Thursday, April 4, 2019

Media Appearance: "Moon Jae-in is the Grown-Up at the Table" on Foreign Policy

Looking ahead to the Moon Jae-in - Donald Trump summit meeting next week, I tried to craft a deal that would be the first step toward North Korea's denuclearization, with South Korea-managed inter-Korean economic projects as the centerpiece:
A plausible deal aimed at North Korea’s denuclearization can look like the following: North Korea would freeze all production of long-range missiles and fissile materials, dismantle Yongbyon, and allow U.S. inspectors on the ground to ensure compliance. Pyongyang would also host a U.S. liaison office, which could look after the safety of the U.S. inspectors. In exchange, the United States would grant exemptions to South Korea-led joint economic projects, declare the formal end of the Korean War, and host a North Korean liaison office in Washington. As U.S. inspectors identify additional nuclear facilities in North Korea and oversee their dismantlement, the United States would gradually normalize the relationship with North Korea and ease sanctions on a snapback basis. The end result, in the best-case scenario, would be to have the denuclearized North Korea be another version of Poland or Vietnam—a former enemy that is now a U.S. security interest.

I have been slow with the blog as I had to prepare a large paper for the conference "Moon Jae-in Government and Korea Peace Process" hosted by Yonsei University, and the FP article above distills the central point of the big article I wrote for the conference. With the diplomats and experts at the conference, I have been stress-testing the deal above, and am pleased to say it was met with near-unanimous approval.

Wednesday, March 20, 2019

Case of the Day: Gosain v. Texplas India Private Ltd., 2019 U.S. Dist. LEXIS 18559 (S.D.N.Y. Feb. 4, 2019)

Summary:

Plaintiff commenced the original action in 1999 in New York, claiming the defendant, acting in concert with the State Bank of India, pushed the plaintiffs' company into involuntary bankruptcy and took over much of its assets in the resulting auction. The court originally dismissed the case based on lack of jurisdiction. The plaintiff appealed to the Second Circuit, which reversed and remanded. In 2011, on remand, the court dismissed the case on the grounds of forum non conveniens, with the condition that the defendant submit to Indian court's jurisdiction and comply with the court order there. The plaintiff then sued in India, obtained a judgment, but the defendant refused to comply with the judgment. The plaintiff re-opened the case in New York, then petitioned for a default judgment when the defendant failed to respond.

The magistrate judge recommended denying the default judgment based on the lack of standing. Because the plaintiff could not demonstrate an injury separate from the injury to his company (which was an Indian corporation,) the court had no subject matter jurisdiction over the matter.

Takeaway:

This claim is an adventure, and no one comes out looking good from the decision. The plaintiff relied on a tenuous argument that likely would have lost, and spent two decades litigating the matter. The court could have spotted this issue two decades ago and finished off the matter before it came to this point.

Friday, March 15, 2019

Case of the Day: Brazell v. Uddenberg, 2019 CCA LEXIS 36 (U.S. Air Force Ct. Crim. App. Jan. 28, 2019)

Summary:

Petitioner is an Air Force soldier who filed for a writ of habeas corpus while being under custody in the Navy prison. The petitioner was imprisoned pursuant to the Japan-US Status of Forces Agreement (SOFA) with Japan, as he sexually abused a minor while being stationed in Japan. Petitioner claimed the court martial lacked subject matter jurisdiction under SOFA, because SOFA gives Japanese authorities the primary authority to exercise jurisdiction over crimes committed by US soldiers stationed in Japan.

The court rejected the claim. The court found that because both US and Japan criminalizes sexual abuse against a minor, there was no exclusive jurisdiction under SOFA. In the absence of exclusive jurisdiction, US and Japan have concurrent jurisdiction. Although Japan has the primary right to exercise jurisdiction if the jurisdiction is concurrent, Japan need not explicitly waive the primary right for US to exercise jurisdiction.

Takeaway:

US forces stationed abroad is a ripe place for seeing under-address treaty issues! Highly interesting stuff if you're into jurisdictional challenges.

Wednesday, March 13, 2019

Case of the Day: Gogel v. Kia Motors Mfg. of Ga., 2018 U.S. App. LEXIS 27211 (11th Cir. Sept. 24, 2018)

Summary:

Plaintiff claimed discrimination based on sex and national origin against the defendant, a South Korean carmaker located in Georgia. Plaintiff was made to serve as a greeter to visiting executives from Korea, and was not promoted. The plaintiff was then terminated when she began an investigation into an affair between a female employee and a male executive, and encouraged other employees to file complaints against the company. In the lower court, the defendant prevailed in summary judgment.

The Eleventh Circuit vacated the summary judgment as to the retaliation claim, while affirming the summary judgment as to the discrimination claims. The court found that, while the plaintiff worked outside of the firm's internal procedure by encouraging employees to file complaints, she did so because the internal procedures were insufficient to handle the issues at hand.

Takeaway:

Here we have an interesting twist into a previously existing situation. Asian companies with factories in the United States often faced claims of discrimination. Here's the twist: the employer-friendly laws of these jurisdictions are locking in the discriminatory practices. The plaintiff in this case managed to reverse one of the summary judgments against her, but the other summary judgment stood, and there was a dissent as to the reversed judgment.

Friday, March 8, 2019

Case of the Day: Perella v. Gen. Council of the Assemblies of God, 2019 R.I. Super. LEXIS 14 (R.I. Super. Mar. 1, 2019)

Summary:

Plaintiffs were church members who were severely injured in a car crash in a mission trip to Bangladesh in 2013. Defendants wished to apply Bangladeshi law, as the Rhode Island law provided for a longer statute of limitations, broader definition of "owner" of a vehicle, and comparative negligence standard.

The court, conducting a conflict of law analysis, found as follows: (1) the injury occurred in Bangladesh; (2) although the trip was planned in Rhode Island, the conduct leading to the accident occurred in Bangladesh; (3) parties are residents of Rhode Island, and; (4) the relationship of the parties is centered in Rhode Island. Because the central issue of the case is not whether the driver (who is Bangladeshi) was negligent but whether the church may be vicariously liable, the court found Rhode Island law applied.

Takeaway:

Gotta catch'em all! A Rhode Island decision will always get a spot on this blog's Case of the Day, because it's not every day you come across a R.I. choice of law opinion. This opinion is also interesting because it cites relatively few cases, reflecting the state of R.I. case law.

Tuesday, March 5, 2019

Case of the Day: Ace Antenna Co. v. Daeny Dayeong Sung, 2018 Cal. App. Unpub. LEXIS 6334 (Cal. App. Sept. 17, 2018)

Summary:

Plaintiff filed a case in October 2015 against the defendant, who previously lived in California, then moved to South Korea. Plaintiff initially attempted to serve the defendant at the last known address in California, then heard that he had moved to Korea. Then the plaintiff attempted a Hague service to the defendant at the last known address, and failed to serve him. In April 2016, the court granted the plaintiff's motion to effect service by publication, then entered default judgment in August 2016. The defendant moved to vacate the default judgment in December 2016, claiming he was not properly served because the service by publication was improper.

The appellate court affirmed the district court's decision to uphold the default judgment, as the court found plaintiff took proper steps to effectuate service.

Takeaway:

Interesting wrinkle here is the fact that South Korea recently changed its postal code system, effectively giving two addresses for each location--the "old" address that people still casually use, and the "new" address that are used officially. Defendant attempted to claim the "new" address was different from the "old" address, and was rebuffed.

Friday, March 1, 2019

Media Appearance: "The Pressure is on Kim Jong Un After Failure in Hanoi" on CNN

It took me quite some time to recover from the shock of Hanoi summit's failure and process what went wrong. 
Regardless of what happened behind closed doors, the failure to reach an agreement in Hanoi puts additional pressure on Kim Jong Un to do more, as the unusual confluence of world events that allowed him to come this far may not last much longer. Despite his belligerent "fire and fury" rhetoric, Trump and his unconventional approach to diplomacy represented the best chance for North Korea to win any concession from the United States. With the explosive testimony of Trump's former personal attorney Michael Cohen detailing Trump's alleged long criminal history (which the President firmly denies), Trump may have less time to focus on Kim moving forward -- as he prepares for what may be some nasty political battles and a re-election campaign.
The Pressure is on Kim Jong Un After Failure in Hanoi [CNN]