Outbound Investment Restrictions and International Law’s Challenge

The Outbound Investment Rule, restricting U.S. investment in certain Chinese advanced technology sectors, has largely been portrayed as an incremental measure, a modest extension to fill loopholes in the existing investment screening regime. But while perhaps the logical next step in the securitization of the economy, the Outbound Investment Rule actually reflects a momentous shift in the relationship between governments and business, one playing out in the United States and around the world and worth attention. Unlike traditional investment screening, the Outbound Investment Rule operates like a sanctions regime, designed not to protect the U.S. economy, but to hamper the advancement of another. And in so doing, the Outbound Investment Rule reveals a broader global shift to geoeconomic competition that existing international economic law rules are ill-suited to manage.

New rules are needed to minimize and manage the inevitable conflicts.