Executive Order 13959: Threat From Communist Chinese Military Company Investments Triggers Financial War With China

Signed by President Donald Trump on 12 November 2020, the goal of Executive Order 13959 is for “Addressing the Threat From Securities Investments That Finance Communist Chinese Military Companies”.

The executive order prohibits all U.S. investors (institutional and retail alike) from purchasing or investing in securities of companies identified by the U.S. government as “Communist Chinese military companies”. The government definition of a “Communist Chinese military company” is stated as any company the U.S. Department of Defense has identified pursuant to Section 1237 of the National Defense Authorization Act for Fiscal Year 1999. Further guidance of Executive Order 13959 was published on 28 December 2020, clarifying the order also included subsidiaries of the relevant companies. 

The prohibition became effective on 11 January 2021. 

Thirty-five companies are affected, including a few companies whose shares are traded on U.S. exchanges. The list includes companies in the aerospace, shipbuilding, construction, technology and communication industries.

In a report from Axios, dated 5 January 2021…

The three Chinese companies listed under Executive Order 13959 – China Mobile, China Telecom, and China Unicom Hong Kong – will not be suspended (delisted) from trading on the New York Stock Exchange. This information comes from a stock exchange statement, saying that “in light of further consultation” it no longer intends to move forward with the delisting action but would “continue to evaluate the applicability of Executive Order 13959 to these Issuers and their continued listing status.”

Then, on 13 January 2021, an Executive Order on Amending Executive Order 13959 was issued.

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EXECUTIVE ORDERS

Executive Order on Amending Executive Order 13959–Addressing the Threat from Securities Investments that Finance Communist Chinese Military Companies

Issued on: January 13, 2021

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, United States Code,

I, DONALD J. TRUMP, President of the United States of America, in order to take additional steps with respect to the national emergency declared in Executive Order 13959 of November 12, 2020 (Addressing the Threat from Securities Investments that Finance Communist Chinese Military Companies), to address the threat posed by the People’s Republic of China’s military-industrial complex, hereby order as follows:

Section 1.  Section 1(b) and (c) of Executive Order 13959 are amended to read as follows:

“(b)  Notwithstanding subsection (a)(i) of this section, any transaction entered into on or before 11:59 p.m. eastern standard time on November 11, 2021, solely to divest, in whole or in part, from securities that any United States person held as of 9:30 a.m. eastern standard time on January 11, 2021, in a Communist Chinese military company as defined in section 4(a)(i) of this order, is permitted.  Effective at 11:59 p.m. eastern standard time on November 11, 2021, possession of any such securities by a United States person is prohibited.

(c)  Notwithstanding subsection (a)(ii) of this section, for a person determined to be a Communist Chinese military company pursuant to section 4(a)(ii) or (iii) of this order, any transaction entered into on or before 365 days from the date of such determination, solely to divest, in whole or in part, from securities that any United States person held in such person, as of the date 60 days from the date of such determination, is permitted.  Effective at 11:59 p.m. eastern standard time on the date 365 days after the date of such determination, possession of any such securities by a United States person is prohibited.”

Sec. 2.  Subsections (a)(ii) and (iii) of section 4 of Executive Order 13959 are amended to read as follows:

“(ii)   any person that the Secretary of Defense, in consultation with the Secretary of the Treasury, publicly lists as a Communist Chinese military company meeting the criteria in section 1237(b)(4)(B) of Public Law 105-261, as amended by section 1233 of Public Law 106-398 and section 1222 of Public Law 108‑375, and that operates directly or indirectly in the United States or any of its possessions, until such time as the Secretary of Defense removes such person from such list.  This definition shall apply regardless of whether the Secretary of Defense must provide the report described in section 1237(b)(2) of Public Law 105-261, as amended by section 1233 of Public Law 106-398 and section 1222 of Public Law 108-375; or

(iii)  any person that the Secretary of the Treasury publicly lists as meeting the criteria described in section (a)(ii) of this section, or publicly lists as a subsidiary of a person already determined to be a Communist Chinese military company, until the Secretary of the Treasury determines that such person no longer meets that criteria and removes such person from such list.”

Sec. 3.  Section 4(e) of Executive Order 13959 is amended to read as follows:

“(e)  the term “transaction” means the purchase for value, or sale, of any publicly traded security; and”.

Sec. 4.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,
January 13, 2021

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Additional sorces

https://www.whitehouse.gov/presidential-actions/executive-order-addressing-threat-securities-investments-finance-communist-chinese-military-companies/

https://www.sec.gov/files/risk-alert-securities-investments-finance-communist-chinese-military-companies.pdf

https://www.clearygottlieb.com/-/media/files/alert-memos-2020/current-status-of-restrictions-on-securities-of-chinese-military-companies.pdf

https://www.whitehouse.gov/presidential-actions/executive-order-amending-executive-order-13959-addressing-threat-securities-investments-finance-communist-chinese-military-companies/