Adam Kalbfleisch comments on how Canada's national security regime is approaching mergers and acquisitions in CBA National. He says that one of the areas considered sensitive is critical minerals, which include not just lithium or uranium but also commodities like copper, nickel and aluminum.
The result is that if a U.S. buyer is looking to acquire a nickel mine in Sudbury, Ontario, it would likely not be an issue, but if it were a Chinese buyer of the same asset, "there are no guarantees." Kalbfleisch noted. While there have only been a few dozen full national security reviews since 2009, about half were blocked, 30% unwound, and only a few cases allowed to proceed with no conditions.
"Imagine you're an investor and looking at these statistics. This is like facing Nolan Ryan at his peak. It's not a great situation to be in. Avoiding them is the key if you can."
Adam also says that while not mandatory, Canada's national security guidelines encourage investors, especially state-owned enterprises or involved in sensitive fields, to file their notification forms at least 45 days before planned closing. This allows the buyer to complete the transaction with more certainty because the government has 45 days to initiate a formal review.
"These days, investors will sometimes negotiate to file prior to closing even though that is technically not required, but they want to surface the issue before they spend $30 million or $300 million," Kalbfleisch said.
Adam will be a speaker at the CBA's Fall Competition Law Conference in Ottawa. On October 20, he will speak on a panel that looks at the proliferation of national security reviews internationally and in Canada for transaction clearance, including the interaction with review under competition legislation.
Bennett Jones