Le 21 septembre 2017, la loi du gouvernement du Canada portant mise en œuvre de l’Accord économique et commercial global (l’« AECG ») entrera en vigueur, ce qui apportera notamment d’importantes modifications à la Loi sur Investissement Canada (la « LIC ») et à son règlement.
Une traduction de ce billet sera disponible prochainement.
On September 21, 2017, the Canadian government’s legislation implementing the Comprehensive Economic and Trade Agreement(CETA) will come into effect, including important amendments to the Investment Canada Act (ICA) and its regulations.
Currently, a direct acquisition of control of a non-cultural Canadian business by a non-state-owned investor from a WTO member state is subject to a pre-closing “net benefit” review where the enterprise value of the acquired Canadian business equals or exceeds C$1 billion (a figure which will be adjusted annually beginning in 2019). As described in a previous post by William Wu, the amendments to the ICA create a new “trade agreement investor” category, defined to include investors from the European Union and other countries with which Canada has pre-existing free-trade agreements containing most-favoured nation provisions (i.e., the United States, Mexico, Chile, Peru, Colombia, Panama, Honduras and South Korea). As of September 21, 2017, the threshold for pre-closing review for trade agreement investors will be C$1.5 billion in enterprise value – significantly higher than the C$1 billion threshold for other WTO investors.
According to the recent annual report on the administration of the ICA, investors from the United States and the European Union accounted for nearly 80% of the total number of foreign investments in Canada, meaning that the recent amendments for “trade agreement investors” are likely to mean that fewer investments will be subject to pre-closing review going forward.
“Indirect” acquisitions of control (i.e., acquisitions of a Canadian business “indirectly” through the share acquisition of its foreign corporate parent) of non-cultural Canadian businesses by WTO investors will continue to be exempt from review under the ICA, and non-reviewable investments will continue to be subject to the ICA’s notification filing obligation. The amendments also do not affect the national security and cultural sector provisions of the ICA.