National security concerns have been cited by some countries as the motivation behind recent legislative and policy changes directed at regulating foreign investment. The creation of new or the bolstering of existing national security investment review regimes raises the question as to whether these changes are solely based on legitimate national security concerns or whether
On March 24, 2021, the Minister of Innovation, Science and Industry (the “Minister”) announced updates to the Guidelines on the National Security Review of Investments (the “Guidelines”) issued under the Investment Canada Act (the “ICA”).
This first update since the Guidelines were issued on December 21, 2016 appears…
The Competition Bureau announced the 2021 transaction-size pre-merger notification threshold under the Competition Act is decreasing to C$93 million, effective February 13, 2021. Innovation, Science and Economic Development Canada also announced new, lower foreign investment review thresholds under the Investment Canada Act, effective January 1, 2021.
These thresholds are adjusted annually based on GDP formulas. As a consequence, they generally increase each year. This year’s decrease in merger review thresholds is a consequence of Canada’s economic contraction following from extensive restrictions on economic activity imposed by governments which were intended to slow the spread of COVID-19. If the economy recovers, it is likely these thresholds will increase in 2022.
In general terms, certain transactions that exceed prescribed thresholds under the Competition Act trigger a pre-merger notification filing requirement; such transactions cannot close until notice has been provided to the Commissioner of Competition (the “Commissioner”) and the statutory waiting period under the Competition Act has expired or has been terminated or waived by the Commissioner. Where both the “transaction-size” and “party-size” thresholds are exceeded, a transaction is considered “notifiable”.…
Continue Reading 2021 Merger Review Thresholds
Competition, marketing and foreign investment law saw a number of changes in the past year. Many of these changes were in response to the continuing COVID-19 pandemic, which has changed every aspect of how Canadians, businesses and government agencies operate. Despite the pandemic, the Competition Bureau (the “Bureau”) has actively continued its enforcement activity and provided a number of guidance documents to help businesses stay onside the Competition Act (the “Act”). Similarly, Canada’s Investment Review Division also had to respond to the challenges posed by the pandemic.
Below we discuss ten key themes seen in the competition, marketing and foreign investment law space this year, and discuss what the year ahead has in store.…
Continue Reading What 2020 tells us about 2021 and beyond: Fasken’s Year-End Review of the Top 10 Trends in Canadian Competition, Marketing & Foreign Investment Law
On Friday, the Foreign Investment Review Committee (“FIRC”) of the Canadian Bar Association’s (“CBA”) Competition Law Section met with representatives from the Investment Review Division (“IRD”), Innovation, Science and Economic Development Canada (“ISED”) and the Cultural Sector Investment Review (“CSIR”), Canadian Heritage. The meeting featured interesting and informative presentations from representatives from both the IRD and CSIR, followed by a Q&A. Outlined below are some of the highlights.
- Highlights from the IRD’s Presentation
(a) Net Benefit to Canada Review Threshold for UK Investors
The United Kingdom (“UK”), which has left the European Union (“EU”), and by extension the Canada-European Union Comprehensive Economic and Trade Agreement (“CETA”), is currently in a transition period which is set to end on December 31, 2020. During the transition period, UK investors have benefited from the net benefit to Canada review threshold available to trade agreement investors. As of January 1, 2021, investments into Canada by UK investors will be subject to the lower threshold for World Trade Organisation (“WTO”) investors.…
Continue Reading Highlights from the Foreign Investment Review Committee’s Town Hall with the Investment Review Division and Cultural Sector Investment Review
On November 11, 2020, the United Kingdom introduced the National Security and Investment Bill (NSI Bill) directed at improving its national security screening regime for investments. With the introduction of the NSI Bill, the UK joins a long list of nations, including Canada, Australia and the United States, that have altered their national security investment screening processes and/or policies since the COVID-19 crisis started.
The NSI Bill contemplates:
- mandatory pre-closing notification requirements for transactions involving specific listed industry sectors;
- a voluntary notification process for transactions not involving a listed sector but which still may raise national security concerns; and
- a “call in” power to screen transactions either not requiring notification or, where notification has been made, a decision is made within 30 business days of filing that a more detailed assessment is required.
Never before have foreign investors faced the same level of scrutiny or uncertainty
Bill C-20 has passed Canada’s Senate and received Royal Assent, becoming law on July 27, 2020. Part 3 of the Bill becomes the Time Limits and Other Periods Act (COVID-19) and will be of particular and urgent interest to non-Canadians contemplating the…
In an April 18, 2020 policy statement, the Government of Canada (“GOC”) announced that, in light of the COVID-19 pandemic, investments by non-Canadians “related to public health or involved in the supply of critical goods and services to Canadians or to the Government” would be subject to “enhanced scrutiny” under the Investment…
“There’s nothing like a global pandemic to give globalism a bad name.”
Susan Delacourt, National Columnist, The Star
With Canada’s largest trading partner taking an “America first” approach to trade even prior to the COVID-19 crisis, can “Canada first” thinking be far behind, especially in light of Canada’s and other nations’ COVID-19 experiences? PPE…
As discussed in our previous post, on April 18, 2020, the Minister of Innovation, Science and Industry released a policy statement announcing that, in light of the evolving COVID-19 pandemic, certain foreign investments into Canada will be subject to enhanced scrutiny under the Investment Canada Act (the “Act”).