Archive for the 'Investment Canada' Category
The following are a few competition and regulatory law developments that caught my eye today:
The Saskatchewan Government issued a review report on the proposed Glencore/Viterra transaction calling for, among other things, conditions to ensure compliance with Glencore’s Investment Canada Act commitments and a review of potential competition concerns in the retail (i.e., crop input) markets: Government Releases Review of Glencore Acquisition of Viterra
The OECD issued a new Procedural Fairness and Transparency Report, which includes recent Competition Bureau transparency initiatives: Procedural Fairness and Transparency – Key Points 2012
The International Trade Minister delivered remarks to the Canadian Manufacturers & Exporters (BC) about the new Canada-EU trade agreement: International Trade Minister Ed Fast Highlights Benefits of Canada-EU Trade Agreement to Canadian Manufacturers & Exporters
The Canadian Council of Chief Executives has commented on competition and infrastructure in Canada to supply Chinese energy needs: Canada: Competing for China’s energy needs
The CRTC’s Executive Director of Broadcasting addressed innovation and competition in local radio and television markets in BC: Speech to the 65th annual conference of the British Columbia Association of Broadcasters
The Competition Bureau issued its April Monthly Merger Review Report: Merger Review Report
On May 11, 2012, the Saskatchewan Government published a review report on the proposed Glencore/Viterra transaction. In issuing the report, Saskatchewan’s Agriculture Minister called for conditions to “hold Glencore” to its Investment Canada Act commitments and also indicated that one competition concern included competitive effects relating to Agrium and the farm inputs (i.e., retail) markets.
Saskatchewan is calling for the following, among other things, as part of Investment Canada Act approval: Regina as Glencore’s North American headquarters, maintaining current levels of employment, a five year increase in capital investment of C $100 million and no adverse competitive effects in the farm input (i.e., retail) markets (competition is one of the relevant net benefit to Canada factors under section 20 of the Investment Canada Act).
For the Saskatchewan Government’s news release and report see:
Review of the Proposed Glencore Acquisition of Viterra and Related Transactions
The Federal Government has published the Industry Minister’s remarks at the Bloomberg Canada Economic Summit in Toronto on May 8, 2012. Some of the highlights of the Minister’s speech include Federal economic initiatives over the past six years, foreign investment in Canada (according to the Minister, 95 new foreign businesses and expansion projects), trade and tariff elimination initiatives, Telecommunication Act amendments to lift foreign ownership restrictions for small telecom companies and recently tabled proposed amendments to the Investment Canada Act (Bill C-38) aimed at increasing transparency in the Canadian foreign investment review process.
For the Minister’s remarks and related news release see:
The Canadian Council of Chief Executives (CCCE) and Australian Industry Group (Ai Group) have issued a joint statement and two reports that recommend a range of policy measures to increase and promote bilateral trade and investment between Canada and Australia.
In making the announcement, the CCCE said:
“In recent years there has been a significant expansion in two-way investment between Australia and Canada, particularly in the natural resources and financial sectors. In view of that, and given Canada’s interest in joining the Trans-Pacific Partnership Agreement negotiations (TPP), the two business organisations concluded that both countries would benefit from a better understanding of the potential for enhanced trade and investment.”
The proposed changes include eliminating tariffs on bilateral trade, improving labour mobility, a bilateral agreement for reciprocal treatment under Canadian and Australian foreign investment review systems and exploring the development of a bilateral competition policy framework that would replace anti-dumping actions.
For the CCCE’s and Ai’s news releases, joint statement and reports see:
The Global Competition Review (GCR) has announced the publication of the first edition of its (may I say long needed) Foreign Investment Review (see: Getting the Deal Through – Foreign Investment Review 2012).
From GCR:
“The first edition of Foreign Investment Review, a new volume in our series of annual reports, which provide international analysis in key areas of law and policy for corporate counsel, cross-border legal practitioners and clients.”
This global survey of foreign investment rules includes Canada and the following other jurisdictions: Argentina, Australia, Brazil, China, the Czech Republic, France, Germany, Ghana, Hong Kong, India, Israel, Italy, Japan, Korea, Mexico, Nigeria, Poland, Russia, Saudi Arabia, Switzerland, Turkey, the UK, United States and Vietnam.
For more information see:
On April 27, 2012, the Federal Government announced that it plans to amend to Investment Canada Act (ICA) to give the Minister of Industry more freedom to disclose whether an investment is likely to be found to be of net benefit to Canada (through Bill C-38, the Jobs, Growth and Long-term Prosperity Act, introduced on April 26th). In its news release, the Government said:
“Through the Jobs, Growth and Long-term Prosperity Act, the Harper Government has introduced amendments to the Investment Canada Act to provide the Minister of Industry with a greater ability to publicly communicate information on the review process, while preserving commercial confidences. The amendments would also promote investor compliance with undertakings by authorizing the Minister to accept security, when offered by an investor, for payment of any penalties ordered by a court for a contravention of the Investment Canada Act.
The amendments would allow the Minister to disclose publicly the fact that he has sent a preliminary notice to an investor that he is not satisfied that the investment is likely to be of net benefit to Canada. They would also allow the Minister to publicly explain his reasons for sending the notice as long as it would not cause harm to the Canadian business or the investor.
The Harper Government recognizes that strong confidentiality protection is critical to ensure that investors provide the information necessary to conduct reviews as well as to prevent the harm that could come from disclosure.”
The announcement is consistent with recent statements in the Federal Budget, tabled on March 29, 2102 (see: 2012 Budget Includes Changes to Canada’s Foreign Investment Regime), in which the Government said that it would be introducing “targeted improvements” to the administration of the Investment Canada Act “in the interests of greater transparency while preserving investor confidentiality.”
Bill C-38 would, if passed, broaden the exceptions to the existing privilege protections under the ICA to allow the Minister to publicly explain why an investor has been sent a notice under subsection 23(1) of the ICA (a preliminary notice that the Minister is not satisfied that an investment is likely to be of net benefit to Canada, the relevant substantive test for approving reviewable investments under the ICA).
The ICA contains a broad privilege provision, which provides, subject to a number of exceptions, that information received in relation to the enforcement and administration of the ICA is privileged. The ICA also allows investors to make representations and submit undertakings within 30 days of receipt of an interim notice from the Minister (or as agreed between the investor and the Minister).
On April 27, 2012, Industry Canada published a new guideline regarding the availability of mediation where the responsible Minister believes a non-Canadian has failed to comply with undertakings (i.e., commitments) in relation to an approved Investment Canada Act investment.
The new Investment Canada Act guideline provides that, where the responsible Minister believes that a non-Canadian investor has failed to fulfill undertakings, the following steps may be taken: (i) Investment Review Division officials may discuss potential resolutions for the non-implementation of undertakings, (ii) new undertakings may be negotiated, or (iii) the Minister may demand the non-complying investor to justify non-compliance with its undertakings (and commence proceedings where an investor fails to comply).
Interestingly, the new Investment Canada Act guideline states that: “[the] Minister recognizes that, in some instances, a resolution achieved through discussion may be preferable to potentially lengthy and costly legal proceedings.”
While it is not clear what precipitated the issuance of this new guideline, it may be that it was issued following lengthy and contentious proceedings relating to the alleged non-compliance of U.S. Steel with undertakings made in relation to its acquisition of Stelco in 2007.
For a copy of the guideline see:
For more about Canadian foreign investment rules see:
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In an interesting story earlier today, Bloomberg reported that Public Safety Canada has warned Industry Canada that loosening investment restrictions in Canadian telecommunications providers would pose a “considerable risk” to Canadian national security.
In particular Bloomberg has reported that Public Safety Canada told Industry Canada that the “security and intelligence community is of the view that lessening or removing restrictions from the Telecommunications Act, without implementing mitigation measures, would pose a considerable risk to public safety and national security.” Bloomberg also reports that Public Safety Canada is working with Industry Canada to “ensure that any risks to Canada’s telecommunications sector are identified and addressed”.
Last month Industry Minister Christian Paradis announced that the Telecommunications Act would be amended to lift foreign investment restrictions for telecom companies with less than a 10% market share and that the Government would be imposing caps in upcoming spectrum auctions in 2013 to “guarantee that both new wireless competitors and incumbent carriers have access to the spectrum up for auction”. The Government also introduced several other measures, including the improvement and extension of tower sharing and roaming policies and imposing obligations on 700 MHz spectrum licence holders for the timely delivery of advanced wireless services to rural Canadians.
Foreign investors are presently subject to Canada’s national security review regime (in addition to general Investment Canada Act review or notification), under which the Minister and federal Cabinet can review proposed or completed investments that may be “injurious to national security” (a purely political and undefined test).
Under Canada’s (relatively new) national security review regime, the Government may conduct a national security review of an investment regardless of whether it triggers the general thresholds for review under the Investment Canada Act or whether control of a Canadian business is acquired.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
