Archive for the 'Uncategorized' Category
Petronas and Progress
In an announcement earlier this morning shortly before markets opened, Petronas and Progress Energy announced they would be working to cooperatively address the Investment Canada announcement Friday rejecting Petronas’ investment in Progress and meeting with Industry Canada officials. It remains to be seen whether this signal of commitment to negotiate successful undertakings will lead to ultimate clearance of the investment or whether, like BHP’s bid for Potash, Petronas will find that it ultimately cannot meet Industry Canada’s requirements to clear the deal.
In making the announcement, the parties said:
“PETRONAS Carigali Canada Ltd … and Progress Energy … announced today that they will be meeting with officials from Industry Canada in Ottawa to better understand Industry Canada’s requirements with respect to the proposed acquisition of Progress by PETRONAS Canada.
Based on the announcement by the Minister of Industry on Friday October 19, 2012, PETRONAS Canada has up to 30 days, or longer as mutually agreed to, to make any additional representations and submit any further undertakings. PETRONAS and Progress will work together to ensure that the Minister has the necessary information to determine that the proposed acquisition of Progress would likely be of net benefit to Canada.
In conjunction with this 30-day period, and at PETRONAS Canada’s request, Progress has agreed to waive the 10 day notification period required to extend the “Outside Date” under the arrangement agreement between the two companies. Under the agreement, PETRONAS Canada has the right to extend the Outside Date for up to an additional 90 days, in 30-day increments, if required regulatory approvals have not been obtained. If the Outside Date is not extended, the agreement will still continue in effect until terminated by either party.”
Prime Minister Harper (reported by BNN)
BNN reported Monday that Prime Minister Harper said that the Government was committed to the Investment Canada Act, that they intended to issue clearer policy on Investment Canada reviews, but “at this time” the Progress-Petronas transaction did not have net benefit to Canada. (A little more information on promised ICA transparency and some comfort it seems for the markets and investors.)
NDP Natural Resources Critic, Peter Julian
There is a “clear problem here”. Renews NDP calls for “clear criteria” for Investment Canada Act net benefit to Canada test and reiterates criticism of release of decision at midnight on Friday.
Progress CEO Michael Culbert
“I am pleased to say that over the weekend Progress and Petronas had a lot of discussions, and Petronas is very much engaged and once they were over the shock, like the rest of us, we were looking for further communication with Industry Canada to see if the issues could be resolved in a mutually agreeable way in a fairly shot timeline … My feeling today is that I have a lot more positive outlook that the issues at hand [will be resolved]”
Jimmy Pattison
“Happy to see the decision”, “Governments [invest] for different reasons than businesses … with different objectives, timelines and interests”, in the long run investments by foreign governments in Canada is “not good for our country”.
Canadian Trade minister Ed Fast
“This decision does not set a precedent because every single application is considered on its own merits”.
In a development earlier today that I can only describe as astonishing, the Calgary Herald, Victoria Times Colonist, Montreal Gazette and others are reporting that the personal residence and city hall offices of the mayor of Laval, Quebec’s third largest municipality, were raided by dozens of police officers in relation to allegations in Quebec that members of the Quebec construction industry have been involved in a variety of corruption, bribery and bid-rigging offences for municipal and provincial construction contracts.
For more see: Anti-corruption squad raids home, office of Laval mayor, Anti-corruption squad raiding Laval city hall, Police raids at home, office of mayor in Montreal-area Laval.
While none of the allegations in the ongoing Quebec inquiry have been proven, and subsequent investigations may continue for some months or years, the following is a short overview of Canada’s bid-rigging and cartel (i.e., conspiracy) laws.
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BID-RIGGING
Canada has a standalone bid-rigging provision under section 47 of the Competition Act (the “Act”) (unlike some other major jurisdictions, where bid-rigging falls under general conspiracy or cartel offences).
Section 47 makes it a criminal offence to: (i) agree to not submit a bid or tender, (ii) agree to withdraw a bid or tender already submitted (recently added to the Act as a result of the 2009 amendments) or (iii) submit a bid or tender that is arrived at by agreement.
In Canada bid-rigging is ”per se” illegal, in that no anti-competitive effects on a relevant market (or markets) need to be established in order to make out an offence (though all of the elements need to be established on the standard criminal burden of proof – i.e., beyond a reasonable doubt).
COMMON TYPES OF BID-RIGGING
Some common types of bid-rigging that can contravene the criminal bid-rigging provisions of the Act include:
“Cover”, “courtesy” or “complementary” bidding. Some firms submit bids that are too high to be accepted, or with terms that are unacceptable to the party calling for bids, to protect an agreed upon low bidder.
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 11, 2012, CanLII announced that as a result of an initiative with Lexum Inc. and the Supreme Court of Canada, CanLII would now be making available an almost complete database of over 9,000 Supreme Court of Canada decisions dating back to 1907 (which will be fully integrated and cross-linked to any subsequent case on CanLII in which decisions are referenced). The addition of 1,600 new cases will give CanLII users access now to all Supreme Court judgments since 1907 (researchers looking for pre-1907 cases will still need to use the Supreme Court’s website, Westlaw or other databases). For more see: Over 100 Years of Supreme Court of Canada Judgments Now Available on CanLII.
Bloomberg has reported that Canada and China have signed the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA) in the midst of the proposed CNOOC/Nexen transaction, in which an application for review for Investment Canada Act approval was filed about a week and half ago.
Following the filing of the application for review by CNOOC, which presumably tracks previously announced commitments by CNOOC to meet the net benefit to Canada criteria under the Investment Canada Act, there have been persistent rumblings both by members of the ruling Conservatives and media that any approval of the proposed CNOOC deal would need to include some assurances for reciprocal Canada/China investment – i.e,, not merely “one-way” investment as has been alleged by some in relation to investment by the Chinese in Africa and other regions.
Chinese President Hu Jintao and Canadian Prime Minister Stephen Harper signed the new FIPA agreement yesterday at the Asia-Pacific Economic Cooperation Summit in Russia, which is intended to provide stronger protection for Canadians investing in China (including presumably Scotiabank’s recent efforts to expand its business into China) and is also meant to protect investors against discriminatory and arbitrary practices, while creating a process to settle disputes with either Canada or China.
In announcing the new agreement, the PM said:
“Our Government is committed to creating the right conditions for Canadian businesses to compete globally … this agreement with China – the world’s second largest economy – will provide stronger protection for Canadians investing in China, and create jobs and economic growth in Canada.”
Following the initiation of the recent LIBOR price-fixing investigation globally, academics and antitrust thinkers have started proposing alternative models. Here is one recent example: “Replacing the Libor with a Transparent and Reliable Index of Interbank Borrowing” (R.M. Abrantes-Metz, Global Economics Group, NY; D.S. Evans, University of Chicago Law School).
Abstract:
“We propose an alternative to the LIBOR based on three pillars. 1) Banks that participate in the rate setting process would have to submit bid and ask quotes for interbank lending and commit that they would conduct transactions within that range. If they traded outside of those ranges they would have to justify and face a penalty. This leads to the CLIBOR — for “committed” LIBOR. (2) All large banks would have to submit interbank transactions including rates to a data-clearing house. The data-clearing house would use the actual transactions to verify the commitment of the banks to the submitted rates. It would also report aggregate transaction data, keeping the actual identities of the trading parties anonymous, with a necessary time delay. (3) A governing body would be established from the CLIBOR participating banks, representatives of CLIBOR users, and other independent parties such as academics. That governing body would enter into a long-term contract, based on competitive solicitation, with a private sector entity to supervise the CLIBOR, operate the data-clearing house, and disseminate information.”
For a copy of this paper see:
Replacing the Libor with a Transparent and Reliable Index of Interbank Borrowing
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Guest post by Andrei Mincov (Mincov Law Corporation)
And so, round one of Apple v. Samsung court saga is over.
A jury of nine Americans have unanimously handed Apple a victory in the form of a verdict for $1,049,343,540.00 in damages. Imagine a cheque for this amount: “One Billion Forty Nine Million Three Hundred Forty Three Thousand Five Hundred Forty Dollars and 00 Cents.”
Kyle Vanhemert has a great day-by-day rendition of the trial.
The Wall Street Journal has an equally great chart showing the mutual patent and design patent claims of Apple and Samsung, and the jury’s decision as to each of these claims with respect to each of the allegedly infringing phone models.
Apple spokeswoman Katie Cotton in a statement to the New York Times said:
“We are grateful to the jury for their service and for investing the time to listen to our story and we were thrilled to be able to finally tell it. The mountain of evidence presented during the trail showed that Samsung’s copying went far deeper than even we knew. The lawsuits between Apple and Samsung were about much more than patents or money. They were about values. At Apple, we value originality and innovation and pour our lives into making the best products on earth. We make these products to delight our customers, not for our competitors to flagrantly copy. We applaud the court for finding Samsung’s behavior willful and for sending a loud and clear message that stealing isn’t right.”
Samsung Electronics issued the following statement:
“Today’s verdict should not be viewed as a win for Apple, but as a loss for the American consumer. It will lead to fewer choices, less innovation, and potentially higher prices. It is unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners, or technology that is being improved every day by Samsung and other companies. Consumers have the right to choices, and they know what they are buying when they purchase Samsung products. This is not the final word in this case or in battles being waged in courts and tribunals around the world, some of which have already rejected many of Apple’s claims. Samsung will continue to innovate and offer choices for the consumer.”
Our friends at Competition Policy International, ever the innovators, have launched a very nice new “People and Organizations” application on their website, which lists hundreds of competition/antitrust law individuals, companies and firms around the world.
From Competition Policy International:
“Welcome to our people and organization section. We’re building our comprehensive community of competition players by creating individual pages devoted to our registered members and their organizations. You can search by both name or organization in the people area; or search by organization in the organization area.”
Curious if you’re listed? Or your company or firm? Take a look:
CPI – People and Organizations
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For more regulatory law updates follow us on Twitter: @CanadaAttorney
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
