Tag: law

China Lays the Legal Ground

I think it’s safe to expect Chinese corporations to be seizing foreign-owned property in Hong Kong and Taiwan soon, and taking steps to abandon the international arbitration system given these remarks on a new law that strips foreign state immunity by the Foreign Ministry.

Q: The Standing Committee of China’s National People’s Congress reviewed and passed the Law of the People’s Republic of China on Foreign State Immunity at a recent session. The law adjusted China’s previous stance of absolute state immunity and authorized courts in China to hear lawsuits against foreign states. What’s the reason for such an adjustment?

A: Enacting the Law on Foreign State Immunity is a normal legislative activity conducted by the Standing Committee of China’s National People’s Congress. The law stipulates provisions related to foreign state immunity in line with international practices and aims to improve China’s foreign state immunity system. The law stipulates the rules for Chinese courts to handle civil cases involving a foreign State and its property, with a view to protecting the lawful rights and interests of the parties concerned, safeguarding the sovereign equality of States, and promoting friendly exchanges with other countries, which all in turn boost China’s higher-level opening-up.

The Law on Foreign State Immunity affirms the fundamental principle that a foreign State and its property enjoy immunity in China, at the same time stipulates exceptions relating to non-sovereign act of a foreign State, under which Chinese courts can exercise jurisdiction, such as cases involving disputes arising out of a commercial activity, relevant personal injury and property damage. The Law also states that Chinese courts can take compulsory judicial measures against a foreign State’s commercial property under strictly limited circumstances. It fully adheres to international law and it is also consistent with general state practices.

As a responsible major country, China firmly upholds the principle of sovereign equality and will faithfully implement this Law to protect the legitimate rights and interests of Chinese nationals and legal persons and respect the immunities enjoyed by foreign States under international law.

Translation: The USA and other Western governments, including Canada, have increasingly been utilizing their courts to the detriment of Chinese corporations and individuals. China is clearly going to follow their lead by giving its courts the power to exercise jurisdiction over foreign entities and individuals who had previously been considered off-limits on the basis of foreign state immunity.

Given how little foreign investment there is in mainland China, one would tend to expect the primary application of this expanded jurisdiction will be in Hong Kong, and eventually, Taiwan.

I expect Taiwan to peacefully unify with the mainland much sooner than most people are expecting, and I strongly suspect that it will be someone like this man who will make it happen when the time comes. Despite his public statements, I would assume that he is, for all intents and purposes, the CPC’s preferred candidate for the office, because when China eventually makes its move for reunification, it will want to have a pragmatic figure in control of Taiwan’s government in order to avoid violence and bloodshed.

The billionaire founder of tech giant Foxconn, Terry Gou, has announced he will run for president of Taiwan as an independent candidate, pledging to fix cross-strait relations and boost Taiwan’s economy.

At a press conference on Monday, Gou – a well-known and outspoken businessman – announced what he called “the era of entrepreneurs’ rule”. “I have decided to join the 2024 presidential race,” he said, touting his business and finance experience, including dealings with China.

“Give me four years and I promise that I will bring 50 years of peace to the Taiwan Strait and build the deepest foundation for the mutual trust across the strait … Taiwan must not become Ukraine and I will not let Taiwan become the next Ukraine.”

Gou should not be able to come anywhere close to winning in normal political circumstances. He couldn’t even win the Kuomintang nomination. But given the fact that the outcome of the NATO-Russian war should be known by the time the election takes place in 2024, combined with the increased US activity in southeast Asia, the fear of being similarly sacrificed on the altar of US geostrategic interests may be enough to move the Taiwanese electorate away from the separatist parties.

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The Unaccountable

The FDA not only overstepped its legal authority and lied about the inefficacy and dangers of Ivermectin, but is attempting to claim that no one has any standing to hold it legally accountable for its illegal actions:

The plaintiffs are Drs. Paul Marik, Mary Bowden, and Robert Apter. They say they were professionally harmed by the FDA’s statements, including being terminated over efforts to prescribe ivermectin to patients.

Dr. Marik has noted that a number of studies support using ivermectin against COVID-19, as the FDA itself has acknowledged. Some other studies show little to no effect.

Federal law enables the FDA to provide information, such as reports of adverse reactions to drugs, but not medical advice, Mr. Kelson said. “This is something the FDA has never been able to do. And it’s a bright line,” he told the court, adding later: “The clearest examples of where they have gone over the line are when they say things like, ‘You are not a horse, you are not a cow. Seriously, y’all. Stop it.’”

Judges indicated they agree that the FDA lacks the power to give medical advice; Judge Clement said, “You’re not authorized to give medical advice.”

But Ms. Honold said the government “isn’t conceding that in this case.” She also argued that Congress has empowered the FDA to protect public health and make sure regulated products are safe and effective, giving it the “inherent authority to further its mission by communicating information to the public about safe uses of drugs.” A ruling in favor of the doctors would prevent the FDA from reporting on consumers suffering after cooking chicken with NyQuil or that opioid addiction is a problem, she claimed.

Mr. Kelson said that wasn’t accurate. “It’s when they step beyond that [and] start telling people how they should or should not be using approved drugs,” he said.

Ms. Honold also said that the courts can’t hold agencies accountable when they provide false or misleading information: “The FDA is politically accountable, just like all other executive agencies.”

The idea that an unelected agency is “politically accountable” is risible on its face. One might as reasonably argue that executive branch agents are permitted to steal and kill without facing any legal consequences, because the President to whom they ultimately report is elected. It’s a breathtakingly ridiculous argument, and the only way it could possibly be accepted by the courts is if they are not only entirely corrupt, but entirely willing to be seen as such by the public.

It’s also interesting that when the media was pushing “trust the science” and “it’s FDA-approved”, it never saw fit to mention that the FDA is not authorized to give medical advice such as telling people to get vaccinated or to not take Ivermectin.

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Homonazis in the UK

Clown World just got even clownier:

A police force has been accused of heavy handedness after a teenage girl with autism was detained by seven cops after ‘saying a female officer looked like her nana, who is a lesbian’. The 16-year-old, who also suffers from scoliosis, had been driven to her home in Leeds, West Yorkshire, by officers after midnight when she allegedly made the comment. She was later dragged away screaming in the early hours of Monday morning over the ‘homophobic public order offence’.

It’s rapidly becoming abundantly clear why every civilized society for thousands of years didn’t tolerate sexual deviants of any kind.

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The Inevitable End of Arbitration

In light of the absurd and shamelessly illegal actions by JAMS and a few of its more dishonest arbitrators that we’ve witnessed in recent years, to say nothing of its shameless bias towards corporations, it’s good to see that the UK courts have declared that JAMS awards are contrary to public policy and cannot be enforced in the UK. I very much doubt it will be the last jurisdiction to do so.

A UK-domiciled consumer lost about £613,000 in his cryptocurrency trading account, which was governed by terms of service that referred disputes to JAMS arbitration, with the merits to be decided pursuant to California law and the U.S. Federal Arbitration Act. The arbitrator held the cryptocurrency trading platform was not liable. The English Commercial Court held that enforcement of the JAMS award would be contrary to UK public policy, which meant that recognition and enforcement “may be refused”. The court found no “fresh circumstances”, and enforcement was refused.

In Payward Inc, Payward Ventures Inc and Payward Ltd v Chechetkin [2023] EWHC 1780 (Comm), the English Commercial Court refused to enforce a California-seated arbitration award, on the basis that enforcement would contravene UK public policy as embodied in the Consumer Rights Act 2015 (CRA 2015) and the Financial Services and Markets Act 2000 (FSMA).

  • Mr Chechetkin was a “consumer” for the purposes of the CRA 2015. Mr Chechetkin was a lawyer acting on his own behalf with no intention to resell cryptocurrencies as a business. He did not work in crypto or fintech and had indicated that he had no experience of cryptocurrency trading when he opened his Kraken account.
  • The Commercial Court was not bound by the decisions of the JAMS arbitrator. The Commercial Court was not bound by the decisions of the JAMS arbitrator and should not necessarily be obliged to enforce an award that is contrary to UK public policy merely because the arbitrator’s decision had indicated otherwise.
  • Enforcement of the arbitral award would be contrary to public policy under the CRA 2015 and FSMA. The CRA 2015 applies where a consumer contract has a close connection with the UK and requires the court to consider whether a term is fair even if none of the parties have raised it as an issue. The Payward terms were found to have a close connection with the UK because: both Mr Chechetkin and Payward Ltd were domiciled in England, and the services were paid for in sterling using English bank accounts.
  • In addition, the Commercial Court held that a reasonable consumer would not have agreed to California-seated arbitration, under JAMS and subject to the U.S. Federal Arbitration Act, as this brought with it significant disadvantages regarding the application of English law (including the CRA 2015 and FSMA). Nevertheless, the arbitrator took no account of English law, meaning that enforcement would be contrary to UK public policy. The Commercial Court also found that enforcement would stifle Mr Chechetkin’s claim under FSMA in circumstances where he had at least a prima facie claim. This would be contrary to public policy since contracts concluded in contravention of the general prohibition in section 19 of FSMA should be unenforceable and the customer should be entitled to recover his money.
English Commercial Court Refuses Recognition and Enforcement of California-Seated Arbitration Award on Grounds of Public Policy, 7 August 2023

The literal lawlessness of JAMS, and its abject refusal to require its own arbitrators to follow its own rules, is going to destroy both the arbitration system as well as the ridiculous unilateral dynamic contracts that permit technology companies to literally change the rules on their customers and employees alike, and to shamelessly abuse them without any legal consequences.

The legal system is bad enough as it is, but the arbitration system is even more corrupt. It’s good that at least one legal system is openly establishing the legal irrelevance of the latter.

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He Even Lost His Name

Jack Nicklaus’s bid to reclaim his own name from (((a former business partner))) was rejected by (((a Florida judge))).

In a recent federal court decision, Jack Nicklaus suffered a setback in his attempt to regain control of his name and likeness owned by former partner Howard Milstein. On Aug. 1, Judge Robin Rosenberg of the U.S. District Court of the Southern District of Florida ruled that due to a prior decision against Nicklaus by the New York County Supreme Court on the exact same property in question in Nicklaus Companies, LLC v. GBI Investors Inc., he lacked the ability to grant Nicklaus any control of the property in question.

I neither know nor care much about the travails of a rich golfer who lost control of his own name in pursuit of even more riches. But it’s a reminder that if something looks too good to be true, it probably is, and that if there is wording in the contract permitting the other party to a) take full control or b) not pay, the other party will usually find a way to make that happen.

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Banana Republic USA

When the leading opposition candidate is repeatedly charged with made-up crimes, you know a country has neither the rule of law or a legitimate democracy.

Former President Donald Trump’s legal woes deepened after he was hit with federal criminal charges linked to his attempts to cling to power after losing the 2020 election. Trump is facing four counts including conspiracy to defraud the U.S. government and obstruct the electoral count for trying to overturn the 2020 election. The 45-page indictment says he was ‘determined to remain in power’ despite ‘having lost.’

Special Counsel Jack Smith said in a televised public statement following the release of the indictment that the attack on the Capitol was ‘fueled by lies’ made by Trump ‘targeted at obstructing the bedrock function of the U.S. government – the nation’s process of collecting, counting and certifying the results of the presidential election.’ He pledged that his office will conduct a ‘speedy’ trial.

The former president has been summoned to appear before U.S. District Judge Tanya S. Chutkan – an Obama appointee – on Thursday in Washington, D.C. There are also six unnamed alleged co-conspirators according to the indictment.

Trump and his co-conspirators ‘used knowingly false claims of election fraud’ to try to ‘subvert the legitimate election results and change electoral votes’ for Joe Biden, according to the indictment.

So, the Establishment committed electoral fraud in order to put a fake President into office, then criminalized anyone pointing out that they did what they observably did.

Sounds legit.

The absurd thing is the fact that the only thing the USA really had going for it vis-a-vis the challenges posed by China and Russia was the perception of it holding the moral high ground with regards to “freedom and democracy”. But the perceived moral high ground has now gone the way of its European majority and its industrial capacity.

Enjoy the show. It’s unusual to have the chance to witness a global empire in the process of collapsing.

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We Have a Deal

Some guy of whom I’ve never heard before, who apparently appeared in some television shows I’ve never watched, is forbidding everyone who doesn’t celebrate child abuse from watching him do whatever it is he does.

Michael Imperioli is among many actors in Hollywood speaking out against the Supreme Court, with the “Sopranos” star making a statement against the group’s ruling in favor of a Christian web designer who sought legal protection to discriminate against same-sex marriages due to her religious beliefs.

Imperioli shared a screenshot of a news story about the ruling on Instagram, with the headline “Supreme Court protects web designer who won’t do gay wedding websites,” along with a caption railing against the decision.

“I’ve decided to forbid bigots and homophobes from watching ‘The Sopranos,’ ‘The White Lotus,’ ‘Goodfellas’ or any movie or TV show I’ve been in,” Imperioli wrote Saturday morning. “Thank you Supreme Court for allowing me to discriminate and exclude those who I don’t agree with and am opposed to. USA! USA!”

Sounds great! I love the smell of Freedom of Association in the afternoon. And I can’t help but wonder, in the aftermath of the Bud Light, Target, and Disney debacles, how many producers and directors are going to be eager to hire actors and actresses who have antagonized the greater part of the entertainment market?

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The End of Affirmative Action

The Supreme Court rules college admissions cannot take race into account:

The Supreme Court on Thursday ruled that the affirmative action admission policies of Harvard and the University of North Carolina are unconstitutional.

The ruling is a massive blow to decades-old efforts to boost enrollment of minorities at American universities through policies that took into account applicants’ race.

“Eliminating racial discrimination means eliminating all of it,” wrote Chief Justice John Roberts in the majority opinion, which all five of his fellow conservative justices joined in.

Conservatives will celebrate this as a great legal victory, and perhaps it is. But the reality is that the damage has already been done, as university educations and the lifelong debt they entail are best avoided by everyone of any color.

However, if the ruling can be successfully applied to an employment context, that could be significant indeed.

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Why “Posterity” Matters

Six years ago, I debated Col. Tom Kratman on the topic of what the word “posterity” means in the context of the U.S. Constitution, specifically, the preamble which declares to whom the Constitution and the Bill of Rights applies.

I was correct, of course, to point out that posterity meant only the American Revolutionaries and their descendants, which is why the rights protected by the U.S. Constitution do not apply to many U.S. residents and even citizens. If you are not a direct descendant of an American Revolutionary, then the Constitution does not apply to you, no matter what the U.S. Supreme Court might claim.

The importance of correct interpretation of historical legal terms can be seen in the recent protest by the Global Times against sovereign U.S. States passing laws against foreign entities buying up their land.

CNN reported on Monday that “a growing number of states are considering or have passed measures this legislative term to ban ‘foreign adversaries’ and foreign entities – specifically China – from buying farmland.” These bills could violate the US Constitution, and also fuel an atmosphere of racism and anti-China sentiment.

Against the backdrop of increasingly strong anti-China sentiment in the US, it seems the “land purchase ban” is an inevitable product. Regarding the “land purchase ban,” several US-China relations experts interviewed by CNN warned against knee-jerk responses and called for lawmakers to act on evidence, not suspicion. There are certainly some rational people in the US who can see that this approach violates the US Constitution. However, in the current political atmosphere in the US, all anti-China actions are politically correct domestically, those who are willing to come out and speak up are the minority and their voices are often ignored.

The Posterity for whom the Constitution is intended to defend the Blessings of Liberty consists solely of the genetic descendants of the People of the several and united States. Posterity does not include immigrants, descendants of immigrants, invaders, conquerors, tourists, students, Americans born in Portugal, or anyone else who happens to subsequently reside in the same geographic location, or share the same civic ideals, as the original We the People.

Nor does it include sovereign foreign governments.

But as you can see, once the definition of “posterity” is expanded past its true and proper meaning, there is no reason it cannot be further expanded into a universal principle. Which, of course, is complete nonsense, and thereby demonstrates the practical impossibility of every other interpretation.

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The End of He Said – She Said

Donald Trump is found guilty of sexual abuse, injury, and defamation in a civil trial:

A jury has found that Donald Trump sexually abused E. Jean Carroll.

The panel of six men and three women also found that Trump injured advice columnist Carroll in a Manhattan Bergdorf Goodman dressing room and defamed her when he called her a liar, ordering the former President to pay $5million in damages.

But they ruled after just three hours of deliberation that the evidence did not show that the former president had raped her.

Clown World is getting clownier and clownier by the day. But Trump can hardly complain. This is what happens when you chicken out at the Rubicon. It’s clearly been declared open season on him and he’s going to be found guilty of anything anyone can dream up and put before a jury of those who hate him.

The imaginary dialogue is risible. When people are retroactively writing their own lines, they can never resist making themselves sound smart, cool, and quippy.

She told the jury that she was on her way out of Bergdorf Goodman when she saw Trump coming in. ‘Hey you’re that advice columnist’, he told her. She fired back: ‘Hey you’re that real estate guy’.

The $2.7 million for defamation is particularly ridiculous. If I was able to collect $2.7 million from everyone who falsely called me a liar and worse, I’d be a billionaire.

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