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

Canada’s Export Controls Against Turkey: Are Rules About To Change?

Posted in Aerospace & Defence, Border Security, Canada's Federal Government, Cross-border trade, Export Controls & Economic Sanctions, Exports

chessCanadian businesses with export activities to Turkey should watch carefully to see if Canada’s export controls rules will change as a result of Canada’s concerns about the thousands of detentions and three month state of emergency in Turkey.  It is time to exercise due diligence and caution.  It is time to watch alertly for announcements by the Canadian government relating to export controls.

We should note that we do not have knowledge of imminent changes to Canada’s export controls rules affecting Turkey.  However, based on experience, this is the time to watch out for announcements from Global Affairs Canada and Canada’s Minister of Foreign Affairs.

In recent days, Canada’s Foreign Affairs Minister Dion has issued a number of statements of concern about the actions being taken in Turkey after the failed coup attempt on July 15, 2016. In a statement “Canada very concerned with the situation in Turkey“, Minister Dion stated:

“Canada supports a democratic Turkey and respects the need for thorough investigations and prosecutions against the perpetrators of the recent attempted coup. This must be done‎ in accordance with Turkish and international law. ‎Given this imperative, Canada is concerned by the state of emergency declared by President Erdogan today.

We are equally troubled by reports of tens of thousands of dismissals and detentions, including of members of the judiciary, public servants, teachers, academics, members of civil society and the media. We are also profoundly troubled by reported acts of retribution and intimidation. We call on Turkish authorities to respect the human rights of all individuals, including the accused perpetrators, and ensure they are protected from violence at the hands of vigilantes.”

In a “Statement by Minister Dion on the evolving situation in Turkey” on July 16, 2016, Minister Dion stated:

“We stand with Turkey, a strong partner and NATO ally, as it recovers from these unsettling events. We are confident that the government and the people of Turkey will persevere against these challenges in an orderly and peaceful manner.

Since Turkey is a NATO ally of Canada, it is unlikely that Canada will impose unilateral economic sanctions in the near future against Turkey pursuant to the Special Economic Measure Act.  Also, there is no current reason to expect a UN Security Council Resolution resulting in multilateral economic sanctions under the United Nations Act.  What we are talking about is potential export controls and possible trade restrictions.

However, it is possible that Canada will temporarily suspend the application of General Export Permit No 41 “Dual-Use Goods and Technology to Certain Jurisdictions” to Turkey.  GEP No 41 allows residents of Canada to export or transfer certain goods and technology included in Group 1 of the Export Control List (“ECL”) and ECL item number 5504 for end-use in certain eligible destinations, including Turkey, without having to obtain prior approval by way of an export permit.  Canada may require Canadian businesses to apply for transaction-by-transaction export permits for exports to Turkey so that it can consider each request prior to the export and in light of the most recent concerns relating to Turkey.

Similarly, Canada could temporarily suspend the application of General Export Permit No. 46 “Cryptography for Use by Certain Consignees” to eligible consigneees in Turkey.  GEP 46 allows residents of Canada to export or transfer certain items included in Group 1-5 Part 2 of “A Guide to Canada’s Export Controls” to eligible consignees including Turkey, without having to obtain prior approval by way of an export permit.  Under GEP No. 46, residents of Canada may export or transfer all goods and technology referred to in Group 1-5 Part 2 of “A Guide to Canada’s Export Controls”, excluding those goods and technology referred to in:

  • a. items 1-5.A.2.a.2., 1-5.A.2.a.4., or 1-5.A.2.a.9. of A Guide to Canada’s Export Controls.
  • b. item 1-5.B.2. of the Guide, if that good
    • i. is used in the development or production of a good referred to in any of subparagraphs 6.a) or 6.b)ii., or
    • ii. is specially designed to evaluate and validate the information security functions of a good referred to in any of subparagraphs 6.a) or 6.c)i. to 6.c)iii.;
  • c. item 1-5.D.2. of the Guide, if that software
    • i. is used in the development, production or use of a good referred to in any of subparagraphs 6.a) or 6.c)ii. or 6.c)iii.,
    • ii. has the characteristics of a good referred to in any of subparagraph a) or that performs or simulates the functions of any of those goods,
    • iii. certifies software referred to in subparagraph 6.c)ii.; and
    • iv. is specially designed or modified to support technology used in the development, production or use of a good referred to in any of subparagraphs 6.a), 6.b)i., 6.b)ii. or 6.c)i. to 6. c)iii.
  • d. item 1-5.E.2. of the Guide, if that technology is used in the development, production or use of a good referred to in any of subparagraphs 6.a), 6.b)i., 6.b)ii. or 6.c)i. to 6.c)iii.

In addition, Canada could temporarily suspend the application of General Export Permit No. 45 “Cryptography for the Development or Production of a Product” to Turkey. GEP 45 covers the export or transfer of most goods and technology referred to in ECL item number 1-5 Part 2 of “A Guide to Canada’s Export Controls”, excluding the same items listed above for GEP No. 46.

Let’s not forget General Export Permit No. 43 “Nuclear Goods and Technology to Certain Destinations” and “General Export Permit No. 44 – Nuclear-related Dual-use Goods and Technology to Certain Destinations”.  Pursuant to GEP No. 43 and GEP No. 44, Canadian exporters are not required to obtain an individual export permit from Global Affairs when exporting eligible goods and technology to eligible destinations, such as Turkey, as identified in GEP 43 and GEP 44, when accompanied by a valid export licence from the Canadian Nuclear Safety Commission.  It is possible that this blanket GEP may be amended for Turkey.

Finally, we cannot ignore the criticism of Canada’s recent export permits for certain goods sold to Saudi Arabia.  In connection with the exports to Saudi Arabia, Peggy Mason is reported by Steven Chase as having said:

“It has been a bedrock principle of Canadian export control policy … that Canadian arms exports would not contravene international law including UN arms embargoes, would not contribute to gross human rights abuses and would not undermine international peace and security…”

We may begin to hear similar statements being made against Turkey, which could result in increased scrutiny of export permit applications when the destination is Turkey.

Any Canadian business doing business in Turkey or with businesses in Turkey or the government of Turkey should be on a heightened alert for changes to Canadian export controls rules.  While it is prudent to amend contracts to take into consideration the risks of political instability, it is also prudent to include contractual provisions that permit refunds or prevent penalties from applying when goods cannot be delivered as the result of Canadian law.  More time should be built into delivery schedules in case the law changes and export permit requirements are reinstated.

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com. Alternatively, visit www.lexsage.com