Wednesday, July 17, 2019

Media Appearance: Two Essays on South Korea-Japan

My summer has never been busier! Instead of a break, it has been a relentless series of casework, depositions and writing media articles. So busy that I couldn't even post them on this blog.

I ended up writing three articles about the relations between South Korea and Japan in less than three weeks. For the latest two articles, I collaborated with William Sposato in Tokyo who provided an invaluable perspective from Japan.

In the first piece, William and I argued that the two countries should keep the history-related issues on its track, and focus on nurturing the robust bilateral relationship:
None of the historical issues changes the obvious fact that Japan and South Korea are very important to each other. Both are prosperous democracies that are facing off two of the greatest international security challenges of the 21st century—a rising hegemon in China and a nuclear North Korea. As two of the world’s leading industrial powers (Japan is fourth in the world in industrial output, South Korea seventh), the countries have formed a close economic relationship in which each takes a different but complementary position in the global supply chain. For example, South Korea is a global leader in semiconductor production, but South Korean companies buy from Japanese companies the high-tech machinery and processed chemicals with which to build the semiconductors. It will now have to be seen if the latest action by Tokyo puts any meaningful dent in those ties.
Japan and South Korea Don’t Have to Love Each Other to Be Allies [Foreign Policy]

Unfortunately, that is exactly what Abe Shinzo administration decided to do. It is a deeply regrettable decision, for which I had no kind words to spare:
The post hoc nature of Japan’s baseless claim about South Korea’s diverting strategic materials to North Korea indicates that Tokyo’s measures were not a deeply considered plan but a reckless fit of pique against the Korean Supreme Court’s decision on wartime slave labor. That means a democratic Japan is directing trade restrictions at South Korea, a liberal democracy and ally, in order to defend imperial Japan’s use of slave labor during World War II. In doing so, Japan is decoupling its economy from South Korea, pushing Korean companies to partner up with China and Russia. This harms not only the bilateral relationship between Japan and South Korea but also the trilateral alliance among the United States, Japan, and South Korea—the cornerstone of the United States’ Pacific order. In a critical region facing security challenges posed by China and North Korea, weakening the trilateral alliance is the last thing the world needs.
Japan’s Trade War Is as Futile as Trump’s [Foreign Policy]

Monday, July 1, 2019

Media Appearance: "Trump's DMZ meeting with Kim kicked diplomacy back into gear" on CNN

I gave my reaction to the third Trump-Kim meeting:
Nor is it the case that the Panmunjom meet did nothing for denuclearizing North Korea. The complaint that no working level talks preceded the third Trump-Kim summit is backward: the meeting was necessary to get the working level talks back on track. The second Trump-Kim summit in Hanoi, Vietnam, in February failed, in part because North Korea's negotiators were not authorized to discuss denuclearization before the summit. ...

The narrow conception of denuclearization, only counting off how many nuclear facilities and warheads were disabled, misses the fundamental truth about North Korea's nuclear program. The Kim regime developed its nuclear weapons because it feared the US would attack North Korea. The key for denuclearizing North Korea, then, is not for the US to merely demand North Korea dismantle its nuclear program. Rather, the United States must seek to transform its relationship with North Korea from a hostile one to one based on peaceful interaction and trust — and achieve denuclearization as a part of this transformative process. ... Seen from this perspective, the third Trump-Kim summit is groundbreaking. It showed the leaders of the two countries could meet on a short notice to overcome a diplomatic impasse, without months of posturing leading up to the meeting.
Trump's DMZ meeting with Kim kicked diplomacy back into gear [CNN]

This sure made for an exciting weekend! I understand the concerns surrounding it, but from my perspective, it was a welcome relief after months of stalled progress and heightened tension since the failed Hanoi summit back in February. Process matters, and it is worth having a quick summit to kick it back into gear.

Wednesday, June 26, 2019

Case of the Day: Kisor v. Willikie, 588 U.S. ___ (2019)

Summary:

Plaintiff Vietnam War veteran applied for disability benefits based on PTSD, which the Department of Veterans Affairs rejected. Plaintiff then appealed through the Board of Veterans' Appeals, Court of Appeals for Veterans Claims, and the Federal Circuit, all of which affirmed the board's decision. The Federal Circuit affirmed the board's decision based on deference to the board's interpretation of the DVA rule. The plaintiff then applied to the Supreme Court.

The split court reversed the decision. Four justices (Elena Kagan, Ruth Bader Ginsburg, Steven Breyer, Sonia Sotomayor) found that even if deference to agency interpretation is warranted when the regulation at issue is vague, "not all reasonable agency constructions of those truly ambiguous rules are entitled to deference." The plurality then found the circuit court did not conduct a rigorous analysis as to whether the regulation was truly ambiguous, nor did it analyze whether deference was truly warranted. Concurrence by Justice Neil Gorsuch, joined by Justices Clarence Thomas, Brett Kavanaugh and Samuel Alito, agreed with the judgment, but called for the court to overrule entirely the precedents regarding administrative deference.

Takeaway:

A major development in administrative law, and it involves an "Asian" claim! Given the fractured nature of this case, it is not yet clear where we stand on administrative deference. Justice John Roberts filed a separate concurrence, acting as the thin reed that connects the two camps.

Friday, June 7, 2019

Case of the Day: United States v. $148,500 of Blocked Funds in the Name of Trans Multi Mechs. Co., 2019 U.S. Dist. LEXIS 55388 (D.D.C. Mar. 29, 2019)

Summary:

The US government brought forfeiture action against impounded funds that was previously controlled by a Taiwanese national, who was sanctioned for dealing with North Korean entities through his corporations domiciled in Hong Kong. The claimant Taiwanese national appeared pro se, but could not raise a meaningful defense against the government's charges. The court granted the forfeiture action.

Takeaway:

Sanction cases are coming in hot and heavy! We are moving toward the world in which national security cases will become the bulk of white collar defense work, as US moves more toward a mercantilist trade policies. It is an area that is worth watching closely.

Tuesday, June 4, 2019

Case of the Day: Castro v. Tri Marine Fish Co. LLC, 2019 U.S. App. LEXIS 10961 (9th Cir. Apr. 15, 2019)

Summary:

Plaintiff is a sailor from the Philippines who worked as a deck hand for a fishing boat owned by the defendant. While working, the plaintiff fell and severely injured his knee. The plaintiff and the defendant entered into a settlement agreement, which contained an arbitration agreement. Immediately after entering into the settlement, the plaintiff was taken to a building next door where an impromptu arbitration was held. Later, the plaintiff discovered he needed additional treatment for the knee and sued the defendant, who moved to confirm the arbitral award. The district court confirmed the order and dismissed the case.

The Ninth Circuit reversed. The court first found there was no dispute to arbitrate, as the plaintiff and the defendant initially settled the matter. The court also found the arbitration did not occur pursuant to the agreed-upon manner, including Philippine arbitral procedure, and accordingly there was no "consent award" to be enforced. 

Takeaway:

Amazing--a court in the United States actually declined to enforce an arbitral award based on the lack of proper procedure! I was always wondered what kind of kangaroo proceedings it would take for a US court to decide this way. This sham of an award was the winner, although it took an appeal to the Ninth Circuit to get this win.

Wednesday, May 29, 2019

Media Appearance: "Tokyo Keeps Defending World War II Atrocities" on Foreign Policy

Here is my latest for the Foreign Policy magazine, discussing the international law aspect of the current row between South Korea and Japan over the South Korean Supreme Court decision holding Nippon Steel & Sumitomo Metal Corporation liable for use of slave labor during World War II. While Japan usually claims the treaties of 1965 with South Korea resolved the issue of claims held by individuals, I find that argument to be tendentious:
[T]he 1965 treaties make no reference to whether Japan’s colonial rule over Korea had any legitimacy. If Japan’s negotiators for the 1965 treaties, representing the administration led by Prime Minister Hayato Ikeda, truly believed that Japan owed nothing to Korea, and if the treaty’s text makes no reference to whether imperial Japan committed any wrong to Korea for which compensation is required, it follows that whatever money Japan paid to Korea pursuant to the treaties settled nothing. Indeed, while answering questions about the treaties to Japan’s legislature in 1965, Foreign Minister Etsusaburo Shiina characterized the payment not as reparations for a wrong, but as a congratulatory gesture for Korea’s independence. A state cannot bargain in a treaty for something it never admitted to in the first place.
Tokyo Keeps Defending World War II Atrocities [Foreign Policy]

A few factual details I could not work into the article--

(1) The litigation took 13 years, and the plaintiff in fact won twice before the Supreme Court. In the first victory in 2012, the Supreme Court of the Republic of Korea held that Korean courts did not give recognition to the judgments from Japanese courts holding former Korean forced laborers had no recourse against the companies that used their slave labors. The case then went back to the lower court for damages, which was then re-appealed.

(2) The second round of the Supreme Court deliberation took five years, from 2013 to 2018. The delay was in part because South Korea's previous administration led by Park Geun-hye applied pressure to the Supreme Court to delay the issuance of the opinion, for fear of damaging relations with Japan. This pressure campaign is one of many corruption scandals that landed Park in prison.

Tuesday, May 21, 2019

Case of the Day: United States v. $6,999,925.00 of Funds Associated with Velmur Mgmt. PTE, 2019 U.S. Dist. LEXIS 48336 (D.D.C. Mar. 22, 2019)

Summary:

The US government brought a default judgment motion against nearly US $7 million of funds impounded from a Singaporean company that acted as a front for North Korea to import fuel from Russia, with funds transferred through US banks. The government sought forfeiture pursuant to Rule G of the Supplemental Rules for Admirality or Maritime Claims.

The court granted the turnover of funds, and in addition entered a judgment against the Singaporean company in the amount of approximately US $13 million.

Takeaway:

Sanctions are the new frontier in white collar defense! This one just hits all the right buttons for me: North Korea, a money laundering operation with a front company, an in rem caption and admiralty law.