The Asia-Pacific Antitrust Review 2015

Canada: Foreign Investment Review

Canada’s foreign investment review regime under the Investment Canada Act (the Act) continues to generate controversy and present challenges in relation to a select number of transactions each year. The first formal rejection of a transaction (outside the cultural arena) under the Act occurred in 2008 in relation to a bid by US-based Alliant Techsystems Inc to acquire MacDonald Dettwiler Associates Ltd, a Canadian aerospace company. In 2010, a preliminary rejection under the Act resulted in BHP Billiton abandoning its bid for Potash Corporation of Saskatchewan. The effort by the London Stock Exchange to merge with TMX, operator of the Toronto Stock Exchange in 2011 attracted the foreign investment regime’s attention (and a difficult clearance process was anticipated), although the ultimate failure of that transaction was not attributable to the regime. The acquisitions in 2012 by CNOOC of Nexen and by Petronas of Progress Energy served as catalysts for changes to the way foreign state-owned enterprises (SOEs) are treated under the Act, although both such transactions eventually received clearance.