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

Category Archives: Cross-border litigation

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What Might Be The First Trade Issues Under The Canada-EU CETA?

Posted in Agriculture, Canada's Federal Government, Canada-EU CETA, Cross-border litigation, Cross-border trade, Government Procurement, Imports Restrictions, Trade Agreeements, World Trade Organization

The Canada-EU Comprehensive Economic and Trade Agreement (the “Canada-EU CETA”) will come into provisional effect on September 21, 2017.  Sometimes, disputes that have arisen prior to the implementation of a free trade agreement, which are left unresolved at the time of implementation, turn into full disputes between the parties. What could those disputes be? The… Continue Reading

Buy American Executive Order

Posted in Aerospace & Defence, Border Security, Buy America, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border litigation, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, Exports, Government Procurement, Imports Restrictions, Legal Developments, NAFTA, Trade Agreeements, Trade Remedies

On April 18th, President Trump issued an Executive Order (“EO” or “Order”) focused on the Buy American  laws and regulations. See Buy American EO.  This EO directs federal government entities to review their procurement rules so that, to the extent legally permitted, preference is given to American made goods.  Section 2 specifically states: “[i]t shall… Continue Reading

Canada Commences Consultations Regarding A Canada-China Free Trade Agreement

Posted in Agriculture, Antidumping, Border Security, Canada's Federal Government, Canada-China FTA, Corporate Counsel, Cross-border deals, Cross-border litigation, Cross-Border Real Estate, Cross-border trade, Customs Law, Energy, Environment, Export Controls & Economic Sanctions, Government Procurement, Immigration law, Imports Restrictions, Intellectual Property, International Arbitrations, Labour, origin, tariff classification, valuation

On March 4, 2017, Global Affairs Canada announced consultations concerning a possible free trade agreement between Canada and China.   Consultations means that Global Affairs Canada is consulting with Canadian interested stakeholders (the free trade agreement negotiations have not started yet – Canada is in a preliminary exploratory stage). Global Affairs Canada has posted information on… Continue Reading

The Canada Border Services Is Getting Authority To Open All Cross-Border Mail

Posted in Border Security, Canada's Federal Government, Corporate Counsel, Cross-border deals, Cross-border litigation, Cross-Border Real Estate, Cross-border trade, Currency Reporting, Customs Law, Legal Developments, Proceeds of Crime/Money Laundering, Tax

The Canada Border Services Agency (“CBSA”) has statutory authority in subsection 99(1) of the Customs Act to open goods that are being imported – this includes letters and packages. Currently, most packages can be opened, including legal documents sent by a law firm to another law firm or a client.  A few years ago I… Continue Reading

The CBSA (as Administrator of Laws) Must Follow CITT Decisions (Subject to Limited Exceptions)

Posted in Antidumping, Cross-border litigation, Customs Law, Government Procurement, Imports Restrictions

This case is a must-read for all customs and trade lawyers.  This case is a must- read by other administrative lawyers who appear before quasi-judicial tribunals. The general administrative law rules for law enforcers and tribunals have been clarified in simple, understandable terms. May there be greater certainty, greater predictability and finality as a result of this… 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

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

How To Find Out What Is In The Canada Border Services Agency Files About You

Posted in Border Security, Canada's Federal Government, Cross-border litigation, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, NEXUS, origin, tariff classification, valuation

Yesterday, we wrote about “How To Find Out What Is In The Canada Revenue Agency’s Files About Your Audit“.  Today, we are writing about your Canada Border Services Agency (“CBSA”) file.  Would you like to know why the CBSA is not approving your NEXUS application?  Would you like to know what the CBSA officer wrote… Continue Reading

Canada’s Procurement Review Procedure Accessible to Small-to-Medium Sized Businesses

Posted in Canada's Federal Government, Cross-border litigation, Government Procurement, Tribunals, Uncategorized

Canada has a federal government procurement bid challenge mechanism that has been made somewhat user-friendly to small-to-medium sized businesses.  Chapter 10 of the North American Free Trade Agreement and equivalent chapters in other free trade agreements and the WTO Agreement on Government Procurement require that Canada establish a bid challenge mechanism.  Canada has done so…. Continue Reading

Supreme Court of Canada’s Decision in Chevron – Enforcement of Ecuadorian Court Judgment Can Proceed

Posted in Constitutional Law, Cross-border litigation, Legal Developments, Provincial Courts, Supreme Court of Canada, Uncategorized

Today, the Supreme Court of Canada released its decision in Chevron Corp. v. Yaiguaje (SCC 35682), which is an important international law judgement coming from Canada’s highest court.  Those watching this case will be interested to know that the Supreme Court of Canada held that Ontario has jurisdiction to adjudicate a recognition and enforcement action… Continue Reading

What Should A Lawyer Do To Claim Solicitor-Client Privilege at the Canadian Border?

Posted in Border Security, Cross-border deals, Cross-border litigation, Customs Law

At the present time, the Canada Border Services Agency (“CBSA”) does not have a published or informal policy concerning what a lawyer should do to claim solicitor-client privilege during an examination of documents in a lawyer’s briefcase or electronic documents on a lawyer’s computer or PDA. Based on the Alain Philippon case, currently before the… Continue Reading

Cybersecurity

Posted in Aerospace & Defence, Agriculture, Border Security, Controlled Goods Program, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border litigation, Cross-border trade, Customs Law, Energy, Environment, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Intellectual Property, NAFTA, Transportation

Originally published in the Journal of Commerce in May 2014. The word cybersecurity causes shudders in the hearts of anyone in the etailing business, and one need to look no further than Target, Michaels, eBay and Neiman Marcus for the latest examples of significant consumer data theft. Unfortunately, cybersecurity and the thought of data being… Continue Reading

Tips For Conducting An Internal Investigation

Posted in Aerospace & Defence, Agriculture, Anti-Trust/Competition Law, Border Security, Buy America, Constitutional Law, Controlled Goods Program, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border litigation, Cross-Border Real Estate, Cross-border trade, Customs Law, Energy, Environment, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Government Procurement, Intellectual Property, Labour, Legal Developments, NAFTA, Transportation

Perhaps your computer system was hacked. Maybe you opened a container to find goods in it that did not belong to you (thank goodness they were not dangerous) or perhaps no goods but evidence people lived in the container while it was en route to the U.S., or you found sizable payments made to questionable… Continue Reading

Importing and Exporting Copyrighted Grey Market Goods

Posted in Border Security, Cross-border litigation, Customs Law, Export Controls & Economic Sanctions, Intellectual Property, Trade Remedies

There continues to be a lot of press about the impact of Kirtsaeng v John Wiley & Sons, 133 S. Ct. 1351 (2013),  in which the U.S. Supreme Court recognized the validity of grey market goods being imported into the U.S. The thrust of the decision was recognition of a first sale doctrine, meaning once… Continue Reading

Fifth Amendment Right Not Absolute

Posted in Aerospace & Defence, Agriculture, Constitutional Law, Corporate Counsel, Criminal Law, Cross-border litigation, Customs Law, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Immigration law, Intellectual Property, Law Schools, Law Students, Legal Developments, State Courts, U.S. Federal Government, U.S. Supreme Court

Silence can be used against an individual based on the U.S. Supreme Court’s holding in Salinas vs. Texas. As such, companies would do well to expand the training they provide to staff to all employees. The failure of individuals to fully understand their legal rights can lead to terrible consequences for those individuals and their… Continue Reading

If the CBSA Seizes Your Goods and Mistakenly Destroys Your Goods, You May Seek Compensation

Posted in Cross-border litigation, Cross-border trade, Customs Law

It does not happen often – but, from time to time, the Canada Border Services Agency (CBSA) destroys detained goods by mistake. Goods that are being imported or that are being exported may be detained and destroyed in error. One of our clients experienced a shock when the CBSA wrote to them to say that… Continue Reading

Canada Has Taken Steps To Empower Customs Officials To Stop Counterfeit Goods At The Border

Posted in Canada's Federal Government, Cross-border litigation, Cross-border trade, Customs Law, Intellectual Property

On March 1, 2013, the Government of Canada introduced Bill C-56 “Combating Counterfeit Products Act” in the House of Commons. Bill C-56 provides copyright and trademark owners with a Canadian legal process to stop the import and export of counterfeit goods and take those goods out of the commercial stream. This legal process is an… Continue Reading

Canada Has Not Yet Ratified the ICSID Convention

Posted in Cross-border litigation, Energy, Environment, International Arbitrations, NAFTA Chapter 11, Politics, Provincial Courts, Provincial Governments

Canada signed the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID) on December 15, 2006 and investors and trade lawyers have been patiently waiting ever since for the Government of Canada to ratify the ICSID . We have been waiting and waiting. In 2008, the Government of Canada passed… Continue Reading

Canada’s Courts of Appeal Web-Sites

Posted in Cross-border litigation

If you would like to reasearch Canadian appellate court decisions, here is a list of Canada’s Court of Appeal web-sites: Alberta: www.albertacourts.ab.ca British Columbia: www.courts.gov.bc.ca Manitoba: http://www.manitobacourts.mb.ca/ New Brunswick: http://www.gnb.ca/cour/03COA1/index-e.asp Newfoundland: http://www.court.nl.ca/ Nova Scotia: www.courts.ns.ca/Appeals/index_ca.htm Ontario: http://www.ontariocourts.on.ca/coa/en/ Prince Edward Island: http://www.gov.pe.ca/courts/ Quebec: http://www.jugements.qc.ca/ Saskatchewan: www.sasklawcourts.ca Nunavut: http://www.nucj.ca/index.htm Northwest Territories: www.justice.gov.nt.ca/dbtw-wpd/nwtjqbe.htm Yukon: www.yukoncourts.ca Federal Court of… Continue Reading