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

Category Archives: Legal Developments

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ACE Allows For Stricter Customs Enforcement

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

Originally Published by the Journal of Commerce in August 2016 In the face of its recent reorganization and enhanced computer system, it was really only a matter of time before the trade community started to see Customs and Border Protection (“CBP”) better organize its enforcement efforts, and now the first tangible step has been publicly… Continue Reading

Undervaluation of Goods Can Lead to Criminal Charges And Conviction In Canada

Posted in AMPs, Criminal Law, Cross-border deals, Cross-border trade, Customs Law, Legal Developments, origin, tariff classification, valuation

On August 5, 2016, the Canada Border Services Agency (“CBSA”) posted on the CBSA web-site a News Release entitled “Dartmouth store owner charged for falsifying documents and undervaluing shipments”. This News Release should cause Canadian business owners who import goods and/or general counsel of companies that import goods to ask important questions: “Is my import… Continue Reading

Can The CBSA Ask For Your Passwords?

Posted in Cross-border trade, Customs Law, Legal Developments, NEXUS

The answer is, “Yes”, the Canada Border Services Agency (“CBSA”) can ask for your passwords.  Not only can the CBSA ask for your passwords, the CBSA does ask for passwords.  Not only does the CBSA ask for passwords, the CBSA will unlock your cell phones, mobile phones, smart phones, computers, etc and look at/review your… Continue Reading

Exports of Dual-Use Goods and Technology from Canada is More Business Friendly

Posted in Border Security, Export Controls & Economic Sanctions, Legal Developments

On August 12, 2015, Canada’s Minister of Foreign Affairs caused to be published in the Canada Gazette, Part II, Vol 149, No. 16 a regulation entitled “General Export Permit No. 41 – Dual Use Goods and Technology to Certain Destinations”, SOR/2015-200. Foreign Affairs, Trade and Development Canada also published a backgrounder and Notice to Exporters… Continue Reading

Canada Tables Arms Trade Treaty in Parliament and Starts Steps to Accede

Posted in Aerospace & Defence, Border Security, Canada's Federal Government, Controlled Goods Program, Export Controls & Economic Sanctions, Exports, Legal Developments

On June 30, 2016, Canada’s Global Affairs Minister Dion and International Trade Minister Freeland issued a joint Press Release that announced that the United Nations Arms Trade Treaty (“ATT”) was tabled in the House of Commons and that Canada planned to accede to the ATT.  Apparently, the ATT was tabled in the House of Commons… Continue Reading

Canada To Add Export Smuggling Offence into Customs Act

Posted in Border Security, Canada's Federal Government, Controlled Goods Program, Customs Law, Export Controls & Economic Sanctions, Exports, Legal Developments

On June 15, 2016, the Government of Canada introduced Bill C-21 “An Act to amend the Customs Act” in the House of Commons. The amendments to the Customs Act focus on exports of people and goods.  Many of the amendments deal with the gathering of information about the export of goods and people.  However, one… Continue Reading

What Businesses Should Know About Bill C-21 Amendments to Customs Act (Canada)

Posted in Border Security, Canada's Federal Government, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, Exports, Harmonization, Immigration law, Legal Developments, U.S. Federal Government

On June 15, 2016, Canada’s Minister of Public Safety and Emergency Preparedness introduced Bill C-21 “an Act to amend the Customs Act” in the Canadian House of Commons. It is a relatively short bill containing important and far-reaching amendments to the Customs Act.  Many people think that the Customs Act only affects them if they… Continue Reading

Senate of Canada Releases “Tear Down These Walls: Dismantling Canada’s Internal Trade Barriers” Report

Posted in Canada's Federal Government, Harmonization, Legal Developments

Further to my May 11, 2016 testimony and the testimony of others (view post here), today the Senate of Canada, Standing Committee on Banking, Trade and Commerce released an extensive report on Canada’s internal (inter-provincial) barriers to trade called “Tear Down These Walls: Dismantling Canada’s Internal Trade Barriers“. In this report, Senator David Tkachuk, Chair of… 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

Canada’s Fathers of Confederation Envisioned Internal Free Trade Between Provinces

Posted in Constitutional Law, Legal Developments, Personal Comments, Politics, Provincial Governments, Supreme Court of Canada

On May 11, 2016, I testified before the Canadian Senate Standing Committee on Banking, Trade and Commerce, which is currently considering internal trade in Canada.  My testimony is posted on the Senate website.  In my opening presentation, I discussed the Comeau decision, which is one of the most interesting decisions I have read recently (any… 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

The CITT Does Not Like Messy Appeals

Posted in Customs Law, Legal Developments, Legal Writing, origin, tariff classification, valuation

The Worldpac Canada v. President of the Canada Border Services Agency case (AP-2014-021) released by the Canadian International Trade Tribunal (“CITT”) on March 8, 2016 contains a few paragraphs that do not hide the CITT’s frustration with the appeal paperwork in this case.  Member Downey states in the Reasons: “… the Tribunal also wishes to… 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