Publication
2nd Circuit defers to executive will on application of sovereign immunity
The Second Circuit recently held that federal common law protections of sovereign immunity did not preclude prosecution of a state-owned foreign corporation.
Author:
Canada | Publication | November 21, 2022
On November 17, the Government of Canada launched a consultation process for the review of the Competition Act (the Act) and published a discussion paper setting out several proposals to modernize the Act. This is the first comprehensive review of the Act since 2007 and follows similar competition law reviews conducted in the US, EU, UK and Australia. This follows the announcement by the minister of innovation, science and industry (the Minister) earlier this year to undertake a comprehensive review of both the Act and Canada’s competition policy framework. The first phase of targeted amendments to the Act was passed in June 2022, with the promise of more change to come.1 This consultation process will likely result in significant changes to the Act and its enforcement.
When he announced the review, the Minister indicated the government is considering broad changes to Canada’s competition framework and the associated consultation overview identifies the key themes for the review. The scope of the review includes both the substantive provisions of the Act and the role and powers of the Competition Bureau (the Bureau). The initial phase of the consultation invites interested parties to provide submissions in response to the discussion paper by February 27, 2023.2 What is less clear is how the process will unfold afterwards.
We will continue to monitor the next steps in the consultation process and likely timing for the tabling of any amendments to the Act. In 2009 and 2022, significant amendments to the Act were incorporated in budget legislation –a process that typically involves far less scrutiny than is otherwise the case for substantive amendments to legislation that can significantly impact how companies do business in Canada. The possible amendments to the Act set out in the discussion paper could have broad ramifications for the Canadian economy, making the process and timing of possible amendments critical for companies to understand.
The discussion paper canvasses significant possible changes to many areas of Canadian competition law, including:
Merger Review
Abuse of Dominance
Competitor Collaborations
Deceptive Marketing
Administration and Enforcement
It is clear that, after over a decade of Canada’s competition laws being largely on the back burner, the desire for change has now reached the boiling point – with the key questions being the extent of the reforms and how quickly they will come. This process will require balancing the strong desire of stakeholders (the Bureau, in particular) to make enforcement action easier or to increase the Bureau’s advantage in settlement discussions with the need to prevent over-enforcement and a lack of predictability for businesses. In addition, there seems to be a strong desire to emulate changes that have been made in other jurisdictions, without fully assessing their potential impact.
The possible changes put forward by the government include proposals that would lower the burden of proof and create presumptions of harm to be refuted by businesses, with little reference to the importance of preventing over-enforcement. While the government’s desire to review the Act and Canada’s competition law enforcement framework is well intentioned, it is critical to ensure that the desire to make change is informed by facts and sound policy objectives, as opposed to making change for change’s sake.
Norton Rose is actively monitoring developments in this area, and we will provide more detailed analysis on possible reforms to the Act as this process evolves.
Publication
The Second Circuit recently held that federal common law protections of sovereign immunity did not preclude prosecution of a state-owned foreign corporation.
Publication
Facing the fast-growing development of AI across the globe, particularly Generative AI (GenAI), the G7 competition authorities and policymakers (Canada, France, Germany, Japan, Italy, the UK and the US) and the European Commission met in Italy on 3-4 October 2024 to discuss the main competition challenges raised by these new technologies in digital markets.
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