Foreign Investment Review Under the Investment Canada Act

Transcription

1 Foreign Investment Review Under the Investment Canada Act Neil Campbell and Omar Wakil Centre for International Legal Studies Foreign Investment and Doing Business Abroad Conference Kitzbuhel, Austria January 13, 2004

2 Foreign Investment Review under the Investment Canada Act Centre for International Legal Studies Foreign Investment and Doing Business Abroad Conference Kitzbuhel, Austria 13 th January, 2004 Neil Campbell neil.campbell@mcmillanbinch.com and Omar Wakil omar.wakil@mcmillanbinch.com McMillan Binch LLP BCE Place, Suite 4400 Bay Wellington Tower, 181 Bay Street Toronto Ontario M5J 2T3 Canada

3 Foreign Investment Review under the Investment Canada Act* (a) Legislative and Institutional Framework The establishment of a new Canadian business or acquisition of control of an existing Canadian business by a non-canadian is subject to the Investment Canada Act The Ministers of Industry and, in the case of investments in the cultural sector, Canadian Heritage, are responsible for the enforcement of the Act Reviews are conducted by the Investment Review Division (for Industry Canada) and the Cultural Sector Investment Review group (for Heritage Canada) (b) Reviewable Transactions Review thresholds are complex and transaction-specific and take into account the nationality of the parties, the industry sector in question, the book value of the assets of the Canadian business and the structure of the transaction Financial thresholds for "Direct" acquisitions: WTO Investors (except for investments in sensitive sectors of the economy) - C$237 million (approximately 146 million) in assets 1 Non-WTO Investors and investments in sensitive sectors - C$5 million (approximately 3 million) in assets Financial thresholds for "Indirect" acquisitions: WTO Investors (except for investments in sensitive sectors) - not reviewable Non-WTO Investors and investments in sensitive sectors - C$50 million (approximately 31 million) in assets, unless the assets being acquired represent more than 50% of the asset value of the global transaction, in which case the lower C$5 million threshold applies The "sensitive sectors" of the economy referred to above are: Cultural businesses broadly defined to include, for example, the production, distribution, sale or exhibition of film or video recordings or audio or video music recordings as well as the publication, distribution or sale of books, magazines, periodicals or newspapers in print or machine readable form Transportation services broadly defined as directly or indirectly engaging in the carriage of passengers or goods from one place to another by any means, including air, rail, water, land and pipeline Financial services broadly defined to mean a service of a financial nature that is offered by a financial institution, although some acquisitions are exempted where governed by other legislation such as the Bank Act Uranium businesses defined as a business that engages in the production of uranium or owns an interest in a uranium producing property The Federal Cabinet has and frequently exercises the discretionary power to initiate reviews of investments which fall below the standard thresholds in the cultural sector * For a more detailed review of the Investment Canada Act and other Canadian foreign investment issues, please see the "Canada" chapter by Neil Campbell in the CILS publication International Protection of Foreign Investment. 1 The Investment Canada Act requires that new thresholds for review for WTO member investors, or where a Canadian business is ultimately controlled by a WTO member (other than a Canadian) prior to its acquisition, must be determined and become effective on the 1 st of January of every year. The amount to be determined in January 2004 is currently expected to be C$237 million for

4 There are limited, but important, exemptions (e.g., corporate reorganisations where ultimate control remains unchanged) Approval of the Minister of Industry / Heritage is usually needed prior to completion / closing, although some acquisitions may be reviewed post completion / closing "Hold Separate" arrangements where, for example, the Canadian business is held-separately pending completion of a review in order to permit a world-wide transaction to be completed, are potentially available but seldom seen (c) IRD / CSIR Process Timing There is an initial review period of 45 days The initial period may be extended unilaterally by the Minister by up to 30 days and for further periods thereafter with the consent of the parties (which consent is usually granted) Actual review times vary but may be considerably longer than days To help assess compatibility with other federal or provincial policies, the IRD (or CSIR) will request input from other ministries which may be interested in the sector in question, as well as from the investment ministry from each province in which the Canadian business has any significant employees or assets Subject to the intra-governmental contacts referred to above, confidentiality is strictly maintained and information obtained in connection with the administration and enforcement of the Act is statutorily privileged (d) Substantive Test Proposed investments are assessed by reference to whether they are "likely to be of net benefit to Canada" Six broad analytical factors are considered in making the "net benefit" assessment: Effect on employment (with the number of jobs created or lost usually being a very important consideration), exports, utilisation of imports and other aspects of Canadian economic activity Participation by Canadians in the operation of the business (e.g., the number of Canadians as employees, managers, directors and owners) Effect on productivity, efficiency, technological development, product innovation and product variety in Canada (e.g., whether there be new or expanded plants, new equipment, rationalisation of activities and / or better training) Effect on competition (this analysis is conducted by Canada's antitrust agency, the Competition Bureau, which provides guidance to the IRD / CSIR) Compatibility with national industrial, economic and cultural policies (the latter being particularly relevant in connection with investments in the cultural sector) Contribution to Canada's ability to compete in world markets (e) Possible Outcomes Unconditional approval is possible but not common Negotiated undertakings which commit the investor to do or not do something are common and usually bind the investor for three years Outright rejection of an acquisition is rare Dissolution or divestiture of transactions completed without approval is possible, but has never occurred 3

5 Neil Campbell Neil is a partner in the McMillan Binch's Competition and International Trade Groups. He is also a member of the firm's Board of Partners. Neil's competition law practice has a particular emphasis on merger clearances. It also includes advising on marketing, distribution, grey marketing, and joint venture issues, as well as defending firms against cartel, abuse of dominance and other proceedings under the Competition Act. His international trade law practice includes anti-dumping and subsidy proceedings, NAFTA and WTO/GATT/GATS/TRIPS/TRIMS matters, the Canadian Internal Trade Agreement, extraterritorial trading sanctions and lobbying on trade policy issues. Neil also handles foreign investment reviews under the Investment Canada Act and investor-state disputes under NAFTA. Neil advises Canadian and international clients in diverse industries with particular emphasis on financial services, broadcasting and entertainment, health care, pharmaceuticals and chemicals, food and beverage, natural resources and transportation, as well as other industrial and consumer products. Neil speaks regularly at Canadian and international conferences and has published over 60 articles on competition, trade and investment topics. He has made presentations on competition and trade policy issues to the OECD, the NAFTA Working Group on Trade and Competition, the Pacific Economic Cooperation Council, the International Competition Policy Advisory Committee to the United States Department of Justice, and the Industry Committee of the Canadian House of Commons. He has written extensively and his publications include Merger Law and Practice: The Regulation of Mergers Under the Competition Act (Carswell, Toronto) and the Canada chapter of International Protection of Foreign Investment. Global Competition Review has listed Neil as one of the top ten young competition lawyers in the world ("Bright young things - 45 competition lawyers under 45", June/July 1998). He is also identified as one of the leading Canadian competition lawyers in An International Who s Who of Competition Lawyers, Chambers Global The World s Leading Lawyers, Euromoney Guide to the World s Leading Competition and Antitrust Lawyers, Global Counsel 3000, Mondaq s Guide to The World s Leading Competition & Antitrust Advisors, and the Canadian Legal LEXPERT Directory. Omar Wakil Omar's practice covers all areas of competition law and foreign investment review. He works with clients involved in a wide range of businesses, including beverage alcohol; chemicals; confectionery; financial services; fine art auctions; health care; and mining, metals and packaging. In addition to handling domestic merger reviews, he has been responsible for the coordination of world-wide antitrust and foreign investment clearances on a number of multi-jurisdictional transactions. He has also assisted clients with a variety of criminal and civil competition law investigations. Omar has spoken frequently at professional conferences and as a guest lecturer at universities in Canada and Europe. He has also written extensively on antitrust issues and is the co-ordinating editor of the loose-leaf service International Mergers: The Antitrust Process (3rd edition: Sweet & Maxwell, London). Qualified as a solicitor in Canada and England and a member of the Brussels Bar, Omar is currently on secondment to a leading international law firm in Brussels where he advises clients on issues arising under European law. 4