Milestone: Sany v. Obama achieved a "procedural victory"
milestone: Sany v. Obama achieved a "procedural victory"
China Construction machinery information
"Sany v. President Obama won the U.S. Circuit Court!" At 8:28 a.m. on July 16, the president of Sany Heavy Industry told Wenbo about nanotechweb Org updated this message on Weibo. It has been nearly two years since Sany group's associated company in the United States, Ralls 201, insisted on a good separation between the machine base and the cement root and filed a lawsuit against Obama
Xue Feng, partner of katten law firm and chairman of Asia Pacific and China business department, said: "this is a major procedural victory."
"we believe that the presidential decree deprived Rawls of the property rights protected by the Constitution without legal due process." The ruling said. The 47 page ruling states that the affected party should at least be informed of the official action, given access to unclassified evidence for official decisions, and given the opportunity to disprove these evidence
according to the annual report provided by the U.S. Council on foreign investment (CFIUS) to the U.S. Congress at the end of last year, in 2012, Chinese investors received more cases of national security review than Britain, becoming the country with the largest number of cases reviewed for the first time. In this year, a total of 23 mergers and acquisitions by Chinese investors in the United States were subject to CFIUS' national security review. The reasons why CFIUS has been questioned by the outside world include its transparency and its lack of a clear definition of national security, which leads to great discretion of CFIUS
on July 15 local time, the District of Columbia Circuit Court of appeals, composed of three judges, ruled that the decision made by U.S. President Barack Obama in 2012 violated constitutional procedural justice. In September 2012, Obama issued an executive order to stop the wind farm project of Rawls, an affiliated company of Sany group, in Oregon, the United States, on the grounds of threatening the national security of the United States
this is the first time in 22 years that the president of the United States has blocked the acquisition transactions of foreign enterprises in the United States in the name of national security. In October of the same year, Rawls took CFIUS and Obama himself as co defendants to the federal court in Washington
in October 2013, a judge of the Washington District Court made a first instance judgment, holding that the U.S. government's prohibition of this wind farm project on national security grounds did not violate the U.S. Constitution. Rawls subsequently appealed
although the US Treasury Department previously said in the Sany v. Obama case that Obama's decision was not subject to judicial review, the procedural issues involved in Obama's decision were challenged by the court of Appeal's decision to reduce positions. The judge who made the ruling stressed that they were not challenging President Obama's decision, but the way he made it
the provisions of the Fifth Amendment of the U.S. Constitution on procedural justice stipulate that no one should be deprived of declaration, freedom or property without due process
Ren Qing, a partner of Zhonglun law firm, said that the reasoning of the U.S. Court of appeal is divided into three steps. First, according to the requirements of U.S. law, the final decision of the U.S. president to veto the transaction is not subject to judicial review, but the process or procedure before the final decision is made can be subject to judicial review; The final decision of the president to veto the transaction itself involves the judgment of national security and constitutes a non actionable political issue. However, what the plaintiff challenges is not the final decision, but the procedure for making the final decision, which is actionable; After the completion of the merger and acquisition transaction, the plaintiff has obtained legal property rights, and the way in which the US President deprived his property rights violated the requirements of the due process clause in the US Constitution. "This is a great breakthrough and the victory of the Trinity lawsuit." He said
however, the decision of the court of appeal is not the final result, and the Obama administration can also appeal to the Supreme Court. It is reported that the Obama administration is likely to appeal the case to the U.S. Supreme Court
the court of appeal now sends the case back to the court of first instance for retrial, and the final result is uncertain. Ren Qing believes that it may be difficult to change the result of the rejection of the merger and acquisition transaction of Sany, but this judgment of the court of appeal is undoubtedly good news for the future investment and merger of Chinese enterprises and enterprises of other countries in the United States, because in the future national security review, as long as the evidence is not classified, CFIUS should provide the reviewed object with relevant evidence on which to make a decision, And give the other party the opportunity to defend
some American media described the ruling of the court of appeal as a milestone. According to Wall Street of the United States, before that, foreign companies had no advantage in how to correctly clean the machine barrel when facing the Cfius review procedure, and the latest ruling of the Sany case will change this situation. The court held that the company should have access to the non confidential evidence adopted by the government in making decisions and the opportunity to respond to these evidence
Donald Vieira, a former national security lawyer at the U.S. Department of justice, said: "this is a potentially transformative decision. Before that, CFIUS does not have to explain why it proposed to the president to veto the transaction, but this ruling is just the opposite."
Christopher Brewster, lawyer of Stroock levan, a Washington law firm, said, "the landmark of this ruling is that the court ruled for the first time that all parties have due process rights before CFIUS." He thought the ruling was somewhat unexpected, because it was generally believed that the president's decision on the Cfius procedure could not be interfered by the federal court. However, the three judges also agreed that the president's decision to support or overturn foreign acquisitions on national security grounds was not subject to judicial review, but this restriction did not apply to constitutional issues arising from the transaction
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