden Fletcher looks to the historical record to suggest Roosevelt’s proclamation was relying on ambiguous statutes that provided for executive power to declare emergencies or take emergency action.
Fletcher finds that even as Roosevelt acted independently to issue an emergency declaration, his administration recognized that such a declaration could be regulated by Congress or reviewed by the courts. Indeed, Fletcher finds historical memos, papers, and briefings showing that the theories advanced by Roosevelt’s Justice Department implicitly accepted a flexible doctrine in part because inter-branch checks were presumed to remain open. This historic approach stands in contrast to today’s Executive Branch practice—and Fletcher concludes that today’s practitioners would do well to remember it.
LESSONS FOR THE NEXT TWENTY YEARS: WHAT WE’VE LEARNED IN THE TWO DECADES SINCE 9/11
A Note from Editor-in-Chief William C. Banks
By any measure the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001 brought an immediate laser focus to the phenomenon of international terrorism.
Though hardly new to the United States and the world in 2001, the 9/11 attacks instantaneously elevated countering international terrorism to the dominant national security imperative at home and abroad.
Questions were legion: Should we have known the attacks were coming? What could we have done to prevent them? What lessons learned will help forestall the next attack? What are the best options for countering international terrorism?
Twenty years later many lessons have been learned, even as we continue to struggle with the ever changing dynamics of global terrorism. JNSLP is honored to publish this Special Edition, “Lessons Learned for the Next Twenty Years: What We’ve Learned in the Two Decades Since 9/11.”