Foreign Investment Group
Non-Canadian investors and Canadian businesses must be alert to the impact the Investment Canada Act may have on an investment in a Canadian business by a non-Canadian. Although Canada welcomes foreign investment, in certain circumstances, an international investor will be required to receive approval from the Canadian government, which will typically include agreeing to give undertakings to the Canadian government to secure approval. It may also be critical to an foreign investor to understand how to navigate and approach a national security review in Canada.
McCarthy Tétrault has one of the leading and top ranked foreign investment review practices in Canada. We have helped a wide range of Canadian and foreign clients, including state-owned enterprises and sovereign wealth funds, cut through the complex maze of issues to avoid problems, minimize regulatory risk and secure approval under the Investment Canada Act. Our experience spans clearing Canada’s largest foreign acquisition, to acting on challenging national security reviews.
Clients in every sector turn to McCarthy Tétrault to address their foreign investment needs. International investors and global law firms, including from the United States, Europe, China, Middle East, Africa and Asia, regularly seek our advice in handling Investment Canada Act and national security reviews before both the Minister of Industry and, in the case of Canadian cultural businesses, the Minister of Heritage.
Our foreign investment specialists guide you through the complexities of the Investment Canada Act which apply to acquisitions of and investments in Canadian businesses by non-Canadian investors. Our team are specialists in the approval process, national security issues and investments by state-owned enterprises. We frequently are involved in the engagement with the Canadian government at the deepest level and have successfully navigated government relations and public relations aspects of foreign investment review to secure approval.
Net Benefit Review
We frequently act for clients on transactions which trigger the Investment Canada Act’s “net benefit to Canada” review. We represent clients before both the Investment Review Division and, for Canadian cultural businesses, the Cultural Sector Investment Review directorate and negotiate undertakings to secure approval. Post-transaction, we also assist our clients with compliance reports on their undertakings with the Canadian government.
National Security Review
Although rejections of investments and enforcement activities under the Investment Canada Act are rare, they appear to be escalating. In 2009, the Act was amended to give the Canadian government the power to review any investments (no matter the size) by non-Canadians on national security grounds. A national security review can be undertaken for an acquisition of a majority or minority investment in an existing Canadian business or the start-up of a new business in Canada. These changes to the Act show that the Canadian government is prepared to resist investments that are contrary to evolving public policy. We have wide-ranging and in-depth experience and expertise in successfully navigating the pitfalls of the foreign investment review process.
Investments by State-Owned Enterprises
Investments in Canadian businesses by foreign state-owned enterprises (SOEs) may receive greater scrutiny than investments by non-SOEs. With recent changes to the legal and policy framework regulating SOE investments, the Canadian government has made it clear that investments by SOEs will be assessed differently than those by non-SOE investors. In light of the increased focus on SOEs, it is incumbent on SOEs to address legal and political issues very early on in the planning process. We have provided our clients with valuable guidance to successfully navigate the regulatory review process and secure approval in Canada.
Investments in Cultural Businesses
Foreign investment in Canadian cultural businesses (which includes book, newspaper or magazine publishing, film, video or music production and distribution, television and radio) often raise unique challenges. The Department of Canadian Heritage’s review of an investment in Canadian cultural businesses will take into account the government’s policies which, in some areas, limit investments by foreign investors. We have extensive experience working with clients on investments that raise cultural issues involving industries such as books, magazines, videos, video games, music, film and television.
In the rankings of Chambers Global, the leading international legal directory and the only directory to rank Canadian foreign investment lawyers, our partner, Oliver Borgers, has achieved a Band 1 ranking.
Our knowledgeable and widely published lawyers have written and lectured extensively on all aspects of foreign investment law, actively participate in the Foreign Investment Review Committee of the Canadian Bar Association and have and continue to hold executive positions in the National Competition Law Section of the Canadian Bar Association which oversees the Foreign Investment Review Committee. Mr. Borgers, one of the leaders of the Foreign Investment Group is the contributing editor of Law Business Research’s Getting the Deal Through - Foreign Investment Review 2015, the world’s only publication that surveys international foreign investment and national security review regimes. The Canada chapter of this global publication may be accessed here. Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through: Foreign Investment Review 2015, (published in February 2015; contributing editor: Oliver Borgers, McCarthy Tétrault LLP). For further information please visit www.gettingthedealthrough.com.
Representative Transactions (acting for acquiror unless otherwise noted)
- Rio Tinto acquisition of Alcan (largest foreign takeover in history of Canada)
- Merger of Sony Music and BMG Music (cultural)
- Goldman Sachs acquisition of Alliance Atlantis (television production and broadcasting movie distribution ) and CSI by CanWest, SGF and Goldman Sachs
- Merger of AMD and ATI
- Avaya acquisition of the Nortel telephony enterprise solutions business
- Spectra Energy acquisition of the Express pipeline
- Sumpo Food acquisition of Digital Extremes (cultural)
- Glencore Xstrata acquisition of Caracal Energy
- EMCO acquisition of Noble
- Bilfinger Berger Global’s acquisitions of Canadian infrastructure projects
- John Laing acquisitions of Canadian infrastructure projects
- Central Global Resources acquisition of oil and gas assets from Apache Canada
- Molycorp acquisition of Neo Materials Technologies
- Acquisition of Four Seasons Hotel
- Sale of Stelco to U.S. Steel (acted for Stelco)
- Lybian Investment Authority acquisition of Verenex Energy
We have also acted on national security reviews, which are not listed above.
For more information, please contact:
CALGARYRick W. Pawluk
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TORONTOOliver J. Borgers
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Transactions & Cases
Bankers Petroleum and Geo-Jade Petroleum complete C$575 million plan of arrangement
Glencore acquires Caracal for C$1.48 billion
Spectra Energy completes US$1.49 billion acquisition of Express-Platte Pipeline System
Kingdom Hotels (Toronto) completes C$165 million acquisition of Four Seasons Toronto
Molycorp completes C$1.3 billion acquisition of Neo Materials
Avaya completes US$915 million acquisition of Nortel Eneterprise Solutions
Rio Tinto acquires Alcan to form new global aluminium industry leader
U. S. Steel acquires Stelco
John Laing plc acquires interests in PPP projects
Advanced Micro Devices Inc. acquires ATI Technologies Inc.
Public contracts: Quebec Government published the draft Voluntary Reimbursement Program
5 Things All Companies Need to Know About the Competition Bureau’s updated Corporate Compliance Programs Bulletin
Competition Bureau Issues Draft Updated IP Enforcement Guidelines Addressing Pharma Patent Litigation Settlements, Standard Setting and Patent Trolls
Public contracts and Bill 26: recovery of amounts improperly paid and changes to the AMF authorization regime
Investment Canada Act Update: Amendments to National Security Review Timelines and “Net Benefit” Review Threshold
The 2014 Canadian Competition and Foreign Investment Law Year in Review
Cross-border Price Discrimination: Increased Powers for the Commissioner of Competition
Competition Bureau Releases Updated IP Guidelines
Canadian Competition Bureau Provides Preliminary Guidance on Pharma Patent Settlements
CETA Will Create a Two-Tiered System for Investment Canada Act Reviews
McCarthy Tétrault Announces New Senior Leadership Team