U.S. Law on Incoming FDI

Résumé du document

As the saying goes ?The grass is always greener on the other side.' With this thought in mind, a venture of a foreign investment in a developed nation usually implies facing few problems and risks. In other words, different types of problems and hazards are encountered as compared to an investment in a nation which is in a developing phase. One of the major concerns and complexities of international investment is each country's legal framework. However, the complexity that potential investors face while considering investment in the wealthy North American equity market is not, contrary to the first impression, of an insuperable difficulty. While considering investment options on the American soil, a potential investor will have to face and administer myriads of rules both at the state and federal levels. Indeed, the US does not possess a tantamount of Foreign Investment Code which can be made applicable to the United States. To overcome these intense complexities, financial institutions such as IMF and World Bank serve as guardians to the global market. Over the years, summits (G-20 summit), agreements (NAFTA agreement) and organizations such as EU have been created to help in the collaboration of trade across international boundaries.

Extraits

[...] In no case, a state law would be upheld if it places a too heavy burden on foreign commerce. All these combined rules result in minimal freedom given to states to impose special rules on FDI. Generally speaking, federal rules aim at making sure that state law would not be an impediment to a foreign investment transaction. As a result, even if the US legislation can not be presented as uniform over the whole country, its main features are defined on a national level. [...]

[...] In this respect it can not be forgotten that the regulation of FDI has also often far-reaching political consequences notion of retaliation by trade partners) It's also a factor of simplicity and certainty for potential investors. The lack of a clear vision of things and of legal certainty could indeed, in a country such as the US that benefit from a political and economic stability, be the main factor that could deter potential investors. Bibliography Manual of Foreign Investment in the United States, Table of Contents (2nd ed. 1993) M. [...]

[...] U.S. Law on Incoming FDI Placing a foreign investment in a developed nation usually means facing fewer problems, or perhaps different problems compared to an investment in a nation in transition. The complexity of the legal framework of such operations is often the main problem that foreign investors face while contemplating operations in developed nations. As we will see, the complexity that potential investors face while considering the US is not, contrary to the first impression, of a impassable difficulty. [...]

[...] The main tools that have been used are the following: 1. The doctrine of preemption that is grounded in the supremacy clause of the US Constitution. It can be invoked to invalidate state restrictions that conflict with federal laws[1]. In the same way, it can be invoked when state restrictions impinge on an area reserved to federal law. In respect to this last aspect, the question whether federal law is the only law that should “occupy the field” in the regulation of some activities, can give rise to difficult questions and uncertainties. [...]

[...] The Bank Secrecy Act that enacts conditions aiming at preventing money laundering special attention is given to Latin America countries) Tax aspects Reciprocity aspects: possibility for a US national to invest in the country of origin of the potential foreign investor Accountancy aspects: compliance with the American review process of Financial Statements Immigration aspects. Last but not least aspect of things that a potential investor should bear in mind are the restrictions imposed on the employment of aliens that may vary from state to state and that appear burdensome from an administrative point of view. As we have seen, the US do not have a single piece of legislation. This aspect can without a doubt appear as a factor of complexity for a potential investor as it multiples its inquiries and approaches. [...]