The court accepted this argument, but noted that it was an open question as to whether the Minister can be satisfied that an investment would be injurious to national security based on risks that are mere possibilities, rather than likelihoods. The national security risks identified in the Order all referred to concerns about what CMI Canada may do, whereas the ICA provides for an investment to be referred to the GiC when the Minister is satisfied that it would be injurious to national security. First, it argued that the Minister of Innovation, Science and Industry (the “ Minister”) applied the incorrect legal test in referring China Mobile’s investment in its Canadian subsidiary, China Mobile International (Canada) Inc.
Moreover, in obiter, the court would have considered the non-filing by China Mobile of its required notice under the ICA as a consideration against China Mobile on the equities of making an order.Ĭhina Mobile argued that there were two serious issues to be tried. While the court found that China Mobile satisfied the first two elements, it denied the stay on the grounds that the harm to the public interest exceeded the harm to China Mobile. (“ China Mobile”) was required to prove on balance that: (i) there was a serious issue to be tried (ii) it would suffer irreparable harm if the stay was not granted and (iii) the balance of convenience lied in its favour. To obtain relief, China Mobile Communications Group Co., Ltd.
This past December, the Federal Court dismissed a motion to stay an order of the Governor in Council (the “ GiC”) under the Investment Canada Act (“ ICA”), requiring a Chinese state-owned telecom company to divest or wind up the operations of its Canadian subsidiary (the “ Order”), pending resolution of a judicial review application. Municipal, Land Use Planning & Development.International Arbitration & Cross-Border Litigation.White Collar Defence, Fraud & Investigations.Structured Finance, Derivatives & Securitization.Competition, Antitrust & Foreign Investment.