Ottawa’s new foreign takeover rules won’t work in the real world – by Diane Francis (National Post – December 15, 2012)

The National Post is Canada’s second largest national paper.

Ottawa has made a mistake by allowing the buyout of Nexen Inc. by China National Offshore Oil Corp. (CNOOC) and the buyout of Progress Energy Resources Corp. by Petronas of Malaysia.

Apparently, the lobbying and debate behind closed doors was fierce and, in the end, a “Canadian” compromise was offered up as policy. And this equivocation — “conscription if necessary but not necessarily conscription” — won’t work in the real world.

After the approvals were announced, Prime Minister Stephen Harper framed this as the “end of a trend,” not the “beginning” of a buyout frenzy by more sovereign-owned enterprises (SOEs). He ring-fenced the oil sands from further SOE buyouts unless in “exceptional circumstances” and set lower threshholds for Investment Canada reviews of foreign bids. But this is not the end. This is the beginning of the beginning. Phone calls are already being made to launch new buyouts by foreigners here.

The Chinese, Russians and others have gamed and will continue to game our system. I would argue that CNOOC’s bid itself was outrageous: an aggressive, uninvited entry into the Canadian economic space before the issues had been properly debated in the aftermath of the Potash Corp. of Saskatchewan Inc. and TMX Group Inc. takeovers were rebuffed and rejected.

Frankly, CNOOC’s bid should have been rejected out of hand and the company sent packing until Canadians could have a proper policy debate and conversation about the future of our country’s economic structure. They should have been told that clear guidelines and definitions were needed and no one need apply until that was completed.

Then Canada could have gone no further than to emulate the Australian policy regarding SOEs: “All foreign governments and their ‘related entities’ should notify the Government and get prior approval before making a direct investment in Australia, regardless of the value of the investment.

“They [foreign governments and their related entities] also need to notify the Government and get prior approval to start a new business or to acquire an interest in land, including any interest in a prospecting, exploration, mining or production tenement [except when buying land for diplomatic or consular requirements]. This is consistent with the Government’s longstanding practice,” the Australian guidelines say.

The Australian policy stipulates pre-approval — not ambushes like CNOOC pulled off. This is still not stated anywhere, which means that more bids will come along, causing unnecessary pressure on the government, confusion in markets and a field day for lawyers/lobbyists fronting for the foreigners.

For the rest of this article, please go to the National Post website: http://opinion.financialpost.com/2012/12/14/ottawas-new-foreign-takeover-rules-wont-work-in-the-real-world/

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