December 1, 2021

Volume XI, Number 335

Advertisement
Advertisement

December 01, 2021

Subscribe to Latest Legal News and Analysis

November 30, 2021

Subscribe to Latest Legal News and Analysis

November 29, 2021

Subscribe to Latest Legal News and Analysis

Open Research, Foreign Finance, and a University’s Mission

This past month, the U.S. Senate debated a provision in the Innovation and Competition Act that would require the Committee on Foreign Investment in the United States (CFIUS) to review any proposed gifts and contracts of $1 million or more to U.S. research institutions from a foreign source. That would mean that the U.S. government would have oversight of such gifts, be required to investigate the ultimate source of the funds, and be able to impose mitigation measures on or prohibit such gifts.

The Committee on Foreign Investment in the United States is an inter-agency committee of nine U.S. agencies that has jurisdiction to review any transaction that may result in foreign control of a U.S. company, and many non-controlling investments by foreign persons in U.S. businesses. Typically, CFIUS reviews transactions that may affect U.S. national security. To date, CFIUS has not been tasked with or appeared interested in investigating gifts to universities.

An Eye on China

Nevertheless, Senator Jim Risch (R-Idaho), who serves on the Foreign Relations Committee, stated that the provision was designed to address concerns that the Chinese government uses its influence at large research institutions to monitor or steal U.S. technology.

The provision ultimately was scrapped as unworkable, but the Act still contains provisions designed to safeguard research by U.S. labs and agencies from foreign theft and espionage. Further, it is a bipartisan sentiment that China is an adversary of the United States in a battle for technological dominance. For that reason, it is likely that the disclosure of gifts from foreign persons will get scrutiny from the press and from the U.S. government, if not specifically from CFIUS.

Maintaining a University Mission

The mission of a university, particularly those dedicated to research, often focuses on advancing knowledge, discovering the future, and collaborating openly and globally. However, in the United States and around the world, governments are imposing regulations to put up boundaries in the borderless world of research and technology – from investment review to export controls to restrictions on IT products and service sourcing.

It would seem strange for a university to declare its mission as unlocking new technology only for use in the United States, because such limitations are anathema to an open spirit of learning. For that reason, university compliance departments will need to consider how they can maintain the values of their institution, as expressed in the university’s mission, while they institute policies to comply with regulations that are trending toward the protection and segregation of knowledge.

There is a tension between those two goals, but they are not mutually exclusive. 

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XI, Number 166
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Reid Whitten, partner, Sheppard Mullin Law Firm
Partner

Reid Whitten works with clients around the world to plan, prepare, and succeed in global business transactions.

In the areas of U.S. and international sanctions, export and defense export controls, and anti-corruption regulations, he supports clients in detecting and deterring potential compliance issues as well as conducting and defending investigations and enforcements. Mr. Whitten also advises on anti-dumping, anti-money laundering, and anti-boycott regulations.

Mr. Whitten is a thought leader on cross-border business regulations. He teaches a seminar on The Law of...

202-469-4968
Advertisement
Advertisement
Advertisement