Osler has been involved in many of the most innovative and challenging transactions involving investments by non-Canadian parties in leading Canadian companies. These transactions often raise unique challenges under the Investment Canada Act (ICA) that require in-depth expertise and experienced-based judgment, which few firms can offer. Our market-leading cross-border M&A deal flow and our lawyers’ deep experience make us a leader in this area.
- We provide strategic and pragmatic advice and a practical, solution-oriented approach to advising clients and dealing with government agencies.
- We have extensive experience with, and expertise in, challenging foreign investment issues across a broad range of industry sectors, including energy/natural resources, technology, cultural/media industries, mining, manufacturing, financial services and infrastructure.
- We have unmatched bench strength in advising on foreign investment within the cultural sectors and significant expertise with investments by state-owned enterprises (SOEs) as well as foreign investments that may trigger the national security review regime.
Foreign Investment in Cultural Sectors
Canada has policies governing (and in some areas, restricting) foreign investment in the cultural sector, with the most restrictive policies applying to book publishing and distribution and film distribution. Such investments, if and when subject to review, are reviewed by the Department of Canadian Heritage (DCH) and subject to an enhanced approval threshold beyond the standard “net benefit to Canada” test.
Our long-standing representation of a number of the major film and distribution, music and book publishing companies provides Osler with unparalleled depth of expertise and insights to assist foreign investors in structuring and successfully implementing their investments in cultural businesses, including film production, distribution and exhibition; online media development and distribution; book publishing and distribution; and recorded music and music publishing. This is accomplished by either (a) not triggering the application of the ICA; or (b) negotiating contractual undertakings with the DCH on a preclosing or post-closing basis.
Osler’s unrivalled experience in this sector is highlighted by our representative list of work.
Foreign Investment by State-Owned Enterprises
The Canadian government welcomes and strongly encourages foreign investment in Canada. At the same time, the government has signalled its clear preference for private foreign investment over investments by SOEs, minority SOE investments over SOE acquisitions of control and a lower tolerance for SOEs’ acquiring control of, or material influence over, leaders in any sectors of Canada’s economy. Further, the government is now more closely monitoring all investments by SOEs.
Revised guidelines governing SOE investment have increased the burden on SOE investors to satisfy the net benefit test. These guidelines have also expanded the definition of SOE to include not only enterprises that are owned or controlled directly or indirectly by a foreign government, but also entities that are influenced directly or indirectly by a foreign government.
Nonetheless, it is critical for SOE investors to recognize that there is significant scope for foreign investment by SOEs that falls outside the purview of the ICA (except for the national security regime) or is subject merely to a post-closing notification obligation. The government’s changes have not limited the scope of such non-reviewable investments.
We have significant experience in assisting SOE investors to structure transactions to meet their goals without triggering ICA reviews and in navigating reviewable transactions under the ICA.
National Security Review
The Canadian government introduced a national security review regime in 2009, under which it has the ability to review and prohibit or impose conditions on a very broad range of investments by non-Canadians, including minority investments. The regime does not include a “safe harbour” for investors, and the national security review can occur on a preclosing or post-closing basis.
In 2013, the federal government implemented amendments that allow for the extension of the time available to conduct national security reviews of proposed foreign investments in certain circumstances. Although the extensions to the national security review timelines – particularly investors’ and the government’s ability to negotiate extensions – introduce more flexibility into the process, this may result in protracted reviews.
Osler’s considerable experience is a key asset in managing the national security review process.