Tag: law

China Governs Its Own People

A civnat and imperial subject expresses his horror of a nation daring to govern its own nationals:

Beijing is obsessed with suppressing dissent among ethnic Chinese living in democracies and has no hesitation intimidating human-rights activists and dissidents in the West.

Beijing calls it, euphemistically, ‘persuade to return’ and thinks it legitimate because democracies will, by and large, not extradite people to dictatorships like China. Indeed, the European Court of Human Rights has effectively banned its member states (which include Britain) from extraditing to China anyone under their jurisdiction. Hence the ‘persuasion’.

China thinks it has a right to enforce this because, under Chinese law, its citizens are subject to Communist Party law wherever they live. And China’s National Intelligence Law requires its people and companies to assist Beijing’s spies whenever requested — and to keep that assistance secret.

The irony of paper citizens arguing that borders don’t exist and the economy is global, but that the Chinese people don’t have the right to govern Chinese people around the world, requires a degree of intellectual incoherence that is both impressive and historically ignorant.

Meanwhile, they have no problem with private corporations attempting to control the behavior of people of every nation, everywhere around the world.

Again, the incoherence is astounding. Especially when it wasn’t until November 1991 that the USA defined economic growth in terms of state-based Gross Domestic Product rather than the historical nation-based Gross National Product.

Finally, it’s more than a bit ironic that the article warns about China infiltrating and making use of the Five Eyes surveillance system used by Britain, Australia, New Zealand, Canada and the United States to spy on each other’s citizens.

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Deep Pockets and Defamation

Elon Musk brings up the possibility of suing the ADL for defamation:

While the ADL is obviously vulnerable on the issue of defamation, and has previously lost defamation cases, I think Musk and many others would actually have a much stronger case concerning tortious interference. The ADL literally raises money on the basis of its successful interference in contracts between third parties to which it has no relation, and its entire modus operandi is based on tortious interference for the purposes of harming the party it is targeting.

And while defamation is extremely hard for a public figure to prove, tortious interference is usually an easily established matter of record. In the case of the ADL’s interference with X’s advertising contracts, all of the elements are observably there and could be easily proven using the communications between the ADL and the advertisers.

  • The existence of a contractual relationship or beneficial business relationship between two parties.
  • Knowledge of that relationship by a third party.
  • Intent of the third party to induce a party to the relationship to breach the relationship.
  • Lack of any privilege on the part of the third party to induce such a breach.
  • The contractual relationship is breached.
  • Damage to the party against whom the breach occurs.

If Musk actually follows through with his musings with a lawsuit for tortious interference, and if Facebook, which was also targeted by the ADL, followed suit, there is a very good chance that the ADL would be financially ruined. Which would be ironic, given how many other organizations and individuals it has attempted to ruin financially. #BantheADL

UPDATE: I am very skeptical that Musk is genuinely serious about this. Among other things, he hasn’t fired his ADL-friendly CEO, Linda Yaccarino, yet.

UPDATE: On the other hand, the mainstream media is already rushing to misdirect the public and provide cover for the ADL, which tends to suggest that they are afraid the threat is real.

It’s unclear what kind of communications Musk is referring to, but a successful defamation suit would require him to prove that the ADL has been making false claims about him and his company. Musk and X did not immediately respond to a question from NBC News as to whether a complaint had been drafted. The ADL told NBC News on Monday that as a matter of policy it does not comment on legal threats.

The ADL’s publicly shared research and its criticisms of antisemitism on Musk’s platform in recent months are grounded in evidence. In March, the group flagged specific examples of antisemitic hate speech and tropes, and it criticized X for failing to remove posts in accordance with X’s own policies that prohibit hateful conduct, threats or incitement to violence based on individual or group identities. And in May, the ADL posted a report that documented examples of how antisemitic harassment networks are flourishing on the platform. Some of the ADL’s methodology seems unclear to me, and the organization also has a history of sometimes defining antisemitism in ways that conflate it with anti-Zionism. But the ADL flagged persuasive examples in its posts, and anyone who spends time on X knows the site is brimming with hate speech directed at all kinds of minority communities. One might also note that in these posts and in its report, the ADL is not calling Musk or X itself antisemitic, but the group is critiquing the company for failing to take action against antisemitic speech. Musk said on Monday that he was “pro free speech, but against anti-Semitism of any kind.”

Musk’s decision to single out the ADL is odd. As I noted, the ADL is just one voice among scores of civil rights-oriented organizations, research groups and media commentators that have criticized Musk’s laissez-faire attitudes toward hate speech. That’s to say nothing of the possibility that advertisers may choose to pull back on their spending on a platform without any pressure from activist groups or critics, and simply out of the calculation that the platform might be risky for their reputation in the future.

The twisted logic of Elon Musk’s defamation threat against the Anti-Defamation League, MSNBC, 6 September 2023

Notice how there is no mention of tortious interference, and yet the last sentence is specifically phrased to provide a hypothetical defense against the possibility that X advertisers were contacted by the ADL and pressured to stop advertising on X. And it is those communications between the ADL and the advertisers it is believed to have pressured are presumably the kind of communications to which Musk was referring.

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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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