Canadian Lawyer InHouse

December/January 2021

Legal news and trends for Canadian in-house counsel and c-suite executives

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34 www.canadianlawyermag.com/inhouse FEATURE for the transaction should find the communi- cation tools that work best for both parties. For confidential M&A topics, it is important that you don't forgo secure platforms for convenience." Digital signatures are not acceptable in some jurisdictions, making closings far more complicated, says Orysiuk. The legal team at Siemens continues to follow its standard processes in navigating cross-border transactions, with the help of many tools provided by the company's IT team to make remote work more efficient. Multiple communication options are used to accommodate team members from varied jurisdictions, as some platforms work better than others in different locations. Government announcements are reviewed daily by the legal team, in order to understand the legal impacts of a rapidly changing pandemic environment. A pandemic task force, comprised of the businesses and departments across Siemens, meets regularly to make rapid and thoughtful decisions. "We work with our global colleagues to understand the impact of COVID in other jurisdictions and to develop best practices," says Orysiuk. When contemplating a cross-border investment, in-house counsel should pay close attention to the investment vehicle and whether it will be a Canadian corporation or just an affiliate. "If agreements are in place, you might want to get advice on whether you can structure the investment in such a way that you don't lose the benefit of any such agreements. You don't want to inadvertently waive the rights to arbitration, for example," says Iris Antonios, a partner at Blake Cassels & Graydon LLP. "When you go beneath the surface, there are perhaps protectionist measures as opposed to truly regulatory measures that are aimed at alleviating the effects of the pandemic or getting the economy back on track," says Antonios. She recommends that in-house counsel structure cross-border investment contracts to include a strong resolution clause. "Parties need to give appropriate consid- eration to the dispute resolution clause prior to the dispute. It's sometimes overlooked when an agreement is being negotiated," she says. "When a dispute arises, you can generally assume that there's going to be less co-operation among the parties." Antonios is closely watching what the future of investor state dispute resolution is going to look like, particularly as the new CUSMA no longer has a dispute resolution mechanism between Canadian and U.S. investors. "The effects of the pandemic will carry on for a long time and they will impact our trading relationship because both countries will be absorbed internally and domestically in improving their own economies." Darrel Pearson, Bennett Jones LLP

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