Comments on: Logistics Provider Pays for Customer’s Boycott Activities http://www.exportlawblog.com/archives/408 Latest News on DDTC, BIS, OFAC, and other export law matters Wed, 08 Sep 2010 03:51:32 +0000 hourly 1 http://wordpress.org/?v=3.0 By: Frammi http://www.exportlawblog.com/archives/408/comment-page-1#comment-20881 Frammi Thu, 30 Oct 2008 22:12:12 +0000 http://www.exportlawblog.com/?p=408#comment-20881 Completely clear that Tropwind Trading broke the Rules but how can a logistics provider be found liable for their behaviour? They are not Tropwinds nanny and in most cases will not even see the invoice. I think the BIS has completely lost Common Sense! My deepest sympathy with Rohde & Liesenfeld! Regards Frammi Completely clear that Tropwind Trading broke the Rules but how can a logistics provider be found liable for their behaviour? They are not Tropwinds nanny and in most cases will not even see the invoice.

I think the BIS has completely lost Common Sense!

My deepest sympathy with Rohde & Liesenfeld!

Regards

Frammi

]]> By: Mike Deal http://www.exportlawblog.com/archives/408/comment-page-1#comment-20710 Mike Deal Fri, 17 Oct 2008 12:44:47 +0000 http://www.exportlawblog.com/?p=408#comment-20710 There's an even more basic problem: Assuming that you even buy the notion that the EAR can be extended under IEEPA when the EAA expired according to a clear statutory provision, while there may be an argument that with a Presidential finding in an executive order that the boycott of Israel is a national emergency that would support prohibitions on agreements to participate in boycott of Israel under IEEPA, the Berman Amendment to IEEPA, 50 USC 1702(b)(3) expressly excludes any restriction on importing or exporting information unless that information is subject to controls under Section 5 or Section 6 of the EAA. The authority for prohibitions on furnishing boycott information was in Section 8 of the old EAA. Given that amendments to the EAA, TWEA and the original IEEPA were in the same Public Law, and further that the Berman Amendment was originally added by the Omnibus Trade Act of 1988, which also included amendments to the EAA, it can't be argued that Congress really meant to include authority for Section 8 prohibitions in IEEPA. And even if you buy the Congressional intent argument for IEEPA, the Baldrige case in the 8th Circuit which turned down a First Amendment challenge to the information furnishing prohibitions was decided before the string of Supreme Court cases that narrowed the so-called commercial speech exception to the First Amendment. It is doubtful that even if the EAA were still in existence that the information furnishing prohibitions under Section 8 would withstand scrutiny under the Central Hudson Valley test, especially as applied in Rubin v. 44 Liquormart. At 108K, they could have brought a law suit for less, which, if they had prevailed, might have been eligible to have legal fees reimbursed under EAJA. There’s an even more basic problem: Assuming that you even buy the notion that the EAR can be extended under IEEPA when the EAA expired according to a clear statutory provision, while there may be an argument that with a Presidential finding in an executive order that the boycott of Israel is a national emergency that would support prohibitions on agreements to participate in boycott of Israel under IEEPA, the Berman Amendment to IEEPA, 50 USC 1702(b)(3) expressly excludes any restriction on importing or exporting information unless that information is subject to controls under Section 5 or Section 6 of the EAA. The authority for prohibitions on furnishing boycott information was in Section 8 of the old EAA. Given that amendments to the EAA, TWEA and the original IEEPA were in the same Public Law, and further that the Berman Amendment was originally added by the Omnibus Trade Act of 1988, which also included amendments to the EAA, it can’t be argued that Congress really meant to include authority for Section 8 prohibitions in IEEPA.

And even if you buy the Congressional intent argument for IEEPA, the Baldrige case in the 8th Circuit which turned down a First Amendment challenge to the information furnishing prohibitions was decided before the string of Supreme Court cases that narrowed the so-called commercial speech exception to the First Amendment. It is doubtful that even if the EAA were still in existence that the information furnishing prohibitions under Section 8 would withstand scrutiny under the Central Hudson Valley test, especially as applied in Rubin v. 44 Liquormart.

At 108K, they could have brought a law suit for less, which, if they had prevailed, might have been eligible to have legal fees reimbursed under EAJA.

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