CO129-585-3 Sino-Japanese conflict- shipping 17-1-1940 - 13-11-1940 — Page 345

"The principle underlying these modern rules is that, although the occupant in no wise acquires 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

"The British and American interpretation of Article XXIII (h) of The Hague Regulations is that it prohibits . an occupant of enemy territory from declaring extinguished,

suspended or unenforceable in a court of law the rights and the rights of action of the inhabitants; and Article XLIII provides that the occupant must respect, unless absolutely prevented, the laws in force in the country There is no doubt that an occupant may suspend the judges as well as other officials. However, if he does suspend them he must temporarily appoint others in their place. If they are willing to serve under him, he must respect their independence according to the laws of the country. He has, however, no right to constrain the courts to pronounce their verdicts in his name, although he need not allow them to pronounce verdicts in the name of the legitimate government."

It is true that the Japanese in Shan Tung need not aid in executing the order of the Chinese court. But that can have no effect on the decision or make it any less binding or less worthy or respect in the courts of a friendly country.

It is not necessary for me to consider what would happen if the Japanese authorities were to interfere to prevent the execution of the order of the Chinese courts. In that case no doubt the decision in De Jager v. Attorney General of Natal, (1907) A.C. 326, would apply and the dissolution of the compnay would be suspended temporarily in Shan Tung or wherever administration was in Japanese hands, but not elsewhere.

It has been said in this case that the Chinese courts, in making their orger, have purported to exercise extraterritorial jurisdiction in Shan Tung. That however is not the case. The Chinese courts were dealing with a company incorporated in China, not in Shan Tung, which has no separate law of its own, and there is nothing in this case to show that, except where for special purposes the company is treated as an enemy, its character is in any way altered by the Japanese occupation.

If