Thursday, August 8, 2019

Media Appearance: "The Road Remains Open: Moon Jae-in's Berlin Speech as a Pathway to Peace" on GlobalAsia

This is a piece based on my presentation at the Yonsei University earlier this year:
But if the conclusion is that no deal for denuclearization is possible with North Korea, the only remaining options are a military conflict or continuation of the status quo. Neither is acceptable, because it invites a realistic risk of a nuclear war either in the immediate term (on the Korean Peninsula) or in the longer term (through North Korea’s nuclear proliferation). At any rate, the Hanoi summit showed that there indeed is a deal to be had if it can be agreed that the only realistic way forward is for both the US and North Korea to climb down from their maximalist positions and engage in a step-by-step exchange of denuclearization and sanctions relief. The trust-building process that the Berlin speech outlined with North Korea remains the best path forward, if only because all other paths lead to a blind alley.
The Road Remains Open: Moon Jae-in's Berlin Speech as a Pathway to Peace [GlobalAsia]

This paragraph basically sums up my thoughts on North Korea: if we accept that a nuclear war is not an option, we cannot stop diplomacy.

Tuesday, July 30, 2019

Case of the Day: Louis Vuitton Malletier v. Baglouisvuitton.Store, 2019 U.S. Dist. LEXIS 78748 (S.D. Fla. Mar. 21, 2019)

Summary:

LVMH, maker of Louis Vuitton bags, sought to serve process on counterfeit bag makers located in China, India, Pakistan, Indonesia, among others and petitioned the court for an alternate means of service. 

The court permitted service by alternate means under Rule 4(f)(3) of the Federal Rules of Civil Procedure, and allowed the petitioner to effectuate service by sending emails and posting on a designated website. 

Takeaway:

Service is becoming more and more of an issue as the global economy is more integrated. With the multilateral treaties slower to function, expect more of these measures that simply circumvent the multilateral structure in the Hague.

Thursday, July 25, 2019

Media Appearance: "The United States is Going After China's Banks" on Foreign Policy

I promise we will soon return to our regularly scheduled programming about litigating Asia-related cases before US courts! But with so much of Asia being in the news all the time, there is a constant demand for media articles. 

At any rate, here is a very important article that I wrote with my colleagues Wade Weems and Beau Barnes.
[T]he all-tools approach provides new angles of attack by blurring the distinction between different functions of the government: National security is trade is technology controls is financial regulation is law enforcement. . . . The recent Washington court ruling opens a more direct and expedient path and dramatically increases the breadth, reach and potential frequency of using this tool. Under Section 319 of the Patriot Act, it is not necessary to show the company knew it was violating sanctions; any foreign bank could lose its access to U.S. dollar end transactions when its only transgression is refusal to comply with a subpoena.

Two things are worth thinking about:

1. What would be the global financial implications when China's largest banks are cut off from dollar-denominated transactions? Can we even imagine all the secondary consequences falling out from such a measure?

2. What additional "tools" would the US government add? One big item I'm expecting to see is immigration laws--that is, restricting entry or exit of key Chinese nationals. China has been imposing an "exit ban" on several US citizens, and it is entirely possible for US to retaliate in kind.

Neither is a pleasant thing to think about, but such is the world we live in.

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.