The American Recovery and Reinvestment Act of 2009 will have a profound impact on all aspects of infrastructure project implementation and has
produced a number of critical legal developments in non-infrastructure areas such as education, research and development, clean energy,
environmental issues, and health care. In addition, it presents international opportunities and limitations that may be of interest and important
to your business plans.
Specifically, according to several sources, many nations (including China and Middle Eastern countries) as well as foreign national individuals
are analyzing opportunities to invest in U.S. stimulus projects. Jackson Walker's International attorneys
can assist foreign investors and U.S. companies seeking to partner or co-venture with such investors or seeking to obtain funding from foreign
sources. Our attorneys can help navigate the myriad of U.S. regulations that apply in these contexts, including provisions contained in the
U.S.A. Patriot Act; the Foreign Corrupt Practices Act (FCPA); Section 721 of the Defense Production Act of 1950, as amended by the Foreign
Investment and National Security Act of 2007; and the regulations at 31 Code of Federal Regulations, part 800 (CFIUS regulations).
Foreign companies and U.S. companies alike must also be aware of the "Buy-American" provision in the U.S. stimulus legislation. This provision
specifically requires that none of the funds appropriated under the Act may be used for the "construction, alteration, maintenance, or repair of a
public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States."
Notwithstanding this language, waivers may be granted if certain conditions exist, as provided in the exceptions established in the legislation.
These conditions are if (i) the head of the federal department or agency involved finds that the rule would be inconsistent with the public
interest, (ii) there is insufficient U.S. iron and steel of satisfactory quality, or (iii) including U.S. iron and steel will increase the cost
of the project by more than 25%.
Understandably, U.S. companies are concerned that the "Buy-American" provision contained in the U.S. stimulus bill will prevent or discourage
foreign investment in U.S. stimulus projects or lead to trade wars that result in restrictions being placed on U.S. companies' ability to
participate in other countries' own stimulus projects. Jackson Walker's International attorneys
are familiar with and can help clients analyze and enforce provisions of the many international agreements – such as the North American Free
Trade Agreement (NAFTA) and World Trade Organization (WTO) – that create obligations for the United States, such as requiring that signatory
countries afford equal protection to investors of other signatory countries or prevent signatory countries from discriminating against other
countries in government procurement.
Jackson Walker's Opportunity in Economic Crisis Task Force
provides coordinated and comprehensive support and advice to clients with regard to the American Recovery and Reinvestment Act of 2009. Our
attorneys have carefully analyzed this legislation and are monitoring the ongoing implementation of its mandates by federal agencies (and state
and local governments on a continuing basis) and are available to counsel clients regarding all aspects of the legislation and the timely approval
and implementation of any project or opportunity.
If you have any questions regarding this e-Alert, please contact Arcie Jordan
at ajordan@jw.com or
Sue Snyder at
ssnyder@jw.com.
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