Wednesday, September 26, 2012
Posted by D. Daniel Sokol
Mark Katz & Erika Douglas (Davies Ward) explore The Canadian "Sir" Process: A Progress Report.
ABSTRACT: In March 2009, the Canadian Competition Act's merger review process was amended to align it more closely with U.S. merger review under the Hart-Scott-Rodino Antitrust Improvements Act ("HSR ACT"). The key change involved the adoption of an initial 30-day review period, which could be extended with the issuance by the Competition Bureau (the "Bureau") of a "Supplementary Information Request" ("SIR"). As a result of these changes, the Canadian merger review process is now more directly and closely analogous to the merger review process in the United States.
Convergence in the merger review processes between different competition agencies can generally be helpful for merging parties, reducing the complexity and cost of compliance while speeding up the timeline for competition approval. In the specific case of information gathering, convergence may enable parties to save time and money in collecting, reviewing, organizing, and producing the requested information and records.
There has now been sufficient experience with Canada's new SIR process to offer a few conclusions about the efficacy of its operation, and particularly whether it has helped to make it easier for merging parties to deal with information requests when issued by agencies in both Canada and the United States. As discussed in more detail in this article, the SIR process has functioned quite well in practice, although there still remain areas of divergence that can make the merger review process in Canada more difficult for parties and counsel involved in cross-border Canada/U.S. mergers.