Investment Canada Act
The Investment Canada Act (ICA) is a Canadian Federal law governing large foreign direct investment in Canada. The ICA was one of the first acts of Brian Mulroney's newly elected Progressive Conservative government, receiving royal assent on June 20, 1985. It has been amended at various times, including recently the Economic Action Plan 2013 Act. Pertinent regulations include the Investment Canada Regulations, SOR/85-611. The Act empowers the government to forbid foreign investments of "significant" size if they do not present a "net benefit to Canada." As of 2013, Canadian policy is to consider over $344 million "significant." The determination of what substantially constitutes the locus of control of a corporation is governed by the Canadian Ownership and Control Determination Act.
The Act was intended to signal Canada's openness to foreign investment and coincided with a narrowed mandate of the Foreign Investment Review Agency (FIRA), which was renamed Investment Canada. FIRA had been set up by Pierre Trudeau's Liberal government to limit increasing US ownership of Canadian business. Canadian nationalists criticized FIRA's effectiveness, noting that in practice it was rarely used to actually forbid an investment. The business community and Opposition Progressive Conservative Party criticized FIRA for its activism, saying it had stifled investment from the emerging global economy.
While the ICA gives Investment Canada the power to restrict investment, its mandate is only to "review...significant investments...in a manner that encourages investment, economic growth and employment opportunities" unless proposed investments specifically injure national security. The Mulroney government never invoked the Act to deter a foreign investment, nor did its successors, the Chrétien and Martin Liberal governments.
The ICA was invoked for the first time when in 2008 the Conservative government of Stephen Harper blocked the sale of the space division of MacDonald, Dettwiler & Associates, a Vancouver-area technology company, to US-based Alliant Techsystems.
In 2010, the Harper government imposed conditions for approval of the hostile takeover of Potash Corporation by Australia-based mining conglomerate BHP Billiton for over $38 billion. On November 15, 2010, BHP-Billiton withdrew its bid, saying the conditions had proved too onerous.
While the Act was not used to formally block takeover bids and investments, its presence and vague mandate enables diplomats, public representatives and civil servants to informally dissuade investors, and creates a sense of government risk amongst foreign investment analysts. The scale of impact is difficult to measure and has not been widely studied.
Nationalist critics believe the Act is too narrow and, as a matter of policy, should more heavily restrict foreign investment.
Critics note that Canada's share of world direct investment fell significantly after 1985. Some of this is due to large increases in emerging economies' receipt of FDI, but Canada's share has fallen even amongst developed countries, and in the late 2000s Canada became a net investor in the world.
Some critics note that the Harper government's use of the ICA has seemed unpredictable, resulting in a "chilling" effect on foreign investment in Canadian companies. This hidden effect, if it exists, could suppress the value of Canadian shares and companies by deterring potential investors from even considering Canada as a market or destination. In response to this criticism, on November 15, 2010 the Harper government signalled its intention to provide clear guidelines for its use of the ICA.
- Full text of legislation: http://laws-lois.justice.gc.ca/eng/acts/I-21.8/FullText.html
- "Economic Action Plan 2013 Act", No. 1, SC 2013, c 33
- Investment Canada Regulations, SOR/85-611
- "Canadian Ownership and Control Determination Act", RSC 1985, c C-20
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- Takeover reference: http://www.lexology.com/library/detail.aspx?g=9a0bbc4e-175b-4b84-b515-9a78e883d4c5
- Globerman, Steven. "Canadian Outward Foreign Direct Investment and Its Implications for the Canadian Economy". The Conference Board of Canada. Retrieved 27 August 2012.
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- Legal paper: http://www.lexology.com/library/detail.aspx?g=9a0bbc4e-175b-4b84-b515-9a78e883d4c5