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.

Friday, May 17, 2019

Media Appearance: "A Comparison of Developments in Crypto Law in South Korea" in Asia Business Law Journal

Together with my Kobre & Kim colleagues Michael S. Kim and Daniel S. Lee, I gave an update on South Korea's crypto regulations on Asia Business Law Journal:
On 7 March 2019, the FSC announced that it would focus on passing the amendment to the Act on Reporting and Using Specified Financial Transaction Information, initially proposed on 21 March 2018. The proposed amendment, if passed, would significantly strengthen the banks’ discretion to cease doing business with cryptocurrency exchanges based on concerns over money laundering or terrorism funding.

Market participants have criticized this proposal, claiming it would effectively mean a death sentence for all but the largest exchanges, as mid-sized exchanges would be unable to comply with the rigorous legal requirements.
A Comparison of Developments in Crypto Law in South Korea [Asia Business Law Journal]

Tuesday, May 14, 2019

Case of the Day: In re Med. Corp. H&S, 2019 U.S. Dist. LEXIS 42926 (N.D. Cal. Mar. 15, 2019)

Summary:

A dental clinic in Japan filed a 28 U.S.C. s. 1782 discovery application against Google, to assist the contemplated action in Japan for defamation and unlawful business interference. Allegedly, the petitioner received a number of one-star reviews on its Google Maps, and it wished to ascertain the identities of the Google account holders who left those reviews. 

The court granted the application.

Takeaway:

Considering the general hostility that US courts have had over assisting defamation proceedings abroad, the court's willingness here to breezily grant the discovery request for the petitioner is somewhat surprising, although a 1782 application does not exactly require a public policy assessment like, say, foreign judgment recognition does.

Thursday, May 9, 2019

Milestones: In re Extradition of Strunk, 293 F.Supp.2d 1117 (E.D. Cal. Nov. 12, 2003)

Summary:

Philippines sought a U.S. citizen's extradition from California, based on a charge that the defendant murdered his wife Nida Blanca, a popular actress in the Philippines. A third party confessed to the killing, and in the confession named the defendant as the one who masterminded the crime. In exchange for the confession, the Filipino government paid money to the third party's family. The third party later repudiated the confession in a public hearing.

The court denied extradition and released the defendant from custody immediately. The court found that evidence submitted by the Philippines, based on a recanted confession obtained by payment of money, did not constitute probable cause for extradition.

Takeaway:

Nida Blanca's Wikipedia page is here: https://en.wikipedia.org/wiki/Nida_Blanca She had a 50-year career, and was considered one of the Philippines' greatest actresses. On the legal side, however, this case is notable for setting the floor for an extradition, which is not easy to beat.