In recent years, the once-obscure process by which the U.S. Government approved foreign direct investments that implicated national security has garnered increased attention.

The continued integration of the Islamic banking industry into the wider global banking community is resulting in some of the world’s most sophisticated commercial and legal jurisdictions increasingly having to address the needs of Islamic investors and acknowledge the special nature of Shariah compliant investment products while, at the same time, subjecting such products to the same legal and disclosure thresholds that pertain to conventional products.

On April 21, 2008, the Department of the Treasury (Treasury) issued for public comment proposed regulations implementing the Foreign Investment and National Security Act of 2007 (FINSA), which amended § 721 of the Defense Production Act of 1950. FINSA codifies the process by which the Committee on Foreign Investment in the United States (CFIUS) reviews mergers, acquisitions, or takeovers that may result in foreign control of persons engaged in interstate commerce (Covered Transactions), and that could affect national security. 

The Department of Justice recently issued a memorandum concerning the selection and use of compliance monitors in deferred and non-prosecution agreements. See attached Department of Justice Memorandum from Craig S. Morford, Acting Deputy Attorney General for Heads of Department Components, United States Attorneys, dated March 7, 2008 (the Memorandum). Increasingly, the Justice Department requires companies to retain compliance monitors in connection with negotiated settlement agreements that allow companies to resolve criminal cases without a formal conviction.