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Inside the committee

By Aimen Mir

The recent expansion of US foreign investment laws and the blurring of the lines between economic and military supremacy make America a more challenging market than ever for overseas investors. Aimen Mir – who spent four years chairing the committee that scrutinises foreign bids and oversaw the expansion of its powers – discusses what he learnt from his time in government and why a deep knowledge of CFIUS is essential for any multinational business.

Aimen Mir spent much of his career at the heart of the US government, overseeing efforts to prevent assets deemed vital to national security from falling into the hands of America’s strategic adversaries. He was the Treasury department’s foreign investment gatekeeper in Washington, tasked with co-ordinating the activities of the committee that scrutinises the hundreds of billions of overseas investment dollars that pour into the US every year.

As the most senior career official inside the Committee on Foreign Investment in the United States (CFIUS), Aimen’s role was simple in theory but fiendishly difficult in practice – ensure the representatives of the 16 agencies that comprise the committee agreed on which bids were benign, and which had the potential to compromise American national security interests.

Now a partner at Freshfields, Aimen reflects with pride on his time at CFIUS and the connections he made. ‘I worked with a lot of great people,’ he says. ‘People who would have been earning a lot more in the private sector and could have been doing any number of things, but chose to work hard for relatively meagre pay because they believed in what they were doing. Let’s just say that the American taxpayer is getting an unbelievable deal.’

‘I wanted a new challenge’

For four years Aimen was the deputy assistant secretary for investment security at the US Treasury, implementing the department’s role as the chair of CFIUS. During that time he managed the review and resolution of more than 1,000 inbound deals worth north of $1.3tn.

He led the weekly behind-closed-doors meetings held to drive consensus among the competing voices within the committee, which includes senior figures from the departments of homeland security, defence, state and justice. He marshalled the government’s action on the only four cross-border deals to be blocked by a US president in the past 25 years and shaped the Foreign Investment Risk Review Modernization Act (FIRRMA) – the most significant expansion of CFIUS’s powers since Ronald Reagan.

Thanks to the trade war with China and rising US concern about control of advanced technology and sensitive data, the increasingly complex CFIUS process now touches more foreign businesses than ever before. Aimen had initially planned to leave CFIUS at the end of the Obama administration, but decided to stay on for another 17 months to ensure a smooth transition to the new administration and to offer his experience in shaping any new legislation. After accomplishing these goals, Aimen felt the time was right to return to private practice.

‘I wanted a new challenge, and I knew there was going to be huge demand from business for advice to help them understand the legislation and the way CFIUS thinks,’ he says. ‘At the end of the day, it is also in the US government’s interest for the public to understand how CFIUS reviews transactions and what types of transactions are likely to raise concerns.’

'My father never forgot where he came from’

It’s strange to think that this ultimate Washington insider – an alumnus of the law school at Georgetown University where he also gained a Masters degree in international relations – was once seen by some as an outsider.

Today Aimen is comfortably settled in northern Virginia with his wife (a social worker who engages primarily with the area’s Islamic community) and teenage children. But back in 2017, alt-right commentators questioned whether a Muslim should be involved in policing US national security. ‘I had some idea in the back of my mind that as CFIUS became a more prominent operation, my faith may draw attention,’ he says.

When the stories surfaced, Aimen was touched by the groundswell of support he received from colleagues within CFIUS, the Treasury and the legal community. Without telling him, members of the CFIUS bar had drafted an open letter defending his integrity and condemning the ad hominem attack. ‘I appreciated that people took the initiative to do that, even when there may have been a whole host of reasons why they might not.’

You don't want to give the government your marketing pitch because it might exaggerate the potential risk to US national security in the eyes of officials'.

Aimen Mir, Partner

Aimen was born in Kashmir but left aged just six months when his family moved to the US. They spent some time in Detroit, later settling in Akron, Ohio, where his father established a medical practice.

‘He didn’t have soled shoes until he was six,’ Aimen says. ‘My father was the first in his village to go to high school, the first to go to college, the first doctor in the district. He’s a self-starter and he pushed his way through. He arrived in the US for economic opportunity but never forgot where he came from. He passed that on to us.’

Aimen credits his mother with giving himself and his siblings (a doctor and a teacher) ‘the support and encouragement to accomplish whatever we’ve been able to accomplish’. And his father was instrumental to his commitment to public service. ‘He always had an interest in policy,’ Aimen says. ‘Part of the way I viewed my role was to take the opportunity I’d been given and use it to serve others.’

CFIUS: ‘A different language’

FIRRMA – the most significant policy development during Aimen’s time in government – was driven by the rising tide of inbound investments not covered by the existing authority of CFIUS ‘but that raised concerns’.

Under the previous regime the committee could only scrutinise deals in which a foreign buyer took a controlling stake. But an increase in minority investments – which often came with board seats and rights to access a company’s most closely guarded secrets – prompted bipartisan calls for action. Many of the investments involved technologies with huge commercial upside but that also had military applications (such as AI and robotics).

Others raised concerns over the possibility of cyber attacks on critical infrastructure. The fact that foreign investors were targeting businesses holding sensitive personal information was also viewed as a risk to US security interests. This – coupled with the blurring of the lines between military and economic supremacy – culminated in a massive widening of CFIUS’s reach.

These sweeping reforms make a deep knowledge of CFIUS essential for any multinational business. More deals – even those involving buyers from ‘friendly’ countries – are now facing scrutiny. CFIUS quickly exercised some of its new authority under FIRRMA by establishing a pilot programme through which foreign bidders looking to invest in companies involved in export-controlled technologies and particular industries are forced to submit a filing to CFIUS (under the previous regime it was voluntary).

Many businesses entering this opaque and unfamiliar process have questions about its impact on deal timelines. With fierce competition for tech assets they are worried that their location outside the US will disadvantage them in auctions. And corporates and financial investors are finding their commercial ties to China (and other countries the US views with suspicion) much more closely examined than in the past.

For Aimen, the businesses that succeed in this environment will be those that plan their strategic engagement with the committee from the earliest stages of a deal.

They will also be those that can ‘get inside the committee’s mind’. One of the first places CFIUS goes for information is the parties to the deal – and being able to read between the lines of its questions can be the difference between being able to maximize the chances of a positive outcome and something altogether more uncomfortable.

‘Sometimes the issues that the government is thinking about are not going to be obvious to the companies,’ he says. ‘I’ve seen CEOs come before CFIUS and switch into marketing mode. In this context, playing up the capabilities of your technology is the wrong thing to do – you don't want to give the government your marketing pitch because it might exaggerate the potential risk to US national security. You need to use different language and you need your lawyers to interpret for both you and the government. They need to serve as a bridge.’

Find out more about cross-border M&A at Freshfields

Aimen Mir

By Aimen Mir

Partner, USA

With more than a decade of experience shaping and implementing US national security and investment policy, Aimen focuses on the national security review of foreign investments conducted by the interagency Committee on Foreign Investment in the United States (CFIUS), US technology transfer and export control policy, and other national security and foreign policy-based regulations of international business transactions.

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