י
SATURDAY,
JANUARY 6, 1940.
in Shan Tung is a passage in Halleck's International Law, pub- lished in 1578, Volume II. page 462. para, 14
"The duty of allegiance is re- ciprocal to the duty of protect tion. The sovereignty of the state which is thus unable to protect its territory is displaced and that of the conqueror sub- stituted in its stead.”
In regard to allegiance, that is, the lawful obedience which a subject, is bound to render to his sovereign. Halleck is obviously referring to a that local allegiance only, like which an allen owes to the sover- eign of the country in which he may be. In this regard he goes on to say
"But this change of sovereign- ty may be only of a temporary character, for the conquered territory may be recaptured by the former owner or it may be restored to him by a treaty of peace. During mere military Occupation the sovereignty of the conqueror is unstable and incomplete. Hence the alle- "glance of the inhabitants of the territory so occupied is a tem porary and qualified allegiance which becomes complete oply on the confirmation of the conquest and with the express or implied consent of the conquered."
sovereignty over such territory through the mere fact of having occupied it, he actually exercises for the time being a military authority over it." and page 356-
HÒNGKONG DAILY PRESS,- PAGE 3
eign corporation but continues trade, for that it could do by _It=" for the purpose of winding up self were it not for the war, or by its affairs so far as this country a neutral firm were it not for the has control over the persons and samę "reason, but to put it ships the assets within its jurisdic-) and business in Hongkong in the tion."
hands of an enemy farm. The "The British and American in- per Lord. Wrenbury, in Russian ships would still ny the Chinese terpretation of Article XXIII (h) | Commercial and Industrial Bank fag but would have Japanese of The Hague Regulations is that v. Comptoir d' Escompte de Mùl-crews. The branch of the com- it prohibits an occupant of house. (1925) A.C." at page 148.) pany in Hongkong would be con- enemy territory from declaring
trolled by Japanese and would be extinguished, suspended or un-
Chinese in name only. Buth...-s enforceable in a court of law the Its corporate powers, if not its change in the conduct "of the rights and the rights of action corporate existence, would "have business, it is safe to say was of the inhabitants: and Article been destroyed in its country of never contemplated by the con- XLIII provides that the occu- origin" (per Maugham, J., institution of the company. The pant must respect, unless abso-Russian Bank for Foreign Trade, purpose of the contract of agency lutely prevented, the laws in (1933) 1 Ch. 745, at page 764).. is legal by the law of China and force in the country... There It is further contended that it is could not have been one of the is no doubt that an occupant not just and equitable that the purposes for which the company
be may suspend the judges as well company wound up. It is was incorporated: It is a ground
CORPORATE POWERS
as other officials. However, if he sought to justify the act of the for dissolution of the company by does suspend them he must tem-company in making a contract of the Chinese courts,
porarily appoint others in their agency, which is forbidden and The respondents, it дест to place. If they are willing to penal by the law of China, on theme, are amply justified in asking serve under him, he must re-round that the place, not the that the Hongkong branch of the pect their independence accord- country, where the company car-company be wound up, on the ing to the laws of the country. rles cm business is now occupied by grounds of Justice and equity. He has, however, no right to the Japanese. The authority under They have every reason for say- constrain the courts to pro- which it is said that the companying that the directors, have ex- nounce their verdicts in his has appointed the Dairen Kisen ceeded their powers and, in the name, although he need not Kaisha, its agents in relation to the conduct of the company's affairs, allow them to pronounce verdicts assets of the company now in have forfeited the conadence of in the name of the legitimate) Hongkong is as follows-
the respondents. government."".
CHINESE COURT ORDER
"APPOINTMENT
I the undersigned do hereby
with the
NO ALTERNATIVE LAW
In this case we are faced, as re-
gards the dissolution of the com- following pany in China with no alternative law but the law of China and no With regard to the six steamers alternative court but the courts of heng Lee', 'Mao Lee', 'An Lee'. China. There is no problem here. Eng Lee', Hsin Lee' and Feng as there was in The Bank of Lee now lying in Hongkong, the Ethiopia & National Bank of
which are necessary. «
Dated the 20th day of 1st month in the 14th year of Chiq Wo (20th January 1939).
Dairen, Kanbu-Dori, 39.
Ching Kee Steam Navigation Co., Ltd. Signed and Chopped:
It is true that the Japanese in appoint The Dalren Kisen Kalsha
RIGHTS OF INVADER
Shan Tang need not aid in exe- as agent cuting the order of the Chinese powers: While the modern text-book court. But that can have no effect writers, whose works have been on the decision or make it any less freely quoted to us, consider that binding or less worthy of respect an invader has for the time being in the courts of a friendly country. absolute authority in occupied ter- It is not necessary for me "to Agent's firm is to do all the affairs | Egypt and Liguori, LR. (1937) ritory, nowhere do they suggest consider what would happen if the that the rights of the invader Japanese authorities were to inter- enable him to do more than the rere to prevent the execution of military situation requires, And the order of the Chinese courts. In they clearly show that interference that case no doubt the decision in with the civil administration of De Jager 7. Attorney General of occupied territory is limited to Natal, (1907) A.C. 326, would apply military necessity.
and the dissolution of the com- But military necessity cannot pany would be suspended tempor- Justify the voluntary acts of pri-arily in Shan Tung or wherever vate persons, and so cannot war the administration was in Japan- rant the refusal by the members of ese hands, but not elsewhere. this company to obey the lawful It has been said in this case that order of a Chinese court. We can- the Chinese courts, in making their not assume without any evidence order, have purported to exercise that the Japanese authorities have extra-territorial jurisdiction interfered, or would interfere, to Shan Tung. That however is not are. keep this company alive in spite of the case. The Chinese courts were
Argument has proceeded on the a corporation cannot be dissolved Itself or against the will of its dealing with a company incorpor- assumption, not that the parties in at any time in the courts of the members, or that those authorities ated in China, not in Shan Tung, coming to that arrangement in-country of its incorporation. There would do anything to prevent the which has no separate law of its tended any law other than the law are in addition equitable grounds members of the company resorting own, and there is nothing in this of China to apply, but that, "be-on which the branch in Hongkong to the Chinese court, as they have case to show that, except where cause the centre of administration may be wound up.
in
Ch.D. 513, of a de facto govern- ment. A Chinese court duly ap- pointed according to the law of China has ordered the dissolution of the company. The onus is on the appellants to show that that court had no jurisdiction. Their argument based, firstly, on the military occupation of Chefoo. where the jurisdiction of the invader is limited to military the TERMS OF ARRANGEMENT necessity, and secondly, an
fact that the company for some We are not told what the terms of purposes is deemed to have ac- the arrangement between the com-quired an enemy character. They pany and the Dairen Kisen Kalsha have failed to discharge that onus and falled altogether to show that
Chang. Pen Chin,
President."
in fact done here. This is strictly for special purposes the company of the company is now in Japan- In my view this appeal must be in accordance with Article XXIII is treated as an enemy, its charac-se hands, the company could dismissed, with costs.
(h) of The Hague Regulations, ter is in any way altered by the therefore do as it liked regardless
which declares that it is especially Japanese occupation. If it were of Chinese law,
forbidden-
リ
otherwise, indeed, the company
The only addition to the argu- "to declare abolished, suspended would automatically have ceased ment on this point which was not or inadmissible in a court of law to exist as a company, except for before the learned Chief Justice is
the private claims of ressortis the purposes of winding up, upon that the principle enunciated by sents of the hostile party."
the military occupation of Shan Lord Halsbury in In
suspension of political but municipal laws, that
re Missouri
In Halleck, at page 449, we find Tung by the Japanese. Chinese law Steamship Company, 42 Ch.D., at the statement, with regard to the could not operate there to keep the page 336, and approved in The TORNI, (1932)" P.27, Was not not company alive, for China would
have no jurisdiction. That argu-affected by the decision in Vita "Neither the civil nor the criment pursued to its logical conclu- Food Products Incorporated v. minal jurisdiction of the con- sion would defeat its object, for the AC. 227, where it was held that Unus Shipping Company, (1939) quering state. is considered in association of persons who were the omission to include in a bill of international law as extending formerly bound together by 8
*
?
over the conquered territory nexus of corporation would auto-lading a statement required by an during military, occupation,"
enactment of the Newfoundland matically cease to be so bound in ・・ DISTINCTLY MILITARY Shan Tung," and the question that legislature did not make the bill of lading Megal. One of the terms The position is put comprehen- would then arise would be--
of the contract was-"This con- sively by Oppenheim (5th edition),
whether the association is tract shall be governed by English at page 349
not to be treated here as anlaw." association or partnership of
VALIDITY OF CONTRACT natural persons whose relations inter se are to be found in the] The question here is not whether, articles of association of the the contract of agency is valid by company and are to be ascer-the law of any particular place. tained no doubt with reference but whether the making of such a to the lex lock contractus, but contract by the directors is a pro- which is nevertheless an associa-per exercise of their powers. The tion whose existence is not ter-real, object of the contract is not minated by the death of the for- so much to enable the company to
"The administration of the pecupant is in no wise to be compared with ordinary admin- istration, for it la distfflctly and precisely military administra- tion." page 345"
"The principle, underlying these modern rules is that although the occupant in no wise acquires
3