Cyndee Todgham Cherniak

Cyndee Todgham Cherniak
Toronto  416-307-4168 
Fax: 416-366-1719
cyndee(at)cyndee.ca

cyndee(at)langmichener.ca

Call to the Bar Ontario, 1994

Areas of Expertise: China, India, Free Trade Agreements, Bilateral Investment Treaties, World Trade Organization, NAFTA, International & Domestic Trade, Antidumping, Countervailing Duties, Safeguards, Customs Law, Export Controls  and Economic Sanctions, Procurement Bid Challenges, Anti-Money Laundering, Anti-Corruption, Global Compliance and Risk Management, Food and Product Safety, International Arbitarion, Commodity and Sales Tax, Tax Litigation, Liquor Licensing, Public Private Partnerships

Sectors: Manufacturing, Import/Export, Purchase Management, Drugs and Medical Devices, Automotive, Hopitality, Financial Services, services, Telecommunications, Software Industry (Sales Tax), Graphic Design Industry, Nursing Homes and Retirement Residences

Cyndee Todgham Cherniak


Education

Call to Bar, Ontario, 1994
LLM, York University (Osgoode Hall Law School), 1998
LLB, University of Windsor, 1992
JD, University of Detroit, 1992
B.A., University of Western Ontario, 1989

Professional Activities

Cyndee Todgham Cherniak has worked at Canada’s most prestigious law firms since 1992. Her practice includes: international law, including World Trade Organization (WTO) and Regional Trade Agreements (RTA) analysis, interpretations, and opinions, government relations strategies, and dispute settlement, North American Free Trade Agreement (NAFTA) verifications, value for duty, tariff classification, import and export controls and sanctions, bilateral restraint agreements, bilateral investment treaties, textile references, international protection of intellectual property rights, anti-dumping and countervailing duties, safeguard actions, government procurement, investor-state disputes, the Foreign Extraterritorial Measures Act, border and national security, food and product safety, anti-corruption and anti-bribery, and compliance programs/codes of conduct. Cyndee also has expertise in commodity tax (i.e., goods and services tax (GST), Ontario retail sales tax, Ontario employer health tax, Ontario land transfer tax, excise tax, gasoline and fuel taxes, and customs duties.  Cyndee is known as an international lawyer who works closely with other lawyers, in-house counsel, international financial institutions, trade associations, non-governmental organizations and governments.

As a leading lawyer in international trade, Cyndee Todgham Cherniak is frequently contacted by top media organizations to share her views and insights on hot button trade issues. She has been a featured guest on several different radio and television shows such as The Rutherford Report on Corus Radio and iChannel's @issue. Cyndee has been featured, quoted and/or has acted as a contributor to several articles in a variety of national newspapers including The Globe and Mail and The Vancouver Sun, and has been published as an author or contributor in numerous publications and e-zines, such as  Law Times, Canadian Lawyer, Lawyers Weekly, Canadian Business, Embassy Magazine, The Hill Times and National Magazine.

She is the founder and a regular contributor to a number of blogs including www.tradelawyersblog.com, www.canadalawblog.com and www.womenlawyers.com, and is a frequent speaker on international trade and commodity tax topics.

Cyndee is known for her expertise in the area of free trade agreements, regional trade agreements and preferential trading arrangements (collectively, PTAs).  She is an adjunct professor at Case Western Reserve University School of Law and teaches a course on NAFTA and bilateral trading arrangements (Spring 2008 and Spring 2007).  Cyndee has reviewed over 100 RTAs as a consultant to the Asian Development Bank, has written an extensive report on all aspects of RTAs and has conducted workshops for developing countries on the negotiation of free trade agreements.  Cyndee was invited by the House of Commons, International Trade Committee to participate as a witness on the Canada-EFTA Free trade Agreement (March 11, 2008).  Cyndee provides advice to domestic and multinational corporations about maximizing opportunities by taking advantage of the benefits under existing RTAs, analyzing market access obstacles or restrictions in foreign jurisdiction and government lobbying to remove or minimize such obstacles in RTA negotiations, RTA compliance, RTA due diligence, drafting agreements to take advantage of RTA benefits.  Cyndee also advises companies on structuring transactions and drafting to protect investor rights under bilateral investment treaties (BITs) and Foreign Investment Protection and Promotion Agreements (FIPAs). Further Cyndee advises governments about all aspects of RTA negotiations, including transparency and implementation of RTA rights and obligations and procedural fairness. Cyndee's expertise at reviewing RTAs, enables her to act as an arbitrator, and provide advice to corporations and governments concerning negotiation matters and post-agreement compliance, interpretation and dispute settlement.

Cyndee was the author of the 2007-2008 & the 2008-2009 Niagara Moot problem. The 2007 -2008 problem focused on the use of the national security exception in the NAFTA, General Agreement on Tariffs and Trade, 1994 and the General Agreement on Trade in Services.  The problem also focused on the Western Hemisphere Travel Initiative, the APHIS fees and a hypothetical issue under the energy provisions of the NAFTA.

Cyndee advises clients on WTO dispute settlement, NAFTA disputes settlement (including bi-national panel reviews and investor-to-state dispute settlement).  Cyndee has assisted a respected trade practitioner in advice to Canadian stakeholders in connection with WTO cases including, Canada – Certain Measures Concerning Periodicals, Canada – Certain Measures Concerning the Automobile Industry, Canada – Patent Protection of Pharmaceutical Products, United States – Treating Export Restraints as Subsidies, United States – Preliminary Determinations with Respect to Certain Softwood Lumber from Canada, and United States – Continued Dumping and Subsidy Offset Act of 2000.  Cyndee has participated as part of a team, which provided advice to stakeholders or the Government of Canada in respect of Chapter 11 of the NAFTA cases, including Re: Ethyl Corporation, United Postal Services, and Tembec Corp.

Cyndee provides advice on doing business in Canada to companies in emerging markets, such as China, India, Brazil and Mexico. She represented the Government of China, Chinese Associations and/or exporters in the three of the first four anti-dumping and countervailing duty cases against China (outdoor barbeques, carbon steel and stainless steel fasteners and copper pipe fittings) and the first China specific safeguard case initiated by Canada against outdoor barbeques from China.  She also  participated in the successful representation of a coalition of importers, retailers and distributors in a China-specific safeguard case that was filed but never initiated against residential furniture from China. In addition, she represented the Government of China, Chinese Associations and exporters in the recent global safeguard case against the import of bicycles and bicycle frames. 

Cyndee has represented the China Chamber of Commerce for Foodstuffs, Native Produce and Animal By-Products in the anti-dumping cases against garlic from China. Cyndee also represented a major user of grain corn in the anti-dumping and countervailing duty case in Canada against U.S. grain corn. Cyndee represented an importer of bicycles in an expiry review regarding the AD Order against bicycles from China and Chinese Taipei.  Cyndee further represented a Canadian domestic steel producer in anti-dumping cases from numerous countries.

Cyndee also provides advice to Canadian companies doing business in China and/or with Chinese companies. She places an emphasis on risk management while assisting clients in pursuing opportunities in China to reduce their exposure to global threats and to protect company assets. She has provided advice to both large and small companies about the protection and enforcement of intellectual property rights in China.  She assists clients in undertaking due diligence prior to entering into business relationships in China (including business partners, joint ventures, customers, suppliers and acquisitions), and provides advice on intellectual property rights protection, tariff classification and all aspects of customs law, including Canada's purchaser in Canada rules, royalties, calculation of value for duty and other customs issues. Cyndee has assisted companies in negotiating joint venture agreements, licensing agreements and asset sharing agreements with Chinese counter-parts. She has also counseled clients concerning the Administrative Monetary Penalty System (AMPS). 
Cyndee also provides advice to Canadian companies on intellectual property rights protection in foreign jurisdictions. Cyndee has been asked by the Canada' Department of Foreign Affairs and International Trade to conduct training courses for provincial governments on intellectual property rights protection in emerging markets and has been asked by the Canadian Embassy in Beijing and the Ontario Purchasers Managers Association (Ontario) to give presentations on typical problems Canadian businesses experience when dealing with persons in foreign markets and how to protect one's intellectual property when selling into foreign markets and even in one's one market. Cyndee has written about intellectual property rights protection under international treaties and free trade agreements.

Cyndee has assisted clients in the preparation of Requests for Re-determinations and Requests for Revocation to challenge administrative decisions in customs matters.  She provides advice to developing countries concerning the applicability of the general preferential tariff or the most-favoured nation tariff. She has also participated in NAFTA verifications undertaken by the Canada Border Services Agency and the United States Customs Service.

Cyndee provides advice on government procurement (public sector procurement) and large public private partnerships (including design, build, own, operate and other outsourcing solutions).  She has written opinions, participated in the drafting of RFPs and evaluation criteria and provided guidance with respect to Canada's obligations under Chapter 10 of NAFTA, the WTO Agreement on Government Procurement and Chapter Five of the Agreement on Internal Trade.  Further, she has represented clients in filing bid challenges with the Canadian International Trade Tribunal and was part of the team that secured one of the highest awards for lost profit opportunity in the Mechron Energy case.  Her LL.M degree thesis paper was on the government procurement bid challenge private party - to – government dispute settlement mechanism.  Cyndee also has provided commodity tax advice in respect of large infrastructure projects in Canada, such as the 407 Highway project and the St. Lawrence Seaway project.

Cyndee provides advice on a variety of commodity tax issues affecting the long term care home/retirement residences industry, construction industry, the computer software industry, the graphic design industry, the entertainment industry, the health care sector, the automotive industry and the financial services industry. Cyndee provides advice on a variety of commodity tax issues in the real estate contexts, such as claiming input tax credits on commercial and multi-use real estate, self-assessing GST, claiming new residential rental property rebates, and whether property is a chattel or a fixture for ORST purposes. Cyndee's practice involves transfers of large and small, commercial and residential, real estate. Cyndee has participated as a speaker in various Federate Press Conferences, including "Tax Planning for Real Estate Transactions" and 'Tax Efficient Finance Structures". Cyndee is the author of the Paper "GST Basics in a Real Estate Context" delivered as part of the Ontario Bar Association's "GST Bible for Real Estate Transactions: Practice, Precedents and Developments" program. Cyndee is also the author of the Paper "GST Basics Pertaining to Real Estate Transactions" delivered as part of her Ontario Bar Association "The Fundamentals of Commercial Real Estate Law 2001" program.

Cyndee also provides advice on excise tax, excise duty and Ontario gasoline and fuel taxes.  Cyndee provided assistance to a major California-based fuelling network concerning commodity tax of fueling activities in Canada.  Cyndee assisted with the negotiation of contracts between the network and major Canadian gasoline and fuel suppliers.  Cyndee also provided advice concerning entitlement to rebates and refunds in the energy sector.  Further, Cyndee provided advice concerning commodity tax and Canada's international obligations in the context of certain additives to gasoline and other fuels.

Cyndee has also provided advice to a major beer manufacturer in Canada concerning certain issues involving Ontario commodity taxes.  Cyndee has also acted for a large wine manufacturer in Ontario with worldwide operations and provided advice on federal and provincial commodity taxes.  She has also advised a recycler located in Ontario about federal excise duties and taxes on rebates relating to the recycling of stale or compromised beer, spirits and wine.  In addition, Cyndee has provided advice on trade issues relating to the wine and spirits industry, including protection of intellectual property rights in foreign jurisdictions, labeling for export, geographical indications agreements and threatened WTO complaints against Canada.
Cyndee works with a number of associations on commodity tax issues.  Cyndee has provided assistance to the Information Technology Association- Ontario and the Association of Registered Graphics Designers – Ontario relating to Ontario retail sales tax issues.  Cyndee also has provided commodity tax advice to the Ontario Long Term Care Association and the Ontario Retirement Communities Association.  To varying degrees, Cyndee has assisted associations with communicating positions to federal and provincial taxing authorities and/or departments of revenue/finance, developed and implemented association strategy relating to the advocacy of legislative and administrative amendments to tax legislation, regulations and policies.  Cyndee has presented various commodity tax issues to the membership of the associations in order to assist with the overall compliance of the industry with the commodity tax legislation and manage audit risk.

Cyndee appears before regulatory bodies and tribunals such as the Canadian International Trade Tribunal, and makes representations to the Canada Revenue Agency, the Canada Border Services Agency, the Export and Import Controls Bureau, the Department of Foreign Affairs and International Trade, the Canadian Food Inspection Agency the Department of Finance and the Ontario Ministry of Revenue.

Special Designations

Cyndee is listed in the Canadian Legal Lexpert Directory as an up-and-coming international trade practitioner (2004 to 2007) and commodity tax practitioner. She is listed as an up-and-coming international trade and WTO practitioner in Canada in Chambers Global: The World's Leading Lawyers for Business (2006 and 2007). Cyndee is also listed in The Legal Media Group Guide to the World's Leading International Trade Lawyers (2007 - present).

Professional Affiliations

Cyndee is a director of the Canada-China Lawyers' Foundation and is a director and board member for the Canada-China Business Council/China Council for the Promotion of International Trade Joint Conciliation Centre.  She is a vice-chair of the American Bar Association, International Law Section customs and membership committees and the Diversity Task Force. She is past-chair of the ABA, Women's Interest Network, and a member of the organizing committee of the 2006 ABA Annual General Meeting.

Cyndee has been appointed the Secretary Treasurer of the Canadian Bar Association, National Commodity Tax, Customs and Trade Section from September 2008 – August 2010. She is an advisory board member of the Canada-United States Law Institute.

She is also a member of the J.D./LL.B. Advisory Board (University of Windsor/University of Detroit Mercy).

Memberships

American Bar Association
Canada-China Business Council
Canada-China Lawyers Foundation
Canada-India Business Council
Canadian Bar Association
Canadian IT Law Association
Canadian Tax Foundation
China Council for the Promotion of International Trade
Indo-Canada Chamber of Commerce
International Law Association
J.D./LL.B. Advisory Board (University of Windsor/University of Detroit Mercy)
New York State Bar Association
Ontario Bar Association
Organization of Women in International Trade
Toronto Commodity Tax Study Group

Publications and Speaking Engagements

Cyndee is a frequent speaker on international trade and commodity tax topics and is a regular contributor to a number of industry publications. She is a guest lecturer at the University of Windsor Law School and is an adjunct professor at Case Western Reserve University School of Law.

Cyndee has written, been quoted  and/or has acted as a featured guest in the following:

Some of Cyndee's previous speaking engagements include:


In addition to Cyndee's regular postings on www.tradelawyersblog.com, www.canadalawblog.com and www.womenlayers blog.com, some of Cyndee's published articles include: