CFIUS under Review: National Security Review in the US and the WTO

Abstract

Ralls v. CFIUS is the first and only CFIUS challenge that has been heard by United States federal courts. In granting standing to the foreign investor, the DC Circuit determined that the purchaser had gained protectable property interests and was therefore guaranteed due process rights. However, this privilege is circumscribed insofar as factual considerations cannot touch on issues of national security and classified sources. These limitations render the “justiciability” of CFIUS decisions toothless, much in the same way that Article XXI issues are effectively non-justiciable before the GATT Panel.