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(c) The Commissioner of Competition recently challenged a merger in The Commissioner of Competition v. CCS Corporation, even though the deal fell well below the mandatory reporting threshold. The Commissioner was successful before the Competition Tribunal and an order was made for the buyer to divest itself of the assets it had acquired. Pursuant to section 97 of the Competition Act, the Commissioner can challenge a merger for up to one year after closing. 1 2 (a) Whether two companies are ���affiliates��� of one another, for purposes of the Competition Act, is dependent upon the concepts of ���control��� and ���person.��� If the same person can be said to control two companies, they are affiliates for the purposes of the Competition Act, which will have consequences on both the Competition Act���s mandatory reporting requirements and the Commissioner���s review of the transaction and its impact on competition. To date, the Commissioner has not provided specific guidance as to how he will treat the entities that are related by being foreign state-owned. Depending on its facts, a merger with a foreign stateowned entity could run afoul of the Competition Act if, for example, another entity owned by the same foreign state is already in the Canadian market and both businesses, combined, represent a substantial share of the relevant market and are close competitors. 3 (b) Investments by non-Canadians are reviewable pur- suant to the Investment Canada Act if the investment is valued at $5 million (for direct investments) or $50 million (for indirect investments). However, the threshold for World Trade Organization member investors (such as China) was set at $330 million for 2012. The proposed $38 billion acquisition of Potash Corporation of Saskatchewan Inc. by BHP Billiton Limited was ultimately blocked following a review pursuant to the Investment Canada Act. 4 (b) Export cartels, which are agreements between firms either to set prices for export or to divide the export market, are the subject of an express exemption under s. 45(5) of the Competition Act. However, participants in an export cartel must proceed with caution by, for example, running the cartel through a third party and not sharing each other���s confidential information, or risk violating domestic antitrust laws. Nikiforos Iatrou and Scott McGrath are commercial litigators who focus on competition law. Your ranking? One or less correct: might be time to brush up Two correct: not bad, but some further work needed Three or four correct: very well done, but not perfect Five correct: excellent a of Canadian LegaL news daiLy BLog n [ www.canadianlawyermag.com/legalfeeds ] Daily upDates s major court ruling News RouNdup events Powered By Canadian Lawyer & Law times 18 ��� D ec em b er 2012/ January 2013 INHOUSE

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