The United States through the years has welcomed foreign investment, with inflows increasing dramatically since the early 1970s. At the same time, federal legislation has been enacted primarily to monitor rather than restrict the extent of such capital inflows. A notable exception, as discussed later in this chapter, is the authority vested in the Committee on Foreign Investment in the United States (CFIUS) to scrutinize for its possible impact on national security any merger, acquisition, or takeover by or with a foreign person that could result in foreign control of any person engaged in interstate commerce in the United States. Importantly, and particularly relevant for inbound mining investment, CFIUS also has authority to investigate any investment made by an entity controlled by a foreign government.This past year has witnessed a significant increase in global cross-border merger and acquisition (M&A) activity, which totaled approximately $1.3 trillion in 2014, a 78% increase over 2013. Even more pronounced was the increase in the aggregate value of acquisitions in the United States by non-U.S. acquirors, which more than doubled from approximately $135 billion in 2013 to approximately $275 billion in 2014.In the context of such increasing cross-border investment, this chapter will focus on some of the key considerations that foreign investors face when looking to invest in the United States. The chapter begins by presenting an overview of private M&A transactions, with an emphasis on concerns related to asset sales, the form of consideration used, and indemnification. The chapter then turns to minority investments and the related issues of registration rights, "going private" transactions, and business combination statutes. It then examines public company acquisitions, covering, among other topics, confidentiality, structuring alternatives, consideration, disclosure obligations, and relevant state corporate law, including the fiduciary duties of target boards and state anti-takeover laws that investors must navigate. The chapter concludes with the most noteworthy legal and regulatory considerations applicable to foreign investments, namely antitrust and Exon-Florio (CFIUS) review.
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