WASHINGTON (Reuters) - While the debate has been fierce in Canada over whether a $15.1 billion takeover bid by China’s CNOOC (0883.HK) for Canadian oil company Nexen Inc NXY.TO is in the national interest, a much quieter U.S. review of the deal could soon come to a head.
A panel chaired by Treasury Secretary Timothy Geithner has been looking at the national security implications of a Chinese state-owned oil company taking over Nexen’s U.S. assets, which include oil platforms in the Gulf of Mexico.
In theory, enough time has elapsed for the Committee on Foreign Investment in the United States (CFIUS) to have finished its work.
But there has been no word on whether the review has concluded. By law, CFIUS and the Treasury Department are forbidden from commenting on reviews, and leaks about their deliberations are rare. A CNOOC spokesman said the company is declining to comment on its filing.
Lawyers with expertise handling CFIUS cases cautioned against drawing any conclusions from the amount of time that has elapsed since the review started, explaining it will be up to CNOOC to disclose the results at a time of its choosing.
The closely guarded review stands in contrast to the political firestorm and abundant headlines surrounding Canada’s much broader process. A number of members of the governing Conservative party have openly expressed concerns about a Chinese state-owned company owning Canadian oil resources.
Ottawa has said it will rule by December 10 on the deal, and new government rules for foreign investment are expected around the same time.
Investors looking at opportunities for further Chinese investment in the booming North American energy sector are intently watching both reviews, said Joshua Zive, senior counsel at Bracewell & Giuliani, a law and lobbying firm.
“It is the canary in the coal mine for state-owned Chinese entities playing in the North American energy markets,” said Zive, who is not involved in the case.
The United States has proved skeptical in past years about Chinese investments. CFIUS recently rejected a bid to build wind farms in Oregon by Ralls Corp, owned by two executives of China’s Sany Group SANYG.UL, and has blocked multiple deals by Chinese telecom equipment manufacturer Huawei Technologies Co HWT.UL.
CNOOC announced on September 5 that it had formally filed its paperwork with CFIUS, a panel that also includes the secretaries of state and defense. But CNOOC declined at the time to comment on the precise date of filing.
The review was expected to take 75 days, a timeline mandated by law when a company involved is controlled by a foreign government.
The eight-member panel has the power to negotiate or impose conditions, including divestitures and security-control agreements to mitigate any national security threats. In rare cases, a final decision on whether to allow a deal goes to the president.
“They are strict on the 75-day period,” said Benjamin Powell, a partner at law firm WilmerHale, commenting on the CFIUS process in general, but not directly on the CNOOC review.
At the end of a review, CFIUS requires a company to certify that there have been no material changes in its deal, before providing the company with a letter stating that there are no unresolved national security issues, said Powell, former general counsel to the Office of the Director of National Intelligence.
As it is up to CNOOC to disclose the results of the review, the company could choose to hold it close until Ottawa finishes its review to avoid headlines putting the smaller side of the transaction out in front of the broader Canadian decision, Zive said.
“From a messaging standpoint, they may want to get all their ducks in a row with Canada and the U.S., and be able to make a unitary ‘We have all the approvals we need’ statement,” he said.
When CFIUS requires complex mitigation steps to address security issues, companies sometimes withdraw and refile their application.
That move restarts the clock, giving more time for an agreement to be negotiated, said Ivan Schlager, a partner at Skadden, Arps, Slate, Meagher & Flom LLP in Washington.
“Sensitive transactions have been known to be pulled and refiled, sometimes on multiple occasions,” said Schlager, who heads the firm’s CFIUS practise, but is not involved in the CNOOC-Nexen case.
The panel likely would take a very close look at where the company is operating, Schlager said.
“One of the things we’ve seen in multiple CFIUS cases involving state-owned entities, is it’s much like real estate: location, location, location,” he said.
While there appears to be nothing out of the ordinary about Nexen’s Gulf assets, it’s often difficult for outsiders to gauge U.S. military sensitivities to foreign ownership, said Bracewell & Giuliani’s Zive, citing the recent CFIUS review of the Ralls Corp wind farms in Oregon.
In that unusual case, CFIUS ordered Ralls to stop building the farm pending its review. President Barack Obama eventually blocked the project, saying it was too close to a naval weapons training facility. Ralls Corp has sued the government.
Editing by Peter Galloway