An article in today's Wall Street Journal suggests that the excitement over the proposed takeover of P&O by Dubai Ports World has its origins in a private contract dispute. The article suggests that a Florida stevedoring firm locked in litigation with P & O has sought to delay the takeover as a way of putting pressure on P & O. One dimension of the plaintiff's strategy involved skillful if alarming lobbying of Congress. The article requires a subscription, but the WSJ's blog description of the article is available at http://blogs.wsj.com/law/?mod=blogs.
A technical issue in this dispute is whether the "mandatory investigation" rule of 50 U.S.C. app. sec. 2170(b), a 1992 amendment to the original Exon-Florio statute, applies. It requires a 45 day inquiry whenever the acquisition of an enterprise engaged in US commerce by an entity controlled by a foreign government "could affect the National Security of the United States." The question is what "could" means. The critics of the transaction argue in effect that it means "conceivable". The administration apparently believes a more substantial standard applies.
