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November 5, 2010

The Winnipeg Free Press, Calgary Herald and others reported today that BHP has announced that the Competition Bureau will not challenge its hostile bid for Potash Corp.

While the Minister of Industry rejected BHP’s bid under the Investment Canada Act earlier this week, the Bureau’s merger control approval moves BHP one step closer to acquisition given that the Investment Canada review period has been extended for an additional 30 days.  Under the Investment Canada Act, following the maximum 75 day review period that can be taken by Industry Canada, investors have the right to make further representations or submit undertakings within 30 days or within a longer period agreed upon.

Now that BHP has secured merger control clearance in both the U.S. (HSR clearance) and Canada (under the Competition Act), it will remain to be seen how motivated BHP is to make further concessions to win Investment Canada approval or how willing the Minister will be to accept any further concessions for an asset that is now being characterized by some government officials as a strategic asset.

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