Suchergebnisse

Although both Canada and the United States review foreign investment for national security concerns, Canada also requires that the investment be of "net benefit" to Canada. Recent investments by state-owned enterprises (SOEs) and sovereign wealth funds (SWFs) have prompted the suggestion that the United States should also adopt a net benefit or economic test. This Article argues that the United States should not adopt the Canadian approach. The Canadian approach attempts to screen out foreign public entities and requires that they act in a "commercial" manner. This approach is based on two assumptions. First, it assumes that one can segregate the public foreign interest from private and domestic interests. Second, it assumes that one can adequately define what it means to act in a commercial manner. This Article contends that both assumptions are incorrect due to their dependence upon classical categories such as public/private and domestic/foreign that are of limited value in a postmodern, globalized economy. This Article argues that an approach based on addressing specific harms, regardless of identity of the actor, represents a more sustainable approach towards the risks associated with foreign government-controlled entities. This Article suggests that competition law, through its policy-based regulation of harms by economic entities, can form the basis of a new regulatory structure to address concerns, which in retrospect, are about aggregations of power rather than strictly national identity.

Canadian federal corporate legislation contemplates that shares will be transferred by endorsement of paper share certificates. These provisions, now found in the Canada Business Corporations Act Part VII, were enacted in the mid-1970s to reflect the then current market practices. However, for the last two decades, the overwhelmingly prevalent commercial practice is to transfer shares by book entries without using paper certificates - such transfers taking place in what is called the indirect holding system. Despite the domination of the indirect holding system, until recently, there have been no legislative provisions addressing this method of transferring securities. Recent specific provincial legislation has addressed this practice by removing responsibility for securities transfers from provincial corporate legislation and placing it within legislation that deals exclusively with securities transfers. However, Canadian federal legislation has yet to respond to the ubiquitous indirect holding system for federal corporations. This paper examines the case law history regarding the current CBCA part VII provisions and outlines the current prevailing methods of transferring securities. It then compares the operation of the CBCA Part VII provisions to general corporate law rationales. The impact of provincial securities legislation on the CBCA is evaluated and future of the CBCA Part VII provisions is analyzed focusing on efficiency concerns. Finally, responses by the Canadian federal government are evaluated and two possible solutions are offered as rational and efficient responses under the current circumstances.