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

Category Archives: Legal Developments

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Dear Duck Dynasty, The Canada Border Services Agency Issues D-Memo on Decoy Calls

Posted in Customs Law, Legal Developments

On August 27, 2015, the Canada Border Services Agency (“CBSA”) issued D-Memorandum D10-14-65 “Tariff Classification of Decoy Calls“.  I did not realize that there was an issue relating specifically to decoy calls.  The issue was serious enough that the CBSA issued a specific administrative policy statement. The CBSA states that: “As heading 92.08 covers, among other… Continue Reading

Disqualification Orders Are Rare at the Canadian International Trade Tribunal: Will Dentons Case Be A Game Changer in Canada?

Posted in Antidumping, Legal Developments, Trade Remedies

There have been a number of cases in Canada where one party to the proceeding has raised conflict of interest in respect of another party before the Canadian International Trade Tribunal (“Tribunal”).  In most cases, the Tribunal has not disqualified counsel. For example, in Circular Copper Tube, PI-2013-002, the Tribunal did not issue a disqualification… Continue Reading

Canada Requires a “Through Bill of Lading” to Claim GPT Tariff Treatment

Posted in Customs Law, GPT, Legal Developments, Uncategorized

The Canadian International Trade Tribunal (the “Tribunal”) recently held in ContainerWest Manufacturing Ltd v. President of the Canada Border Services Agency, AP-2014-025 (July 27, 2015) that “a through bill of lading is required for entitlement to the GPT.”  This decision may surprise many importers, customs lawyers and customs brokers. GPT means General Preferential Tariff.  Often… Continue Reading

Customs Is Again Getting Overly Creative

Posted in Corporate Counsel, Cross-border deals, Cross-border trade, Customs Law, Legal Developments, NAFTA, Trade Remedies

In late October 2014, Customs and Border Protection (CBP) issued a guidance message in which it laid down new rules regarding post-importation/post-entry claims for duty preference and duty reduction programs – see CSMS re PEA/1520(d) Claims for the exact text. Specifically, CBP decided unless the program under which the duty free claim is being made… Continue Reading

California Transparency in Supply Chain Act Update

Posted in Border Security, Corporate Counsel, Cross-border deals, Customs Law, Legal Developments, Politics

On April 13, 2015, California Attorney General Kamala Harris issued “A Resource Guide” for companies subject to California’s Transparency in the Supply Chain Act (the “Act”). This resource guide was published in conjunction with the first efforts by the State of California to enforce the Act which took effect in 2010. The recent enforcement effort… Continue Reading

Yates Decided – Saner Heads Prevailed!

Posted in Aerospace & Defence, Anti-Trust/Competition Law, Constitutional Law, Corporate Counsel, Criminal Law, FCPA/Anti-Corruption, Government Procurement, Legal Developments, U.S. Supreme Court

Originally published by the Journal of Commerce in March 2015 Back in November in a column discussing the ever-increasing criminalization of civil violations, we mentioned the case of fisherman John Yates. Mr. Yates was the captain of a commercial fishing boat in the waters off Florida where he was catching red grouper. The state fishing… Continue Reading

The More Things Change – The More They Stay the Same

Posted in Immigration law, Legal Developments

Originally published by the California Fashion Association in January 2015 Authored by Howard D. Shapiro and David S. Rugendor, Edited by Susan Kohn Ross On November 20-21, 2014 President Obama announced “executive action” on immigration policy. These proposals were instantaneously controversial; businesses are left to ask – what does all of this mean to our… Continue Reading

Proper Internal Controls: A Must

Posted in Aerospace & Defence, Agriculture, Constitutional Law, Corporate Counsel, Criminal Law, Cross-border trade, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Government Procurement, Legal Developments, NAFTA Chapter 11, Trade Agreeements, Trade Remedies, Transportation

Originally published in the October 2014 Journal of Commerce on-line When have you done enough? Based on a recent exchange in a LinkedIn discussion group, there is real disagreement. Despite that lack of concurrence, two court cases decided in the last few months again drive home the point that proper internal controls are a must…. Continue Reading

Say What?

Posted in Corporate Counsel, Criminal Law, Cross-border trade, FCPA/Anti-Corruption, Legal Developments, Trade Agreeements, Transportation

Originally published in the November 2015 Journal of Commerce on-line Many trade associations are grappling with declining membership likely contributed to by the absence of pressing issues grabbing industry-wide attention, despite export reform and the ACE roll-out. A quite different phenomenon continues to expand – the criminalization of civil violations. Two recent cases are reminders… Continue Reading

Compliance is the Key – No Surprise!

Posted in Corporate Counsel, Criminal Law, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Legal Developments, NAFTA, Trade Agreeements, Trade Remedies

Originally published  in the January 2015 Journal of Commerce on-line Last week, Women in International Trade in Orange County presented a half  day program that featured speakers from Customs and Border Protection, the Food & Drug Administration, Consumer Products Safety Commission and U.S. Dept. of Agriculture.  The luncheon speakers were two Assistant United States Attorneys…. Continue Reading

Customs Is Again Getting Overly Creative

Posted in Cross-border trade, Customs Law, Legal Developments, NAFTA, Trade Agreeements

In late October 2014, Customs and Border Protection (CBP) issued a guidance message in which it laid down new rules regarding post-importation/post-entry claims for duty preference  and duty reduction programs – see http://www.cbp.gov/sites/default/files/documents/CSMS%20message_Post%20entry%20preference%20claims.pdf for the exact text. Specifically, CBP decided unless the program under which the duty free claim is being made specifically contains a post-entry… Continue Reading

Court of Appeals for Federal Circuit (CAFC) Issues Decision In U.S. v. Trek Leather – Corporate Officer Held Liable

Posted in Aerospace & Defence, Anti-Trust/Competition Law, Border Security, Constitutional Law, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Government Procurement, Legal Developments, NAFTA, Trade Agreeements, Transportation

Yesterday, the CAFC issued its en banc decision in the U.S. v. Trek Leather case.  The Court held the President of the company liable for gross negligence due to his own actions, even if he is an agent of the company. By way of background, the case originated as a penalty action by Customs and… 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

Cybersecurity

Posted in Aerospace & Defence, Border Security, Buy America, Corporate Counsel, Customs Law, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Government Procurement, Legal Developments

President Obama issued Executive Order 13636 on February 12, 2014 setting out potentially far reaching cybersecurity standards. To learn what these new standards could mean for your company, the impact it will have on how companies are measured in the face of a hacking event and just what you are in for in the future, see http://www.msk.com/news/pub.cfm?id=2159&type=Alert.

Obama Vetoes ITC Exclusion Order – Helps Apple

Posted in Anti-Trust/Competition Law, Legal Developments, Trade Remedies

The coverage has been wall-to-wall this weekend about Pres. Obama’s veto of the exclusion order entered in favor of Apple by the International Trade Commission regarding its on-going patent dispute with Samsung. The letter can be found here – http://www.ustr.gov/sites/default/files/08032013%20Letter_1.PDF. There are perhaps two noteworthy points about this letter. First, that the Administration even got involved… 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

California’s Proposed “Made in California” Labels Law is State Protectionism

Posted in Buy America, Cross-border trade, Legal Developments, Politics, State Governments

Canada-US Blog has received the following information from Birgit Matthiesen, Special Advisor to the President and CEO of the Canadian Manufacturers & Exporters: The Los Angeles Times reports that “there are in-state manufacturers that want to see the adoption of an official label that declares Made in California. State Sen. Ellen M. Corbett (D-San Leandro)… Continue Reading

New Conflict Minerals Rules

Posted in Customs Law, Legal Developments

Originally published by the Journal of Commerce in October 2012 The Securities and Exchange Commission (SEC) issued the long-awaited conflict minerals regulations on September 12, 2012. See http://www.gpo.gov/fdsys/pkg/FR-2012-09-12/html/2012-21153.htm for the full text. They take effect on November 13, 2012 and cover products that include tantalum, tin, gold or tungsten. The goal of the law is… Continue Reading

Where Are We Going?

Posted in Customs Law, Export Controls & Economic Sanctions, Legal Developments

Originally published by the Journal of Commerce in August 2012 Last month, the L.A. County Bar’s Customs Law Committee had a meeting with the local U.S. Attorney.  Perhaps the most interesting point which resulted was agreement among all parties that not enough prosecutions are taking place regarding purely import/export trade fraud cases. While this might,… Continue Reading

What Me Responsible????

Posted in Customs Law, Legal Developments

Originally published by the Journal of Commerce in July 2012. One of the hallmarks of an importer’s relationship with Customs and Border Protection is reasonable care. In its simplest terms, this means the importer has taken all the reasonable steps necessary to make sure the classification and value of his goods are accurately stated at… Continue Reading

What Happened With My Continuous Bond?

Posted in Anti-Trust/Competition Law, Cross-border trade, Customs Law, Legal Developments

Originally published by the Journal of Commerce in June 2012. One of the surety companies, which is a major player in the Customs bond market, recently sent a general notice reminding customs brokers that when an importer has a continuous bond, it is an increased risk indicator if CBP starts demanding single transaction bonds. While… Continue Reading

Centers for Excellence and Expertise – What Does The Future Hold?

Posted in Customs Law, Intellectual Property, Legal Developments

Originally published by the Journal of Commerce in May 2012 At the Trade Symposium which occurred on May 10, 2012 in Long Beach, CA, much of the attention was on the CEEs, or Centers for Excellence and Expertise. Acting Commissioner David Aguilar kicked off the event by confirming CBP recognizes it needs to change its… Continue Reading