On 24 March 2021, the Minister of Innovation, Science and Industry (“Minister”) issued updated Guidelines on the National Security Review of Investments (“Updated Guidelines”). The Updated Guidelines outline additional factors and clarify existing factors the Canadian government will consider in assessing investments for potential national security concerns under the Investment Canada Act (ICA).
These new factors include sensitive personal data, intangible assets, certain sensitive technologies, and critical minerals. The Updated Guidelines also formalize that investments by state-owned or state-influenced investors will likely be subject to enhanced national security scrutiny, and confirm the non-exhaustive nature of the enumerated factors.
Since 2009, the ICA has explicitly provided for the review of foreign investments where the Minister has “reasonable grounds to believe that an investment by a non-Canadian could be injurious to national security”. This regime is separate from the economic “net benefit” regime that applies to a more narrow subset of investments; for a more detailed discussion of the two regimes, see our 30 June 2020 alert, Foreign Investments in Canada: Still Open for Business, but Caveat Emptor.
In 2016, the government published the original National Security Review of Investments Guidelines (“2016 Guidelines”), which set out a non-exhaustive list of factors the government would consider when assessing an investment for potential national security risks. As the ICA does not define “national security” or elaborate on when an investment could be “injurious” to national security, the Updated Guidelines expand on the 2016 Guidelines and provide foreign investors with clearer insight into what types of investments may give rise to potential national security concerns.
All risk factors set out in the 2016 Guidelines remain unchanged. For a detailed discussion of the Updated Guidelines, which expands the list of factors, please see the full article here.