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

Category Archives: FCPA/Anti-Corruption

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Border Searches of Electronic Devices

Posted in Aerospace & Defence, Agriculture, Border Security, Constitutional Law, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, Exports, FCPA/Anti-Corruption, Imports Restrictions, Intellectual Property, Legal Developments, Trade Agreeements, Trade Remedies

Earlier this month, MSK attorneys David Rugendorf and Frida Glucoft published an Alert summarizing the latest directive issued by Customs and Border Protection (CBP) regarding the search of electronic devices.  A copy of their original article can be found here –  Hold That Call International Travelers.  Given the  increasing likelihood of any traveler’s electronic devices… Continue Reading

He Said What ?????

Posted in Aerospace & Defence, Agriculture, Antidumping, Controlled Goods Program, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border trade, Currency Reporting, Customs Law, Export Controls & Economic Sanctions, Exports, FCPA/Anti-Corruption, Government Procurement, Harmonization, Imports Restrictions, Intellectual Property, Legal Developments, Proceeds of Crime/Money Laundering, Trade Remedies

Originally published by the Journal of Commerce in December 2017 While Special Counsel Robert Mueller continues his investigation, the recent guilty plea entered by Trump former National Security Advisor Lt. Gen. Michael Flynn (Ret.) serves as a reminder that when you are interviewed by a law enforcement agent, you better be sure what you say… Continue Reading

Compliance Incentive: Canada to appoint a Canadian Ombudsman for Responsible Enterprise

Posted in Aerospace & Defence, Anti-Trust/Competition Law, Canada's Federal Government, Corporate Counsel, Cross-border deals, Cross-border trade, Cryptocurrencies, Environment, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Legal Developments

On January 17, 2018, the Government of Canada furthered its “progressive trade agenda” and responded to calls from human rights groups by announcing that it is going to watch the activities of Canadian businesses operating in overseas markets more seriously.  The Government of Canada will create an Office of the Canadian Ombudsman for Responsible Enterprise… Continue Reading

Should Canada add a books and records provision to export controls and economic sanctions laws?

Posted in Border Security, Canada's Federal Government, Corporate Counsel, Cross-border trade, Cryptocurrencies, Export Controls & Economic Sanctions, Exports, FCPA/Anti-Corruption

Countries, such as North Korea, Iran and Russia, may attempt to hide activities by using cryptocurrencies (such as Bitcoin). While the underlying activity of selling controlled goods or dealing with designated persons is illegal (under Canadian export laws) without an export permit/ministerial authorization, a secondary issue is enforcement.  Enforcement tools directed at “following the money”… Continue Reading

Top 10 Anti-Bribery/Anti-Corruption Developments in Canada in 2017

Posted in Canada's Federal Government, Cross-border deals, Export Controls & Economic Sanctions, FCPA/Anti-Corruption

Canada is not known for developments in anti-bribery and anti-corruption laws.  However, 2017 has been a busy year of advancements and developments.  Looking back on 2017, persons with a real and substantial link to Canada should be more concerned about compliance with Canada’s anti-bribery laws. In you have not done so already, it is time… Continue Reading

Facilitation Payments are Bribery: Canada Finally Repeals “Facilitation Payments” Exception

Posted in Canada's Federal Government, Cross-border deals, FCPA/Anti-Corruption

Canadian anti-corruption law is now clear, facilitation or “grease” payments to foreign public officials are illegal. There used to be a gray area – some Canadian companies did not know how to approach the small payments requested by low-level officials to speed up routine government functions and Canadian compliance managers wasted much time guessing about… Continue Reading

Canada Lists Names: Canada Publishes 3 Magnitsky Sanctions Lists

Posted in Aerospace & Defence, Canada's Federal Government, Cross-border deals, Cross-border trade, Export Controls & Economic Sanctions, Exports, FCPA/Anti-Corruption, Legal Developments, Proceeds of Crime/Money Laundering

On November 3, 2017, Canada announced sanctions and published three lists of names under the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) (a.k.a Canada’s Magnitsky Act) imposing sanctions against 52 individuals from Russian, Venezuela and South Sudan.  The Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) received Royal Assent on October… Continue Reading

Tips for Traveling with Electronic Devices

Posted in Aerospace & Defence, Border Security, Constitutional Law, Controlled Goods Program, Corporate Counsel, Criminal Law, Cross-border trade, Customs Law, Cybersecurity and Privacy, Export Controls & Economic Sanctions, Exports, FCPA/Anti-Corruption, Legal Developments, Transportation

In the September 18, 2017 Federal Register notice (see 82 FR 43556) , U.S. Citizenship and Immigration made clear it will now routinely require those applying to enter the U.S. to provide social media handles. As such, the obvious starting point for these tips must be a reminder that Customs and Border Protection (“CBP”) officers… Continue Reading

Trading with China – New Reasons To Be Wary!

Posted in Aerospace & Defence, Agriculture, Anti-Trust/Competition Law, Antidumping, Controlled Goods Program, Corporate Counsel, Cross-border deals, Cross-border trade, Customs Law, Energy, Environment, Export Controls & Economic Sanctions, Exports, FCPA/Anti-Corruption, Imports Restrictions, Intellectual Property, Labour, Legal Developments, Trade Agreeements, Trade Remedies

Yesterday, August 2, 2017, President Trump signed into law H.R. 3364, the “Countering America’s Adversaries Through Sanctions Act”.  The general press is covering this story by writing about Russia’s initial retaliation taking the form of cutting the staff authorized at the U.S. embassy in Moscow and the seizure of certain U.S. diplomatic property within Russia. … Continue Reading

How To Start A Trade Compliance Program? Who, What, When, Where, How Questions To Ask

Posted in Aerospace & Defence, AMPs, Border Security, Canada's Federal Government, Canada-EU CETA, Canada-Ukraine FTA, Corporate Counsel, Cross-border trade, Currency Reporting, Customs Law, Export Controls & Economic Sanctions, Exports, FCPA/Anti-Corruption, Government Procurement, NAFTA Renegotiations, Proceeds of Crime/Money Laundering

The trade landscape is changing for many Canadian companies. Canada is involved in the renegotiation of NAFTA.  The Canada-Ukraine Free Trade Agreement comes into effect on August 1, 2017.  The Canada-EU CETA enters into provisional effect on September 21, 2017.  The Government of Canada is updating export controls and economic sanctions laws and Global Affairs… Continue Reading

Canada’s Corruption of Foreign Public Officials Act Has Sharp Teeth And Long Arms

Posted in FCPA/Anti-Corruption, Uncategorized

Ontario’s highest court, the Ontario Court of Appeal, issued a decision on July 6, 2017 in R. v. Karigar, which takes enforcement of foreign bribery to another level in Canada.  In 2013, Mr. Karigar was convicted of offering to bribe a foreign public official contrary to paragraph 3(1)(b) of the Corruption of Foreign Public Officials… Continue Reading

DOJ Defines Compliance

Posted in Aerospace & Defence, Agriculture, Antidumping, Border Security, Buy America, Controlled Goods Program, Corporate Counsel, Criminal Law, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, Exports, FCPA/Anti-Corruption, Imports Restrictions, Intellectual Property, Legal Developments, Trade Agreeements, Trade Remedies

In the span of the last 18 months, the topic of corporate compliance programs has gotten considerable attention from the Department of Justice  (“DOJ”) and now finally, DOJ has published significant details about how it is likely to measure the sufficiency of any company’s compliance program. First, some background.  In September 2015, the Yates memo… Continue Reading

Canada’s Big Anti-Bribery Case Ends in Dismissed Charges

Posted in FCPA/Anti-Corruption

On February 10, 2017, three former executives of SNC-Lavalin Group Inc. saw Corruption of Foreign Public Officials Act (Canada) charges withdrawn in the Ontario Superior Court. Former SNC vice-president of energy and infrastructure Kevin Wallace, former SNC vice-president of international development Ramesh Shah, and Bangladeshi-Canadian businessman Zulfiquar Ali Bhuiyana were charged with bribing an official… Continue Reading

Ten Compliance Problems Canadian Companies Face In Complying With Canada’s Economic Sanctions Laws

Posted in Canada's Federal Government, Cross-border deals, Cross-border trade, Export Controls & Economic Sanctions, Exports, FCPA/Anti-Corruption

Canadian companies are required to comply with Canada’s economic sanctions laws – and it is not an easy task. Currently, Canada imposes multi-lateral economic sanctions pursuant to the United Nations Act against 16 countries (Central African Republic, Democratic Republic of Congo, Eritrea, Ivory Coast, Iran, Iraq, Lebanon, Liberia, Libya, North Korea, Sierra Leone, Somalia, South… Continue Reading

NOT SO FAST!

Posted in Aerospace & Defence, Anti-Trust/Competition Law, Antidumping, Border Security, Controlled Goods Program, Corporate Counsel, Cross-border deals, Cross-border trade, Currency Reporting, Customs Law, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Politics, Tax, Trade Agreeements, Trade Remedies, Transportation

Originally published by the Journal of Commerce – November 2016 Fans of ESPN’s College Game Day© will recognize this tag line from the reaction of Lee Corso when he disagrees with others when panelists predict winners of selected college football games. If you prefer a different sports metaphor, there is Aaron Rodger’s 2014 now famous… 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

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

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 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

Canadian Trade Law Predictions for 2016

Posted in Agriculture, Border Security, Canada's Federal Government, Customs Law, Export Controls & Economic Sanctions, Exports, FCPA/Anti-Corruption

I do not know for certain what will happen in 2016 in terms of Canadian trade issues.  However, I can make a few educated predictions: 1. Canada will continue its economic sanctions against Russia and may add new designated persons in 2016.  The Trudeau Government may be less willing to expand economic sanctions into new… Continue Reading

Do You Know What Day It Is? It Is International Anti-Corruption Day

Posted in Cross-border trade, FCPA/Anti-Corruption, Government Procurement, Uncategorized

December 9th is International Anti-Corruption Day. International Anti-Corruption Day has been observed annually, on 9 December, since the passage of the United Nations Convention Against Corruption on 31 October 2003. International Anti-Corruption Day urges countries to do their part by exposing and cracking down on corruption and engendering a culture of values of ethical behaviour…. Continue Reading

Oh, goodness, how do we manage it all?

Posted in Anti-Trust/Competition Law, Border Security, Corporate Counsel, Criminal Law, Cross-border deals, FCPA/Anti-Corruption, Politics

Originally published by the Journal of Commerce in April 2015 One thing is for sure if you have been involved with international trade in recent times. Things are getting ever more complicated and the risk management and compliance challenges are consistently getting harder to anticipate and manage. At the TPM in early March, we discussed… 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