# Opposition Brief — Ma v. Kajima Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1668%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2003 - **Citation:** 540 U.S. 820 ## Text Nos. 02-1773, 02-1778 | arin 4 IN THE ——_- EC OF THE C| R Supreme Court of the United State ce Do GEUN OH, ET AL., Petitioners. VS. MITSUI & Co., LTD., ET AL., Respondents. ZHENHUAN MA, ET AL., Petitioners, VS. KAJIMA CORPORATION, ET AL.., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RESPONDENTS’ BRIEF IN OPPOSITION Margaret K. Pfeiffer Arne D. Wagner Joseph J. Reilly Counsel of Record SULLIVAN & CROMWELL LLP Kathieen V. Fisher 1701 Pennsylvania Ave., NW John A. Kelley Washington, DC 20006 MORRISON & FOERSTER LLP (202) 956-7500 425 Market Street Counsel for Respondents San Francisco, CA 94105 Nippon Steel U.S.A., Inc. (415) 268-7000 and Nippon Steel Corp. Counsel for Respondents Mitsubishi Corp. and Mitsubishi International Corp. August 4, 2003 (Additional counsel listed within) Barbara L. Croutch PILLSBURY WINTHROP, LLP 725 S. Figueroa St., Suite 2800 Los Angeles, CA 90017 (213) 488-7100 Counsel for Respondents Mitsubishi Heavy Industries America, Inc. and Mitsubishi Heavy Industries, Ltd. Sara D. Schotland CLEARY, GOTTLIEB, STEEN & HAMILTON 2000 Pennsylvania Ave., NW Washington, D.C. 20006 (202) 974-1500 Counsel for Respondent Showa Denko America, Inc. Bruce E. H. Johnson DAVIS WRIGHT TREMAINE LLP 1501 Fourth Avenue 2600 Century Square Seattle, WA 98101 (206) 662-3150 Counsel for Respondents Mitsubishi Heavy Industries, Lid. and Mitsubishi Heavy Industries America, Inc. (in Choe) A. Victor Antola Daniel L. Martens LATHAM & WATKINS 633 West Fifth Street Suite 400 Los Angeles, CA 90071-2007 (213) 485-1234 Counsel for Respondents Kajima USA, Inc., Kajima International, Inc., Kajima Engineering & Construction, Inc., Kajima Development Corp., and Kajima Construction Services, Inc. John H. Beisner John F. Niblock Pammela Quinn O’MELVENY & MYERS LLP 1625 Eye Street, N.W. Washington, D.C. 20006-4001 (202) 383-5300 Counsel for Respondents Mitsubishi Materials Corp. and Mitsubishi Materials U.S.A. Corp. Arthur W. Harrigan Garth Wojtanowicz DANIELSON, HARRIGAN & TOLLEFSON, LLP 999 Third Avenue, Suite 4400 Seattle, WA 98104 (206) 623-1700 Counsel for Respondents Mitsubishi Heavy Industries, Lid. and Mitsubishi Heavy Industries America, Inc. (in Choe) | : { ; | ; Nathan Lane III Joseph A. Meckes SQUIRE, SANDERS.& DEMPSEY, LLP One Maritime Plaza, Suite 300 San Francisco, CA 94111 (415) 954-0200 Counsel for Respondents Paceco Corp. and Mitsui Engineering & Shipbuilding Co., Lid Thomas D. Yannucci, P.C. Christopher Landau Brant W. Bishop KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Suite 1200 Washington, D.C. 20005 (202) 879-5000 Counsel for Respondents Sumitomo Heavy Industries (U.S.A.) and Sumitomo Heavy Industries, Ltd. Lloyd W. Aubry, Jr. Kathryn M. Davis MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 (415) 268-7000 Counsel for Respondents Ishikawajima-Harima Heavy Industries Co., Ltd. and IHI, Inc. Stephen V. Bomse Neil A.F. Popovic HELLER EHRMAN WHITE & MCAULIFFE LLP 333 Bush Street San Francisco, CA 94104-2878 (415) 772-6000 Counsel for Respondent Showa Denko America, Inc. David M. Balabanian Christopher B. Hockett Thomas S. Hixson BINGHAM MCCUTCHEN LLP 3 Embarcadero Center 18th Floor San Francisco, CA 94111 (415) 393-2000 Counsel for Respondents Mitsui & Co., Ltd. and Mitsui & Co. (U.S.A.), Inc. Matthew E. Digby Heidi A. Leider BINGHAM MCCUTCHEN LLP 355 S. Grand Avenue Suite 4400 Los Angeles, CA 90071 (213) 680-6400 Counsel for Respondents Mitsui Mining Co., Ltd. and Mitsui Mining U.S.A., Inc. Question Presented Whether the Ninth Circuit correctly held that a 1999 California statute purporting to create a private nght of action on behalf of “Second World War forced labor victim[s]” is preempted under the foreign affairs doctrine as recently explicated by this Court’s decision in American Insurance Association v. Garamendi, where the United States’ foreign policy— exemplified in its drafting, negotiation and ratification of the multilateral Treaty of Peace with Japan, Sept. 8, 1951, 3 U.S.T. 3169 — has already resolved the war and all war-related claims as a matter of United States law, including consigning such claims by Korean and Chinese nationals to diplomatic resolution. 5 Mie Rule 29.6 Corporate Disclosure Statement Ishikawajima-Harima Heavy Industries Co., Ltd. is a Japanese public company and is listed on the Tokyo Stock Exchange. Ishikawajima-Harima Heavy Industries Co., Ltd. has no parent company, and no publicly held company owns 10% or more of its stock. IHI, Inc. is a wholly owned subsidiary of Ishikawajima-Harima Heavy Industries Co., Ltd. Kajima Construction Services, Inc. is a wholly owned subsidiary of Kajima International, Inc., which is a wholly owned subsidiary of Kajima USA, Inc., which is a wholly owned subsidiary of Kajima Corporation, a Japanese corporation. Kajima Corporation has no parent company, and no publicly held company owns 10% or more of its stock. Kajima Development Corporation is a wholly owned subsidiary of Kajima Real Estate Development, Inc., which is a wholly owned subsidiary of Kajima USA, Inc., which is a wholly owned subsidiary of Kajima Corporation. Kajima Engineering and Construction, Inc. is a wholly owned subsidiary of Kajima Corporation. Kajima International, Inc. is a wholly owned subsidiary of Kajima USA, Inc., which is a wholly owned subsidiary of Kajima Corporation. Kajima USA, Inc. is a wholly owned subsidiary of Kajima Corporation. Mitsubishi Corporation is a public company listed on the Tokyo Stock Exchange. No publicly held company owns 10% or more of the outstanding stock of Mitsubishi Corporation. Mitsubishi International Corporation is a wholly owned subsidiary of Mitsubishi Corporation. Mitsubishi Heavy Industries, Ltd. is a Japanese public company and is listed on the Tokyo Stock Exchange. No El - ill - publicly held company owns 10% or more of its stock. Mitsubishi Heavy Industries America, Inc. is a wholly owned subsidiary of Mitsubishi Heavy Industries, Ltd. Mitsubishi Materials Corporation has no parent corporation, and no publicly held company owns 10% or more of its stock. Mitsubishi Materials U.S.A. Corporation’s parent corporation is Mitsubishi Materials Corporation, and no other publicly held company owns 10% or more of Mitsubishi Material U.S.A. Corporation’s stock. Mitsui & Co., Ltd. is a public company listed on the Tokyo Stock Exchange. No publicly held company owns 10% or more of the outstanding stock of Mitsui & Co., Ltd. Mitsui & Co. (U.S.A.), Inc. is a wholly owned subsidiary of Mitsui & Co., Ltd. Mitsui Engineering & Shipbuilding Co., Ltd. has no parent corporation, and no publicly traded company owns 10% or more of its stock. Mitsui Mining Co., Ltd. is a Japanese public company and is listed on the Tokyo Stock Exchange. No publicly held company owns 10% or more of its stock. Mitsui Mining U.S.A., Inc. is a wholly owned subsidiary of Mitsui Mining Co., Ltd. Nippon Steel Corporation is a Japanese public company, listed on the Tokyo Stock Exchange. No publicly held company owns 10% or more of its stock. Nippon Steel U.S.A., Inc. is a wholly owned subsidiary of Nippon Steel Corporation. Paceco Corp.’s parent corporation is Mitsui Engineering & Shipbuilding Co., Ltd., and Mitsui & Co., Ltd. owns over 10% of its stock. Showa Denko America, Inc. is a wholly owned subsidiary of Showa Denko K.K. Showa Denko K.K. is a Japanese public company, listed on the Tokyo Stock Exchange. No -iv- publicly held company owns more than 10% or more of Showa Denko K.K.’s stock. Sumitomo Heavy Industries, Ltd. is a Japanese public company and is listed on the Tokyo Stock Exchange. No publicly held company owns 10% or more of its stock. Sumitomo Heavy Industries (U.S.A.), Inc. is a wholly owned subsidiary of Sumitomo Heavy Industries, Ltd. -V- TABLE OF CONTENTS Page I Be acia nai tctactaneeinncnncisaetenleiaiiseScosh el cebsigsiunosiscdavetens 3 Pertinent Constitutional Provisions, Treaties ee scceuisnadaaiaashcon 3 gL EI PID SECIS EOL ne OR LIT ORES 5 A. IIIT sean sincas ehcianecplencrnadcncemnecesnominiied 6 B. Petitioners’ Allegations...........c....sssccssesesseseee 9 ed Proceedings in the District Court................ 10 D. The Court of Appeals Decision.................... 1] PIE sieinschobiins Saatiasadsacvandnnateassaotiancreenimanetiainissnenststbins 13 I. Because the Ninth Circuit’s Decision Accords with Garamendi, the Petitions Should Be IERIE AR So OR oe ae a OR 13 A. As Applied to Respondents, Section 354.6 Is Preempted Under the “Field” _ Theory Described in Garamendi................. 14 1. This Case Presents Precisely the Circumstances that Make Field Preemption “the [A‘ppropriate [D]}octrine” URGer GPCR ......0250.00000.sesesscee00 14 2. Field Preemption Is Particularly Appropriate Where, as Here, the Federal Government Has Exercised Its ST I oarectacicccsvesissrtescetnncins 16 B. Particularly As Applied to Respondents, Section 354.6 Is Equally Preempted Under the “Conflict” Theory Described in Garamendi................. 17 a TABLE OF CONTENTS (continued) Page l. The State’s Interest Is IIT saisalsilssennincsirensecsnvebiensienbansiies 18 _ The Conflict with the Allied PET Wintiuiciinsinedveniinierdbateimennsonees 18 a The Overwhelming Federal Foreign Policy Interest.................... 22 C. Garamendi Expressly Rejected Many of Petitioners’ Specific Attacks on the III scicccsc sid cchistaliccinaniiaceniiscldnsisaboninsion 23 II. Alternative Grounds for Dismissal Make Grant of Certiorari Inappropriate .................. eee 25 A. Applying California Law Would Ae Si i I dchtcsetcsdecsnmitransnstenconece 26 i. Due Process Requires ~- Significant Contacts Between California and the Conduct It IE scntiierecescsimetepillipnaincmrinnnrses 26 2. The Presence Today of Some Petitioners and Respondents in California Does Not Satisfy Se i ikthiicethaitindeiesntssnibiiiinies 27 3. Calling the Statute “Procedural” Does Not Cure the Due Process Violation............... 28 B. Petitioners’ Claims Are Precluded by Japan’s Treaties with Korea and China.......30 tel Petitioners’ Claims Are Nonjusticiable....... 30 Conclusion .... RTE AA i le OTP ECTS -Vii- TABLE OF AUTHORITIES Page Cases Allstate Ins. Co. v. Hague, hs ee ei ieteoninrecsocsancdpalinniniidsesaiaemnteai 26, 27 Am. Ins. Ass’n v. Garamendi, ar a eek A Pe ED seit tna rerciictncemnviinliadaiiaenicen passim Baker v. Carr, es Be a i iia anise cenctinceicigaiiesatascilaatnabadeusuaiad 30 Boyle v. United Techs. Corp., OE Re ED iteieiistnaitannetacnsiaicninntiancinientinians 22, 23 Burger-Fischer v. Degussa AG, 65 F. Sapp. 2d 245 C.N.5.. 1999) .ccsscssesvoccesnscessecresseveees 31 Crosby v. Nat'l Foreign Trade Council, FIO se FE CI iicikesenineinbicninn Deutsch v. Turner Corp., No. CV 00-4405 SVW (AJ WX), 2000 WL 33957691, eae ee. |) English v. Gen. Elec. Co., Be GAA FE Cer re iviciirsnnistnenrineinnnneien Franchise Tax Bd. v. Hyatt, vie ety: ree Gerling Global Reins. Corp. v. Low, 240 F.3d 739 (9th Cir. 2001).............024 et eto 14n.13 Laaiinaiets fas ae ee - Vili - TABLE OF AUTHORITIES (continued) Page Gerling Global Reins. Corp. v. Nelson, 123 F. Supp. 2d 1298 (N.D. Fla. 2000), aff'd, 267 F.3d Se BO Be Ric teinsicscioineninccbsieactincislicenamiaaniiaanes 28 n.19 Helfand v. Gerson, PS Fe Be Ae. TO Mitincnsstinsisanisannitenmnmecsaalintin 28 Joo v. Japan, Sak C, OR Te UB imine 20 Landgraf v. USI Film Prods., F8t Gah CO inition 29 Phillips Petroleum Co. v. Shutts, Ee ls. FPF CUP ccinntsincaininisineiecnicaaion 18, 26-27, 28 Stewart v. Kahn, Fe is OR PE civiviecinerctenctitsinriinniaaanes 15 Stogner v. California, . eo i, Ok Pe CE einihisncicindeinnaseinnvinenaieaaasaaainen 29 Sumitomo Shoji Am., Inc. v. Avagliano, hE Ee, : | en N Te 19 n.16 Taiheiyo Cement Co. v. Superior Court (Jeong), 2 Fe Cia Cee BNE sictsicininseinencienmeaonemeals 29 n.20 Ware v. Hylton, FF Fk Fe OG Fi virtisiskncdiaeninertiaeneneineaas 15,19 - 1X TABLE OF AUTHORITIES. (continued) Page Zschernig v. Miller, Se a aciiticecnncssennseosessvecerasccocees 12, 13, 16 Constitutional Provisions, Statutes, and Rules U.S. Const. art. I, EEE SR 4 EL LIE 4,17 U.S. Const. art II, Ne ne es cstncetienenrvcersecevecccceceses 3,17 Cal. Civ. Proc. Code et iicrtdenerntensscesrecescccececee passim EET 23, 24 ee ptenscrinctencecrnsecetorvoccccccssetececee 29 Cal. Ins. Code §§ 13800-13807 .................scssssssssseesseee passim TEE ESE 29 n.20 Treaties Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Cooperation, Japan-Republic of Korea, June 22, 1965, Ee 4,6, 9,21 Joint Communiqué of the Government of Japan and the Government of the People’s Republic of China, a eae ivinnerrwerencecess 4, 6, 9, 21, 22 - x - TABLE OF AUTHORITIES (continued) Page Treaty of Peace and Friendship Between Japan and the People’s Republic of China, Aug. 18, 1978 ............... 5, 6, 9.21, a2 Treaty of Peace Between China and Japan, Apr. 28, 1952, 38 U.N.T.S. RR LINC NL TSIEN ORONO See 4,6, 9,21, 22 Treaty of Peace with Japan (Allied Treaty), OE: Bi, Beg FGA 8s PRM vcccccsenstcsnissinincenvseasciseved passim Other Authorities The Federalist No. 3 (John Jay) ..............ssccccccccsssssssees 16n.15 A OED IN THE Supreme Court of the Gnited States Do GUEN OH, ET AL., Petitioners, Vv. MITSUI & Co., LTD., ET AL., Respondents. ZHENHUAN MA, ET AL., Petitioners, Vv. KAJIMA CORPORATION, ET AL., Respondents. RESPONDENTS’ BRIEF IN OPPOSITION This Court should deny the Oh and Ma petitions for a writ of certiorari.' The judgment of the U.S. Court of Appeals for the Ninth Circuit correctly holds that a California statute creating a cause of action for conduct of Japanese nationals in Asia during World War II is preempted 1 Two certiorari petitions were filed by petitioners in seven cases. Petition 02-1773 (Oh) includes Kim v. Ishikawajima Harima Heavy Indus., Ltd., et al. (01-17197); Sin v. Mitsui & Co., Ltd, et al. (01- 17203); Choe v. Nippon Steel Corp., et al. (01-17211); and Oh, et al., v. Mitsui & Co. Ltd. et al. (01-17251). Petition 02-1778 (Ma) includes Ma v. Kajima Corp., et al. (01-17201); Sung v. Mitsubishi Corp., et al. (01-17207); and Su, et al., v. Mitsubishi Corp., et al. (01-17243). ys by the core federal power to make and resolve war, which the United States “already exercised” when it “resolve[d] the war, including claims arising out of it,” in the multilateral Treaty of Peace with Japan, Sept. 8, 1951, 3 U.S.T. 3169 (“Allied Treaty” or “Treaty”). See Appendix to Petition for Certiorari of the Oh petitioners (“Oh Pet. App.”) at 24a, 27a. The Ninth Circuit’s ruling is supported by the amicus curiae position of the United States below.” The Oh and Ma petitions rely on a decision of a different Ninth Circuit panel, which this Court reversed in American Insurance Ass'n v. Garamendi, 123 S. Ct. 2374 (2003) just three weeks after the petitions were filed. Garamendi held another World War II-related California statute to be preempted under the foreign affairs doctrine by virtue of Executive agreements aimed at resolving claims arising out of World War II in Europe. Here the federal interest — the exercise of the war powers through a peace treaty — is even stronger than in Garamendi, and is in direct conflict with the state statute, whose only purpose is “to redress wrongs committed in the course of the Second World War.” Oh Pet. App. at 23a. As the Ninth Circuit recognized in distinguishing its own earlier decision, which was subsequently reversed in Garamendi, these factors make this a clear case for foreign affairs preemption. No conflict exists among the U.S. Courts of Appeal or state courts of last resort with respect to the foreign affairs preemption issue raised by the petitions. The statute, section 354.6 of the California Code of Civil Procedure, is also invalid for other reasons not reached by the Ninth Circuit. Among these are California’s lack of legislative jurisdiction to create a cause of action for events * The Brief for Amicus Curiae the United States of America, filed with the Ninth Circuit on June 6, 2002, appears at respondents’ Appendix F. Sa that occurred beyond its borders, on behalf of persons such as petitioners who, at the time of the events, were all foreign nationals having no ties to California or the United States. Petitioners had no right to sue in U.S. courts a half century ago and they have none now. The petitions should be denied. Opinions Below The pertinent opinion of the Court of Appeals is that reported at 324 F.3d 692 (9th Cir. 2003) and not, as the Oh petition asserts, the amended and superseded opinion reported at 317 F.3d 1005 (9th Cir. 2003). Oh Pet. at 1. The version of the opinion attached to the Oh petition is, however, the correct one. Pertinent Constitutional Provisions, Treaties and Statutes Constitution of the United States The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States .... He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;.... U.S. Const. art. II, § 2, cls. 1, 2. The Congress shall have Power To... provide for the common Defense . . .; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; id ein To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies .. .; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces... . U.S. Const. art. I, § 8, cls. 1, 10-14. No State shall enter into any Treaty, Alliance, or Confederation; [or] grant Letters of Marque and Reprisal... . No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with ... a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. U.S. Const. art. I, § 10, cls. 1, 3. Treaties The Allied Treaty appears at respondents’ Appendix A. The Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Cooperation, Japan-Republic of Korea, June 22, 1965, 583 U.N.T.S. 258 (“Japan-Korea Treaty”), appears at respondents’ Appendix B. The Treaty of Peace Between China and Japan, Apr. 28, 1952, 38 U.N.T.S. 1858 (“Japan-ROC Treaty”), appears at respondents’ Appendix C. The Joint Communiqué of the Government of Japan and the Government of the People’s Republic of China, Sept. 29, Peete pews Sheba «2 1972 (“Joint Communiqué”), appears at respondents’ Appendix D. The Treaty of Peace and Friendship Between Japan and the People’s Republic of China, Aug. 18, 1978 (“Japan-PRC Treaty”), appears at respondents’ Appendix E. Statutes Section 354.6 of the California Code of Civil Procedure is set forth in full in the Ninth Circuit’s opinion. See Oh Pet. App. at 10a-12a. Statement of the Case Petitioners and the classes they claim to represent’ were all foreign nationals and nonresidents of the United States at all relevant times.* All rely on section 354.6 of the California Code of Civil Procedure, enacted in 1999, which creates a cause of action for persons allegedly forced to labor during World War II by, or in areas occupied by, “the Nazi > No class has been certified; putative class members allegedly number in the “thousands” or “hundreds of thousands.” ER 7 (Kim Complaint); ER 39 (Choe Complaint); ER 94; (Sin Complaint); ER 120 (Oh Complaint); ER 75 (Sung Complaint); ER 151 (Su Complaint); ER 245 (Ma Complaint). “ER” refers to the Excerpts of Record filed jointly in the U.S. Court of Appeals for the Ninth Circuit by the Oh and Ma groups of petitioners. “SER” refers to the Supplemental Excerpts of Record filed jointly in the Ninth Circuit in the Oh and Ma cases by respondents. * Although the Oh petitioners generally are referred to as “Koreans” in this brief, they actually were subjects of Japan at all relevant times; Japan annexed Korea in 1910, and Korea became independent only after World WarlII. ER11 (Kim Complaint); ER 43 (Choe Complaint); ER 123 (Oh Complaint). The Ma petitioners were Chinese nationals at all relevant times. ER 68-69 (Sung Complaint); ER 143-45 (Su Complaint); ER 237-39 (Ma Complaint). oe regime or its allies,” which, petitioners allege, include Japar..” A. Background Because petitioners’ claims are bound up in the prosecution and conclusion of World War II in Asia, it is essential (as the courts below recognized) to understand the foreign policy that the United States formulated, incorporated into the Treaty and persuaded 47 other Allied Nations to adopt. Of special importance are the Treaty’s requirements that claims of Korean nationals be resolved, not by litigation, but through “special arrangements” between the governments of Japan and Korea, art. 4(a) (which eventuated in the Japan-Korea treaty), and that Japan conclude treaties with Korea and China on “substantially the same terms” as the Allied Treaty, including the latter’s resolution of war-related claims, art. 26 (which eventuated, in the case of China, in the Japan-ROC Treaty, the Joint Communiqué and the Japan-PRC Treaty). See App. A at 3a, 19a-20a. The United States viewed a “free, prosperous and democratic Japan” as “an important stabilizing influence in the Far East” in the face of “mount[ing] international tensions” in that region. SER 545-46 (S. Exec. Rep. No. 82-2). Convinced that peace would be jeopardized “if the treaty validated, or kept contingently alive, monetary reparation claims against Japan,” the United States convinced its Allies that “it is our duty not to dwell on the past, but to turn our eyes toward the future.” SER 304, 309 (Record of Proceedings of the Conference for the Conclusion 5 Respondents are Japanese companies and certain of their contemporary U.S. subsidiaries. The latter are sued not for their own acts, but for the alleged acts of their Japanese parents — in most cases for acts of purported predecessors of their parents. See, e.g., ER 36 (Choe Complaint); ER 118 (Oh Complaint); ER 71 (Sung Complaint); ER 147- 48 (Su Complaint); ER 239-40 (Ma Complaint). Re ee ne ee ‘+ xP and Signature of the Treaty of Peace with Japan (1951) (“Proceedings’”)). The Treaty’s reparations provisions were premised on the recognition that it “would have been a short sighted policy and would certainly have laid the foundation of a lasting resentment” to leave Japan and its nationals open to future war-related claims. SER 311 (Proceedings). Consistent with the well-settled principle that “reparations for war losses is a ... matter to be settled between governments” and “‘it is the . responsibility of each government to provide such compensation for persons under its protection as that government deems fair and equitable ... out of reparations that may be received from Japan or from other sources,” SER 556 (S. Exec. Rep. No. 82-2), the United States negotiated and crafted a Treaty that conclusively provided for resolution of all war-related claims.° Allied signatories of the Treaty were accorded specified reparations and waived all further claims of their own and their nationals against Japan and its nationals (and vice versa). App. A at 10a-17a (arts. 14-19); see generally Brief of Respondents in Opposition to the petitions for a writ of certiorari filed in Tenney, et al., v. Mitsui & Co., Ltd, et al. (02-1776) and Saldajeno, et al., v. Ishihara Sangyo Kaisha Ltd., et al. (02-1784) (“Signatory Brief’). The funds to pay these reparations came principally from assets of Japanese businesses and individuals located in Allied and neutral nations. App. A at 10a-15a (arts. 14(a), 16); see generally Signatory Brief. Although Korea could not sign the Treaty “because [it] was never at war with Japan,” the Treaty “in many ways, treat[ed] Korea like an Allied Power,” “obtain[ing] for Korea Japan’s formal recognition of Korea’s independence, and 6 Emphasis in quotations is added throughout this brief, unless otherwise specified. ai Japan’s consent to the vesting in the Republic of Korea, of the very considerable Japanese property in Korea,” and placing Korea “on a parity with the Allied powers as regards... commercial arrangements.” SER 305 (Proceedings). Because of disagreement among the Allies as to which “China” should sign the Treaty — Nationalist or Communist — neither did. SER 305 (Proceedings). Nevertheless, “[t]he Treaty preserve[d], in full, the rights of China as one of the Allied Victors,” by, inter alia, awarding China all Japanese property in Chinese territory. Jd. at SER 306. At the same time, the United States insisted that China’s nonparticipation not defeat the policy of achieving final resolution of all war claims; “it would ... be wrong, cruel and stupid to penalize Japan because there is civil war in China and international disagreement regarding China.” Jd. at SER 305. While acknowledging that nonsignatory nations, particularly Korea and China, had suffered enormously from “Japanese aggression,” SER 304,305 (Proceedings), the United States concluded .that requiring reparations from Japan “in any proportion commensurate with the claims of the injured countries and their nationals” would be “contrary to the basic purposes and policy of the free nations, the Allied Powers, and the United States in particular.” SER 555 (S. Exec. Rep. No. 82-2). Peace “would be impossible if the Treaty kept alive the right[s] of the [injured countries] to demand monetary reparations payments.” SER 424 (Memo, Sec’y of State to President, Aug. 7, 1951). Accordingly, article 26 of the Treaty obligated Japan to conclude separate treaties with Korea and China “on the same or substantially the same terms” as the Allied Treaty, SER 289-90, including the latter’s reparations provisions. See App. A at 10a-13a (art. 14); see generally Signatory Brief. Article 4(a) also directed that “claims. .. of [Korea] and [its] residents against Japan and its nationals, shall be the subject of special arrangements between Japan and O. [Korea],” App.A at 3a, thus mandating that Korean nationals’ claims “be resolved through inter-governmental agreements rather than litigation.” App. F at 54a. Faithful to the Allied Treaty, Japan negotiated the Korea- Japan Treaty and, consistent with U.S. foreign policy, three agreements with China: one with the Republic of China (the Japan-ROC Treaty) and, later, two with the People’s Republic of China (the Joint Communiqué and the Japan- PRC Treaty). As discussed in sections I.B.2. and II.B. infra, these treaties also address reparations and independently preclude adjudication of petitioners’ claims. B. Petitioners’ Allegations Petitioners admittedly have never had any contact with California, except for a handful who emigrated after World War II. None of the conduct underlying their claims occurred in California, or even in the United States. Petitioners allege that their forced labor was in furtherance of the Japanese war effort.’ Several of the complaints’ details attest to the Japanese Government’s deep involvement in the forced labor regime, e.g., through laws and government directives requiring companies to use forced labor to achieve Japan’s war aims, and through the use of police and other government agencies to dragoon forced laborers.” Some ” See, e.g., ER34 (“To assist in the war effort the Japanese government directed that Korean Nationals be forcibly deported and put to work by Japanese industry.”); see also ER 36 4 10, 52 4 60; ER 2, 4; ER 67; ER 93; ER 123; ER 142; ER 235-36. * See, e.g., ER 43-44 (“National General Mobilization Law directed ; . authorities to ‘draft Imperial subjects and make them serve the purposes of general mobilization.’”); ER 12 (“[T]he Japanese Cabinet . . . prescribed ... numbers of Koreans ... deported for forced and slave labor and detailed allocations [of laborers] to particular industries.”). ° See, e.g., ER 98 (“[Plaintiff] was raided by a policeman and an officer of the [regional] office while asleep in [his] home,... handcuffed [,] . . . taken to a gathering place . . . , and was transported to Japan forcibly.”); ER 12 (“Japanese Welfare Ministry issued a directive (continued ...) x. complaints allege that respondents’ predecessors “turned over” petitioners’ wages to the Japanese Government, which never remitted the money to petitioners. '° C. Proceedings in the District Court The Judicial Panel on Multidistrict Litigation consolidated petitioners’ cases in the U.S. District Court for the Northern District of California, along with 21 others based on section 354.6. SER 16-23, 265-67, 578. That court dismissed all 28 cases, holding section 354.6 unconstitutional “because it infringes on the exclusive foreign affairs power of the United States.”'' Oh Pet. App. at 52a, 73a. The District Court had the benefit of a Statement of Interest of the United States, explaining the Treaty’s negotiating and legislative history, U.S. foreign policy underlying it, and the Treaty’s status as the cornerstone of U.S. Far Eastern policy over the last half century. The court was also provided with a Note Verbale from the Government of Japan to the United States. Both governments explained that section 354.6 would frustrate the operation of the Treaty — which contemplated resolution of all war claims by “state-to-state negotiations’— and would “jeopardize relations between the United States and Japan and Japan and its Asian neighbors.” SER 517, 520 (U.S. Statement of Interest); see SER 525 (Note Verbale). (... continued) that confirmed that the forcible deportation of Koreans was systematic and calculated.”). 1 See ER 10; ER 42; ER 97. '! The District Court also ruled that petitioners’ other claims were all time-barred. Oh Pet. App. at 82a, 84a. That ruling, affirmed by the Ninth Circuit, id. at 32a-35a, is not challenged in the certiorari petitions. F poe ‘ pi | D. The Court of Appeals Decision The Ninth Circuit affirmed the District Court’s judgments in all 28 consolidated cases.'!? Like the District Court, the Ninth Circuit had the bénefit of the views of the United States, which supplemented its Statement of Interest with an amicus curiae brief and presented oral argument on the Treaty and U.S. foreign policy issues. In its analysis, the panel expressly distinguished an earlier decision of a different panel — later reversed by this Court in Garamendi— in Gerling Global Reins. Corp. v. Low, 240 F.3d 739 (9th Cir. 2001). Low involved another World War II statute enacted by California, the Holocaust Victim Insurance Relief Act, Cal. Ins. Code §§ 13800-13807 (“HVIRA”). HVIRA, unlike Section 354.6, did not create a private right of action; rather, it required insurers doing business in California to provide disclosure about policies sold to persons in Europe, which were in effect between 1920 and 1945. The panel deciding the present cases recognized that the basis for preemption is much stronger for section 354.6 than for HVIRA. While section 354.6 has no purpose except “to provide a monetary remedy for decades- old wartime wrongs,” Oh Pet. App. at 31a, HVIRA was a “forward-looking regulatory statute” that “merely” required disclosure and at least purported to safeguard contemporary consumer interests. Jd. In assessing where the line between federal and state power is to be drawn in the context of a law to remedy war- related injuries, the Ninth Circuit considered that, of the eleven clauses of the Constitution dealing with the foreign affairs powers of the President and Congress, seven * In addition, the Ninth Circuit affirmed dismissal of Deutsch v. Turner Corp., No. CV 00-4405 SVW (AJWX), 2000 WL 33957691 (C.D. Cal. Aug. 25, 2000), which alleged World War II wrongs by German, not Japanese corporations. No certiorari petition was filed in Deutsch. o $2. enumerate war powers, including “settling war.” Oh Pet. App. at 2la. Conversely, “[mJost of the Constitution’s express limitations on States’ foreign affairs powers also concern war.” Jd. The court found that the power “to resolve war, including the power to establish the procedure for resolving war claims” is “part of the inner core” of the “foreign relations power that is denied to the states.” Oh Pet. App. at 20a-21la. It also noted that the state statute struck down by this Court in Zschernig v. Miller, 389 U.S. 429 (1968), although not by its terms war-related, “was seen by a Court operating at the height of the Cold War as a potential provocation to foreign powers.” Oh Pet. App. at 21a-22a. The Ninth Circuit went on to note that the federal government had “already exercised its own exclusive authority to resolve” World War II, “including claims arising out of it,” by the ratification of the Allied Treaty. Oh Pet. App. at 24a, 27a. As the parties agreed, that resolution neither created “a private right of action against Japan or its nationals” nor authorized “states of the United States to create such a right.” Oh Pet. App. at 27a. Because section 354.6 would “modify” that resolution, the court held that the statute was preempted. Oh Pet. App. at 27a-28a & n.14. This holding did not depend on the nationality of any particular plaintiff who might invoke section 354.6 in a U.S. court; accordingly, it was “immaterial” that petitioners were citizens of nations that did not sign the Treaty. Oh Pet. App. at 28a n.14. Petitioners requested rehearing and rehearing en banc, which were unanimously denied on March 6, 2003. No active judge requested a vote on rehearing en banc, although two of the Low panel members are active judges. Oh Pet. App. at 41a. Nevertheless, the Ninth Circuit held issuance of its mandate pending this Court’s decision in Garamendi. After this Court decided Garamendi on June 23, 2003, the Ma petitioners asked the Ninth Circuit to reconsider its — . . decision. The Ninth Circuit denied the request for reconsideration and issued its mandate on July 30, 2003. Argument I. Because the Ninth Circuit’s Decision Accords with Garamendi, the Petitions Should Be Denied The Ninth Circuit’s decision is fully consistent with Garamendi — indeed, had the Ninth Circuit not invalidated section 354.6, Garamendi would require __ reversal. Preemption is required under either, or both, preemption theories discussed in Garamendi-— the “field” theory Garamendi identified as the basis of the majority opinion in Zschernig and the “conflict” theory of Justice Harlan’s Zschernig concurrence. Garamendi, 123 S. Ct. at 2388-89. As Garamendi explained, under the “field” approach, all “state action with more than incidental effect on foreign affairs is preempted, even absent any affirmative federal activity in the subject area of the law, and hence without any showing of conflict.” Id. at 2388 (citing Zschernig, 389 U.S. at 441; Hines v. Davidowitz, 312 U.S. 52, 63 (1941); United States v. Belmont, 301 U.S. 324, 331 (1937); and United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316-19 (1936)). “Conflict” preemption requires an actual conflict between state law and a federal foreign policy interest. Garamendi, 123 S. Ct. at 2389. Garamendi found it unnecessary to make a “categorical choice” between the two theories; there was a “sufficiently clear conflict” between the federal policy and state law in that case to result in preemption. Jd. at 2389-90. The Court further observed that no such choice may be nece in other cases, or, indeed ever, for the two theories “can be seen as complementary.” /d at 2389 nll. Thus, “field preemption might be the appropriate doctrine” where a state “take[s] a position on a matter of foreign policy with no serious claim to be addressing a traditional/ state responsibility,” while “it might make good sense to r¢quire a / / «Sts conflict” where “a state has acted within” its “traditional competence,’ but in a way that affects foreign relations.” Id. (quoting Zschernig, 389 U.S. at 459 (Harlan, J., concurring)). The Ninth Circuit also did not explicitly choose one preemption theory, nor did it need to.'° As shown below, either theory could apply here and, under either analysis, section 354.6 is invalid. A. As Applied to Respondents, Section 354.6 Is Preempted Under the “Field” Theory Described in Garamendi 1. This Case Presents Precisely the Circumstances That Make Field Preemption “the [A]ppropriate [D]octrine” Under Garamendi Garamendi teaches that field preemption may be “the appropriate doctrine” where astate acts in the area “of foreign policy with no serious claim to be addressing a traditional state responsibility.” 123 S.Ct. at 2389 n.11. Here California has fashioned its own war reparations cause of action and can make no “serious claim” that it is addressing a “traditional state responsibility” — not even one with the “tangential relation to present-day” regulatory objectives asserted (albeit unsuccessfully) to justify the statute struck down in Garamendi. Id. at 2394." '? This Court has previously held that the “categories of preemption are not ‘rigidly distinct.” Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 n.6 (2000) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79 n.5 (1990)). “Indeed, field pre-emption may be understood as a species of conflict pre-emption: A state law that falls within a pre- empted field conflicts with Congress’ intent (either express or plainly implied) to exclude state regulation.” English, 496 U.S. at 79 n.5. '4 In seeking rehearing of Garamendi, even California has stressed that “HVIRA is simply a disclosure statute that does not force the payment of any claim” and that the conduct that prompted it is the “present refusal of companies to disclose,” Am. Ins. Ass'n v. Garamendi, : (continued ...) St. As the Ninth Circuit correctly recognized, section 354.6 permits suit “only” by “‘Second Werld War slave labor victims’” and “‘Second World War forced labor victims.’” Oh Pet. App. at 23a (quoting § 354.6(b)). The “wrong-doers under the statute”’-— “‘the Nazi regime, its allies and sympathizers, or enterprises transacting business in any of the areas occupied by or under control of the Nazi regime or its allies or sympathizers’” — were, “by definition, wartime enemies of the United States,” or at least “were operating in enemy territory . . . with the consent and for the benefit of our wartime enemy.” Jd. (quoting § 354.6(a)(1), (2)). By enacting section 354.6, California plainly sought “to create its Own resolution to a major issue arising out of the war —a remedy for wartime acts that California’s legislature believed had never been fairly resolved.” Jd. Since this country’s founding, the law has been clear: resolution of war claims is for the federal government ta address through treaties or other state-to-state agreements. Warev. Hylton, 3U.S. (Dall.) 199, 229-30 (1796) (compensation for losses sustained “during [a] war . . . [may] only be provided for by the treaty of peace” because “‘a treaty of peace abolishes the subject of the war..., [and alll violences, injuries or damages sustained by the government or people of either [belligerent] during the war, are buried in oblivion ... by the very treaty of peace”); see also Stewart v. Kahn, 78 U.S. 493, 506-07 (1870) (states cannot interfere with federal war- and peace-making powers, which include the power to “remedy the evils which have arisen from [war’s] rise and progress”). This principle is grounded, as the Ninth Circuit recognized, in the Constitution’s textual (... continued) No. 02-722, Pet. Reh. at 7— wholly unlike section 354.6. See also Garamendi, 123 S. Ct. at 2397 (Ginsberg, J., dissenting) (noting that “statutory provisions enabling the litigation of Holocaust era insurance claims” were “not at issue” there). » 16. commitment of war powers to the federal government, while withholding them from the states.! The Ninth Circuit’s conclusion that the “power to establish the procedure for resolving war claims” is “part of the inner core” of the “foreign relations power that is denied to the states,” Oh Pet. App. at 20a-21a, seems to anticipate Garamendi’s observation that “[v]indicating victims injured by acts and omissions of enemy corporations in wartime is... within the traditional subject matter of foreign policy in which the national, not state, interests are overriding.” Garamendi, 123 S. Ct. at 2390. Thus California’s attempt to provide its own war reparations law is surely subject to preemption under Garamendi. 2. Field Preemption Is Particularly Appropriate Where, as Here, the Federal Government Has Exercised Its Treaty Powers Under the field preemption theory of the Zschernig majority opinion, state action may be preempted “even absent any affirmative federal activity’ in the field. Garamendi, 123 S. Ct. at 2388; see also Zschernig, 389 U.S. at 441 (preemption found in the “absence of a treaty,” statute or executive agreement). Here, unlike Zschernig, there has been intense federal activity in the very area of foreign affairs in which the California statute purports to operate. As the Ninth Circuit recognized, “the United States has already exercised its own exclusive authority to resolve the war, including claims arising out of it.” Oh Pet. App. at 24a, 27a. The fact that the United States’ exercise of its foreign affairs authority culminated in the Treaty — as opposed to some other “affirmative federal activity’— provides additional support for finding preemption here. Whatever 'S See also The Federalist No. 3 (“[NJot only fewer just causes of war will be given by the national government, but it will also be more in their power to accommodate and settle them amicably.”). ee may be said regarding executive agreements or other exercises of foreign affairs powers, the federal treaty power “enjoy[s] . . . textual detail” in the Constitution. Garamendi, 123 S. Ct. at 2386; see U.S. Const. art. II, § 2, cl. 2. Indeed, the power to make treaties is expressly denied to the states. Id. art. I, § 10, cl. 1. Furthermore, federal law embodied in a treaty reflects the consensus of Congress and the Executive regarding foreign policy. Cf Crosby, 530 U.S. at 375 (noting that ““[w]hen the President acts [in foreign affairs] pursuant to an . . . authorization from Congress, his authority is at its maximum’”’) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)); Garamendi, 123 S. Ct. at 2400n.4 (Ginsburg, J., dissenting) (criticizing the majority’s reliance on Crosby because “Crosby was a statutory preemption case”). Here, both the Executive and Congress have acted to occupy the field of war reparations against Japan, through a longstanding policy embodied in the Treaty, leaving California no possible ambit to enact section 354.6. B. Particularly As Applied to Respondents, Section 354.6 Is Equally Preempted Under the “Conflict” Theory Described in Garamendi Even if section 354.6 could somehow be viewed as addressing issues “within areas of . . . traditional state responsibility,” so as to warrant application of the “conflict” preemption standard articulated in Garamendi, the California statute would still be preempted if applied to respondents. As articulated in Garamendi, the “clarity or substantiality” of a conflict “var[ies] with the strength or the traditional importance of the state concern asserted,” id. at 2389 n.11, and, as appropriate, “the strength of the federal foreign policy interest.” Jd. Here, California’s interest is extraordinarily weak, the conflict is acute, and the federal interest is overwhelming. -18- 1. The State’s Interest Is Nonexistent California’s interest in enacting section 354.6 is considerably weaker than it was even with respect to HVIRA, because here the statute possesses neither a state regulatory purpose nor any colorable claim to having been authorized by federal legislation. Cf Garamendi, 123 S. Ct. at 2393 (discussing California’s argument that Congress authorized laws like HVIRA in the McCarran-Ferguson Act and the U.S. Holocaust Assets Commission Act); see also supra n.14. Moreover, section 354.6 shares with HVIRA the fatal flaw that the conduct California seeks to govern — namely, conduct by Japan and Japanese nationals towards Korean and Chinese nationals in Asia during World War II — is wholly divorced from California. Garamendi, 123 S. Ct. at 2393 (citing Phillips Petroleum Co.v. Shutts, 472 U.S. 797 (1985) and Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981)); see infra section II.A. Even more attenuated than its interest in enacting section 354.6 is California’s interest in having the statute applied in these cases. At best, California might have an interest in the welfare of Korean and Chinese nationals who moved to the state after World War II, but Garamendi explicitly held that this factor should be accorded “little or no significance.’” Id. (quoting Shutts, 472 U.S. at 820). Furthermore, as a matter of fact, only a few of the hundreds of thousands of putative class members in these cases have claimed California residency. ER 3 (Kim Complaint); ER 68 (Sung Complaint). Thus no cognizable state interest is at stake in these cases. 2. The Conflict with the Allied Treaty Given the lack of state interest, only a minimal conflict is required for “conflict” preemption to exist under Garamendi. Id. at 2389 (strength of state interest determines “how serious a con‘lict must be shown before declaring the state oat. law preempted”). In this case, though, the conflict is clear and direct. “The Treaty reflects the United States government’s foreign policy determination that all war-related claims against Japan and its nationals — including private claims and including the claims of those whose governments were not party to the Treaty — should be resolved by government-to- government agreement rather than litigation.” App.F at 42a-43a, 49a, 54a.'® This approach is in harmony with well- settled international and U.S. legal principles. See, e.g., Ware, 3 U.S. at 229 (Chase, J.). With respect to Korea, U.S. law and policy is codified in article 4(a) of the Treaty, which commits the Korean petitioners’ claims to resolution through “special arrangements” between Japan and Korea and leaves no room for any other U.S. law remedy. App. A at 3a. Article 26 of the Treaty obligated Japan to conclude separate treaties with China as well as Korea “on the same or substantially the same terms” as the Allied Treaty, including the latter’s claims resolution provisions. App. A at 19a-20a. Private lawsuits in U.S. courts under California (or even federal) law are, of course, the antithesis of the diplomatic resolution mandated by the Treaty. See App. F at 53a-55a (“The Treaty of Peace . . . provides that the claims of Korea and China, and those of their nationals, will be resolved through inter- governmental agreements rather than through litigation.”). Japan shares this view. SER525 (Japan’s Note Verbale) (“[T]hese issues should not be adjudicated in the courts in the United States.”). Allowing claims to proceed in U.S. courts would therefore “undermine[] the intended purpose and ‘natural effect’” of the Treaty. See Crosby, 530 U.S. at '© “(T]he meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcernent is entitled to great weight.” Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982). -20 - 373 (finding conflict preemption); App. F at 49a-50a (noting the “conflict[]” between section 354.6 and the Treaty), 55a (stating that Korean and Chinese plaintiffs “may not, consistent with the United States’ policy adopted in the Treaty, pursue their claims in the courts of the United States.”). Very recently, a unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit found that the Treaty foreclosed war-related claims by Korean and Chinese nationals in U.S. courts. In Joo v. Japan, 332 F.3d 679 (D.C. Cir. 2003), the court considered whether the commercial exception to the Foreign Sovereign Immunities Act could be applied retroactively to World War II events; the court concluded that it could not, in part because “the [Allied] Treaty manifests the parties’ intent to resolve matters arising from World War II without involving the courts of the United States (or of any signatory nation).” Jd. at 684-85. The court found that the Treaty “expressed a clear [U.S.] policy of resolving the claims of Korean and Chinese nationals through government-to-government negotiation.” Jd. at 685.!’ Indeed, as evidence of such subsequent negotiations, the Joo court cited the Japan-Korea Treaty and the Japan- ROC Treaty. Jd.; see also App. B and App. C. The certiorari petitions never mention the Treaty provisions directed to resolution of war claims among Japan, Korea and China, confining their treatment of the Treaty to stating that Korea and China were not signatories. The issue, however, is not whether Korea or China were signatories; it is that the Treaty “establish[es] the law of the United States '7 The court pointed to article 14 of the Treaty, which reciprocally waived all claims of Allied and Japanese nationals, and noted that “it would be odd indeed for the United States, on the one hand, to waive all claims of its nationals against Japan and, on the other hand, to allow non- [signatory] nationals to proceed against Japan in its courts.” Joo, 332 F.3d at 685. a with respect to the war-related claims of Korean and Chinese nationals.” App. F at 54a. That law — mandating resolution through diplomacy — binds U.S. courts, including state courts and state legislatures; no other or additional remedy can be ' supplied under United States law. One result of the diplomacy mandated by the Treaty was the Japan-Korea Treaty, which is “part and parcel of the framework created by the United States in 1951.” SER 512 (U.S. Statement of Interest). That treaty independently precludes adjudication of petitioners’ claims, for through it Japan paid Korea a half billion dollars in grants and loans, App. B at 21a-22a (art. I), and the parties “settled completely and finally” the “problem concerning property, rights and interests of the two Contracting Parties and their nationals” as well as “claims between the Contracting Parties and their _ nationals” (including juridical persons), App.B at 23a (art. II, § 1). The claims resolved “include[d]” — but are not restricted to — “those provided for in” article 4 of the Allied Treaty -— i.e, reparations— and “claims that... Korean natural persons have against... Japanese nationals such as... claims by Koreans’ against Japanese... corporations.” SER 370 (Agreed Minutes § 2(g)); SER 320- 22 (Republic of Korea, White Paper on Korea-Japan Talks (1965)); SER 346-47 (Outline of the “Eight Items” — Claims Made by Korea Against Japan). Other products of the Treaty are the Japan-ROC and Japan-PRC treaties and the Joint Communiqué, which, separately and together, reciprocally settled all war claims of Japanese and Chinese nationals. In negotiating and signing these treaties, Japan complied not only with its obligations under the Allied Treaty, but with the admonition of the United States that Japan “pursue foreign policies in Asia which were generally compatible with those of the United States, particularly in relation to China.” SER 376-77. The Japan-ROC Treaty literally incorporated by reference the “relevant provisions” of the Allied Treaty as the rule by 7. which “any problem” between the signatories resulting from “the existence of a state of war” “shall be settled” (unless the Japan-ROC Treaty, or its supplementary documents, provided otherwise). App.C at 29a (art. XI). Having concluded a treaty with the only government of China recognized by the United States— the ROC- Japan reasonably took the position that its treaty with the ROC resolved all war claims involving China. Nevertheless, in 1972, Japan responded to the United States’ recognition of the PRC by opening negotiations to “normalize” its own relations with the PRC, SER 409-410, an “opening to China” that led to the Joint Communiqué in which Japan and the PRC agreed to language, carefully drafted as a political compromise to preserve the dignity of both sides, whereby the PRC declared “that in the interest of the friendship between the Chinese and the Japanese peoples,” the PRC “renounces its demand for war reparation from Japan.” App. D at 33a (art. 5). The Japan-PRC Treaty, App. E, incorporated and reaffirmed the terms of the Joint Communiqué. Thus the fruit of the Allied Treaty’s resolution of petitioners’ claims via diplomacy resulted in other, nonjudicial resolutions of those claims under the laws of petitioners’ own countries." 3. The Overwhelming Federal Foreign Policy Interest The resolution of World War II-era reparations claims against Japanese companies is an “area of uniquely federal interest” for all of the reasons discussed above with respect to the appropriateness of a “field” preemption analysis. Garamendi, 123 S. Ct. at 2389 n.11; Boyle v. United Techs. '8 As noted above, however, petitioners would be unable to proceed in U.S. courts even if the agreements between Japan and Korea and Japan and China permitted lawsuits. U.S. courts are bound by “the law of the United States,” which mandates a nonjudicial resolution of “the war- related claims of Korean and Chinese nationals.” App. F. at 54a. a. Corp., 487 U.S. 500, 507-08 (1987). The Ninth Circuit carefully and correctly assessed this overwhelming federal interest, which provides a further reason that the balance of factors leads inexorably to preemption in these cases, even under a “conflict” theory analysis. C. Garamendi Expressly Rejected Many of Petitioners’ Specific Attacks on the Decision Below In addition to validating the Ninth Circuit’s foreign affairs preemption analysis, Garamendi addressed and rejected several of petitioners’ arguments based on their (incorrect) assumption that Low was decided correctly. Both petitions insist that foreign affairs preemption does not apply to suits against “private” parties. Oh Pet. at 2, 16, 18, 20; Ma Pet. at 18 and 21. Garamendi, however, flatly rejected any “distinction” between companies and governments of “formerly belligerent states.” 123 S. Ct. at 2387. Observing that “untangling government policy from private initiative during war time is often so hard that diplomatic action settling claims against private parties may well be just as essential in the aftermath of hostilities as diplomacy to settle claims against foreign governments,” this Court found that the attempted distinction simply “does not matter”. Id. What was true in Garamendi is doubly so here, where petitioners have alleged that the Japanese government ordered their forced labor. See, e.g., ER34 (Choe complaint); ER 97, 98-99 (Sin complaint); ER 123-24 (Oh complaint). Indeed, as the Ninth Circuit recognized, the only suits permitted by section 354.6 are against ““enterprises’” that, “if not themselves our wartime enemies, were operating in enemy territory and presumably — no party disputes this — with the consent and for the benefit of our wartime enemy.” Oh Pet. App. at 23a (quoting § 354.6(a)(1), (2)). The Qh petitioners also make the odd argument that section 354.6 is not subject to preemption because it does “not focus on any single country.” Oh Pet. at 17. Not only 7 - is their premise wrong-— the statute focuses solely on conduct of the “Nazi regime, its allies and sympathizers,” while ignoring forced labor practices of other countries or eras, § 354.6(a)(1), (2) — but also the reach of HVIRA was — even broader. As the Oh petitioners concede, HVIRA did not “target any particular country,” Oh Pet. at 14-15, yet its wider scope posed no obstacle to the application of foreign affairs preemption in Garamendi. Petitioners also incorrectly characterize section 354.6 as purely a statute of limitations, implying that it cannot therefore interfere with foreign affairs. Oh Pet. at 2, 6-7; Ma Pet. at 22-25. Once again, the premise is wrong. As the Ninth Circuit found, and as discussed in section II.A.3. infra, section 354.6 is not merely a limitations statute. But, even if it were, petitioners cite no authority differentiating between limitations and substantive statutes in a foreign affairs analysis, and, as the Ninth Circuit recognized, neither logic nor policy permits such a distinction. See Oh Pet. App. at 14a (“Whether substantive or procedural,” section 354.6 creates a “new rule [that] profoundly alters the likelihood that” Second World War reparations “actions will succeed.”). Just as misguided is petitioners’ argument that section 354.6 does not “implicate current foreign policy.” Oh Pet. at 16, 21; Ma Pet. at 21. The Allied Treaty, although signed some 50 years ago, is current law in the United States and Japan. As the United States advised the lower courts, it remains the cornerstone of U.S. foreign policy in the Far East and is as much an expression of U.S. and Japanese foreign policy today as it was in 1951. SER505 (US. Statement of Interest). Section 354.6 therefore does affect ongoing foreign relations— indeed, the United States and Japan agree that the iaw threatens to “jeopardiz[e] relations between the United States and Japan and Japan and its Asian neighbors.” SER520 (U.S. Statement of Interest); see SER 525 (Note Verbale). . o Petitioners’ contention that the Ninth Circuit applied a “rigid rule” so broad that it would preclude numerous suits that other courts have allowed to go forward, Oh Pet. at 22- 28; Ma Pet. at 19-22, misrepresents both ihe Ninth Circuit’s decision and the suits that other courts have entertained. Contrary to petitioners’ assertions that the Ninth Circuit’s holding precludes any state cause of action “somehow relate[d] to war,” Oh Pet. at i, see clso Oh Pet. at 25-27, that arose “before or during a time of war” see, e. g., Ma Pet. at i, see also Ma Pet. at 12, 14, 18-19 and 21, the decision contains neither words nor reasoning that remotely could yield such a result. The Ninth Circuit’s holding, in fact, is narrow: “section 354.6 is impermissible because it intrudes on the federal government’s exclusive power to make and resolve war, including the procedure for resolving war claims.” Oh Pet. App. at 23a. This holding is further limited by the court’s explicit reliance on the fact that the federal government “has already exercised” its authority to resolve the war it waged. Oh Pet. App. at 24a. Of the cases that petitioners allege are in conflict with the Ninth Circuit’s opinion, none involves the core federal power to resolve, through a treaty or otherwise, a war waged by the United States or a state- created cause of action devoted to war reparations. Thus there is no contradiction between the Ninth Circuit’s holding and the cases petitioners cite. Oh Pet. at 25-27; Ma Pet. at 20-21. II. Alternative Grounds for Dismissal Make Grant of Certiorari Inappropriate Preemption is only one of many grounds for dismissing petitioners’ claims. Respondents briefly bring a few of these to the Court’s attention both to inform the decision on the petitions and to request that, should review on the issue of foreign affairs preemption be granted, these grounds also be considered as a basis for affirmance. = A. Applying California Law Would Violate Due Process One of the issues on which certiorari was granted in Garamendi was whether HVIRA exceeded California’s “legislative jurisdiction” under the Due Process Clause, given the tenuous connection between California and the issuance of insurance policies in Europe decades ago. “Garamendi, 123 S. Ct. at 2385 n.7. While the Court did not reach the issue in Garamendi, id., in this case there can be no doubt that the Due Process Clause forbids California to apply its law to the conduct of Japan and Japanese nationals toward Koreans and Chinese in Asia during World War II. — 1. Due Process Requires Significant Contacts Between California and the Conduct It Regulates As Garamendi explained, “the general standards for evaluating a State’s claim to apply its forum law to a particular controversy or transaction” may be found in this Court’s opinions in Shutts and Allstate. 123 S. Ct. at 2393. Those standards make it unconstitutional to apply the law of a “State [that] has only an insignificant contact with the parties and the occurrence or transaction.” Allstate, 449 U.S. at 310-11 (plurality); id. at 333 (Powell, J., dissenting); see also Shutts, 472 U.S. at 822 (state “may not abrogate the rights of parties beyond its borders having no relation to anything done or to be done within them”). In Shutts, for example, this Court held that Kansas law could not constitutionally govern claims of non-Kansas petitioners against a non-Kansas respondent regarding non-Kansas leases, even though respondent “own[ed] property and conduct[ed] substantial business in the State” and “hundreds of Kansas plaintiffs were [also] affected” by the challenged conduct. Jd., 472 U.S. at 818-22. A state may apply its law only if it has “‘a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.” Shutts, 472 U.S. at 818 (quoting a. Allstate, 449 U.S. at 312-13); accord Franchise Tax Bad. v. Hyatt, 123 S. Ct. 1683, 1687 (2003). In determining whether “application of [forum law is] sufficiently arbitrary and unfair as to exceed constitutional limits,” the “expectation of the parties [is] an important element.” Shutts, 472 U.S. at 822. Here, the conduct at issue is wholly unconnected to California. None of the petitioners had any relationship with California at the time of the alleged conduct, and almost none does even now. Neither petitioners nor respondents, at the time of the events, couid “reasonably have anticipated that their actions would later be judged” by California law. Allstate, 449 U.S. at 327 (Stevens, J., concurring). Thus section 354.6, as applied, exceeds California’s legislative jurisdiction. 2. The Presence Today of Some Petitioners and Respondents in California Does Not Satisfy Due Process Nor is the absence of any “significant contact” between California and these cases cured because a few petitioners may have become California residents in the sixty years since their claims arose. “‘Even if a plaintiff evidences his desire for forum law by moving to the forum,’” this Court has “‘generally accorded such a move little or no significance.”” Garamendi, 123S.Ct. at 2393 (quoting Shutts, 472 U.S. 820); see also Allstate, 449 U.S. at 319 (plurality) (“[A] postoccurrence change of residence to the forum State [is] insufficient” in and of itself to confer power on the forum State to choose its law.) cited in Garamendi, 123 S. Ct. at 2393. No more pertinent is the amenability of some respondents to personal jurisdiction in California.'? “[W]hile a State '? Petitioners assert claims under section 354.6 against US. subsidiaries that came into being long after World War II, and therefore (continued ...) = may... assume jurisdiction over the claims of [parties] whose principal contacts are with other States, it may not use this assumption of jurisdiction as an added weight in the scale when considering the permissible constitutional limits on choice of substantive law.” Shutts, 472 U.S. at 819, 821. 3. Calling the Statute “Procedural” Does Not Cure the Due Process Violation Both petitioners and the California Attorney General admitted in the District Court that section 354.6 is not just a statute of limitations that extends the time within which claims under existing law can be filed, but creates a new cause of action — which petitioners in fact sued upon — and without which, they also admit by their arguments in this Court, they would have no claim at all. Plaintiffs’ Supplemental Brief Regarding the Constitutionality of Code of Civil Procedure Section 354.6, filed Mar. 1, 2001, at 2, 3; Amicus Curiae Brief of the Attorney General of the State of California, filed Aug. 8, 2000, at4. Now, however, these parties, hoping to evade the rule of Shutts, have altered their position, contending that the statute is only a “procedural” statute of limitations. See, e.g., Oh Pet. at 2, 6-7; Ma Pet. at 22-25. Even if these parties were free to change position — and ‘they were not, see, e.g., Helfand v. Gerson, 105 F.3d 530, 535-36 (9th Cir. 1996)— their revised argument is both wrong and irrelevant. It is wrong because, as the Ninth Circuit observed, the statute “explicitly creates a cause of action by providing that certain individuals ‘may bring an (... continued) had no involvement whatsoever in any of the alleged forced labor. The further due process violation that would result from applying the statute to such entities provides yet another basis for affirming the court of appeals. See Gerling Global Reins. Corp. v. Nelson, 123 F. Supp. 2d 1298, 1302 (N.D. Fla. 2000), aff'd, Gerling Global Reins. Corp. of Am. v. Gallagher, 267 F.3d 1228 (11" Cir. 2001). \ «90. action’ for certain wrongs.” Oh Pet. App. at 12a (quoting § 354.6(b) and citing Verizon Md, Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 644 (2002) (statute providing party “may bring an action” “reads like the conferral of a private right of action”)). Further, the limitations period of section 354.6(c) applies only to “action[s] brought under this section,” i.e., actions maintained under section 354.6 itself 2° Thus it cannot be just a statute of limitations, for it would not have any claim to limit. Petitioners’ assertion of claims directly based on section 354.6 also confirms its substantive nature. ER 24 (Kim); ER 56 (Choe); ER 80 (Sung); ER 103 (Sin); ER 126 (Oh); ER 153 (Su); ER 254 (Ma). The argument is irrelevant because, even if section 354.6 were merely a statute of limitations that revived other California claims, subjecting respondents to liability for those claims would itself violate due process, for the reasons discussed in part, II.A.1. supra. It would also run afoul of the constitutional prohibition on retroactive legislation. See Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994); cf Stogner v. California, 123 S. Ct. 2446 (2003) (a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when applied to revive a previously time-barred criminal prosecution). The Ninth Circuit, although not deciding the retroactivity issue, recognized that “[s]uch a revival of liability— even civil *° The Ma petition alludes to a supposed conflict between the Ninth Circuit’s decision and the California Court of Appeal decision in Taihetyo Cement Co. v. Superior Court (Jeong) on the issue of whether section 354.6 creates a cause of action. See Ma Pet. at 1, 15-16 (arguing that the “embarrassing conflict” between Taiheiyo and Deutsch adds “some urgency to the need for this Court’s review”). As petitioners acknowledge, however (id. at 1), the decision in Taiheiyo has been superseded by the California Supreme Court’s grant of review. See Taiheiyo Cement Co. v. Superior Court (Jeong), 66 P.3d 1231 (Cal. 2003), and Cal. Rule of Court 976(c). . liability-— is troubling and raises serious due process questions.” Oh Pet. App. at 14a. B. Petitioners’ Claims Are Precluded by Japan’s Treaties with Korea and China As discussed briefly supra pp. 21-22, the bilateral treaties Japan entered into with Korea and China, in obedience to the Allied Treaty and consistent with U.S. foreign policy, all contain provisions effectively settling and barring ail war-related claims of Korean and Chinese nationals. The Japan-Korea Treaty’s waiver of claims provision has also been implemented through domestic legislation in both countries. SER 30, 45-71 (Declaration of Akira Kotera, Professor of International Law at the University of Tokyo); SER 76-77 (Declaration of Yuji Iwasawa, Professor of International Law at the University of Tokyo). C. Petitioners’ Claims Are Nonjusticiable As discussed briefly above, the negotiations culminating ~ in the Allied Treaty accommodated diverse policies and interests of both signatory and nonsignatory states, including Korea and China. Petitioners ask this Court to set aside these policies and political compromises, the fruits of which remain the cornerstone of U.S. foreign policy in Asia, and to put the courts of California in the business of deciding war claims — an inherently political, nonjudicial realm. This course is foreclosed by the political question doctrine. Baker v. Carr, 369 U.S. 186, 210-11 (1962) identified six indicia of nonjusticiable, political questions; if even one is present, a case must be dismissed. 369 U.S. at 217. All six Baker indicia are present here. Matters of war and peace, including resolution of war claims, are foreign affairs issues “constitutionally committed” to the political branches, and the actions of those branches in negotiating and adopting the Treaty framework required § numerous “policy determination[s]” that are entitled to “respect” and ee “unquestioning adherence.” See id. Not only would it create a “potentiality of embarrassment from multifarious pronouncements” for a court to revisit these long-resolved political issues — as the United States urged below — courts simply lack the ability to perform the type of political calculus involved in resolving war claims. See id. The Treaty framework consists of “reparations agreements which the United States and other World War II combatants (whose blood and treasure brought the war of conquest... to an end) forged in the crucible of a devastated post-war [world] and in the crucible of the Cold War” — agreements “which the court does not have the judicial power” to refashion, even had they the necessary wisdom. Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248, 282 (D.N.J. 1999). Conclusion The Court should deny the petitions outright. The foreign affairs analysis of the decision below accords with, and the judgment is compelled by, Garamendi. Should this Court nevertheless choose to consider the foreign affairs doctrine issues raised by petitioners, it should also certify for review respondents’ alternative grounds for dismissal of the complaints. : Respectfully submitted, Margaret K. Pfeiffer Ame D. Wagner Joseph J. Reilly Counsel of Record SULLIVAN & CROMWELL LLP 1701 Pennsylvania Ave., NW Washington, DC 20006 (202) 956-7500 Counsel for Respondents Nippon Steel U.S.A., Inc. - and Nippon Steel Corp. Kathleen V. Fisher John A. Kelley MORRISON & FOERSTER LLP 425 Market Street - San Francisco, CA 94105 (415) 268-7000 Counsel for Respondents Mitsubishi Corp. and Mitsubishi International Corp. Barbara L. Croutch PILLSBURY WINTHROP LLP 725 S. Figueroa St., Suite 2800 Los Angeles, CA 90017 (213) 488-7100 Counsel for Respondents Mitsubishi Heavy Industries America, Inc. and Mitsubishi Heavy Industries, Ltd. Sara D. Schotland CLEARY, GOTTLIEB, STEEN & HAMILTON 2000 Pennsylvania Ave., NW Washington, D.C. 20006 (202) 974-1500 Counsel for Respondent Showa Denko America, Inc. A. Victor Antola Daniel L. Martens LATHAM & WATKINS 633 West Fifth Street Suite 400 Los Angeies, CA 99071-2007 (213) 485-1234 Counsel for Respondents Kajima USA, Inc., Kajima International, Inc., Kajima Engineering & Construction, Inc., Kajima Development Corp., and Kajima Construction Services, Inc. John H. Beisner John F. Niblock Pammela Quinn O’MELVENY & MYERS LLP 1625 Eye Street, N.W. Washington, D.C. 20006-4001 (202) 383-5300 Counsel for Respondents Mitsubishi Materials Corp. and Mitsubishi Materials U.S.A. Corp. Bruce E. H. Johnson DAVIS WRIGHT TREMAINE LLP 1501 Fourth Avenue 2600 Century Square Seattle, WA 98101 (206) 662-3150 Counsel for Respondents Mitsubishi Heavy Industries, Ltd. and Mitsubishi Heavy Industries America, Inc. (in Choe) Nathan Lane III Joseph A. Meckes SQUIRE, SANDERS & DEMPSEY, LLP One Maritime Plaza, Suite 300 San Francisco, CA 94111 (415) 954-0200 Counsel for Respondents Paceco Corp. and Mitsui Engineering & Shipbuilding Co., Ltd Arthur W. Harrigan Garth Wojtanowicz DANIELSON, HARRIGAN & TOLLEFSON, LLP 999 Third Avenue, Suite 4400 Seattle, WA 98104 (206) 623-1700 Counsel for Respondents Mitsubishi Heavy Industries, Ltd. and Mitsubishi Heavy Industries America, Inc. (in Choe) Stephen V. Bomse Neil A.F. Popovic HELLER EHRMAN WHITE & MCAULIFFE LLP 333 Bush Street San Francisco, CA 94104- 2878 (415)-772-6000 Counsel for Respondent Showa Denko America, Inc. Thomas D. Yannucci, P.C. Christopher Landau Brant W. Bishop KIRKLAND & ELLIS LLP 655 Fifteenth Sireet, N.W. Suite 1200 Washington, D.C. 20005 (202) 879-5000 Counsel for Respondents Sumitomo Heavy Industries (U.S.A.) and Sumitomo Heavy Industries, Ltd. Lloyd W. Aubry, Jr. Kathryn M. Davis MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 (415) 268-7000 Counsel for Respondents Ishikawajima-Harima Heavy Industries Co., Ltd. and IHI, Inc. Dated: August 4, 2003 David M. Balabanian Christopher B. Hockett Thomas S. Hixson BINGHAM MCCUTCHEN LLP 3 Embarcadero Center 18th Floor San Francisco, CA 94111 (415) 393-2000 Counsel for Respondents Mitsui & Co., Ltd. and Mitsui & Co. (U.S.A.), Inc. Matthew E. Digby Heidi A. Leider BINGHAM MCCUTCHEN LLP 355 S. Grand Avenue Suite 4400 Los Angeles, CA 90071 (213) 680-6400 Counsel for Respondents Mitsui Mining Co., Ltd. and Mitsui Mining U.S.A., Inc. APPENDICES la Appendix A TREATY OF PEACE WITH JAPAN Sept. 8, 1951 San Francisco, California Whereas the Allied Powers and Japan are resolved that henceforth their relations shall be those of nations which, as sovereign equals, cooperate in friendly association to promote their common welfare and to maintain international peace and security, and are therefore desirous of concluding a Treaty of Peace which will settle questions still outstanding as a result of the existence of a state of war between them; Whereas Japan for its part declares its intention to apply for membership in the United Nations and in all circumstances to conform to the principles of the Charter of the United Nations; to strive to realize the objectives of the Universal Declaration of Human Rights; to seek to create within Japan conditions of stability and well-being as defined in Articles 55 and 56 of the Charter of the United Nations and already initiated by post- surrender Japanese legislation; and in public and private trade and commerce to conform to internationally accepted fair practices; Whereas the Allied Powers welcome the intentions of Japan set out in the foregoing paragraph; The Allied Powers and Japan have therefore determined to conclude the present Treaty of Peace, and have accordingly appointed the undersigned Plenipotentiaries, who, after presentation of their full powers, found in good and due form, have agreed on the following provisions: 2a Appendix A CHAPTER I PEACE Article 1 (a) The state of war between Japan and each of the Allied Powers is terminated as from the date on which the present Treaty comes into force between Japan and the Allied Power concerned as provided for in Article 23. (b) The Allied Powers recognize the full sovereignty of the Japanese people over Japan and its territorial waters. CHAPTER II TERRITORY Article 2 (a) Japan recognizing the independence of Korea, renounces all right, title and claim to Korea, including the islands of Quelpart, Port Hamilton and Dagelet. (b) Japan renounces all right, title and claim to Formosa and the Pescadores. (c) Japan renounces all right, title and claim to the Kurile Islands, and to that portion of Sakhalin and the islands adjacent to it over which Japan acquired sovereignty as a consequence of the Treaty of Portsmouth of September 5, 1905. (d) Japan renounces all right, title and claim in connection with the League of Nations Mandate System, and accepts the action of the-United Nations Security Council of April 2, 1947, extending the trusteeship system to the Pacific Islands formerly under mandate to Japan. 3a Appendix A (e) Japan renounces all claim to any right or title to or interest in connection with any part of the Antarctic area, whether deriving from the activities of Japanese nationals or otherwise. (f) Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands. Article 3 Japan will concur in any proposal of the United States to the United Nations to place under its trusteeship system, with the United States as the sole administering authority, Nansei Shoto south of 29° north latitude (including the Ryukyu Islands and the Daito Islands), Nanpo Shoto south of Sofu Gan (including the Bonin Islands, Rosario Island and the Volcano Islands) and Parece Vela and Marcus Island. Pending the making of such a proposal and affirmative action thereon, the United States will have the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of these islands, including their territorial waters. Article 4 (a) Subject to the provisions of paragraph (b) of this Article, the disposition of property of Japan and of its nationals in the areas referred to in Article 2, and their claims, including debts, against the authorities presently administering such areas and the residents (including juridical persons) thereof, and the disposition in Japan of property of such authorities and residents, and of claims, including debts, of such authorities and residents against Japan and its nationals, shall be the subject of special arrangements between Japan and such authorities. The property of any of the Allied Powers or its nationals in the areas referred to in Article 2 shall, insofar as this has not already been done, be returned by the administering authority in the condition in which it now exists. (The term nationals whenever used in the present Treaty includes juridical persons. ) 4a Appendix A (b) Japan recognizes the validity of dispositions of property of Japan and Japanese nationals made by or pursuant to directives of the United States Military Government in any of the areas referred to in Articles 2 and 3. (c) Japanese owned submarine cables connecting Japan with territory removed from Japanese control pursuant to the present Treaty shall be equally divided, Japan retaining the Japanese terminal and adjoining half of the cable, and the detached territory the remainder of the cable and connecting terminal facilities. CHAPTER III SECURITY Article 5 (a) Japan accepts the obligations set forth in Article 2 of the Charter of the United Nations, and in particular the obligations (i) to settle its international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered; (ii) to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the Purposes of the United Nations; (iii) to give the United Nations every assistance in any action it takes in accordance with the Charter and to refrain from giving assistance to any State against which the United Nations may take preventive or enforcement action. (b) The Allied Powers confirm that they will be guided by the principles of Article 2 of the Charter of the United Nations in their relations with Japan. Sa Appendix A (c) The Allied Powers for their part recognize that Japan as a sovereign nation possesses the inherent right of individual or collective self-defense referred to in Article 51 of the Charter of the United Nations and that Japan may voluntarily enter into collective security arrangements. Article 6 (a) All occupation forces of the Allied Powers shall be withdrawn from Japan as soon as possible after the coming into force of the present Treaty, and in any case not later than 90 days thereafter. Nothing in this provision shall, however, prevent the stationing or retention of foreign armed forces in Japanese territory under or in consequence of any bilateral or multilateral agreements which have been or may be made between one or more of the Allied Powers, on the one hand, and Japan on the other. (b) The provisions of Article 9 of the Potsdam Proclamation of 26 July 1945, dealing with the return of Japanese military forces to their homes, to the extent not already completed, will be carried out. (c) All Japanese property for which compensation has not already been paid, which was supplied for the use of the occupation forces and which remains in the possession of those forces at the time of the coming into force of the present Treaty, shall be returned to the Japanese Government within the same 90 days unless other arrangements are made by mutual 4 agreement. CHAPTER IV POLITICAL AND ECONOMIC CLAUSES Article 7 (a) Each of the Allied Powers, within one year after the present Treaty has come into force between it and Japan, will notify 6a Appendix A Japan which of its prewar bilateral treaties or conventions with Japan it wishes to continue in force or revive, and any treaties or conventions so notified shall continue in force or by revived subject only to such amendments as may be necessary to ensure conformity with the present Treaty. The treaties and conventions so notified shall be considered as having been continued in force or revived three months after the date of notification and shall be registered with the Secretariat of the United Nations. All such treaties and conventions as to which Japan is not so notified shall be regarded as abrogated. (b) Any notification made under paragraph (a) of this Article may except from the operation or-revival of a treaty or convention any territory for the international relations of which the notifying Power is responsible, until three months after the date on which notice is given to Japan that such exception shall cease to apply. Article 8 (a) Japan will recognize the full force of all treaties now or hereafter concluded by the Allied Powers for terminating the © state of war initiated on September 1, 1939, as well as any other arrangements by the Allied Powers for or in connection with the restoration of peace. Japan also accepts the arrangements made for terminating the former League of Nations and Permanent Court of International Justice. (b) Japan renounces all such rights and interests as it may derive from being a signatory power of the Conventions of St. Germain-en-Laye of September 10, 1919, and the Straits Agreement of Montreux of July 20, 1936, and from Article 16 of the Treaty of Peace with Turkey signed at Lausanne on July 24, 1923. (c) Japan renounces all rights, title and interests acquired under, and is discharged from all obligations resulting from, the Agreement between Germany and the Creditor Powers of 7a Appendix A January 20, 1930 and its Annexes, including the Trust Agreement, dated 17 May 1930, the Convention of January 20, 1930, respecting the Bank for International Settlements; and the Statutes of the Bank for International Settlements. Japan will notify to the Ministry of Foreign Affairs in Paris within six months of the first coming into force of the present Treaty its renunciation of the rights, title and interests referred to in this paragraph. Article 9 Japan will enter promptly into negotiations with the Allied Powers so desiring for the conclusion of bilateral and multilateral agreements providing for the regulation or limitation of fishing and the conservation and development of fisheries on the high seas. Article 10 Japan renounces all special rights and interests in China, including all benefits and privileges resulting from the provisions of the final Protocol signed at Peking on September 7, 1901, and all annexes, notes and documents Supplementary thereto, and agrees to the abrogation in respect to Japan of the said protocol, annexes, notes and documents. Article 1] Japan accepts the judgments of the International Military Tribunal for the Far East and of other Allied War Crimes Courts both within and outside Japan, and will Carry out the sentences imposed thereby upon Japanese nationals imprisoned in Japan. The power to grant clemency, to reduce sentences and to parole with respect to such prisoners may not be exercised except on the decision of the Government or Governments which imposed the sentence in each instance, and on recommendation of Japan. In the case of persons sentenced by the International Military Tribunal for the Far East, such power may not be exercised 8a Appendix A except on the decision of a majority of the weer: represented on the Tribunal, and on the recommendation Japan. Article 12 (a) Japan declares its readiness promptly to enter into negotiations for the conclusion with each of the Allied Powers of treaties or agreements to place their trading, maritime and other commercial relations on a stable and friendly basis. (b) Pending the conclusion of the relevant treaty or agreement, Japan will, during a period of four years from the first coming into force of the present Treaty (1) accord to each of the Allied Powers, its nationals, products and vessels (i) most-favored-nation treatment with respect to customs duties, charges, restrictions and other regulations on or in connection with the importation and exportation of goods; (ii) national treatment with respect to shipping, navigation and imported goods, and with respect to natural and juridical persons and their interests - such treatment to include all matters pertaining to the levying and collection of taxes, access to the courts, the making and performance of contracts, rights to property (tangible and intangible), participating in juridical entities constituted under Japanese law, and generally the conduct of all kinds of business and professional activities; (2) ensure that external purchases and sales of Japanese state trading enterprises shall be based solely on commercial considerations. (c) In respect to any matter, however, Japan shall be obliged to accord to an Allied Power national treatment, or most-favored- nation treatment, only to the extent that the Allied Power concerned accords Japan national treatment or most-favored- 2 9a Appendix A nation treatment, as the case may be, in respect of the same matter. The reciprocity envisaged in the foregoing sentence shall be determined, in the case of products, vessels and juridical entities of, and persons domiciled in, any non- metropolitan territory of an Allied Power, and in the case of juridical entities of, and persons domiciled in, any state or province of an Allied Power having a federal government, by reference to the treatment accorded to Japan in such territory, State or province. (d) In the application of this Article, a discriminatory measure shall not be considered to derogate from the grant of national or most-favored-nation treatment, as the case may be, if such measure is based on an exception customarily provided for in the commercial treaties of the party applying it, or on the need to safeguard that party's external financial position or balance of payments (except in respect to shipping and navigation), or on the need to maintain its essential security interests, and provided Such measure is proportionate to the circumstances and not applied in an arbitrary or unreasonable manner. (e) Japan's obligations under this Article shall not be affected by the exercise of any Allied rights under Article 14 of the present Treaty; nor shall the provisions of this Article be understood as limiting the undertakings assumed by Japan by virtue of Article 15 of the Treaty. Article 13 (a) Japan will enter into negotiations with any of the Allied Powers, promptly upon the request of such Power or Powers, for the conclusion of bilateral or multilateral agreements relating to international civil air transport. (b) Pending the conclusion of such agreement or agreements, Japan will, during a period of four years from the first coming into force of the present Treaty, extend to such Power treatment not less favorable with respect to air-traffic rights and privileges 10a Appendix A than those exercised by any such Powers at the date of such coming into force, and will accord complete equality of opportunity in respect to the operation and development of air services. (c) Pending its becoming a party to the Convention on International Civil Aviation in accordance with Article 93 thereof, Japan will give effect to the provisions of that Convention applicable to the international navigation of aircraft, and will give effect to the standards, practices and procedures adopted as annexes to the Convention in accordance with the terms of the Convention. CHAPTER V CLAIMS AND PROPERTY Article 14 (a) It is recognized that Japan should pay reparations to the Allied Powers for the damage and suffering caused by it during the war. Nevertheless it is also recognized that the resources of Japan are not presently sufficient, if it is to maintain a viable economy, to make complete reparation for all such damage and suffering and at the same time meet its other obligations. Therefore, 1. Japan will promptly enter into negotiations with Allied Powers so desiring, whose present territories were occupied by Japanese forces and damaged by Japan, with a view to assisting to compensate those countries for the cost of repairing the damage done, by making available the services of the Japanese people in production, salvaging and other work for the Allied Powers in question. Such arrangements shall avoid the imposition of additional liabilities on other Allied Powers, and, where the manufacturing of raw materials is called for, they lla Appendix A shall be supplied by the Allied Powers in question, so as not to throw any foreign exchange burden upon Japan. 2. (I) Subject to the provisions of subparagraph (II) below, each of the Allied Powers shall have the right to seize, retain, liquidate or otherwise dispose of all property, rights and interests of (a) Japan and Japanese nationals, (b) persons acting for or on behalf of Japan or Japanese nationals, and (c) entities owned or controlled by Japan or Japanese nationals, which on the first coming into force of the present Treaty were subject to its jurisdiction. The property, rights and interests specified in this subparagraph shall include those now blocked, vested or in the possession or under the control of enemy property authorities of Allied Powers, which belong to, or were held or managed on behalf of, any of the persons or entities mentioned in (a), (b) or (c) above at the time such assets came under the cor-‘rols of such authorities. (II) The following shall be excepted from the right specified in subparagraph (I) above: (i) property of Japanese natural persons who during the war resided with the permission of the Government concerned in the territory of one of the Allied Powers, other than territory occupied by Japan, except property subjected to restrictions during the war and not released from such restrictions as of the date of the first coming into force of the present Treaty; (ii) all real property, furniture and fixtures owned by the Government of Japan and used for diplomatic or consular purposes, and all personal furniture and furnishings and other private property not of an investment nature which was normally necessary for the carrying out of diplomatic and 12a Appendix A consular functions, owned by Japanese diplomatic and consular personnel; (iii) property belonging to religious bodies or private charitable institutions and used exclusively for religious or charitable purposes; (iv) property, rights and interests which have come within its jurisdiction in consequence of the resumption of trade and financial relations subsequent to September 2, 1945, between the country concerned and Japan, except such as have resulted from transactions contrary to the laws of the Allied Power concerned; — (v) obligations of Japan or Japanese nationals, any right, title or interest in tangible property located in Japan, interests in enterprises organized under the laws of Japan, or any paper evidence thereof; provided that this exception shall only apply to obligations of Japan and its nationals expressed in Japanese currency. (III) Property referred to in exceptions (i) through (v) above shall be returned subject to reasonable expenses for its preservation and administration. If any such property has been liquidated the proceeds shall be returned instead. (IV) The right to seize, retain, liquidate or otherwise dispose of property as provided in subparagraph (I) above shall be exercised in accordance with the laws of the Allied Power concerned, and the owner shall have only such rights as may be given him by those laws. (V) The Allied Powers agree to deal with Japanese trademarks and literary and artistic property rights on a basis as favorable to Japan as circumstances ruling in each country will permit. (b) Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers, l3a Appendix A other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war, and claims of the Allied Powers for direct military costs of occupation. Article 15 (a) Upon application made within nine months of the coming into force of the present Treaty between Japan and the Allied Power concerned, Japan will, within six months of the date of such application, return the property, tangible and intangible, and all rights or interests of any kind in Japan of each Allied Power and its nationals which was within Japan at any time between December 7, 1941 and September 2, 1945, unless the owner has freely disposed thereof without duress or fraud. Such property shall be returned free of all encumbrances and charges to which it may have become subject because of the war, and without any charges for its return. Property whose return is not applied for by or on behalf of the owner or by his Government within the prescribed period may be disposed of by the Japanese Government as it may determine. In cases where such property was within Japan on December 7, 1941, and cannot be returned or has suffered injury or damage as a result of the war, compensation will be made on terms not less favorable than the terms provided in the draft Allied Powers Property Compensation Law approved by the Japanese Cabinet on July 13, 1951. (b) With respect to industrial property rights impaired during the war, Japan will continue to accord to the Allied Powers and their nationals benefits no less than those heretofore accorded by Cabinet Orders No. 309 effective September 1, 1949, No. 12 effective January 28, 1950, and No. 9 effective February 1, 1950, all as now amended, provided such nationals have applied for such benefits within the time limits prescribed therein. (c) (i) Japan acknowledges that the literary and artistic property rights which existed in Japan on December 7, 1941, in respect TS ET STL aT eee oe oe l4a Appendix A to the published and unpublished works of the Allied Powers and their nationals have continued in force since that date, and recognizes those rights which have arisen, or but for the war would have arisen, in Japan since that date, by the operation of any conventions and agreements to which Japan was a party on that date, irrespective of whether or not such conventions or agreements were abrogated or suspended upon or since the outbreak of war by the domestic law of Japan or of the Allied Power concerned. (ii) Without the need for application by the proprietor of the right and without the payment of any fee or compliance with any other formality, the period from December 7, 1941, until the coming into force of the present Treaty between Japan and the Allied Power concerned shall be excluded from the running of the normal term of such rights; and such period, with an additional period of six months, shall be excluded from the time within which a literary work must be translated into Japanese in order to obtain translating rights in Japan. Article 16 As an expression of its desire to indemnify those members of the armed forces of the Allied Powers who suffered undue hardships while prisoners of war of Japan, Japan will transfer its assets and those of its nationals in countries which were neutral during the war, or which were at war with any of the Allied Powers, or, at its option, the equivalent of such assets, to the International Committee of the Red Cross which shall liquidate such assets and distribute the resultant fund to appropriate national agencies, for the benefit of former prisoners of war and their families on such basis as it may determine to be equitable. The categories of assets described in Article 14(a)2(II)(ii) through (v) of the present Treaty shall be excepted from transfer, as well as assets of Japanese natural persons not residents of Japan on the first coming into force of the Treaty. It is equally understood that the transfer provision of this Article has no 15a Appendix A application to the 19,770 shares in the Bank for International Settlements presently owned by Japanese financial institutions. Article 17 (a) Upon the request of any of the Allied Powers, the Japanese Government shall review and revise in conformity with international law any decision or order of the Japanese Prize Courts in cases involving ownership rights of nationals of that Allied Power and shall supply copies of all documents comprising the records of these cases, including the decisions taken and orders issued. In any case in which such review or revision shows that restoration is due, the provisions of Article 15 shall apply to the property concerned. (b) The Japanese Government shall take the necessary measures to enable nationals of any of the Allied Powers at any time within one year from the coming into force of the present Treaty between Japan and the Allied Power concerned to submit to the appropriate Japanese authorities for review any judgment given by a Japanese court between 7 December 1941 and such coming into force, in any proceedings in which any such national was unable to make adequate presentation of his case either as plaintiff or defendant. The Japanese Government shall provide that, where the national has suffered injury by reason of any such judgment, he shall be restored in the position in which he was before the judgment was given or shall be afforded such relief as may be just and equitable in the circumstances. Article 18 (a) It is recognized that the intervention of the state of war has not affected the obligation to pay pecuniary debts arising out of obligatior’ and contracts (including those in respect of bonds) which existed and rights which were acquired before the existence of a state of war, and which are due by the Government or nationals of Japan to the Government or nationals of one of the Allied Powers, or are due by the l6a Appendix A Government or nationals of one of the Allied Powers to the Government or nationals of Japan. The intervention of a state of war shall equally not be regarded as affecting the obligation to consider on their merits claims for loss or damage to property or for personal injury or death which arose before the existence of a state of war, and which may be presented or re-presented by the Government of one of the Allied Powers to the Government of Japan, or by the Government of Japan to any of the Governments of the Allied Powers. The provisions of this paragraph are without prejudice to the rights conferred by Article 14. (b) Japan affirms its liability for the prewar external debt of the Japanese State and for debts of corporate bodies subsequently declared to be liabilities of the Japanese State, and expresses its intention to enter into negotiations at an early date with its creditors with respect to the resumption of payments on those debts; to encourage negotiations in respect to other prewar claims and obligations; and to facilitate the transfer of sums accordingly. Article 19 (a) Japan waives all claims of Japan and its nationals against the Allied Powers and their nationals arising out of the war or out of actions taken because of the existence of.a state of war, and waives all claims arising from the presence, operations or actions of forces or authorities of any of the Allied Powers in Japanese territory prior to the coming into force of the present Treaty. (b) The foregoing waiver includes any claims arising out of actions taken by any of the Allied Powers with respect to Japanese ships between September 1, 1939, and the coming into force of the present Treaty, as well as any claims and debts arising in respect to Japanese prisoners of war and civilian internees in the hands of the Allied Powers, but does not include 17a Appendix A Japanese claims specifically recognized in the laws of any Allied Power enacted since September 2, 1945. (c) Subject to reciprocal renunciation, the Japanese Government also renounces all claims (including debts) against Germany and German nationals on behalf of the Japanese Government and Japanese nationals, including intergovernmental claims and claims for loss or damage sustained during the war, but excepting (a) claims in respect of contracts entered into and rights acquired before September 1, 1939, and (b) claims arising out of trade and financial relations between Japan and Germany after September 2, 1945. Such renunciation shall not prejudice actions taken in accordance with Articles 16 and 20 of the present Treaty. (d) Japan recognizes the validity of all acts and omissions done during the period of occupation under or in consequence of directives of the occupation authorities or authorized by Japanese law at that time, and will take no action subjecting Allied nationals to civil or criminal liability arising out of such acts Or omissions. Article 20 Japan will take all necessary measures to ensure such disposition of German assets in Japan as has been or may be determined by those powers entitled under the Protocol of the proceedings of the Berlin Conference of 1945 to dispose of those assets, and pending the final disposition of such assets will be responsible for the conservation and administration thereof. Article 21 Notwithstanding the provisions of Article 25 of the present Treaty, China shall be entitled to the benefits of Articles 10 and 14(a)2; and Korea to the benefits of Articles 2, 4, 9 and 12 of the present Treaty. 18a Appendix A CHAPTER VI SETTLEMENT OF DISPUTES Article 22 If in the opinion of any Party to the present Treaty there has arisen a dispute concerning the interpretation or execution of the Treaty, which is not settled by reference to a special claims tribunal or by other agreed means, the dispute shall, at the request of any party thereto, be referred for decision to the International Court of Justice. Japan and those Allied Powers which are not already parties to the Statute of the International Court of Justice will deposit with the Registrar of the Court, at the time of their respective ratifications of the present Treaty, and in conformity with the resolution of the United Nations Security Council, dated October 15, 1946, a general declaration accepting the jurisdiction, without special agreement, of the Court generally in respect to all disputes of the character referred to in this Article. CHAPTER VII FINAL CLAUSES Article 23 (a) The present Treaty shall be ratified by the States which sign it, including Japan, and will come into force for all the States which have then ratified it, when instruments of ratification have been deposited by Japan and by a majority, including the United States of America as the principal occupying Power, of the following States, namely Australia, Canada, Ceylon, France, Indonesia, the Kingdom of the Netherlands, New Zealand, Pakistan, the Republic of the Philippines, the United Kingdom of Great Britain and Northern Ireland, and the United States of America. The present Treaty shall come into force of each State 19a Appendix A which subsequently ratifies it, on the date of the deposit of its instrument of ratification. (b) If the Treaty has not come into force within nine months after the date of the deposit of Japan's ratification, any State which has ratified it may bring the Treaty into force between itself and Japan by a notification to that effect given to the Governments of Japan and the United States of America not later than three years after the date of deposit of Japan's ratification. Article 24 All instruments of ratification shall be deposited with the Government of the United States of America which will notify all the signatory States of each such deposit, of the date of the coming into force of the Treaty under paragraph (a) of Article 23, and of any notifications made under paragraph (b) of Article 23. Article 25 For the purposes of the present Treaty the Allied Powers shall be the States at war with Japan, or any State which previously formed a part of the territory of a State named in Article 23, provided that in each case the State concerned has signed and ratified the Treaty. Subject to the provisions of Article 21, the present Treaty shall not confer any rights, titles or benefits on any State which is not an Allied Power as herein defined; nor shall any right, title or interest of Japan be deemed to be diminished or prejudiced by any provision of the Treaty in favor of a State which is not an Allied Power as so defined. Article 26 Japan will be prepared to conclude with any State which signed or adhered to the United Nations Declaration of J anuary 1, 1942, and which is at war with Japan, or with any State which 20a Appendix A previously formed a part of the territory of a State named in Article 23, which is not a signatory of the present Treaty, a bilateral Treaty of Peace on the same or substantially the same terms as are provided for in the present Treaty, but this obligation on the part of Japan will expire three years after the first coming into force of the present Treaty. Should Japan make a peace settlement or war claims settlement with any State granting that State greater advantages than those provided by the present Treaty, those same advantages shall be extended to the parties to the present Treaty. Article 27 The present Treaty shall be deposited in the archives of the Government of the United States of America which shall furnish each signatory State with a certified copy thereof. 2la Appendix B AGREEMENT ON THE SETTLEMENT OF PROBLEMS CONCERNING PROPERTY AND CLAIMS AND ON THE ECONOMIC CO-OPERATION BETWEEN JAPAN AND THE REPUBLIC OF KOREA June 22, 1965 Tokyo, Japan Japan and the Republic of Korea, Desiring to settle [the] problem concerning property of the two countries and their nationals and claims between the two countries and their nationals; and Desiring to promote the economic co-operation between the two countries; Have agreed as follows: Article I 1. To the Republic of Korea Japan shall: (a) Supply the products of Japan and the services of the Japanese people, the total value of which will be so much in yen as shall be equivalent to three hundred million United States dollars ($300,000,000) at present Computed at one hundred and eight billion yen (¥108,000,000,000), in grants [on a non- repayable basis] within the period of ten years from the date of the entry into force of the present Agreement. The supply of such products and services in each year shall be limited to [shall be such] such amount in yen as shall be equivalent to thirty million United States dollars ($30,000,000) at present computed at ten billion eight hundred million yen (¥10,800,000,000); in case the supply of any one year falls short of the set amount, the remainder shall be added to the amounts of the supplies for the next and subsequent years. However, the ceiling on the amount 22a Appendix B of the supply for any one year can be raised [increased] by agreement between the Governments of the Contracting Parties. (b) Extend long-term and low-interest loans up to such amount in yen as shall be equivalent to two hundred million United States dollars ($200,000,000) at present computed at seventy-two billion yen (¥72,000,000,000), which _ the Government of the Republic of Korea may request and which- shall be used for the procurement by the Republic of Korea of the products of Japan and the services of the Japanese people necessary in implementing the projects to be determined in accordance with arrangements to be concluded under the provisions of paragraph 3 of the present Article, within the period of ten years from the date of the entry into force of the present Agreement. Such loans shall be extended by the Overseas Economic Co-operation Fund of Japan, and the Government of Japan shall take necessary measures in order that the said Fund will be able to secure the necessary funds for implementing the loans evenly each year. The above-mentioned supply and loans should be such that will be conducive to the economic development of the Republic of Korea. 2. The Governments of the Contracting Parties shall establish, as an organ of consultation between the two Governments with powers to recommend on matters concerning the implementation of the provisions of the present Article, a Joint Committee composed of representatives of the two Governments. 3. The Governments of the Contracting Parties shall conclude necessary arrangements for the implementation of the provisions of the present Article. 23a Appendix B Article II 1. The Contracting Parties confirm that [the] problem concerning property, rights and interests of the two Contracting Parties and their nationals (including juridical persons) and concerning claims between the Contracting Parties and their nationals, including those provided for in Article IV, paragraph (a) of the Treaty of Peace with Japan signed at the city of San Francisco on September 8, 1951, is settled completely and finally. 2. The provisions of the present Article shall not affect the following (excluding those subject to the special measures which the respective Contracting Parties have taken by the date of the signing of the present Agreement): (a) Property, rights and interests of those nationals of either Contracting Party who have ever resided in the other country in the period between August 15, 1947, and the date of the signing of the present Agreement; (b) Property, rights and interests of either Contracting Party and its nationals, which have been acquired or have come within the jurisdiction of the other Contracting Party in the course of normal contacts on or after August 15, 1945. 3. Subject to the provisions of paragraph 2, no contention shall be made with respect to the measures on property, rights and interests of either Contracting Party and its nationals which are within the jurisdiction of other Contracting Party on the date of the signing of the present Agreement, or with respect to any claims of either Contracting Party and its nationals against the other Contracting Party and its nationals arising from the causes which occurred on or before the said date. 24a Appendix B Article III 1. Any dispute between the Contracting Parties concerning the interpretation and implementation of the present Agreement shall be settled, first of all, through diplomatic channels. 2. Any dispute which fails to be settled under the provision of paragraph 1 shall be referred for decision to an arbitration board composed of three arbitrators, one to be appointed by the Government of each Contracting Party within a period of thirty days from the date of receipt by the Government of either Contracting Party from the Government of the other of a note requesting arbitration of the dispute, and the third to be agreed upon by the two arbitrators so chosen within a further period of thirty days or the third arbitrator to be appointed by the government of a third country agreed upon within such further period by the two arbitrators, provided that the third arbitrator shall not be a national of either Contracting Party. © 3. If, within the periods respectively referred to, the Government of either Contracting Party fails to appoint an arbitrator, or the third arbitrator or a third country is not agreed upon, the arbitration board shall be composed of the two arbitrators to be designated by each of the governments of the twe countries respectively chosen by the Governments of the Contracting Parties within a period of thirty days and the third arbitrator to be designated by the government of a third country to be determined upon consultation between the governments so chosen. 4. The Governments of the Contracting Parties shall abide by any award made by the arbitration board under the provisions of the present Article. Article IV The present Agreement shall be ratified. The instruments of ratification shall be exchanged at Seoul as soon as possible. The 25a Appendix B present Agreement shall enter into force on the date of the exchange of the instruments of ratification. IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed the present Agreement. DONE in duplicate at Tokyo, in the Japanese and Korean languages, both being equally authentic, this twenty-second day of June of the year one thousand nine hundred and sixty-five. For Japan: For the Republic of Korea: Etsusaburo Shiina Tong Won Lee Shinichi Takasugi Dong Jo Kim 26a Appendix C TREATY OF PEACE BETWEEN THE REPUBLIC OF CHINA AND JAPAN April 28, 1952 Taipei, Taiwan The Republic of China and Japan, Considering their mutual desire for good neighborliness in view of their historical and cultural ties and geographical proximity; Realizing the importance of their close cooperation to the promotion of their common welfare and to the maintenance of international peace and security; Recognizing the need of a settlement of problems that have arisen as a result of the existence of a state of war between them; Have resolved to conclude a Treaty of Peace and have accordingly appointed as their Plenipotentiaries, His Excellency the President of the Republic of China: Mr. Yeh Kung Chao; _ The Government of Japan: Mr. Isao Kawada; Who, having communicated to each other their full powers found to be in good and due form, have agreed upon the following articles: 27a Appendix C Article I The state of war between the Republic of China and Japan is terminated as frorn the date on which the present Treaty enters into force. Article IT It is recognized that under Article 2 of the Treaty of Peace with Japan signed at the city of San Francisco in the United States of America on September 8, 1951 (hereinafter referred to as the San Francisco Treaty), Japan has renounced all right, title and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the Paracel Islands. \ Article IIT The disposition of property of Japan and its nationals in Taiwan (Formosa) and Penghu (the Pescadores), and their claims, including debts, against the authorities of the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores) and the residents thereof, and the disposition in Japan of property of such authorities and residents and their claims, including debts, against Japan and its nationals, shall be the subject of special arrangements between the Government of the Republic of China and the Government of Japan. The terms nationals and residents whenever used in the present Treaty include juridical persons. Article IV It is recognized that all treaties, conventions and agreements concluded before December 9, 1941, between China and Japan have become null and void as a consequence of the war. Article V It is recognized that under the provisions of Article 10 of the San Francisco Treaty, Japan has renounced all special rights and 28a Appendix C its interests in China, including all benefits and privileges resulting from the provisions of the final Protocol signed at Peking on September 7, 1901, and all annexes, notes and documents supplementary thereto, and has agreed to the abrogation in respect to Japan of the said protocol, annexes, notes and documents. Article VI (a) The Republic of China and Japan will be guided by the principles of Article 2 of the Charter of the United Nations in their mutual relations. (b) The Republic of China and Japan will cooperate in accordance with the principles of the Charter of the United Nations and, in particular, will promote their common welfare through friendly cooperation in the economic field. Article VII The Republic of China and Japan will endeavor to conclude, as soon as possible, a treaty or agreement to place their trading, maritime and other commercial relations, on a stable and friendly basis. Article VIII The Republic of China and Japan will endeavor to conclude, as soon as possible, an agreement relating to civil air transport. Article IX The Republic of China and Japan will endeavor to conclude, as soon as possible, an agreement providing for the regulation or limitation of fishing and the conservation and development of fisheries on the high seas. 29a Appendix C Article X For the purposes of the present Treaty, nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores) and their descendents who are of the Chinese nationality in accordance with the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores); and juridical persons of the Republic of China shall be deemed to include all those registered under the laws and regulations which have been or may hereafter be enforced by the Republic of China in Taiwan (Formosa) and Penghu (the Pescadores). Article XI Unless otherwise provided for in the present Treaty and the documents supplementary thereto, any problem arising between the Republic of China and Japan as a result of the existence of a state of war shall be settled in accordance with the relevant provisions of the San Francisco Treaty. Article XII Any dispute that may arise out of the interpretation or application of the present Treaty shall be settled by negotiation or other pacific means. Article XIII The present Treaty shall be ratified and the instruments of ratification shall be exchanged at Taipei as soon as possible. The present Treaty shall enter into force as from the date on which such instruments of ratification are exchanged. 30a Appendix C Article XIV The present Treaty shall be in the Chinese, Japanese, and English languages. In case of any divergence of interpretation, the English text shall prevail. IN WITNESS WHEREOF, the respective Plenipotentiaries have signed the present Treaty and have affixed thereto their seals. DONE in duplicate at Taipei, this Twenty Eighth day of the Fourth month of the Forty First [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1668%3A3. Public record. Not legal advice.