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view of foreign investment in Canada, and lawyers here say companies must change their approach if they hope to acquire Canadian companies. One of the most glaring lingering Clement put a halt to the takeover { after ruling it would not provide a "net benefit" to Canada, based on a six-part test laid out in s. 20 of the act. Briefly explaining his decision in a November press conference, he said the acquisition would not help Canada better compete in world markets; would not boost productivity, efficiency, and innova- tion; and would not elevate economic for investors eager to bid on Canadian companies. "It's really the uncertainty and the confusion that it is creating for foreign investors and companies looking at the Canadian market, or financial acquisitions in Canada," says Ogilvy Renault LLP Montreal partner Denis Gascon, who points out the over- whelming majority of foreign acquisi- tions go ahead without any issues being We know there are a number of factors that need to be considered, but there's nothing in the act to say how the factors are weighed, or how you actually get yourself over the line in terms of satisfying those tests. PAUL MINGAY, Borden Ladner Gervais LLP activity. He added that BHP lacked experience in the potash industry when compared to PotashCorp, which was established in 1975. Despite offering this explanation, Clement technically did not reject the bid, as BHP withdrew its offer before receiving a final decision. That meant the minister wasn't obligated to release his in-depth reasons for blocking the acquisition, and his refusal to do so has voluntarily created an information void raised. But, he adds, "People talk about the two that were denied. What we hear from foreign clients is, 'Where will the minister go from here, and what does it mean for the future?'" Many observers expected Clement to offer some clarifying words to fill the gap, but on Dec. 15, he announced his intention to hold off on that in order to consider legislative changes in 2011. In the meantime, the thwarted bid for PotashCorp has changed the world's questions following BHP's failed bid involves PotashCorp's categorization as a "strategic resource" by the likes of Prime Minister Stephen Harper and Saskatchewan Premier Brad Wall. That term now seems to have entered the foreign investment lexicon, yet its meaning remains unclear. Some specu- late the term simply refers to any desir- able resource, while others suggest it denotes a resource with a specific role in the Canadian economy. "It has become the term that has been used to define how this transaction was alleged to be different from others," says Gascon. He points out such resources could include minerals, energy sources, or food products. At this point, companies will have to decide for themselves just what it means. And with Canada's natu- ral resources in high demand across the globe, it's a question that could weigh heavily on a multitude of transactions. The PotashCorp decision was also viewed as an indication of the fed- eral government's willingness to protect companies that might be viewed as "national champions." Certain high- profile Canadian-owned businesses — such as BlackBerry maker Research In Motion Ltd., transportation equip- ment manufacturer Bombardier Inc., or Suncor Energy Inc. — could be included in this group. Of course that's just speculation, and any number of other Canadian-owned businesses could make the list as well. The visibility of Saskatchewan's pre- mier, who took to the airwaves to vehe- mently oppose BHP's takeover of one of his province's largest employers, was seen as indicating a new source of polit- ical interference from the provincial level, which could also threaten foreign investment in Canada. Wall argued BHP's plans to sell its potash at market value, rather than INHOUSE FEBRUARY 2011 • 19