Canada-U.S. Blog Trade Lawyers Cyndee Todgham Cherniak and Susan K. Ross

Category Archives: Corporate Counsel

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What Canadian Corporate Counsel Should Know About The NEXUS Program

Posted in Border Security, Canada's Federal Government, Corporate Counsel, NEXUS

Many Canadian corporate counsel are members in the NEXUS Program and rely on their NEXUS Membership Card to by-pass long airport security lines (on international and domestic flights) and to use shorter lines at customs clearance.  The NEXUS Membership Card is a valuable asset because it saves time. The article canvasses some of the issues… Continue Reading

Privacy Shield Takes More Hits

Posted in Aerospace & Defence, Agriculture, Anti-Trust/Competition Law, Border Security, Constitutional Law, Corporate Counsel, Cross-border deals, Cross-border litigation, Energy, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Intellectual Property, Labour, Legal Developments, Tribunals

Just in the last week, both the European Parliament and the European Data Protection Supervisor (“EDPS”) published findings holding the currently proposed EU-US Privacy Shield to be seriously deficient, and calling for further negotiations to deal with those “holes”. On May 26, 2016, the European Parliament passed a resolution, see EU Parliament Resolution, basically saying… Continue Reading

SOLAS: SAVES LIVES? CAUSES ULCERS?

Posted in Aerospace & Defence, Agriculture, Border Security, Controlled Goods Program, Corporate Counsel, Cross-border deals, Cross-border litigation, Cross-border trade, Customs Law, Exports, Government Procurement, Legal Developments, Trade Remedies, Transportation

On July 1, 2016, the Safety of Life at Sea (“SOLAS”) requirement for shippers to provide steamship lines with the verified gross mass (“VGM”) of each shipment takes effect internationally. While under development at the International Maritime Organization for years, these requirements caught many in the U.S. by surprise last summer when the deadline was… Continue Reading

Everyone Deserves To Have Secrets – Defend Trade Secrets Act of 2016

Posted in Aerospace & Defence, Agriculture, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border litigation, Cross-border trade, Export Controls & Economic Sanctions, Exports, FCPA/Anti-Corruption, Intellectual Property, Legal Developments

On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act of 2016 (DTSA) which brought with it a new era of accountability and expediency in protecting employers’ intellectual property. Whether proprietary lines of code in a software program, the secret recipe for fried chicken or highly-valued customer lists, “trade secrets” provide… Continue Reading

Costs of Compliance –The Missing Element

Posted in Aerospace & Defence, Agriculture, Antidumping, Border Security, Controlled Goods Program, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border litigation, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, Exports, FCPA/Anti-Corruption, Intellectual Property, Legal Developments, NAFTA, origin, tariff classification, Trade Agreeements, Trade Remedies, U.S. Federal Government, valuation

Originally published by the Journal of Commerce in May 2016 Only three (3) years ago, when Tom Winkowski was Acting Commissioner of Customs and Border Protection (“CBP”) and John Morton the Director of Immigration and Customs Enforcement (“ICE”), both of them acknowledged publicly how their respective agencies had lost such significant depths of knowledge and… Continue Reading

Shielded but Not Covered – Privacy Demands Better Protection

Posted in Corporate Counsel, Criminal Law, Cross-border litigation, Cross-border trade, Cybersecurity and Privacy, Legal Developments

On April 13, 2016, the Article 29 Working Party took action which some found surprising and others predicted. It found the EU-U.S. Privacy Shield did not contain adequate protections and needs further improvement. The Working Party’s statement can be found at http://ec.europa.eu/justice/data-protection/article-29/press-material/press-release/art29_press_material/2016/press_release_shield_en.pdf. While acknowledging the Privacy Shield contains “significant improvements” over the previous Safe Harbor,… Continue Reading

TFTEA – Export Focus

Posted in Aerospace & Defence, Border Security, Controlled Goods Program, Corporate Counsel, Cross-border deals, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, Exports, Legal Developments

In earlier editions of this blog, we first summarized the new law and then addressed the intellectual property rights changes it contained. Now, we turn to the export focused provisions in the Trade Facilitation and Trade Enforcement Act (“TFTEA”). Mainly those export provisions have to do with information collection for targeting.  However, new initiatives for… Continue Reading

TFTEA – CBP Organizational Structure

Posted in Aerospace & Defence, Border Security, Corporate Counsel, Cross-border deals, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, Legal Developments

Among its many provisions, the Trade Facilitation and Trade Enforcement Act (“TFTEA” or the “Act”), H.R. 644, formally establishes U.S. Customs and Border Protection (“CBP”) as a department within Homeland Security (“DHS”). Section 802(a) contains the key provisions. That section amends Section 411 of the Homeland Security Act and the U.S. Code to reflect the… Continue Reading

The Art of Self Defense

Posted in Aerospace & Defence, Anti-Trust/Competition Law, Antidumping, Border Security, Buy America, Constitutional Law, Controlled Goods Program, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border litigation, Cross-border trade, Customs Law, Cybersecurity and Privacy, Export Controls & Economic Sanctions, Exports, FCPA/Anti-Corruption, Government Procurement, Imports Restrictions, Intellectual Property, International Arbitrations, Legal Developments, NAFTA, origin, tariff classification, Tax, Trade Agreeements, Trade Remedies, Transportation, valuation, World Trade Organization

Corporate compliance programs come in all shapes and sizes and apply whether your company is privately owned or publicly traded. These internal controls take the form of accounting and audit procedures, import-export/regulatory policies, employment guidelines, ethics/anti-corruption initiatives and so on. The intent of any compliance program is to ensure that employees know what is expected… Continue Reading

New Customs Bill Is Now Law

Posted in Aerospace & Defence, Agriculture, Border Security, Corporate Counsel, Cross-border deals, Cross-border trade, Customs Law, Government Procurement, Intellectual Property, Legal Developments, Trade Remedies

Originally published in the Journal of Commerce in March 2016 On February 24, 2016, President Obama signed into law H.R. 644. Entitled the “Trade Facilitation and Trade Enforcement Act of 2015,” it contains a good many technical revisions to existing Customs and Border Protection (“CBP”) processes, procedures, laws and regulations. Much more is included, so… Continue Reading

Trade Facilitation and Trade Enforcement Act of 2015 and Intellectual Property Rights

Posted in Aerospace & Defence, Border Security, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border trade, Customs Law, Government Procurement, Intellectual Property, Legal Developments, Trade Remedies

This article was co-authored with Kevin M. Rosenbaum of MS&K. On February 24, 2016, President Obama signed into law the Trade Facilitation and Trade Enforcement Act of 2015, PL 114-125 (TFTEA), which includes an assortment of trade facilitation and trade enforcement provisions, including a number of provisions focused on intellectual property rights (IPR). Section III… Continue Reading

New Customs Bill Becomes Law

Posted in Antidumping, Border Security, Corporate Counsel, Cross-border deals, Cross-border trade, Customs Law, Exports, Government Procurement, Intellectual Property, Legal Developments, NAFTA, origin, tariff classification, Trade Agreeements, Trade Remedies, Transportation, valuation

On February 24, 2016, H.R. 644 was signed into law by the President. While yet another trade-related bill was signed without any public ceremony, this new law contains a number of timely provisions. The first section deals with trade facilitation side-by-side with trade enforcement. The CBP Commissioner is directed to coordinate with the Director of… Continue Reading

Cyber Bill No Real Help to Supply Chain Security

Posted in Border Security, Constitutional Law, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border trade, Cybersecurity and Privacy

Originally published by the Journal of Commerce in January 2016 In the lead-up to President Obama signing into law on December 18, 2015 the Cybersecurity Act of 2015, Public Law. 114-113, there was hope that finally there would be a vehicle through which the federal government would be able to share broad ranges of supply… Continue Reading

Trans-Pacific Partnership: Bane or Boon?

Posted in Agriculture, Antidumping, Border Security, Corporate Counsel, Cross-border deals, Cross-border trade, Customs Law, Exports, Imports Restrictions, Intellectual Property, Legal Developments, origin, Trade Agreeements, Trade Remedies

Originally published by the Journal of Commerce in November 2015 As every international trader worth his/her salt knows, the text of the Trans-Pacific Partnership was released on November 5th. Given word from the Executive Branch is the agreement is still being “scrubbed”, it is reasonable to conclude the text is not yet final, but is… Continue Reading

Trans-Pacific Partnership Negotiations Concluded – Now What?

Posted in Corporate Counsel, Cross-border deals, Cross-border trade, Customs Law, Government Procurement, Imports Restrictions, Intellectual Property, Legal Developments, origin, Trade Agreeements

Originally published by the Journal of Commerce in October 2015 With the news the Trans-Pacific Partnership (TPP) negotiations have been successfully concluded, the obvious question is what is next? The Republican leadership in the House of Representatives is in chaos. As we go to press, the presumptive new Speaker has withdrawn, the caucus is coming… Continue Reading

U.S. Customs and Border Protection Has ACE Up Its Sleeve

Posted in Aerospace & Defence, Agriculture, Antidumping, Border Security, Corporate Counsel, Cross-border trade, Customs Law, Exports, Government Procurement

A version of this article was also published by the Journal of Commerce in February 2016. What a difference a few days make! Up until Monday, February 8th, it was understood that on February 28th, CBP entries, and those filed with the Food and Drug Administration (FDA), the National Highway Traffic Safety Administration (NHTSA) and… Continue Reading

ACE Deadline Reminder for Imports and Exports

Posted in Aerospace & Defence, Agriculture, Antidumping, Border Security, Corporate Counsel, Criminal Law, Cross-border trade, Customs Law, Exports

On February 28, 2016, those involved with imports and exports are preparing to undergo a major transition. As of that date, all entries must be filed using the new Automated Commercial Environment (ACE) system. ACE not only replaces the current Customs and Border Protection (CBP) system, but is designed to reengineer CBP’s operational processes; develop… Continue Reading

New Cybersecurity Law – Are You Prepared?

Posted in Constitutional Law, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border trade, Cybersecurity and Privacy, FCPA/Anti-Corruption

Originally published in January 2016 On December 18, 2015, President Obama signed into law the Cybersecurity Act of 2015. Beginning at Division N, Public Law 114-113 deals with cyber threats and includes the framework for the means and methods by which the private sector may submit such information to the government and by which the… Continue Reading

DOJ Sets Its Sights on Directors and Officers

Posted in Constitutional Law, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border trade, Cybersecurity and Privacy, Government Procurement, Trade Agreeements

Originally published in September 2015. Whether publicly traded or privately held, corporate boards have been put on notice – the Department of Justice (Justice or DOJ) is after you! On September 9th, DOJ issued a memo entitled: Individual Accountability for Corporate Wrongdoing. In it, Main Justice made clear to all offices that any activity which… Continue Reading

EU Safe Harbor- Nothing Settled Yet

Posted in Corporate Counsel, Cross-border deals, Cybersecurity and Privacy, U.S. Federal Government, Uncategorized

While a new Safe Harbor agreement was hoped for by the January 31, 2016 deadline, negotiations still continue. It is expected the European Commission will receive an update, but keep your fingers crossed for an actual deal! In the meantime, American companies continue to rely on recommended provisions to satisfy their privacy protection requirements.

Canada’s Federal Court Highlights Complexities of Canada’s Export Controls/Economic Sanctions

Posted in Border Security, Canada's Federal Government, Corporate Counsel, Cross-border deals, Cross-border trade, Export Controls & Economic Sanctions, Exports, Legal Developments

On December 18, 2015, the Federal Court of Canada issued its decision in Master Tech Inc. v. The Minister of Public Safety and Emergency Preparedness (2015 FC 1395). The Canada Border Services Agency (“CBSA”) detained four sets of machinery that Master Tech was exporting to Iran.  As is typical, after the detention, the CBSA contacted… Continue Reading

Canada’s Customs Voluntary Disclosure Policy Has Been Revised

Posted in Corporate Counsel, Cross-border deals, Cross-border trade, Customs Law, origin, tariff classification, valuation

On November 25, 2015, the Canada Border Services Agency (“CBSA”) issued revised D-Memorandum D-11-6-4 “Relief of Interest and/or Penalties Including Voluntary Disclosure”.  This D-Memorandum is important because importers can make mistakes or fail to provide all information. Mistakes are often costly.  Normally, the amount of duties & taxes, plus interest plus penalties (including Administrative Monetary… Continue Reading

The Canada-Ukraine Free Trade Agreement Should Be Ratified in 2016

Posted in Aerospace & Defence, Agriculture, Antidumping, Corporate Counsel, Cross-border deals, Cross-border trade, Customs Law, Environment, Export Controls & Economic Sanctions, Government Procurement, Intellectual Property, Labour, Legal Developments, Trade Agreeements

When I say that the Canada-Ukraine Free Trade Agreement “should be ratified in 2016”, it is an opinion that it would be beneficial for ratification to occur.  I do not have any inside knowledge about the new Trudeau Government’s plans. In fact, we have heard very little from PM Justin Trudeau or Canada’s new Trade… Continue Reading