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Legal Guide

The Foreign Extraterritorial Measures Act (FEMA) was enacted to counter certain countries’ attempts to apply their export control laws extraterritorially. It is largely an enabling statute to protect Canadian interests against foreign courts and governments. FEMA authorizes the Attorney General to make orders relating to measures of foreign states or foreign tribunals affecting international trade or commerce.

The Attorney General has only issued one order under FEMA (the Cuba Order). The Cuba Order is directed at the extraterritorial measures of the US aimed at preventing trade and commerce between Canada and Cuba. More specifically, the Cuba Order was issued to address specific US legislation which aims to prohibit the activities of US-controlled entities domiciled outside the US, as they relate to Cuba (e.g. Canadian subsidiaries of US companies).

The Cuba Order requires every Canadian corporation, and every director and officer of a Canadian corporation, to provide notice to the Attorney General of Canada of any directive, instruction, intimation of policy, or other communication relating to an extraterritorial measure of the U.S. in respect of any trade or commerce between Canada and Cuba that the Canadian corporation, director or officer has received from a person who is in a position to direct or influence the policies of the Canadian corporation in Canada. Beyond the notice requirement, the Cuba Order prohibits any Canadian corporation from complying with any extraterritorial measure of the U.S., or with any directive or other communication relating to such a measure that the Canadian corporation has received from a person who is in a position to direct or influence the policies of the Canadian corporation in Canada.

The result of these two jurisdictions’ competing legislation is conflicting and unless properly managed, can result in legal liability for both individuals and corporations.

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