Originally published in Blakes Bulletin on Competition,
Antitrust & Foreign Investment, August 2009
MELANIE AITKEN APPOINTED COMMISSIONER OF COMPETITION
Canada's Minister of Industry, the Honourable Tony Clement,
announced today the appointment of Ms. Melanie Aitken as the
Commissioner of Competition (head of the Canadian Competition
Bureau) for a five-year term. Ms. Aitken has served as the Interim
Commissioner of Competition since January 12, 2009, a position she
has held since the completion of Ms. Sheridan Scott's term as
Commissioner. Ms. Aitken joined the Competition Bureau in 2005 as
Assistant Deputy Commissioner of Competition, Mergers, and was
appointed Senior Deputy Commissioner, Mergers, in May 2007. A copy
of Industry Canada's press release is available at: http://www.ic.gc.ca/eic/site/ic1.nsf/eng/04896.html
INDUSTRY MINISTER TAKES UNPRECEDENTED STEPS UNDER THE
INVESTMENT CANADA ACT
On July 17, 2009, the Honourable Tony Clement, Minister of
Industry, announced that he was taking the unprecedented step of
filing an application with the Federal Court of Canada to seek
compliance with undertakings provided under the Investment
Canada Act (ICA). According to the Notice of Application filed
with the Federal Court, when United States Steel Corporation
acquired Stelco Inc. in 2007, it provided undertakings to the
Minister regarding steel production and employment. It is common
practice for non-Canadian investors to provide such undertakings in
order to obtain the Minister's approval under the ICA for
transactions involving acquisitions of control of Canadian
Pursuant to the ICA, where the Minister believes that an
investor has failed to comply with its undertakings, hey may send a
demand letter to the investor requiring the investor to justify its
non-compliance. The Minister sent a demand letter to U.S. Steel on
May 5, 2009, in response to production cutbacks and significant
lay-offs in Canada, asking the company to justify its
non-compliance or comply with its undertakings. Industry
Canada's own administrative guidelines indicate that
"undertakings are based to some extent on projected
circumstances" and acknowledge that "where inability to
fulfill a commitment is clearly the result of factors beyond the
control of the investor, the investor will not be held
accountable." However, as set out in a news release issued by
Industry Canada on July 17, 2009, the Minister has indicated that
he is "of the view that U.S. Steel is not complying with its
undertakings" and that he is "not satisfied by its
explanations for non-compliance." As a result, an application
has been filed with the Federal Court of Canada asking the Court to
remedy the situation. The Minister's actions in the present
case indicate that the federal government is taking such
undertakings seriously and that investors must be prepared to fully
explain any non-compliance. A copy of the Minister's news
release is available at: http://www.ic.gc.ca/eic/site/ic1.nsf/eng/04836.html
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