|编 |者 |按 |：《加拿大投资法案》修正案出台背景
中海油收购尼克森案的核心条款是，中海油向尼克森的股东支付 151亿美元的现金，并承担尼克森 43亿美元的债务，以及留用尼克森所有 3000名管理层和普通员工。这桩交易是目前中国企业金额最大的海外收购案，同时也是 2008年以来加拿大金额最大的外国投资案。
油砂是一种被高黏度沥青包裹的砂矿，其所含原油黏度较高，属重油，开采成本和风险高于一般原油，但当国际油价稳定在每桶 80美元以上，其开采和使用将具有一定的经济性。全球超过 70%的油砂资源集中在加拿大。
Chinese investment in Canada's mining sector has grown over the past few years and is expected to grow into the foreseeable future. The Canadian ambassador to China, Guy Saint-Jacques, has recently stated that the amount of Chinese money flowing into energy development is still three times the size of the amount going into mining. Yet, he revealed that a Chinese-controlled company now has a plan in front of northern regulators to build major open-pit lead, zinc and copper mines along Canada's Arctic coast. He also stated that there is Chinese interest in northern Ontario's Ring of Fire mining region and in Saskatchewan's potash reserves. The policy changes are unlikely to deter that investment in the long run despite the potential increased uncertainty and politicization of the process created by these latest changes to Canada's investment review regime.
Interestingly, despite the current level of Chinese investment in the mining sector there have been very few ICA reviews of such acquisitions as most have not exceeded the ICA review thresholds. It is not clear whether that is a result of Chinese investors' preferring smaller deals over larger ones, or a sign that Chinese investors are actually avoiding deals that would trigger an ICA review because of the perceived (if not necessarily real) difficulty of obtaining ICA clearance.
This piece will provide a general overview of the investment review mechanism in Canada including the national security review process and rules specific to SOEs. We will also assess the ramifications of the recent policy changes and subsequent amendments to the ICA with respect to investments by foreign SOEs, and consider the practical implications of those policy changes for Chinese investors.
有趣的是，尽管中国对加拿大矿业的投资不断增加，但仅有极少数的收购受到了 ICA审查，因为其中大多数投资并未达到 ICA审查的门槛。
The ICA is Canada's statute of general application governing the acquisition of control of Canadian businesses by non-Canadians. The ICA provides that an acquisition is reviewable if a non-Canadian investor proposes to acquire direct control of an existing Canadian business, where the book value of the assets of the target business exceeds C$344 million (the 2013 threshold).
The ICA includes detailed provisions defining the concept of an acquisition of control. Control is deemed irrebuttably to be acquired where a majority of the target entity's voting securities are acquired or where all or substantially all of the assets used in carrying on the Canadian business are acquired, and deemed rebuttably to be acquired where less than a majority but one third or more of those securities are acquired.
Jurisdiction over investments rests with the Department of Industry and reviews are carried out by the Investment Review Division (IRD) within this department. The IRD will carry out the review and then make a recommendation to the Minister of Industry who has the ultimate decision making authority. If an acquisition of a Canadian business by a non-Canadian falls below the relevant thresholds and is not reviewable, it is notifiable and the acquiror must provide a notice to the Minister of Industry at any time prior to the closing of the investment or within 30 days thereafter.
Before a reviewable investment may be completed, the Minister must approve it. The legal test for approval is whether the Minister is "satisfied that the investment is likely to be of net benefit to Canada". As part of this process the Minister will contact his counterparts in each province in which the Canadian business has significant operations in order to obtain a local assessment of the acquisition's impact. For example, the Province of Saskatchewan was actively involved in the review of BHP Billiton Ltd.'s (BHP) proposed acquisition of Potash Corporation of Saskatchewan Inc. (PotashCorp). The ICA requires the Minister to take a number of factors into account, where relevant, in making his determination.
The review process often includes negotiating commitments or "undertakings" that are requested by the IRD to satisfy the Minister that the investment will be of net benefit to Canada. These undertakings usually have a duration of three to five years and may include commitments to maintain jobs and facilities in Canada, to retain Canadian management, to make capital expenditures in Canada, to comply with environmental regulations, to conduct research and development in Canada, etc. In certain specific situations, additional undertakings may be required by the IRD where an SOE is the investor, which can be in effect for as long as the SOE owns or controls the Canadian business that it acquired. Such additional undertakings may include, for example, appointing independent Canadian directors or listing shares of the SOE or the Canadian business on a Canadian stock exchange. It can be a highly political process; nevertheless, most acquisitions under the ICA are allowed to proceed with undertakings from the purchaser and, in fact, Canada has only formally blocked two foreign acquisitions since the ICA came into force in 1985.
The review period under the ICA typically ranges from 45 to 75 days. The Minister may only extend the review beyond 75 days with the consent of the investor; however, in practice such extensions are not uncommon for particularly complex or politically sensitive transactions.
The mining sector does not generally tend to be considered a "sensitive sector" or a sector that is in need of protection. There are certain obvious sensitivities raised by investments in uranium producing properties, which could raise national security concerns, as will be further discussed below. That said, one of the two foreign acquisitions that Canada has formallyblocked was in the mining sector. The political furor that surrounded the PotashCorp takeover, and ultimate rejection, however, may have had more to do with the fact that it was, and is, a "Canadian champion", rather than having to do with the mining sector in particular.
The Canadian government has a long standing policy on foreign ownership in the uranium industry. The Non-Resident Ownership Policy in the Uranium Mining Sector (the "Policy") requires a minimum level of Canadian ownership in individual uranium-mining properties of 51% at the stage of first production; therefore, a foreign investor cannot acquire more than a 49% interest in a uranium mining property without being granted a special exemption. Uranium exploration properties are not subject to the Policy. Implicit in the Policy is that a foreign-owned uranium exploration company must be in compliance with the Policy prior to bringing a uranium mine in Canada to the stage of first production. The press secretary to Natural Resources Minister Joe Oliver recently confirmed, in reference toRio Tinto's 2012 acquisition of Hathor Exploration Limited, that the policy did not apply to that acquisition because Hathor does not have any mines in production. So, for example, a wholly foreign-owned exploration company would have to find a Canadian partner before moving to the production stage.
The ICA also contains a national security review mechanism that allows the Canadian government to review, prohibit, or impose conditions on a broad range of direct and indirect investments by non-Canadians on the basis of national security concerns.
Any investment, regardless of the size of the target or of the investment, can be reviewed to determine if it could be "injurious to national security". Moreover, the Minister of Industry may request information in order to help the determination of whether or not the investment could be injurious to national security.
If, after consultation with the Minister of Public Safety and Emergency Preparedness, the Minister of Industry considers the investment injurious to national security, the Minister of Industry will recommend that an order for review be made by the Governor in Council. Interested parties will then have an opportunity to make representations to the Minister of Industry and he may require additional information from the non-Canadian or other interested parties for the purposes of the review. If the Minister believes that the investment will be injurious to national security, the matter will be referred to the Governor in Council. The Governor in Council may thenmake any order considered advisable to protect national security. Potential orders include directing the non-Canadian not to implement a proposed investment, authorizing the investment on the basis of certain conditions, and requiring a divestiture of control by the non-Canadian.
In general, the acquisition of Canadian mining interests (other than those involving uranium mining interests) by non-Canadians has not, to our knowledge, raised national security issues.The national security provisions are new (introduced in 2009); however, and the body of precedent is still small. The national security review mechanism is, in many ways, akin to the one employed by the Committee on Foreign Investment in the United States (CFIUS). The CFIUS regulations also omit a definition of "national security", but the term is interpreted broadly in the U.S. to cover "critical infrastructure". In theory, mining interests could raise issues where ancillary assets – capable of being considered critical infrastructure – are sold along with the mining business or in situations where the mining assets are located in close proximity to critical infrastructure. Therefore, without an indication to the contrary in Canadian case law, it is theoretically possible that Canada could move to a broad interpretation of national security as is done in the United States.
The Minister of Industry has 45 days after receiving and certifying notice of the investment, in the case of a non-reviewable investment (including minority investments), to initiate a national security review. The Canadian government can initiate a review during that period, even if the transaction has already closed, with the risk that the investment may be unwound or restricted. Once the review timelines have expired, the government cannot challenge a foreign investment on national security grounds.
Once initiated, the maximum period for a national security review is approximately 130 days, but it may be extended even further with the consent of the investor. Requests for extensions are not uncommon for particularly complex or politically sensitive transactions. The proposed amendments to the ICA will further extend a number of the national security review timelines and will allow various timelines to be extended on agreement between the Minister and the investor.
Some commentators believe that the new national security review regime has had a "chilling" effect on foreign investment in Canadian companies involved in uranium. That said, investments in the mining sector, apart from those in uranium, will not generally trigger national security reviews.Nevertheless, the number of notifications received by Industry Canada involving uranium appears to have fallen since 2009 when the national security provisions were introduced. Significantly, two investments involving uranium exploration companies have been made since 2009. One of these involved a Chinese investor, though it should be noted that this does not appear to have involved an SOE investor and also seems to have involved the establishment of a new Canadian business, rather than the acquisition of an existing Canadian business.
Furthermore, it is believed that an intervention by the Minister of Industry under the national security review provisions was behind the termination,in 2011, of the proposed acquisition of Forsys Metals Corp. (Forsys), a Canadian company involved in uranium, by George Forrest International Afrique S.P.R.L. In that case, Forsys was a company incorporated and listed in Canada; however, its projects were located in Namibia and did not appear to have any mineral properties or projects in Canada. This example serves to illustrate the potentially very broad scope of the ICA national security review process. That said, although the assets of the target were in the uranium mining sector, Industry Canada's concern may have centered on the buyer and its sources of funding, which were speculated to be based in Iran, rather than merely on the nature of the assets involved.
Due to the nature of uranium, there is a reasonable risk that the national security provisions may be invoked in respect of a foreign acquisition of a Canadian company involved with uranium, particularly if an SOE is involved in the acquisition. Since enriched uranium can be used to manufacture nuclear weapons, it is more likely that government authorities will scrutinize closely the identity and affiliations of foreign acquirers of uranium undertakings in Canada.
Immediately following the government's approval of two major SOE acquisitions in the oil and gas sector, the Canadian government announced changes to how the government will review investments by foreign SOEs going forward and released a Statement Regarding Investment by Foreign State-Owned Enterprises (the Statement) and revised Guidelines for Investment by State-Owned Enterprises (the Guidelines). The recent changes confirm that the government intends to treat investments by foreign SOEs differently, and that SOE investors will attract additional scrutiny under the ICA.
The Statement provides that the Minister of Industry will closely examine the degree of control or influence an SOE would likely exert on the Canadian business that is being acquired; the degree of control or influence an SOE would likely exert on the industry in which the Canadian business operates; and, the extent to which a foreign state is likely to exercise control or influence over the SOE acquiring the Canadian business. The Guidelines are similarly intended to address the government's main concerns about SOE investment in Canada; being that they should operate according to sound principles of corporate governance and commercial orientation. In addition to the net benefit approval criteria set out above, additional factors that the Minister of Industry is to consider in his review of whether an investment by a non-Canadian SOE would be of "net benefit to Canada" include the governance and commercial orientation of the SOE (e.g., the SOE's corporate governance,reporting structure, and compliance with Canadian laws and practices), and the extent to which the non-Canadian is owned or controlled by a state or its conduct and operations are influenced by a state. The Minister will also assess whether the Canadian business to be acquired by an SOE will have the ability to operate on a commercial basis with regard to a non-exhaustive list of factors. Finally, the Minister will consider requesting undertakings such as appointing independent Canadian directors, employing Canadians in senior management and listing shares of the SOE or the Canadian business on a Canadian stock exchange. It is not unusual for the Minister to seek these types of undertakings even when SOEs are not involved.
Following up on the December announcements, the government has since introduced amendments to the ICA in Bill C-60 Economic Action Plan 2013 Act, No. 1, which received royal assent on June 26, 2013 and will implement the new policy on investments by foreign SOEs. As expected, Bill C-60 introduces a definition of "state-owned enterprise" in the ICA. The new definition is broad and includes entities that are controlled or influenced, directly or indirectly, by a government of a foreign state, whether federal, state or local, or an agency of such a government. Unfortunately for investors, the government has not provided any guidance as to the meaning or concept of "direct or indirect influence".
The amendments also confirm that there will be a separate net benefit review threshold for SOE investors. The existing C$344 million (for2013) threshold, based on "net book value", will continue to apply to SOE investments. In contrast, investments by non-SOE investors will be subject to a net benefit review only if they exceed C$600 million based on "enterprise value", increasing to C$1 billion over the next four years. Acquisitions by SOEs that are below the new SOE review threshold are not reviewed under the SOE guidelines, but may still be subject to review under the national security review provisions of the ICA.
Significantly, the amendments also introduce new deeming powers for the Minister of Industry. The Minister will be given the ability to impose net benefit reviews on acquisitions of control of Canadian businesses by entities that would otherwise qualify as "Canadian" under the ICA; and, direct acquisitions of certain minority interests in Canadian businesses that would not previously have been subject to a net benefit review under the ICA.
Technically, the amendments to the ICA and revised policy will apply to foreign investment in all industries and economic sectors. That said, the timing, context and focus of the revised policy all suggest that the government was acting in response to a perceived threat to a strategic national resource. Specifically, the Statement makes explicit reference tothe immense value of the oil sands to the future economic prosperity of all Canadians and states that acquisitions of control of Canadian oil sands businesses by SOEs will only be approved in exceptional cases. As such, it is not expected that the revised rules will result in a significant increase in the number of blocked deals outside of the oil sands sector.
Despite the uncertainty currently surrounding Canada's foreign investment review regime, many observers believe that Canada continues to be "open for business" especially given the capital-intensive nature of Canada's resource industries. The mining sector is not identified in the ICA, the Statement or the SOE Guidelines as a sector that merits special attention; therefore, in most cases, the acquisition of mining interests (excluding uranium mining interests) by SOEs is not likely to raise issues under the ICA. However, given the increasing politicization of the ICA review process, it will be important for foreign investors and their advisors to carefully manage the ICA process particularly if the proposed acquisition is of a Canadian champion in the mining sector.
What is clear from the revised policy is that investors need to be much more sensitive in their approach to getting regulatory approval. The process is now highly politicized and it is crucial for investors to identify the relevant stakeholders prior to announcing the transaction.Prudent investors will want to make sure that their transaction is well understood by all potential stakeholders in government, both provincial and federal, and will engage appropriate government relations assistance early in the process. This is particularly significant in the context of SOE transactions. The federal government has made it clear that managing stakeholders at the provincial level is the responsibility of the investor; the BHP/PotashCorp transaction serves as a cautionary tale, if the investor does not address and properly manage these stakeholders in a timely manner, it can potentially derail a proposed transaction, right from the beginning.
Prudent investors will also want to invest considerable time and thought into preparing a package of undertakings that will address the substantive components of the "net benefit" to Canada. This should be done well in advance of the announcement of the transaction so that the package can be used to convince opinion shapers that the transaction is in the interests of Canadians. The framing and communication of undertakings is now critical. Further to this point, foreign investors should also be willing to send senior management to Canada to meet, face to face, with government stakeholders. This is all part of packaging the proposed investment and selling the media, government and general public as to why the transaction would be of net benefit to Canada.
Finally, foreign investors, and SOE investors in particular, need to be willing to comprehensively respond to information requests from the government, including details on ownership structure. It is clear that SOE investments will be subject to a higher degree of scrutiny, which will likely manifest in more information requests, meetings, and longer review periods. Investors should ensure that their purchase agreements provide for outside dates that adequately reflect the potentially lengthy amount of time the government will require to complete its review of a transaction. As mentioned above, investors have little leverage to refuse an extension if the government requests one. If the Minister requires more time, and the investor is not willing to consent to an extension, the Minister has no choice but to expressly reject the transaction.
Bennett Jones 律师事务所
加拿大一流的商业律师事务所，拥有 375名律师，设有 9家办公室 ,分别位于卡尔加里、多伦多、埃德蒙顿、渥太华、阿布扎比、迪拜、多哈、北京和华盛顿。在复杂的跨境和国际交易方面拥有极其丰富的经验。 www.bennettjones.ca
加拿大 Bennett Jones律师事务所合伙人。专注于竞争法和外国投资审查事项。被钱伯斯全球称赞为“世界领先的商业律师，耐心、注重细节且反馈迅速”。经常代表境内外客户就公司合并、合资企业和其他形式的战略联盟涉及《竞争法案》、《加拿大投资法案》的申报和许可规定提供法律服务。
加拿大 Bennett Jones律师事务所律师。业务领域包括全方位的竞争法和外国投资审查事。