《丸紅經濟研究所：2025 TikTok案、國家安全與外商投資：特朗普2.0下的新機遇研究報告（英文版）（5頁）.pdf》由會員分享，可在線閱讀，更多相關《丸紅經濟研究所：2025 TikTok案、國家安全與外商投資：特朗普2.0下的新機遇研究報告（英文版）（5頁）.pdf（5頁珍藏版）》請在三個皮匠報告上搜索。

1、 1 Marubeni Washington Report Marubeni America Corporation,Washington Office So Uehara,Senior Government and International Affairs Manager uehara- Against the backdrop of intensifying U.S.-China competition,the U.S.government has increasingly invoked“national security concerns”to restrict not only C

2、hinese firms but also companies from allied nations.With each change in administration,policy priorities and enforcement practices can shift dramatically.Anticipating these shifts,businesses have turned to litigation as a means of delaying legal implementation.In particular,the impending inauguratio

3、n of President Trumpknown for his transactional political stylepresents new avenues for negotiation.Regardless of changes in presidential administrations,Congress and U.S.intelligence agencies have consistently shown a tendency to tighten foreign investment regulations,creating a persistently uncert

4、ain environment for foreign companies.Under the incoming Trump administration,the question becomes how to strike a balance between national security and the protection of foreign companies rights.The TikTok case and Nippon Steels attempted acquisition of U.S.Steel serve as key litmus tests for how t

5、hese developments might unfold.On January 10,the Supreme Court heard oral arguments in TikTok v.Garland.In this case,the U.S.government is asking the justices to uphold a federal lawsigned by President Biden in Aprilthat would shut down TikTok in the United States by January 19 unless ByteDance,its

6、Chinese parent company,divests ownership to address national security concerns.Court observers are split after oral arguments.Some were much less confident that the Supreme Court would uphold the lower-courts decision affirming the laws constitutionality while others say that the laws intended purpo

7、se addressed a“compelling interest”(national security risks emanating from the CCP)that even a restriction on constitutionally guaranteed rights(freedom of speech)would be justified.Separately,in response to President Bidens order blocking Nippon Steels acquisition of US Steel,the companies involved

8、 have filed two lawsuits.The first challenges the order on due process grounds,and the second seeks an injunction to prevent the head of Cleveland Cliffs and the United Steel Workers from further collusive or anticompetitive behavior.The former is relevant for the purposes of this analysis.The TikTo

9、k and Nippon Steel cases differ in their specifics,with the former concerning freedom of speech and the latter focusing on the right to due process,both constitutionally guaranteed rights.However,they share a crucial similarity:both hinge on the U.S.governments invocation of“national security concer

10、ns”to justify measures that potentially restrict constitutional rights.This parallel raises broader questions about the balance between national security and individual liberties.How the courts rule on these issues will become crucial case-studies for foreign investors operating in the U.S.However,t

11、his analysis does not delve into the finer points of law.Instead,it focuses on how the forthcoming presidential transition to Donald Trumpknown for his freewheeling,The TikTok Case,National Security,and Foreign Investment New Opportunities Under Trump 2.0 January 14,2025 2 transactional stylepresent

12、s both sets of plaintiffs with a unique opportunity to advance their claims.As geopolitical developments increase government scrutiny of national security risks stemming from foreign direct investmentsincluding those from allied nations such as Japanthe following analysis argues that Trumps inaugura

13、tion offers legal strategies that would not otherwise have been available to foreign investors.The TikTok Case Last April,the U.S.Congress passed the Protecting Americans from Foreign Adversary Controlled Applications Act(PAFACA),which President Biden subsequently signed into law.The legislation req

14、uires ByteDance,TikToks Chinese parent company,to divest its U.S.operations by January 19,2025,or face a nationwide ban on the apps availability.TikTok and ByteDance have challenged the laws constitutionality,arguing that it violates First Amendment rights and lacks sufficient evidence to substantia

15、te claims of a national security threat.In December 2024,the U.S.Court of Appeals for the D.C.Circuit upheld the law,rejecting TikToks constitutional and evidentiary arguments.TikTok has since appealed to the Supreme Court,which heard oral arguments earlier today.If the Supreme Court rules in favor

16、of the U.S.government,TikTok will cease operations on January 19th.What that looks like in practice is still unclear.Most likely,the first step would be removing the app from Google and Apple app storesa measure with precedent,as Apple previously pulled WhatsApp,Signal,and Telegram in China at the C

17、hinese governments request.While it would remain legal to keep TikTok on existing devices,the platform itself could no longer provide updates.Technically,users might circumvent the restriction with a VPN,but officially,TikTok would become unavailable in the United States.2Implications for Nippon Ste

18、el and U.S.Steel There are clear parallels between Nippon Steels recent lawsuitchallenging President Bidens decision to block its acquisition of U.S.Steeland the ongoing TikTok case.In both instances,the U.S.government invokes“national security concerns”to justify actions impacting foreign-owned com

19、panies operating within the United States.Solicitor General Elizabeth Prelogars argument during Supreme Court oral arguments in TikTok v.Garland underscores the potential implications for Nippon Steels suit:“Federal law requires only the divestiture of TikTok to prevent Chinese government control.An

20、d that divestiture remedy follows a long tradition of barring foreign control of U.S.communications channels and other critical infrastructure.So,no matter what level of First Amendment scrutiny applies,the act is valid because its narrowly tailored to address compelling national security threats.”E

21、lizabeth Prelogar,Solicitor General January 10,2025 This statement highlights that national security can serve as a sufficient justification for restricting constitutionally guaranteed freedoms,including freedom of speech.In the case of TikTok,this justification legitimizes a law that compels ByteDa

22、nce to either sell TikTok or cease its U.S.operations,despite First Amendment burdens on the company and its users.Prelogars reference to a“long tradition”reflects the judiciarys historical deference to the 3 executive branch on national security matters.For example,the United States has consistentl

23、y restricted foreign ownership and control of media outlets due to similar security concerns.Under the Constitution,the President wields broad authority over foreign policy and national defense,further solidifying the executives primacy in these areas.This authority expands as sectors designated as“

24、critical infrastructure”face heightened scrutiny.A comparable rationale underpins President Bidens decision to block Nippon Steels acquisition of U.S.Steel.The administration argues that Nippon Steel“might take action that threatens to impair the national security of the United States.”Nippon Steels

25、 legal challenges are now unfolding in two federal courts.One lawsuit accuses President Biden and the Committee on Foreign Investment in the United States(CFIUS)of violating the companys constitutional due process rights.The second lawsuit targets Cleveland Cliffs CEO and United Steelworkers Preside

26、nt David McCall,alleging anticompetitive and racketeering activities designed to ensure that only Cleveland Cliffs can acquire U.S.Steel.For the purposes of this analysis,the former lawsuit is most relevant.Against this backdrop,examining previous instances in which U.S.presidents have blocked forei

27、gn ownership of American companies on national security grounds can provide valuable insights.Such a review may shed light on how Nippon Steels challenge could be resolvedand what it might mean for foreign-owned enterprises seeking to operate in critical U.S.industries.The Ralls Case In March 2012,R

28、alls Corporation,owned by Chinese nationals,purchased four wind farm project companies in Oregon and began installing Chinese-origin wind turbines on the property.Because the sites were located close to a U.S.military facility,the CFIUS recommended that the President block the transaction,citing nat

29、ional security concerns.In September 2012,President Obama issued an executive order requiring Ralls to divest.At no point did CFIUS or the president provide the parties with neither the notice of the evidence used to make the national security determination nor the opportunity to contest that eviden

30、ce.In response,Ralls asked the court to enjoin(or block the enforcement of)the presidents order and to restore its ownership rights in the wind farm companies.In doing so it argued that it was deprived of property without due processnamely,that CFIUS failed to provide adequate notice or an opportuni

31、ty to address the national security concerns.Although the district court initially dismissed most of Rallss claims,the D.C.Circuit Court of Appeals reversed in 2014,holding that Ralls did have a property interest in the underlying transaction and was therefore entitled to(1)notice of the official ac

32、tion and(2)the rationale behind the order.The case was then remanded to the district court.Rather than proceed to a full trial on the merits of the due process claim,the parties settled out of court in 2015.4What the Ralls Case Tells Us As already mentioned,courts generally defer to the president on

33、 national security.In Ralls,while the courts ultimately allowed Ralls to pursue a claim that it was denied due process,they did not actually review the Presidents ultimate decision to block the transaction.This 4 reflects a longstanding practice:the judiciary is typically reluctant to second-guess p

34、residential decisions on national security matters.The Constitution grants the President broad authority over foreign policy and national defense,reinforcing this separation of powers.But,because the case was settled out of court,the due process issue was never conclusively decided.Nonetheless,Ralls

35、 shows that while there was the possibility that courts may compel the government to follow constitutional due process procedures,second-guessing a Presidents determination on national security grounds is unlikely.Attorneys for the parties are likely aware of these limitations.As such,their legal st

36、rategy may be aimed at buying timespecifically,delaying the enforcement of President Bidens directive to“take all steps necessary to fully and permanently abandon the Proposed Transaction no later than 30 days after the date of this order.”Since only a future President has the authority to rescind o

37、r reverse a prior presidential order,a court-ordered stay could give the companies enough time to lobby for support from the next administration.While President-elect Trump has expressed his opposition to the deal,the parties may believe they could convince him with enough sweeteners.5Trump Offers a

38、 Lifeline to TikTok In a surprising evolution of his stance on TikTok,President-elect Trump shifted from denouncing the platform as a national security threat in 2020 to actively defending it before the Supreme Court in December 2024.In a brief filed on December 27,Trump described TikTok as a unique

39、 medium for freedom and expression.His change of heart had become apparent earlier in March 2024,when he publicly opposed a bipartisan bill mandating the sale of TikTok or imposing a ban.It was around this time that Trump met Jeff Yass,a cofounder of Susquehanna International Group and a significant

40、 donor to Republican causes.SIG owns a 15%stake in ByteDance,TikToks parent company.Yass personal share is 7%.He is a major supporter of the anti-tax lobbying group Club for Growth,which previously hired Kellyanne Conway,a key architect of Trumps 2016 victory.In March 2024,Trump told CNBC that he st

41、ill viewed TikTok as a national security threat but acknowledged its cultural significance,remarking that young people will go crazy without it.He also criticized moves against TikTok as benefiting Facebook,which he labeled an enemy of the people.His views continued to evolve during his 2024 campaig

42、n.Trump embraced TikTok as a vital tool for reaching young voters,crediting the platform as a key to his strategy.His youngest son,Barron,reportedly encouraged him to engage with TikTok to win over younger demographics,according to sources familiar with their interactions.By late 2024,Trump had amas

43、sed 14.7 million followers on TikTok,a fact that put him at odds with the GOPs anti-China faction.On December 16,Trump met with TikTok executives at Mar-a-Lago,the same day TikTok petitioned the Supreme Court to temporarily block the law requiring its divestiture.Anticipating a policy shift,the Supr

44、eme Court could issue an administrative stay(temporarily halting enforceability of the law while the court considers the case),and incidentally affording more time to allow the new administration to decide on whether it will enforce the law.Different administrations have shifted their enforcement po

45、sture on several areas,including 5 immigration,environmental,and criminal justice to name a few,so this would be nothing new.Issuing an injunction would imply the court has considered the merits of the case and decided to either temporarily or permanently halting the enforcement of the law.On a simi

46、lar vein,the US Court of Appeals for the DC Circuit,which is handling the Nippon Steels due process claims,is unlikely to overturn President Bidens blocking order and the review process conducted by CFIUS.Doing so would be unprecedented.But by initiating legal action during a presidential transition

47、,they could potentially delay the enforcement of the order,buying time to negotiate with the incoming administration or explore alternative solutions.Nonetheless,the success of such a strategy is uncertain,given President-elect Trumps stated opposition to the deal.6Final Thoughts As the TikTok and N

48、ippon Steel/U.S.Steel cases show,when foreign companies seek to operate in sectors the United States designates as“critical infrastructure,”national security concerns become paramount.While the TikTok dispute revolves around freedom of expression,the Nippon Steel-U.S.Steel case centers on due proces

49、s,in both instances,“national security”serves as a basis by which foreign entities could be denied certain constitutionally protected rights in the United States.Moreover,there is a working assumption that,with the inauguration of the Trump administration,U.S.policy on foreign affairs and investment

50、 regulation may diverge significantly from that of the previous Biden administration.As Trumps sudden willingness to defend TikTok suggests,national security decisions can be influenced by the presidents own political and economic interests.Under such circumstances,foreign companies may reasonably u

51、se litigation to delay the enforcement of presidential orders,thereby creating opportunities to negotiate with the incoming administration.However,if Congress and U.S.intelligence agencies continue to tighten regulations on foreign investment,regardless of who occupies the White Housethat leaves for

52、eign businesses in a protracted state of uncertainty.How the government will balance national security with the protection of foreign firms rights,and how far the president will assert his own interest in search of a“deal”will remain key determinants to the overall investment climate moving forward.

53、The TikTok case and Nippon Steels bid for U.S.Steel merit close attention as important litmus tests for these evolving trends.Marubeni America Corporation Washington Office 1717 Pennsylvania Ave.,N.W.,Suite 375,Washington,DC 20006 https:/ document is created based on publicly available information;h

54、owever,we do not guarantee its validity,adequacy,or completeness.Any advantages or disadvantages resulting from decisions made based on this document are the responsibility of the individual who made the decisions,and we bear no responsibility for them.The contents of this document are subject to ch

55、ange without notice.The individual texts,photographs,illustrations,etc.,included in this document(hereafter referred to as Information)are copyrighted works of our company,protected under the Copyright Law of Japan and international treaties such as the Berne Convention.Except in cases permitted by copyright law,such as personal private use and quotation,reproducing,distributing,modifying,translating,adapting,broadcasting,or making available to the public the Information contained in this document without the permission of the copyright holder is a violation of copyright law.