The Lexpert Special Editions profiles selected Lexpert-ranked lawyers whose focus is in Corporate, Infrastructure, Energy and Litigation law and relevant practices. It also includes feature articles on legal aspects of Canadian business issues.
Issue link: https://digital.carswellmedia.com/i/133445
E n. n ky by ts or he nihe o a d te he u- ys a. d W. m FOREIGN INVESTMENT 19 "They're the ones that are masters of it. They have these catalogues for foreign-investment guidelines that catalogue industries as to what foreign investors can participate in in China. It's a very planned-economy approach," says Luke, who is based in Vancouver. "For them, whatever Canada might introduce in our foreign investment guidelines, they'll look at that and say that's nothing to be surprised about. Where the guidelines are intentionally left ambiguous, they'll say: 'Of course it's the government's prerogative, it's subjective.' To them that's a given. "The Chinese would probably say if they were drafting this, they would give themselves even more discretion than Canada has done. So I don't think this will be looked on by the Chinese as anything negative." He is not saying things won't change, though. "Clearly were you to ask me whether there was great interest before this from China and other parts of the world to invest in the oil sands, absolutely. Clearly this is going to inhibit investment activity that could have come to Canada for those reasons. Will it stop the flow of investment completely? Absolutely not, because there are all kinds of avenues still available for foreigners coming into Canada in that sector as long as they don't have a controlling interest." And it's vital to remember that foreign take-overs are not off the table in most areas including, for example, shale gas, says Michelle Lally, chair of the competition law and foreign investment group at Osler, Hoskin & Harcourt LLP. "This policy only pertains to direct foreign investment by state-owned enterprises and, aside from oil sands, nothing is prohibited," she says. "But if you're looking at state-owned enterprises acquiring direct control of a Canadian business, we definitely have an onerous test now. Will it chill that kind of investment? That remains to be seen, but what we can tell investors is that it is a much higher hurdle than it was in the past." John Leopold of Stikeman says SOEs are only a part of the investment landscape and when you consider all the changes in the new regime, together they send "a strong signal that Canada is very much open for business for foreign investors, except in very limited circumstances. I think that's the most important message. "If you think about it, the government is making it easier for foreign players to come into the country without any kind of review process because of the higher threshold. So many more transactions will now be exempt from review — which is a pretty strong statement about putting the welcome mat out." Sandra Rubin is a freelance legal affairs writer. HardwickeBrown, Mungo Harrison, QC, Elizabeth J. Blake, Cassels & Graydon LLP (403) 260-9674 mhb@blakes.com Farris, Vaughan, Wills & Murphy LLP (604) 661-9367 eharrison@farris.com Mr. Hardwicke-Brown's M&A, corporate finance and energy practice focuses on the natural resources and infrastructure industries. His experience embraces the petroleum, natural gas, oil sands, electricity, potash, pipeline and LNG sectors. Mrs. Harrison has extensive experience in corporate, M&A and securities transactions. Represents corporations and investment dealers. Experience includes M&A, take-overs and related-party transactions, and public and private financings. e ns, t "OIL SANDS COMPANIES OPENED LOWER THE DAY AFTER THE NEW GUIDELINES WERE ANNOUNCED SO THEY'VE ALREADY HAD AN IMPACT. AND I EXPECT THEY WILL CONTINUE TO HAVE ONE BECAUSE THEY TAKE A BIT OF A TAKE-OVER PREMIUM OUT OF THE MARKET." ROB.indd 19 Harvey, Frédéric McCarthy Tétrault LLP (514) 397-2325 fharvey@mccarthy.ca Mr. Harvey's expertise embraces M&A, corporate finance, international tax and corporate reorganization. He provides strategic tax advice on complex domestic and cross-border transactions for foreign acquirers and Canadian targets. Hewat, Christopher A. Blake, Cassels & Graydon LLP (416) 863-2761 chris.hewat@blakes.com Mr. Hewat advises issuers, dealers and institutions, with a focus on mergers & acquisitions, corporate finance and privateequity transactions. Holgate, David A. Horn, Sidney M. Stikeman Elliott LLP (403) 266-9010 dholgate@stikeman.com Stikeman Elliott LLP (514) 397-3342 smhorn@stikeman.com Mr. Holgate focuses on energy regulation as counsel for applicants and intervenors before federal and provincial regulatory agencies on matters including wells, pipelines, processing plants, heavy oil, oil sands, coal developments and others. Mr. Horn is a partner specializing in commercial, corporate and securities law. Advises large domestic and international corporations on complex questions concerning finance, M&A, debt restructurings and corporate governance. 13-04-23 12:07 PM