Musk's Saudi funding could hit hurdle if US government deems Tesla 'critical technology'

  • The technology behind Musk's business — and its value to some of the U.S.' economic rivals — could prove problematic to the chief executive's plans to go private.
  • A move by Tesla to take the company private using overseas funds would likely need the support of the Committee on Foreign Investment in the United States.
  • President Trump is expected to sign on Monday the Foreign Investment Risk Review Modernization Act, new legislation designed to broaden CFIUS' authority.
SpaceX founder and Tesla CEO Elon Musk.
Joe Skipper | Reuters
SpaceX founder and Tesla CEO Elon Musk.

Tesla's chief executive, Elon Musk, told investors Monday in a blog post that he was confident the funding required to take the electric auto maker private was secured by Saudi Arabia, but support required by federal regulators of that foreign funding could be another hurdle.

Any move by Tesla to take the company private using overseas funds would likely have to get the nod from the Committee on Foreign Investment in the United States, or CFIUS, the interagency committee tasked with reviewing the national security implications of foreign investments in U.S. companies.

Tesla, which designs, develops, manufactures and sells electric vehicles and energy generation and storage systems in a number of developed countries, also provides electric vehicle powertrain components and systems to other manufacturers.

"Going back almost two years, the Saudi Arabian sovereign wealth fund has approached me multiple times about taking Tesla private," Musk said in a blog post published Monday. "Recently, after the Saudi fund bought almost 5 percent of Tesla stock through the public markets, they reached out to ask for another meeting. That meeting took place on July 31st. ... I left the July 31st meeting with no question that a deal with the Saudi sovereign fund could be closed."

However, the cutting-edge technology behind Musk's business — and its value to some of the U.S.' economic rivals — could prove problematic to the chief executive's plans to go private.

On Aug. 1 the Senate joined the House of Representatives in passing the Foreign Investment Risk Review Modernization Act, or FIRRMA, new legislation designed to broaden CFIUS' authority. PresidentDonald Trump is expected to sign the bill into law Monday.

Among other changes, FIRRMA would extend CFIUS' jurisdiction to any nonpassive foreign investment in a U.S. "critical technology company" or "critical infrastructure company." Prior to FIRRMA, CFIUS' jurisdiction was limited to transactions that could result in "foreign control" of a U.S. business.

"I think that in terms of FIRRMA's intent to capture transactions in areas deemed 'critical technology,' electric vehicles may fall into that," said David Ribner, an attorney with O'Melveny & Myers whose practice focuses on advising clients seeking CFIUS approvals of foreign investments. "It's an open question about how investments by the Saudis would be treated. Every national security review looks at both the threat posed by the foreign person and the U.S. business's vulnerability."

Ribner explained that acquisitions by U.S. allies could be viewed as a threat by CFIUS depending on the parties in question; foreign acquisition of nuclear power plant operators or defense contractors, for example, could be seen as a vulnerability even in friendly hands.

Trump has already made headlines with CFIUS, when the White House took the unusual step of blocking Singapore-based Broadcom from purchasing Qualcomm in a hostile takeover in March, citing national security concerns raised by CFIUS as evidence for the intervention.

"There is credible evidence that leads me to believe that Broadcom Limited, a limited company organized under the laws of Singapore (Broadcom) ... through exercising control of Qualcomm Incorporated (Qualcomm), a Delaware corporation, might take action that threatens to impair the national security of the United States," the White House statement said.

Regulators worried that Broadcom would suffocate research and development at Qualcomm given its history of cutting costs. CFIUS argued such a move could hamstring Qualcomm, and by extension the United States, in the race to develop state-of-the-art wireless devices, an argument that could translate to electric automobile development.

For Saudi Arabia and China, which are both seeking to curb their dependency on oil, incorporating modern electric automobile technology could not only be a huge step forward economically but also prove problematic should either seek to buy out Tesla's intellectual property.

Should CFIUS elect to review a Saudi-backed Tesla privatization, any recommendation from the committee would be passed on to Trump for a final decision.