Sunday, February 15, 2009

Will "far-reaching amendments" in the Budget Act be passed "with limited, if any, meaningful debate."


BELOW(30)(30)(30)(30)(30)30)(30)(30)(30)(30)(30)30)(30)(30)(30)(30)(30)30)(30)(30)(30)(30)(30)(30)(30)(30)30)(30)(30)(30)(30)

There are some who view as perversely nationalistic those who have concerns about ownership and management increasingly being in the hands of  non-residents of Canada. There are others who might be more than a bit concerned in regards to the changes being proposed to the Investment Canada Act. Then again, maybe we all should be concerned that this is going forward with little public discussion. What happened to that proposal of open, transparent government?

For example, Bill C-10 has been accepted at second reading. Following are comments included in the opinions of law firms concerning the nature of alterations to the Competition Act and the Investment Canada Act. No media consideration on the internet regarding these or other non-budgetary sections of Bill C-10 have been seen during daily searches in the development of the daily digest of articles ARCHIVED at http://cdndailydigest.blogspot.com/.

It may be political necessity will result in "far reaching amendments" becoming law without the public becoming aware. Most certainly the opinions of the firms made available to you below will, in and of themselves, have limited circulation. Two questions:

       (1) do you or do you not consider the changes in process worth spending the time to debate before they are made law  through passage of the Budget Act?

       (2) are you supportive or not of there being no review of acquisitions of Canadian businesses by non-Canadians under a billion dollars other than acquisitions of cultural businesses and those deemed as compromising national security?

How comfortable are you with the potential of so much of our economy to be placed in the hands for foreign investors and directors, and at what risk, if any?

«¤»¥«¤»«¤»¥«¤»§«¤»¥«¤»«¤»¥«¤»§«¤»¥«¤»§«¤»¥«¤»§«¤»¥«¤»§«¤»¥«¤»§«¤»¥«¤»§«¤»¥«¤»«¤»¥«¤»§«¤»¥«¤»§«¤»¥«¤»

Bill C-10 has been accepted at second reading. Following are comments included in the opinions of law firms concerning the nature of alterations to the Competition Act and the Investment Canada Act.

It may be political necessity will result in "far reaching amendments" becoming law without the public becoming aware.

Most certainly the opinions of the firms made available to you below will, in and of themselves, have limited circulation.

Following is what is in process politically unbeknownst to just about everyone not in the law firms quoted.

The bill (Bill C-10, the Budget Implementation Act) proposes far-reaching amendments to both the Competition Act and the Investment Canada Act (the ICA). http://www.mondaq.com/article.asp?article_id=74008&lk=1

Not only does it implement the announced measures, but it also makes important changes to laws that are usually amended by specific amending legislation, rather than being rolled up into a budget bill. http://www.mondaq.com/article.asp?article_id=74194&lk=1

The changes to the Competition Act envisaged by Bill C-10 are the most significant changes to that statute in decades. Such changes include: http://www.mondaq.com/article.asp?article_id=74274&lk=1

Finally, by including the proposed Competition Act amendments in a budget implementation bill, which is expected to receive
cross-party support, the government has effectively ensured that these changes will become law with limited, if any, meaningful debate. http://www.mondaq.com/article.asp?article_id=74094&lk=1

While the Bill has just been introduced to the House of Commons, and must still pass through several stages before it becomes
law, by including these amendments within the budget implementation bill, the Government has potentially forestalled serious debate. http://www.mondaq.com/article.asp?article_id=74004&lk=1


Opinions on the changes in the Competition Act and the Investment Canada Act
Proposed Amendments to Investment Canada Act

The Bill includes a number of proposed amendments to the Investment Canada Act, which applies to acquisitions of Canadian businesses by non-Canadians. The two most significant proposed amendments include an increase in the financial thresholds applicable to direct acquisitions of Canadian businesses by or from WTO investors (other than acquisitions of cultural businesses) and the addition of a national security review process.

* Increased Review Thresholds for Acquisitions by WTO Investors – Direct acquisitions of Canadian businesses (other than acquisitions of cultural businesses) by or from WTO investors would be reviewable under the Investment Canada Act only if the enterprise value of the assets of the Canadian business is equal to or greater than (a) $600 million, in the case of investments made during the first year after the amendments come into force; (b) $800 million, in the case of investments made between the first and second years after the amendments come into force; and (c) $1 billion, in the case of investments made between the second and fourth years after the amendments come into force. This figure would thereafter be adjusted on an annual basis. In addition, the lower thresholds currently applicable to the transportation, financial services and uranium sectors would be repealed. Indirect acquisitions of Canadian business by WTO investors would continue to be subject to only post-closing notification, rather than review.

* National Security – A new review process for investments that could be injurious to national security would be introduced. The proposed amendments would, among other things, allow the Governor in Council to take any measures that the Governor in Council considers advisable to protect national security, such as prohibiting a non-Canadian from implementing an investment. Time frames for the review of such investments have not yet been determined.

Other proposed amendments to the Investment Canada Act include the following:

* Reasons for Not Approving Reviewable Transaction – The Minister would be required to provide reasons for any decision that an investment is not likely to be of net benefit to Canada.

* Potentially Greater Disclosure of Information – The Minister would be permitted to communicate or disclose privileged information obtained as a result of his review of an investment to prescribed investigative bodies, provided that such communication or disclosure is for the purpose of the administration and enforcement of the national security provisions and those bodies' lawful investigations. In addition, unless it would prejudice the investor or the Canadian business, the Minster would be permitted to disclose that an application for review had been filed under the Investment Canada Act (other than an application under the national security review provisions) and at what point the investment (to which the application relates) is in the review process.

* New Undertakings – If the Minister believes that an investor has failed to comply with written undertakings, the Minster may, after the investment has been implemented, accept new undertakings from the investor. http://www.mondaq.com/article.asp?article_id=73998&lk=1

Other opinions:

Canada's Budget Bill To Overhaul The Competition Act And Investment Canada Act (Ogilvy Renault)
http://www.mondaq.com/article.asp?article_id=74194&lk=1

Dramatic Changes To Canada´s Competition And Foreign Investment Review Laws Proposed In Bill C-10 (Fasken Martineau)
http://www.mondaq.com/article.asp?article_id=74274&lk=1

Significant Changes To Canadian Competition And Foreign Investment Laws Proposed (Davies Ward Phillips & Vineberg)
http://www.mondaq.com/article.asp?article_id=73998&lk=1

Massive Amendments To Competition Act And Investment Canada Act Tabled Today (Stikeman Elliott LLP)
http://www.mondaq.com/article.asp?article_id=74004&lk=1

Parliament Introduces Bill With Sweeping Amendments To The Competition Act And The Investment Canada Act (Blake, Cassels & Graydon LLP) http://www.mondaq.com/article.asp?article_id=74008&lk=1

===================================