Archive for the 'Mergers' Category
The Brookings Institution has published a very interesting new article on the proposed acquisition by CNOOC (China National Offshore Oil Corporation) of Nexen in Canada, which discusses, among other things, some of the possible rationales for Chinese interest in unconventional oil assets in Alberta including increasing reserves and production (North America now being the “epicenter” of unconventional upstream oil and gas mergers), a desire to acquire technological and operational expertise to develop China’s own domestic shale gas reserves and to diversify political risk. I thought this was a rather good commentary on the proposed CNOOC/Nexen deal (the Investment Canada Act review for which was recently extended by another 30 days for a national security review). This recent Brookings article also discusses CNOOC’s failed bid for Unocal. For a copy of this Brookings Institution note authored by Erica Downs see: China, Iran and the Nexen Deal.
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The National Competition Law Section of the Canadian Bar Association has published a new issue of its Competition Law Review (which is now also available in a searchable format online).
This new issue includes articles on The Competition Act of 1986, Competitor Agreements: Interpreting Criminal Conspiracy in a Blended Criminal-Civil Regime, Section 36 of the Competition Act, Abuse of Dominance in Canada: Reflections on 25 Years of Section 79 Enforcement, The Treatment of Vertical Price Restraints under the Competition Act, The Evolution of Vertical Distribution Practices under the Competition Act, 25 Years of Merger Review in Canada, The Evolution of Canada’s Pre-Merger Notification Regime (1986-2012), Foreign Investment Screening under Canada’s Investment Canada Act, Misleading Advertising and Deceptive Marketing Practices under the Federal Competition Act, A Quarter Century of the Competition Tribunal and Economics and Canadian Competition Policy.
From the CBA:
“Volume 25, Issue 2 is a special edition devoted to a retrospective on 25+ years of the Competition Act and the Investment Canada Act. Leading members of the bar, including four former Commissioners, have authored high quality papers taking an in-depth look at the substantive and procedural development of those statutes. We trust that you will find them informative, thought-provoking and enjoyable.”
For a copy see: Canadian Competition Law Review (Fall 2012)
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The Competition Bureau has updated its organizational chart with John Pecman (formerly head of the Criminal Matters Branch) as Acting Commissioner of Competition. From the Bureau:
“John Pecman is Acting Commissioner of Competition.
The Commissioner is responsible for the administration and enforcement of the Competition Act and three labelling statutes, the Consumer Packaging and Labelling Act, the Precious Metals Marking Act and the Textile Labelling Act.
Under the Competition Act, the Commissioner can launch inquiries, challenge civil and merger matters before the Competition Tribunal, make recommendations on criminal matters to the Director of Public Prosecutions of Canada (DPP), and intervene as a competition advocate before federal and provincial bodies.
As head of the Canadian Competition Bureau, the Commissioner leads the Bureau’s participation in international fora such as the Organization for Economic Cooperation and Development (OECD) and the International Competition Network (ICN), to develop and promote coordinated competition laws and policies in an increasingly globalized marketplace.
On September 20, 2012, Canada’s intelligence agency, the Canadian Security Intelligence Service (CSIS), issued its 2010-2011 Public Report.
In light of the ongoing federal review of the CNOOC/Nexen transaction, heightened debate regarding the conditions for state-owned-enterprise (“SOE”) investment in Canada and fact that some Canadian investments can be subject to a national security review, the following discussions of the Investment Canada Act, SOEs and Canadian national security caught my eye:
“Some foreign investments in Canada can also pose wider national security concerns. The Investment Canada Act provides the Government of Canada with a mechanism to ensure that foreign investments are within Canada’s national security interests. CSIS plays a contributing role by advising government of the national security implications that might arise from a proposed foreign investment.
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A related security issue is one of foreign investment. Canada is a trading nation, with economic wealth, advanced infrastructure and vast potential – all of which make Canada a natural and attractive prospect for foreign investors. While the vast majority of foreign investment in Canada is carried out in an open and transparent manner, certain state-owned enterprises (SOEs) and private firms with close ties to their home governments have pursued opaque agendas or received clandestine intelligence support for their pursuits here.
When foreign companies with ties to foreign intelligence agencies or hostile governments seek to acquire control over strategic sectors of the Canadian economy, it can represent a threat to Canadian security interests. The foreign entities might well exploit that control in an effort to facilitate illegal transfers of technology or to engage in other espionage and other foreign interference activities. CSIS expects that national security concerns related to foreign investment in Canada will continue to materialize, owing to the increasingly prominent role that SOEs are playing in the economic strategies of some foreign governments.”
For a copy of CSIS’ report see: CSIS – Public Report 2010-2011.
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In a recent decision, the Federal Court of Appeal granted a stay of the Competition Tribunal’s May 29, 2012 decision in the contested CCS merger case Commissioner of Competition v. CCS Corporation.
This decision relates to a recent contested BC landfill merger, in which CCS Corporation acquired Complete Environmental Inc. and its wholly-owned subsidiary Babkirk Land Services (the first contested merger case in Canada in six years, an uncommon example of a “prevent” merger case under the Competition Act and a non-notifiable merger challenged by the Competition Bureau).
As a result of the Tribunal’s May decision, following a challenge of the merger by the Bureau, CCS Corporation (now Tervita Corporation) had been subject to a Tribunal order to divest the shares or assets of acquired Babkirk before the end of the year, after which a trustee was to be appointed to effect the sale. The Tribunal had also issued a related Divestiture Procedure Order in July, setting out the terms for the divestiture process (see: Divestiture Procedure Order).
In this regard, the Tribunal partially granted the Commissioner of Competition’s application accepting that the transaction would likely prevent competition substantially in the relevant secure landfill services market in Northern BC, though ordered divestiture rather than dissolution (see: Competition Tribunal Releases Decision in BC Landfill “Prevent” Merger Case and Commissioner of Competition v. CCS Corporation).
The stay of the Tribunal’s decision now granted by the Federal Court will apply until the final determination of the appeal. In granting a stay, the Court applied the test in RJR – MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. (S.C.C.), in which the Supreme Court set out a three-part test (serious issue, irreparable harm and balance of convenience).
On September 11, 2012, the Competition Bureau announced that it had laid charges against Progressive Waste Solutions Ltd. and its subsidiary, BFI Canada Inc. for allegations of breaches of a consent agreement following the merger in 2012 of IESI-BFC Ltd. and Waste Services Inc.
In making the announcement, the Bureau said:
“’Today’s announcement sends a strong signal to businesses that breaching a Consent Agreement with the Competition Bureau is an extremely serious matter and will not be tolerated’, said Melanie Aitken, Commissioner of Competition. ‘Consent Agreements are an essential tool to preserve competition and protect consumers from potential anti-competitive harm. Companies who violate the terms of such agreements must be held to account.’”
This announcement is another indication both of the Bureau’s more aggressive enforcement of the Competition Act generally and signals the Bureau’s ongoing appetite to take steps to ensure that settlement agreements under the Act are complied with. In this regard, this case is the third recently announced case in which the Bureau has commenced enforcement steps, including criminal enforcement, relating to alleged breaches of consent agreements (see also: Bureau Seeks Criminal Penalties in Alleged Misleading Advertising and Breach of Consent Agreement Case and Commissioner of Competition Speech Highlights Enhanced Competition Bureau Enforcement).
This case also appears to indicate that the Bureau is making good on its commitments to both monitor the marketplace generally for conduct that potentially violates the Competition Act and for potential violations of consent agreements negotiated with parties in misleading advertising, merger and other cases.
For example in one recent speech, the Commissioner said that the Bureau will “continue to be vigilant in monitoring consent agreements” and would not “hesitate to take further enforcement action as warranted”. Bureau personnel have also indicated in other recent public remarks that they continue to periodically monitor online advertising and marketing for Competition Act compliance and business media for mergers that, while not notifiable, may raise competition concerns.
With the considerable focus on Chinese investment in Canada at the moment, largely arising from the proposed CNOOC acquisition of Nexen (as well as several proposed SOE investments in Canada), Josephine Smart at the University of Calgary has published a new paper on Canada/China investment relations entitled “Dancing With the Dragon: Canadian Investment in China and Chinese Investment in Canada”.
Abstract:
“While Canadian trade and investment with China is today relatively modest, with China well on track to displace the United States as the world’s largest economy, Canada must make it a priority to prepare for a future characterized by dramatically increased trade and investment between our two countries. This paper sheds light on some the issues and measures Canadian governments will have to consider as they look to establish safe and prosperous relationships with China. To begin with, Canadians choosing to invest in China must be prepared for the risk inherent in that country’s peculiar ‘capitalism with socialist characteristics.’ The Chinese state continues to play an interventionist role in many significant sectors in the economy, and the strategy behind China’s overseas investment in countries such as Canada is specifically aimed at furthering China’s own national security goals and geopolitical influence. Canadians wishing to do business in China will also require great cultural competency. The cultural institution known as guanxi — in which gifts to sway influence are considered an acceptable, even desirable practice — persists in China, with even native Chinese unclear on where to draw the line between ‘good’ guanxi and ‘bad’ corruption.
At home, Canadians may soon be forced to confront questions about how much of our own land security and natural resource security we are willing to compromise by permitting Chinese investment to gather up our farmland and key industries. Canadians should decide sooner, not later, how well our own strategic interests are served by permitting unrestricted Chinese investment in our economy. In anticipation of these issues, Canada’s federal and provincial governments should provide increased support for a more comprehensive training and research infrastructure that better prepares Canadians for the growing bilateral trade between our countries. They should also reinvest in the monitoring and regulatory enforcement for food and product safety to ensure that Canadians remain protected from unsafe Chinese imports.”
For a copy of the paper see: Dancing With the Dragon
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From the Canadian Council of Chief Executives (CCCE):
“On September 24-25, 2012, the Canadian Council of Chief Executives will host “Canada in the Pacific Century”, a conference bringing together leaders from business, government, academia, and other key groups to discuss Asia’s rise and the implications for Canada.”
For the updated Agenda see:
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
