Best Practices in Export Compliance: Five Key Issues in Canadian Trade Control Compliance and Enforcement

Transcription

1 Best Practices in Export Compliance: Five Key Issues in Canadian Trade Control Compliance and Enforcement Canadian Association of Importers and Exporters Webinar John W. Boscariol July 16, 2013

2 Today s Focus 1 background and overview of trade control regime key challenges for exporters five best practices for exporters red flag destinations exporters and anti-corruption compliance

3 Growing Impact of Canadian Trade Controls 2 what s driving this? since 9/11, new emphasis of Canadian authorities on security more recently, increased penalties, enforcement by U.S. authorities pressure from U.S. affiliates, suppliers and customers (and U.S. government) penalty exposure operational exposure reputational exposure Canadian companies are now more concerned than ever before about whom they deal with, where their products and technology end up, and who uses their services financings, banking relationships, mergers and acquisitions, certifications, terms & conditions

4 Overview of Canada s Trade Control Regime 3 export and technology transfer controls Export Control List Area Control List economic sanctions Special Economic Measures Act United Nations Act Freezing Assets of Corrupt Foreign Officials Act Criminal Code domestic industrial security Defence Production Act, Controlled Goods Program other legislation of potential concern blocking orders (Cuba) anti-boycott policy and discriminatory business practices laws anti-bribery law (Corruption of Foreign Public Officials Act and FCPA) compliance convergence

5 Key Trade Control Challenges for Exporters 4 measures take effect immediately no consultations measures change frequently and in response to developing international events measures are layered multiple Canadian regulatory regimes (UN, SEMA, ECL, ACL, Criminal Code) measures in the home country or country in which the operation is located US extraterritorial measures

6 Key Trade Control Challenges for Exporters 5 their scope extends beyond export shipments technology transfers activities outside Canada designated persons screening their application must always be considered in the context of US trade controls affiliates business partners differences and conflicts

7 6 Exporter Best Practice #1 Screening for Designated Persons lists of designated persons individuals, companies, organizations Special Economic Measures Act regulations United Nations Act regulations Freezing Assets of Corrupt Foreign Officials Act regulations Criminal Code anti-terrorism provisions any involvement in the transaction purchaser, ultimate user, vendor, creditor, broker, service provider

8 7 Exporter Best Practice #2 Contract Clauses and Certifications vendor (sourcing) agreement clauses designated person compliance with trade controls and certifications product information, including ECL/ECCN classification indemnification notification of investigations or inquiries, cooperation

9 8 Exporter Best Practice #2 Contract Clauses and Certifications distributor/customer agreement clauses designated person compliance with trade controls end-use certification indemnification notification of investigations or inquiries, cooperation

10 9 Exporter Best Practice #3 Using Voluntary Disclosure Mechanisms in certain circumstances, can be an effective tool coordinate with several government depts Export Controls Division Economic Law Division CBSA RCMP PWGSC Controlled Goods Directorate (mandatory reporting) other (e.g., CNSC)

11 10 Exporter Best Practice #4 Home Grown Compliance Policies trade control compliance in the shadow of the United States Canadian controls can be more onerous than US controls e.g., encryption, Belarus, Burma, North Korea Canadian controls over US-origin goods and technology conflicts Cuba ITAR

12 11 Exporter Best Practice #5 Controlling Technology Transfers higher risk vs export shipments process governing virtual meetings tele/video conference plans/drawings marking server access upload/download cloud computing

13 What Are Your Red Flag Destinations? incorporate ACL, UN and SEMA embargo destinations into your compliance program raise red flag where you have knowledge, suspicions, or reason to believe that technology, goods or services are ultimately destined for or may be accessed or used in or by any of the following countries or entities: 12 Myanmar (formerly Burma) Belarus Syria Libya Sudan Iraq terrorists and terrorist organizations Al-Qaida and Taliban Zimbabwe Afghanistan Pakistan Cuba Guinea Iran Democratic Republic of the Congo Eritrea Côte d Ivorie Liberia Sierra Leone North Korea Lebanon Somalia Tunisia Egypt

14 Exporters and Anti-Corruption Compliance 13 Canada s Corruption of Foreign Public Officials Act what is prohibited? the four key elements: direct or indirect giving or offering of a benefit of any kind, to or for the benefit of a foreign public official, as consideration for act or omission in connection with performance of the official s duties or functions or to induce the official to use his or her position to influence acts or decisions of the foreign state, and in order to obtain or retain an advantage in the course of business

15 Exporters and Anti-Corruption Compliance 14 increased enforcement against Canadian companies doing business cross-border Niko Resources (June 2011) - $9.5 million and probation order Griffiths Energy (January 2013) - $10.35 million Nazir Karigar (Cryptometrics) Air India ongoing disclosures by Canadian companies approx 35 ongoing RCMP investigations

16 Exporters and Anti-Corruption Compliance 15 what are your government touch-points? supplying government or government owned/controlled entities permits, business licensing, other authorizations concessions in mining and energy sectors moving your product through customs

17 Exporters and Anti-Corruption Compliance 16 areas of particular challenge distributors and agents joint venture partners hospitality facilitation payments

18 Exporters and Anti-Corruption Compliance 17 key June 18, 2013 amendments to CFPOA increased sentence to 14 years repeal of facilitation payments exception new books and records requirements new nationality jurisdiction

19 Core Elements of Economic Sanctions and Anti-Corruption Compliance Programs 18 basic components should include: corporate compliance manual screens and lists appointment of compliance officers internal audit procedures correction / voluntary disclosure process training programs contract review conflict procedures

20 John W. Boscariol McCarthy Tétrault LLP International Trade and Investment Law Direct Line: LinkedIn: Twitter: