In recent years, there has been an explosion of foreign direct investment (FDI) review and enforcement across the globe, often explicitly driven by national security concerns. Considerations of corporate governance are often critical to these regimes. The Committee on Foreign Investment in the United States is a prime example, which uses corporate governance measures, such as the right to appoint directors to a company’s board, as a method of determining jurisdiction for FDI review. However, these FDI regimes vary greatly across different jurisdictions, both in purpose and in function. Despite the rapidly growing world of FDI review and this apparent reliance on corporate governance, there is a dearth of scholarship at this intersection.

This Article begins to map both the growth and taxonomy of these FDI regimes across eleven different jurisdictions. It highlights that, despite the varied nature of these regimes, corporate governance is fundamental to how these regimes operate—collateral to the project of national security but essential as a means. This Article ultimately underscores the novelty of these regimes as powerful corporate governance-fueled engines of control over large portions of the global economy. Notably, this method of control over corporate entities continues to fly well under the radar of many skeptics in contrast to more traditional modes of government control, such as golden shares and direct state ownership. Viewed through this lens of control, the rise of these regimes troubles an already troubled model of shareholder primacy and raises questions about the role of government interests in the boardroom and in the development of corporate law. It also signals a new trend of weaponized convergence in corporate governance, spawned by an FDI review arms race.

Continue reading A Controlling Interest: Corporate Governance and National Security Across Global FDI Regimes