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

Category Archives: Legal Developments

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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

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.

Advancement of Expert Testimony Rules Before The Canadian International Trade Tribunal

Posted in Antidumping, Cross-border trade, Customs Law, Legal Developments, origin, tariff classification, valuation

On December 21, 2015 (published on the CITT web-site January 12, 2016), the Canadian International Trade Tribunal (“Tribunal”) issued its tariff classification/refund decision in EMCO Corporation Westlund v. The President of the Canada Border Services Agency (CITT File No. AP-2014-042).  There is an interesting issue hidden in the case – whether a witness qualifies as… Continue Reading

Canadian e-Manifest AMPs Penalties Start Today For U.S. Truckers/Trains – Submit Manifest Prior to Arrival

Posted in Border Security, Cross-border trade, Customs Law, Legal Developments, Transportation

January 11, 2016 is E-Day – the day Canada will start to impose administrative monetary penalties (“AMPS”) for failure by highway carriers and rail carriers to have satisfied e-Manifest filing requirements.  What are e-Manifest requirements?  E-Manifest requirements are national security measures established by the Canada Border Services Agency (“CBSA”) and require that persons carrying cargo… Continue Reading

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

Why Did the Chicken NOT Cross the Canada/US Border?

Posted in Agriculture, Border Security, Canada's Federal Government, Cross-border trade, Legal Developments, NEXUS

Because Canada has imposed an import ban on all poultry products from certain U.S. States.  On November 26, 2015, the Canada Border Services Agency (“CBSA”) posted a News Release entitled “Let’s talk turkey: know the restrictions on poultry products before crossing the border”.  In this News Release, the CBSA notifies Canadians, residents and travelers to… Continue Reading

Canada is Concerned About Unreported Exported Goods AND Grants Limited 6 Month Amnesty

Posted in Controlled Goods Program, Cross-border deals, Cross-border trade, Export Controls & Economic Sanctions, Legal Developments

On November 16, 2015, the Canada Border Services Agency (“CBSA”) issued Customs Notice 15-035 “Voluntary Disclosure of Unreported Goods Transiting Through the United States to a Subsequent Country” is which it starts by stating “It has come to the CBSA’s attention that a large number of businesses have been exporting goods to Mexico and other… 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

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

The Trade Remedies Chapter of TPP Will Bring Opportunities for Trade Lawyers

Posted in Agriculture, Antidumping, Cross-border trade, Legal Developments, Trade Remedies

Trade lawyers may have new tools in their tool belt as a result of the Trans-Pacific Partnership Agreement (TPP). So often when one reads about a free trade agreement, a Chapter will jump out as interesting.  Canada has not included a Chapter on trade remedies since NAFTA and the Canada-Chile free trade agreement.  As a… Continue Reading

Canada is a Party to the Historic Trans-Pacific Partnership Agreement

Posted in Aerospace & Defence, Agriculture, Anti-Trust/Competition Law, Border Security, Canada's Federal Government, Cross-border deals, Cross-border trade, Customs Law, Government Procurement, Intellectual Property, International Arbitrations, Legal Developments, Trade Agreeements

On October 5, 2015, the trade ministers of Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States signed the Trans-Pacific Partnership Agreement (TPP).  TPP is a historic trade agreement.  TPP is a comprehensive trade agreement. For Canada, TPP represents a trade agreement with new parties (Australia, Brunei, Japan,… Continue Reading