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Weaponizing US Courts Against North Korean Proliferators
Aug 1, 2017 | The Diplomat
By Aaron Arnold
North Korea test fired a ballistic missile said to be capable of reaching the United States. -
Lax anti-pollution efforts highlighted
Aug 2, 2017 | China Daily
By Zheng Jinran
Too much emphasis on economic growth and too little on environmental protection was identified as one of several causes of failure in the fight against pollution in Tianjin and six provinces. -
China's state media slams Donald Trump's 'emotional venting' on Twitter
Aug 2, 2017 | The Straits Times
After US President Donald Trump pilloried China in 48 tweeted words, accusing it of failing to tame its neighbour and longtime ally North Korea, Beijing issued its own rebuke to Mr Trump - in a cutting editorial of 1,000 Chinese characters from Xinhua, the official news agency. -
US plans trade probe over China's demands for tech transfers
Aug 2, 2017 | ABC News
By Gillian Wong
President Donald Trump's administration is considering using rarely invoked U.S. trade laws to fend off China's demands that foreign companies share their technology in return for access to the country's vast market, a person familiar with U.S. discussions said Wednesday. -
Asia-Russia ocean rates to fall as import growth plateaus
Aug 1, 2017 | Journal of Commerce
By Eugene Gerden
Asia- Russia ocean shipping spot rates could decline 30 to 40 percent from current levels by the end of this year as Russia’s economic growth slows and inventory builds up. -
Chinese Port Operators Lead the Way in Acquisitions
Aug 1, 2017 | The Maritime Executive
Chinese port operators like Cosco Shipping Ports and China Merchants Port Holdings are taking an aggressive lead on acquisitions amid uncertain forecasts, according to a new report from analysts at Drewry.
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Weaponizing US Courts Against North Korean Proliferators
Aug 1, 2017 | The Diplomat
By Aaron Arnold
In July, North Korea test fired a ballistic missile said to be capable of reaching the United States. Not surprisingly, Kim Jong-un’s provocations have been met with increased calls by congressional leadership and policymakers to ratchet up the pressure on China — North Korea’s lifeline to the international financial system, according to a recent UN report. A difficult question for policymakers now is how far should the United States go to increase pressure against China?
In recent months, the U.S. Department of the Treasury has ramped up its efforts to identify and exclude North Korean entities from the U.S. financial system. The Treasury Department’s Office of Foreign Asset Control has designated 36 North Korea-related individuals and entities since January. Most recently, the U.S. Treasury Department issued a finding that that Bank of Dandong, a Chinese bank, is a “foreign financial institution of primary money laundering concern,” under Section 311 of the USA PATRIOT Act, for its role in facilitating North Korean access to U.S. banks. The proposed rule would require U.S. banks to ensure that Bank of Dandong does not directly or indirectly access the U.S. financial system.
Amid calls for increasing pressure on China to respond to North Korea’s provocations by imposing secondary sanctions against Chinese banks, the U.S. Department of Justice (DoJ) has taken a different course of action — using civil courts. Recently, the DoJ has sued Chinese entities, in civil court, for sanctions violations. While a novel approach, is this too little, too late?
Weaponizing Civil Courts
In September 2016, Assistant U.S. Attorneys for the District of New Jersey filed an in rem complaint against Dandong Hongxiang Industrial Development Co., which is a Chinese-based trading company responsible for facilitating transactions on behalf of sanctioned North Korean entities. Specifically, the complaint alleges that Dandong Hongxiang, and its owner, Chinese national Ma Xiaohong, used a network of shell companies to launder transactions, as well as handle supply chain logistics, for Korea Kwangson Banking Corporation — a North Korean bank sanctioned for its role in North Korea’s WMD activities. Pursuant to civil forfeiture law, the complaint is seeking the seizure of over $74 million in funds that were routed through U.S. banks.
Civil forfeiture actions in cases involving violations of the International Emergency Economic Powers Act (IEEPA), which is the statutory authority giving the president to regulate financial transactions (i.e., impose sanctions), are relatively rare occurrences. More commonly, U.S. authorities have used civil asset forfeiture to target everything from tax evaders and narco-traffickers to terrorists. According to a report by the Institute for Justice, the DoJ asset forfeiture program took in $93.7 million in 1986 compared to $4.5 billion in 2014. To be fair, 2014 was somewhat of an outlier year with several major cases, including the JPMorgan, Bernie Madoff, and Toyota forfeitures. By comparison, in 2016 the DoJ seized assets just short of $2 billion, which is more consistent with the ten-year average but still a significant overall increase. The same report concludes that civil cases make up the lion’s share of asset forfeitures — topping 87 percent from 1997 to 2013.
This method used to disrupt the network is somewhat of a departure from criminal indictments, which the Justice Department has traditionally used. First, it is important to note that the DoJ filed this case in a civil court, in rem — meaning against Dandong Hongxiang’s property, not against Dandong Hongxiang. Strategically, civil forfeiture offers several benefits not available in a criminal court, which may be of particular use in a case involving overseas companies.
First, the burden of proof required for a civil forfeiture judgment is significantly lower than for a criminal case. Whereas the burden of proof in a criminal case requires proof beyond a reasonable doubt, a civil case merely requires the “preponderance of evidence” — meaning, the funds are more likely than not to be connected to a crime. This “51 percent” standard is significantly lower than the required burden of proof in criminal cases. Moreover, in a civil case, the prosecutor does not have to prove that the property’s owner— Dandong Hongxiang in this case — committed the criminal violations, only that the property in question — the wire transfers — are linked to a criminal act.
The second unique feature of this civil forfeiture case requires a much closer reading. In the complaint, Dandong Hongxiang facilitated several U.S.-dollar denominated wire transfers to known North Korean front companies on behalf of Korea Kwangson Banking Corporation, from accounts held overseas at ten Chinese banks, including Agricultural Bank of China and China Construction Bank — two of China’s largest banks. But, Dandong Hongxiang holds no accounts in the United States. How, then, can U.S. authorities seize assets not held in U.S. accounts? The answer comes from a rarely used section within the U.S. asset forfeiture code. First, though, it is important to understand how correspondent banking works.
Correspondent banking is when one bank carries out transactions on behalf of another bank — usually a foreign bank. These relationships allow a customer at a U.S. bank to quickly send a payment to a foreign bank. How, for example, would Bank of China settle a payment from an account holder at Bank of New York? Through correspondent networks, Bank of China would debit Bank of New York’s correspondent account, and credit its client. If, say, Bank of China and Bank of New York did not have a correspondent relationship, the transaction might need to go through multiple correspondent accounts at different banks (i.e., a correspondent network). A correspondent account, then, is a bank’s account at a different institution. Although the transfers Dandong Hongxiang facilitated were initiated and deposited overseas, they were still cleared through U.S. correspondent accounts, thereby triggering both U.S. jurisdiction and sanctions.
In 2001, the USA PATRIOT Act amended U.S. forfeiture laws to give authorities the flexibility to target assets held in overseas accounts. With respect to civil forfeiture, the law was amended to include correspondent accounts. According to the statute:
[I]f funds are deposited into an account at a foreign financial institution… and that foreign financial institution has a [correspondent] account in the United States… the funds shall be deemed to have been deposited into the [correspondent] account in the United States, and any restraining order, seizure warrant, or arrest warrant in rem regarding the funds may be served on the covered financial institution, and funds in the [correspondent] account, up to the value of the funds deposited into the account at the foreign financial institution may be restrained, seized, or arrested.
This means that terrorists (and proliferators) could no longer protect their assets from U.S. authorities by hiding illicit proceeds in overseas banks. In the Dandong Hongxiang case, it does not matter that the funds are held in accounts at Chinese banks. As long as the Chinese banks have correspondent banking relationships with U.S. financial institutions (or even with other banks that have correspondent relationships with U.S. financial institutions) the assets in questions can be seized from the correspondent accounts in the United States. It is then up to the foreign bank, which in this case are the ten Chinese banks, to make themselves “whole” again by debiting from Dandong Hongxiang’s accounts.
While U.S. authorities have used this type of civil forfeiture in a number of cases involving terrorism and intellectual property violations, it has only been used once before in a proliferation-related case. In 2014, prosecutors successfully seized almost $7 million of Li Fengwei’s assets, primarily held at Bank of China and Shanghai Pudong Development Bank, from a number of U.S. correspondent accounts. Li, a Chinese serial proliferator, was criminally indicted in 2014 for IEEPA and related violations. According to the indictment, Li, who currently resides in Dalian, China, was a long-time supplier to Iran’s ballistic missile program.
A New Trend?
Although Dandong Hongxiang may seem like a one-off application of civil forfeiture in proliferation-related cases, consider that in mid-June, the Department of Justice released a civil forfeiture complaint against property owned by Mingzheng International Trading Limited — a North Korean front company that acted as a financial intermediary for North Korea’s state-run bank, Foreign Trade Bank (FTB). In March 2013, the United States sanctioned FTB, describing the bank as a “key node” in North Korea’s WMD proliferation activities. For its role, Mingzheng was counterparty to 20 wire transfers, totaling $1,902,976, between October and November 2015. But because each of these wire transfers passed through U.S. correspondent bank accounts, each was in violation of IEEPA and related wire fraud and money laundering violations.
From a practical standpoint, criminal charges against Mingzheng and its beneficiaries would likely be a fruitless exercise. Mingzheng’s owners are never identified in the complaint, only that the company was incorporated in Hong Kong and run by “at least one Chinese national,” according to a cited confidential source. This means that either they are unknown, or that additional actions, like a criminal indictment, may be forthcoming. Either way, it is unlikely that those responsible for managing Mingzheng International Trading would ever be brought to justice in the United States. In fact, in cases like Mingzheng, extradition is exceedingly rare. Consider the case of Li Fengwei. Despite a $5 million bounty for his arrest, Li has yet to set foot in a U.S. court, despite several extradition requests and demarches to Chinese authorities.
In another unique case, a U.S. court issued “peremptory seizure warrants” for transactions involving Dandong Zhicheng Metallic Material Company, an identified North Korean front. The peremptory seizure warrant permits eight identified banks in the United States to accept incoming wire transfers from Dandong Zhicheng Metallic Material Company, at which point the bank blocks the funds. Interestingly, the memorandum filed May 2017 indicates that the prosecution, at one point, also sought a civil forfeiture action, which was eventually dropped. It is unknown why the civil forfeiture action was dropped from the case.
Implications
Until recently, seizing assets held overseas from correspondents accounts in the United States was viewed as a “last resort” option, largely because it was seen as potentially destabilizing. However, with the recent urgency to act against North Korea, this view may be shifting.
Although under-utilized in proliferation-related cases, civil asset forfeitures can be an immensely powerful tool against North Korean front companies. Over the last six years, correspondent banking has tended to concentrate transactional volume in North America, Europe, and Asia, with U.S. banks making up a significant portion of the correspondent volume. While it is unclear if this represents a new trend, the use of civil courts to target North Korean assets is a novel approach that increases pressure on China and Chinese banks, largely without the risk of imposing secondary sanctions.
From a practical standpoint, however, it is unlikely U.S. authorities can conduct enough forfeiture actions in terms of making an economic impact. But, seeing that civil forfeiture puts Chinese banks’ assets at risk, it may compel these banks to bolster their customer on-boarding and due diligence processes. Moreover, civil (or criminal) forfeiture against North Korean entities at Chinese institutions is a good intermediary strategy before imposing secondary sanctions. It targets the actual illicit funds, deprives North Korea of access to resources, and has a lower risk for retaliation against U.S. businesses and banks.
http://thediplomat.com/2017/08/weaponizing-us-courts-against-north-korean-proliferators/
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Lax anti-pollution efforts highlighted
Aug 2, 2017 | China Daily
By Zheng Jinran
Too much emphasis on economic growth and too little on environmental protection was identified as one of several causes of failure in the fight against pollution in Tianjin and six provinces, according to a statement on Tuesday by the Ministry of Environmental Protection.
The statement included a list of failures that were identified during a monthlong inspection, and found that some problems cropped up repeatedly.
Seven inspection teams sent by the central government in late April reviewed the antipollution performance of Tianjin and the provinces of Shanxi, Liaoning, Anhui, Fujian, Hunan and Guizhou. Detailed findings were included in the ministry's statement.
Inspectors referred 31,457 pollution problems to provincial and city governments. When inspections were completed by the end of June, 8,687 polluting companies received punishments, including fines, and 405 people were detained, the ministry's statement said.
In the seven places, 4,660 officials were held accountable for their poor performance on environmental protection. Some areas even saw pollution get worse as a result of their decisions, the statement said.
For example, the development plan of Bijie's Weining county in Guizhou province expanded the construction areas inside a national natural reserve to 16.9 square kilometers this year, from 1.5 sq km in 2009, Ma Zhongping, head of the inspection team in that province, said on Tuesday.
That runs counter to national laws protecting natural reserves, but local leaders passed it anyway, leading to severe damage, the statement said.
Shanxi province allowed the construction of some coal-fired power plants despite tough requirements from the central government to cut air pollution, it said.
In addition to slack leadership in environmental matters, many cities were found to lack infrastructure to manage waste - one of the major common problems identified by the inspectors.
In Shenyang, Liaoning province, lack of sewage pipelines and processing plants resulted in the daily discharge of 270,000 metric tons of untreated sewage.
In addition, in Guiyang, Guizhou province, more than 400,000 tons of untreated sewage was discharged into the Nanming River.
Inspectors even found that air and water quality had deteriorated in many places in the seven areas inspected, and governments failed to take effective measures to control the trend.
The central government has ordered the governments in all seven places to submit plans to rectify the problems revealed in the inspections.
Beijing, Shanghai and five other provincial-level areas that received monthlong inspections in December released their plans in July and said they welcomed public supervision as they implement the listed measures.
As of June, the central government had launched four rounds of the high-level inspections. Eight other provincial-level areas are expected to be inspected in coming months.
Because the inspectors have been sent by the central government, they have more authority than the ones appointed by the ministry, and so are considered to be a powerful tool to regulate the governments and deter polluters, the ministry said.
http://usa.chinadaily.com.cn/china/2017-08/02/content_30325840.htm
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China's state media slams Donald Trump's 'emotional venting' on Twitter
Aug 2, 2017 | The Straits Times
BEIJING - After US President Donald Trump pilloried China in 48 tweeted words, accusing it of failing to tame its neighbour and longtime ally North Korea, Beijing issued its own rebuke to Mr Trump - in a cutting editorial of 1,000 Chinese characters from Xinhua, the official news agency.
"Trump is quite a personality, and he likes to tweet," said the Xinhua response issued late on Monday (July 31) and widely displayed on Chinese news websites. "But emotional venting cannot become a guiding policy for solving the nuclear issue on the peninsula," it said, referring to the divided Korean Peninsula.
The United States, it added, "must not continue spurning responsibility" for the volatile standoff with North Korea, "and even less should it stab China in the back".
The unusually personal nature of the editorial, together with comments delivered earlier that day by China's ambassador to the United Nations in New York, show that North Korea is becoming the main dispute threatening to tear at Mr Trump's initially friendly relationship with his Chinese counterpart, Mr Xi Jinping.
"I am very disappointed in China," Mr Trump declared on Twitter on Sunday, after North Korea tested an intercontinental ballistic missile (ICBM) in defiance of UN sanctions.
Despite China's big trade surplus with the US, he continued in a second tweet, saying, 'they do NOTHING for us with North Korea, just talk".
China's rebuke to Mr Trump did not use exclamation marks. But the Xinhua editorial broke with Beijing's usual public reticence when Mr Trump has taken China to task over trade imbalances, territorial disputes in the South China Sea, Taiwan and other sources of tension.
"Taking out this outrage on China is clearly finding the wrong target," it said, warning such broadsides could be dangerous. "What the peninsula needs is immediately stamping out the fire, not adding kindling or, even worse, pouring oil on the flames," Xinhua said.
The tensions could, it added, "evolve into a localised conflict, or even the outbreak of war, with unthinkable repercussions".
Chinese diplomats and the state news media have consistently argued that Washington and its allies should not rely so much on China to defuse tensions created by North Korea's growing nuclear weapons and missile capabilities.
Last Friday, North Korea tested a ballistic missile that experts have said could have the range to hit California.
US secretary of state Rex Tillerson has turned up pressure on China to help isolate and cajole North Korea. "China and Russia bear unique and special responsibility for this growing threat to regional and global stability," he said in a statement after the launch last Friday.
But the Chinese government argues that North Korea would not back down and return to negotiations over its weapons programmes unless the US and its northeast Asian allies, South Korea and Japan, take conciliatory steps.
In particular, China has proposed that North Korea freeze its nuclear and missile programmes in exchange for a halt to major military exercises by American and South Korean forces on the Korean Peninsula and off its coast.
As the tensions with North Korea have escalated, Mr Trump has often treated Mr Xi in public as a friend who was valiantly, though unsuccessfully, trying to bring North Korea around. "At least I know China tried!" Mr Trump said on Twitter in June.
Now that friendly facade appears to be cracking. But Mr Trump also has a long record of harsh criticisms of China, stretching back to his election campaign and much earlier. "China controls North Korea," he said in 2013. "They are using the Norks to taunt us," he said, using slang for North Koreans.
The Chinese ambassador to the United Nations, Mr Liu Jieyi, said on Monday it was up to the US and North Korea to find a solution to the current standoff, not China.
"People talk about China a lot," he said at a news conference to mark the end of China's July term in the rotating presidency of the UN Security Council. "If the two principal parties refuse to move towards what is required by the Security Council resolutions - de-escalation of tension, negotiations to achieve denuclearisation and peace and stability and also resume dialogue - then no matter how capable China is, China's efforts will not yield practical results because it depends on the two principal parties."
He said that China had upheld UN sanctions against North Korea, while Pyongyang and Washington were heightening tensions by carrying out missile tests and the American side was raising the prospect of new, unilateral sanctions and even the potential for military strikes.
"Instead of de-escalating tension we see of course further testing that we oppose and we also see language and action from elsewhere that heightens tension, talking about 'all options on the table'," he said.
Mr Liu also criticised the US' deployment of the Terminal High Altitude Area Defence (Thaad) anti-missile system in South Korea, which China opposes. He reiterated China's support for a proposal to freeze North Korea's nuclear and missile tests in exchange for the US and South Korea halting large-scale military exercises on the Korean Peninsula.
http://www.straitstimes.com/asia/east-asia/chinas-state-media-slamps-donald-trumps-emotional-venting-on-twitter
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US plans trade probe over China's demands for tech transfers
Aug 2, 2017 | ABC News
By Gillian Wong
President Donald Trump's administration is considering using rarely invoked U.S. trade laws to fend off China's demands that foreign companies share their technology in return for access to the country's vast market, a person familiar with U.S. discussions said Wednesday.
The administration is discussing the use of Section 301 of the Trade Act of 1974, which empowers Washington to launch an investigation into China's trade practices and, within months, raise tariffs on imports from China, or impose other sanctions, said the person, who spoke on condition of anonymity because the plans have not been made public.
The investigation would be focused on China's alleged "forced technology transfer policies and practices," the person said, adding that the Trump administration could move to launch such a probe this week.
China's Ministry of Commerce did not immediately respond to a faxed request for comment.
These deliberations come as the administration signals a harsher stance on trade than it took in the first six months of Trump's presidency.
U.S. and other Western governments and business groups accuse Beijing of blocking access to promising industries by requiring foreign companies to hand over proprietary technologies in exchange for being allowed to operate in China. Such requirements are seen as an attempt by Beijing to nurture its own competitors in fields from medical equipment to renewable energy to electric cars.
Trump temporarily set aside complaints about market access and currency when he met with Chinese President Xi Jinping in April in hopes Beijing would help pressure North Korea to end its nuclear weapons development. But tensions bubbled up last month at a U.S.-Chinese dialogue where U.S. Treasury Secretary Steve Mnuchin blamed China's $347 billion trade surplus with the United States last year on "government intervention in its economy."
The Wall Street Journal and New York Times also reported that U.S. trade officials are discussing ways to counter piracy of copyrights and patents and other intellectual property in China.
U.S. Commerce Secretary Wilbur Ross, in a commentary in Tuesday's Wall Street Journal, outlined a slew of grievances against both China and the European Union that he said contributed to the global U.S. trade deficit in goods of $725.5 billion in 2016.
"Both China and Europe also bankroll their exports through grants, low-cost loans, energy subsidies, special value-added tax refunds and below-market real estate sales, among other means," Ross wrote.
The Wall Street Journal and New York Times stories also said U.S. officials were looking into using Section 301 of the 1974 Trade Act. Another possibility would be to invoke the "International Emergency Economic Powers Act," a law also enacted during the 1970s that gives the president wide powers to take action after declaring a national emergency, the Wall Street Journal report said.
The administration also was considering how to resist technology-sharing demands from Beijing as part of its ambitious Made in China 2025 program, a blueprint for making China a leader in advanced technologies such as autonomous driving, artificial intelligence, robotics and other industries.
Foreign companies have long complained over rampant piracy and technology theft by Chinese companies. Though he has at times sought a more conciliatory approach, Trump also has lambasted China over such problems and over the massive U.S. trade deficit.
http://abcnews.go.com/International/wireStory/reports-us-plans-trade-action-china-copyright-piracy-48979972
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Asia-Russia ocean rates to fall as import growth plateaus
Aug 1, 2017 | Journal of Commerce
By Eugene Gerden
Asia- Russia ocean shipping spot rates could decline 30 to 40 percent from current levels by the end of this year as Russia’s economic growth slows and inventory builds up. Spot ocean shipping rates from ShanghaiSt.Petersburg via the Vladivostok port range from $3,585 to $3,700 per TEU, while all water rates from Shanghai & St.Petersburg are between $1,200 and $1,400 per TEU.
Those rates are up 150 percent year over year, but analysts from Russian container line FESCO expect rates to begin falling in August or September. Growth in Russian imports over the past 10 to 12 months came from the economy readjusting to Western sanctions put in place in 2014 and 2015, but now that the adjustment is complete, growth will slow, said Ivan Korenev, deputy director of Megatrans, an importer of Chinese made household goods. Russia’s GDP will increase 1.5 percent this year after contracting 0.4 percent last year, according to IHS Markit forecasts.
Another factor in the slower growth is that Russian wages have stagnated over the past 12 to 14 months, which means that goods imported during the last growth spurt are now sitting idle in warehouses and suppressing future demand, according to the Russian Union of Industrialists and Entrepreneurs. Russian inventories grew 0.6 percent last year and will grow 0.4 percent this year, according to IHS Markit. Russian container volume increased 15.3 percent year over year to 2.3 million TEU in the first half, according to statistics from the Ministry of Transport.
Containerized imports rose 24 percent to 971,570 TEU, led by ports in Russia’s Far East, where import traffic surged 47 percent year over year to 340,098. Russian exports rose 15 percent year over year to 952,060 TEU. Analysts expect that import growth will slow to between 10 and 15 percent in the second half, leading to the dramatic drop in rates by year’s end.
http://www.joc.com/maritime-news/trade-lanes/asia-europe/asia-russia-ocean-rates-fall-import-growth-plateaus_20170801.html
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Chinese Port Operators Lead the Way in Acquisitions
Aug 1, 2017 | The Maritime Executive
Chinese port operators like Cosco Shipping Ports and China Merchants Port Holdings are taking an aggressive lead on acquisitions amid uncertain forecasts, according to a new report from analysts at Drewry.
“While there are certainly some encouraging signs for the demand growth outlook, the risk profile for terminal operators has increased and most of the traditional global/international players remain cautious," said Neil Davidson, Drewry’s senior analyst for ports and terminals. "The exception to this are the Chinese port companies who are pursuing expansion and investment both at home and overseas in an unprecedentedly aggressive manner."
Drewry said that predicted volume growth is strong at four percent CAGR, but confirmed capacity additions are less so, at just 2.7 percent CAGR – perhaps a reflection of risky geopolitical considerations. Among other factors, Drewry cited the protectionist leanings and unpredictability of the Trump administration; the tensions on the Korean peninsula; and the potential fallout from Brexit.
Major Chinese acquisitions, like China Merchants Port Holdings' purchase of 70 percent of Hambantota, Sri Lanka, have made China a clear leader in ports M&A over the past year. More than half of all international ports acquisitions have involved Chinese buyers over the last twelve months.
Chinese President Xi Jinping's "One Belt, One Road" infrastructure initiative has given state-owned port operators a green light to invest in facilities in Southeast Asia, South Asia and Europe. Davidson alluded to the dual-purpose, political nature of these purchases in his analysis. “The Chinese players are more comfortable with risk than the established international operators right now, and have a geo-political strategy rather than a purely financial one. They are snapping up assets and opportunities and have the appetite and financial clout to take many more in the coming years,” he concluded.
https://www.maritime-executive.com/article/chinese-port-operators-lead-the-way-in-acquisitions
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