The Secret Lives of Customs Lawyers (with apologies to James Thurber)

01 March 2007

Aaron Gothelf, Customs Attorney, BP America, Inc 

Upon arrival at Immigration I presented my passport and landing card to the agent. She politely questioned me about why I wanted to enter Canada, what my business was in Canada, and most importantly, when I would be leaving Canada. I appreciated the implied message and explained to the agent that I was an attorney. She asked my favourite question: “What kind of attorney?” To which I replied, “a customs attorney.” I stood for a moment having my own heroic daydreams of stardom as the officer gave me a blank stare and then asked, “What’s a customs attorney?” I respectfully explained that my business in Canada was to have meetings with other people from the CBSA in Vancouver and that I was an attorney representing my company on a variety of customs related matters we had pending. She smiled and stamped my passport and wished me a good journey. 

The questions sounds simple enough to answer: “What is a customs lawyer?” and “What does a customs lawyer do?” Those of us engaged in trade and customs law often find ourselves confronted with these questions, both from professional colleagues, as well as from our own family and friends when they are looking for free legal advice. Upon returning from a trip to the United Kingdom, a particularly jovial US Customs & Border Protection officer asked me what my business was in the UK. I explained to him that I was a customs attorney and was involved in meetings on managing customs issues. The officer smiled and said something to the effect of: “oh – you defend people and go after us after Customs roughs them up, right?” 

I enjoyed the officer’s humorous interpretation on my work, but something in that CBP officer’s droll comment to me still resonates now. It used to be that the life of a customs attorney was probably similar to other regulatory attorneys. At the heart of every issue, whether it is a tariff classification, the customs value of a commodity under the GATT/WTO valuation code, country of origin marking rules, trade preference programme eligibility, or even penalty situations, is usually money – the customs regime wants it, but the importer would prefer to keep it. The customs attorneys for the importers fight with those from the government or the various agencies themselves over the various legal issues and ultimately, where the money goes. The winning or losing of these cases would never make the local papers or the evening news, let alone a CNN legal correspondent’s report. Alas, law school texts were noticeably bereft of customs cases. 

The relative obscurity and quiet history of the customs lawyer is, however, changing rapidly. Our heroic daydreams of fame may someday become reality. Like many things in today’s legal and regulatory environment, changes are still being driven in many countries around the world as a result of the abominable terrorist attacks against the United States on 11 September 2001. Over the past five years customs regimes globally have been implementing a variety of security related programmes to further protect their nations’ borders from nefarious actions or incursions by people bent on spreading terror and destruction. For example, the United States recently enacted into law legal authority for US Customs & Border Protection’s programme known as the Customs – Trade Partnership Against Terrorism. Singapore, Canada, Sweden, and many others have followed suit with their own voluntary security programmes. 

Many changes have been proposed for the collection of data prior to the either the stuffing of a container or the loading of a container on a vessel. Guiding clients and governments through these very real storms of activity are many of the humble trade and customs lawyers listed in this volume. The quiet and reserved customs & trade lawyer is quickly becoming a protector and defender of free and secure world trade. Many of these proposed changes to the laws and regulations have been discussed and argued over at the World Customs Organisation, not only by the representatives from member governments, but also by the Private Sector Consultative Group (a group of companies and organisations given a voice at various WCO meetings) as well. The WCO continues to work tirelessly on developing workable supply chain security standards that will achieve the goal of preventing terrorist weapons from being smuggled into shipping containers, while at the same time ensuring that the standards are meaningful and workable for the member countries. Industry and governments have expressed concerns over several issues including, among other things, whether membership or participation in security programmes in one country will receive mutual recognition for similar programmes in other countries. In addition, member governments are very concerned about their ability to build capacity in their administrative agencies to handle the security requirements being recognised as necessary for securing legitimate world trade. The attention of the customs bar in many of these countries is now squarely focused on these sorts of issues and how they will affect their respective clients. At the time of writing, the 2007 Harmonized Tariff Schedule is about to be published. It will contain so many changes that many companies have pressured various governments to delay implementation until such time as updates (in the millions) can be processed through various databases. Additionally, many members of the customs bar are scrambling to help their clients reevaluate their products’ eligibility for trade preference programmes under the revised tariff schedules. 

The evolution of the practice of trade and customs seems to call for a new name for its practitioners. Many corporations that have internal customs compliance departments often give those departments names like ‘Global Trade Compliance’, ‘World Trade Compliance’, or ‘International Trade Compliance’. Given the expansion of the role of the trade and customs lawyer, it seems fitting to refer to the practitioners as global trade or world trade lawyers rather than just customs and trade attorneys. 

While run-of-the-mill, bread-andbutter issues – such as antidumping and countervailing duty cases, export control issues, classification and valuation questions, licensing, and protection of intellectual property rights across borders – still occupy the daily activities of most customs and trade practitioners, many find themselves volunteering for more daring missions, which seem almost secret as the general public is unaware of much of the activity. Trade and customs attorneys are becoming more heavily involved in navigating the uncharted waters that contain proposal after proposal by different governmental agencies and nongovernmental organisations for changes to laws and regulations concerning security, data collection, targeting of suspicious activity, and facilitating legitimate trade activity – a great difference from the days of looking at a schematic and trying to come up with the appropriate tariff classification. 

Given the dramatic changes in the impact customs regimes have on companies, BP does find itself in need of expert advisers from time to time. As a truly global company, BP does business in over 100 countries. Importing, exporting, world trade and customs issues continuously arise in every country in which we find ourselves either manufacturing products or delivering them to consumers. When issues arise that require specific expertise, or advice, or in other cases in which BP may be seeking assistance, the company may choose either to hire outside lawyers, or to handle the matter internally using our own network of global trade compliance professionals. When outside legal advice or representation is needed, BP looks for lawyers and law firms that have outstanding reputations, demonstrate the highest ethical standards, and consistently provide us with quality service. 

I took another trip later that same year to Calgary, Alberta, Canada. I finished my business and I was preparing to depart. Fortunately US Customs & Border Protection had staff located in the airport to pre-clear passengers returning to the United States.When I presented my passport and declaration form to the CBP representative he politely questioned me about my business in Canada. I told the agent I was a customs attorney representing my company on business in Canada. The agent gave me a blank stare and asked, “what’s a customs attorney?” My heroic daydreams began again. 

Perhaps I shall speak to my management about my job title.

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