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Legal Analysis on MOU: Part II

Web Manager’s Note:

The following text originally comes from a facebook discussion on MOU (Memorandum of Understanding) signed by ETG and Council of Pilung on January 2012 (please check our timeline, and the content of MOU here). We re-post the discussion here for it helps us to comprehend the legal issues involved in MOU.

It is the second part of the conversation, mainly between Mrs. Kattinow Gisog and Mr. Clement Yow Mulalap. The topics are concerning the width and objectivity of a thorough, conscientious legal analysis. 

Resource: http://www.facebook.com/groups/404462399564440/permalink/531768123500533/

Kattinow Gisog

— For example, operative paragraph 2 of the MOU states that the “Parties [to the MOU] acknowledged that [sic] the role of ETG as the full scale developer of the tourism resource of the State of Yap.” Notice the phrase “the full scale developer.” What does this mean? In my opinion, it is plausible for ETG to assert that ETG should be the SOLE “full scale developer” of Yap’s “tourism resource,” based on this language in the MOU. In other words, no other company should be allowed to engage in large-scale development of Yap’s tourism industry. This prohibition presumably applies to local Yapese tourism operators, because the MOU does not make any exceptions for local operators. –

Yow, could it not be argued that the MOU does not specify that ETG IS to be the SOLE full scale developer of Yap’s tourism resource?? Therefore, other non-ETG entities, local or foreign, may undertake tourism development projects in the state, can it not be also interpreted that way? To my own understanding, the MOU is non-specific in that way and can be interpreted to mean alot of things. But to say this document goes as far as to prohibit local companies from engaging in full scale development is making a stretch of it, no?

all the same —For another example, operative paragraph 4 of the MOU specifically states that “the Member[s] of the Council shall coordinate and mediate should any dispute arise[] between ETG and respective local community.” In my opinion, this language grants the Members of the Council of Pilung greater authority than they actually have under Yapese customs and traditions (as well as under Yap’s “modern” laws). If a dispute involves land leases, and if the private Yapese landowners want to bring their dispute to the Yap State Court for resolution, those landowners may not be able to do so (or at least will have a tough time doing so), because the Council Member from the landowners’ municipality may argue that the MOU grants him the authority to mediate the dispute between the landowners and ETG, and that grant of authority arguably prevents the dispute from going to the Yap State Court before the Council Member has done any mediation. —- the operative word is ‘mediate’. Currently, any land dispute is supposed to go thru Municipal Court. this is court tht takes place in the village, in the presence of chiefs, elders, and whoever else may be able to help mediate the dispute and come to a decision. From my understanding, land disputes do not go to Yap State Court unless it is goes or at least tries to go thru Municipal Court first. Does the MOU really give a completely different picture of a process that we already have in place?

I greatly appreciate all your help and there is much mutual respect between us. However, I’m inclined now to believe that you’re no longer able to seperate your personal views from your legal interpretations. And I’m not sure if they have a rightful place in the matter or it’s supposed to be objective, but it’s how i’m starting to see it. Siroo.

January 3 at 12:04pm

Diamond H Kenrad

I am wondering thou what is the ETG chinese interpretation of this MOU?? And I still think ETG project needs to be on hold until all these information are clearly explain.

January 3 at 12:27pm · 

Clement Yow Mulalap

Siro.

Kattinow, thank you for your response.

Respectfully, as a lawyer, it is my professional duty to examine all the ways in which legal language can be interpreted and enforced, even if some of those ways may seem to be, as you say, “a stretch.” Many major legal battles turn on mere technicalities. It is, in many ways, a sad state of affairs when it comes to legal disputes and adjudication, but that is how the law works, and I think it’s inappropriate to shy away from investigating all possible legal interpretations involved simply because some interpretations may seem at first to be stretches.

Unfortunately, Kattinow, the MOU is worded in such a way that, as you rightly point out, the MOU “can be interpreted to mean alot of things.” The MOU could have been drafted to be very ironclad, with no room for divergent interpretation, but it was not, as you have pointed out. Is it improper for me to point out ways in which the MOU can be used to harm Yapese citizens, including local tourism operators in Yap? If I were a lawyer representing a local Yapese tourism operator, it would be my ethical duty to point out the things I have pointed out.

Regarding the mediation of land disputes, I appreciate your comment about the Municipal Court. However, I think it is important to note that the MOU specifically grants Members of the Council of Pilung a special privilege and authority to be, in my opinion, primary mediators in ANY disputes between ETG and local Yapese community. The quoted language from operative paragraph 4 of the MOU does not restrict the Council Members’ mediation authority to land disputes, but extends it to “any dispute . . . between ETG and respective local community.” In that light, if a local Yapese community wants to pursue a non-land-related dispute with ETG, that community may have to go through the relevant Council Member first before going to the Yap State Court, at least according to the terms of the MOU, in my opinion.

Furthermore, even if the dispute is a land dispute, the MOU can be interpreted to mean that Council Members have a sort of priority when it comes to mediating disputes between local Yapese communities and ETG. As you note, Kattinow, a Municipal Court may be comprised not just of chiefs, but also of village/municipal elders and others who are not chiefs. Why should a Member of the Council of Pilung have any sort of priority when it comes to mediating a land dispute in a Municipal Court, especially when there are many other members of a Municipal Court, and particularly when a Council Member may not even be a high chief in a particular municipality? The MOU says that a Council Member should, among other things, “coordinate” such mediation. This is a privileging of Council Members that does not currently exist in Yap’s formal dispute resolution process, in my opinion.

Finally, Kattinow, thank you for noting our mutual respect. I am saddened that you now doubt whether my comments in this group “have a rightful place in the matter or [are] supposed to be objective.” I do my very best to note in my legal comments that those comments are my opinions, and people are free to determine whether to believe them or not. I am not imposing myself on anyone, and I try my very best to ground my legal interpretations in facts and law, as well as in actual legal text. Perhaps you are mistaking my personal feelings for my professional obligation to scrutinize all legal matters thoroughly. Yes, I have personal feelings, but except for one instance, I have refrained from expounding on them in this group. I have done my best to offer my legal opinions, marking them as my own, and allowing people to make their own decisions about what to believe from my opinions. Does my commentary no longer have a “rightful place” in this group? Let me know. In the meantime, I continue to welcome and appreciate your comments. It is good to discuss things.

Kam’magar, Kattinow.

Siro.

January 3 at 12:32pm ·

Kattinow Gisog

Kamagar, Yow..i dont mean your comments have no place here..what i was asking was if your personal views have a place in your legal interpretations. dont feel sad because i and many others do feel your input in this forum is of great value. i do note that your interpretations however seem to be reflective of your personal views on the issue, if they do not, then i apologise and i stand corrected. i’m aware that as lawyer you ought to argue a case according to who it is that you are representing..this much i do know from our own legal counsel at the Bank. however, for purposes of consultation, i do not whether it is alright to point out specific what if’s and not mention others – from what i was told by another lawyer, the sky is the limit when it comes to interpretation — or if it is better to just stick to the wording of the document and note its weaknesses and strengths. i provide business consultations too, and i have to seperate my personal views of the nature of business and the businessman himself, from my analysis. i also have to make decisions based on that analysis, without any personal feelings mixed in. it gets hard when you’re deciding legal action against relatives or other situations, but it’s my job. i dont know much about yours, that’s why i asked. anyway, as always, i thank you for your work. Siroo.

January 3 at 1:16pm

Clement Yow Mulalap

Siro.

Kam’magar, Kattinow.

I appreciate your concerns, and I thank you for sharing them. As you imply, it truly is “better to . . . stick to the wording of [a] document and note its weaknesses and strengths.” Respectfully, Kattinow, I have done my very best to stick to the wording of the relevant legal documents upon which I apply my legal reasoning. This is why I strive to cite to specific provisions in, for example, the signed Investment Agreement and the MOU whenever I discuss those documents. Whether my legal interpretations are valid is not really up to me to decide, ultimately. I offer them anyway, in the hope that they will be helpful. I have never claimed in this group to be the sole authority in legal matters (or in other matters discussed in this group.) Indeed, from the beginning of my participation in this group, I have repeatedly welcomed and solicited legal opinions from other lawyers in this group (as well as from other lawyers outside this group who may be consulted and whose opinions can be shared in this group, as you have done, Kattinow).

As for the strengths of the documents I discuss, I should note that when I conducted extensive discussions many months ago in this group about the signed Investment Agreement and its impact on the rights of Yapese who wish to lease land to ETG, I did point out a number of ways in which those Yapese can use the signed Agreement to protect themselves against possible attempts by ETG to acquire certain heightened stakes in Yapese land that may not be desirable to Yapese lessors. (Mr. Norman has collected those discussions elsewhere in this group.) Indeed, even now, I continue to point out the strengths of the signed Agreement. For example, the provision I cited earlier today (i.e., Section 3.1 of the signed Agreement) regarding the need for ETG to secure approval from the State of its Master Plan before signing and paying for land leases with Yapese is an example of a strength in the signed Agreement, one that (in my opinion) can be used to protect Yapese landowners lest they get hooked on rent payments from ETG that suddenly stop because the State does not approve ETG’s Master Plan.

Unfortunately, Kattinow, in my legal opinion, the documents that I have analyzed in this group contain more weaknesses than strengths where Yapese customs, traditions, and formal legal interests are concerned. Perhaps that is why my comments seem to be skewed in a particular way. If I had a Yapese client who might become legally beholden to documents such as those, I would raise similar warnings of those weaknesses to the client and strongly advice the client to be wary of binding herself to those documents without seriously considering the dangers they pose to her. I am taking that approach in my informal discussions in this group, because it is the approach I would take in my formal professional capacity.

Kattinow, if I am guilty of any bias, it is this: I want Yap and the Yapese people to be as protected as possible from legal, cultural, environmental, and social harm if/when ETG’s proposed Project takes off. I said as much when I first posted in this group many months ago; I have not tried to hide those concerns of mine. I do not have a client in this matter, but if I had a Yapese client in this matter whose core interests are endangered by legal documents, I would err on the side of caution and do my best to point out all the possible pitfalls, especially if those pitfalls threaten to inflict significant harms on my client. We all know what ETG and its supporters insist are the benefits of ETG’s proposed Project in Yap. It is important to balance those statements of strength with discussions of weaknesses, for all our sakes. If people decide to pursue arrangements with ETG, they will hopefully do so as fully informed, fully aware individuals. My thanks to YAP for pursuing that awareness-based mission. I hope you appreciate how similar our efforts are in that basic regard.

Siro.

January 3 at 11:25pm ·

Clement Yow Mulalap

Siro.

I want to clarify something that came up in a conversation I had withKattinow in this thread. Earlier in this thread, I noted that one can interpret the MOU between ETG and the Council of Pilung to grant Members of the Council of Pilung special authority to mediate disputes (including land-related disputes) between ETG and local Yapese communities in a manner that goes beyond Yap’s formal rules of legal procedure (as well as beyond Yap’s customs and traditions). Kattinow replied, in part, that this would not be so different from the way things are done right now, given how Municipal Courts in Yap have the authority to adjudicate land disputes already at the village/municipal levels, and given the fact that the Members of the Council of Pilung typically sit in Municipal Courts as judges. I responded to Kattinow’s assertions yesterday, but I did not clearly and directly address her key point, i.e., that the set-up for mediation that I describe as possibly established by the MOU is not that different from the current Municipal Court set-up. I apologize to Kattinow and others for not properly addressing her point. Let me do so know.

Simply put, as far as I know, the jurisdiction of a Municipal Court is governed by Title 4, Section 162 of the Yap State Code. Here is that Section in full:

—————————————-

The jurisdiction of a municipal court shall extend to the whole of the municipality. A municipal court may exercise jurisdiction in civil cases only over natural persons residing or domiciled in the municipality who have voluntarily appeared and over property within the municipality where the parties are natural persons. A municipal court may exercise jurisdiction in criminal cases in a manner as may be prescribed by statute.

—————————————-

(A word of caution before I proceed: To the best of my knowledge, this quoted Section has not been amended. If anyone here knows if it has been amended, and especially if it has been amended in such a way as to invalidate my following legal interpretation, then please inform us.)

As you can tell from the text of the Section, a Municipal Court only has jurisdiction over “natural persons residing or domiciled in the municipality” where the Municipal Court is situated, as well as “over property within the municipality where the parties are natural persons.” What is a “natural person”? Legally speaking, a natural person is a human being, a real life person. This is in contrast to a “legal person.” There are a number of examples of a legal person, but a typical example of a legal person is a business entity/a corporation–like ETG.

Therefore, if there is a legal dispute—whether it is a land dispute or some other dispute—between a local Yapese community in a municipality (i.e., a collection of “natural persons”) and ETG (i.e., a “legal person”), the Municipal Court in that municipality cannot adjudicate that legal dispute, at least according to Chapter 4, Section 162 of the Yap State Code. Indeed, as far as I know, the Municipal Courts were established to resolve disputes—especially, but not limited to, land disputes—between regular people residing in the same municipality. The Municipal Courts were never intended to adjudicate disputes between people from one municipality and people from another municipality, and they were never intended to adjudicate disputes between people and business entities/corporations/other non-“natural persons.”

If I understand Kattinow correctly (and I apologize if I do not), she asserts that the Members of the Council of Pilung already have authority to mediate land disputes between ETG and local Yapese communities through Municipal Courts, so the set-up in the MOU is not much different. As I have described here, though, that is not the case; the Municipal Courts have no such authority. If Kattinow means that the current Municipal Court set-up is similar to (but not the same as) the mediation set-up established by the MOU, then I must respectfully disagree again. A Municipal Court is supposed to resolve disputes within its municipality, between human parties from the same municipality. A Municipal Court is not intended to adjudicate disputes between members of a municipality and an outsider, as well as between members of a municipality and a business entity like ETG. So, the mediation set-up established by the MOU is neither the same as, nor similar in principle to, the current Municipal Court set-up, in my opinion.

With the mediation set-up established by the MOU, local Yapese communities that have disputes with ETG will have to go through an extra layer of “mediation” that they may not wish to go through before bringing their disputes to the Yap State Court. This mediation cannot take place in a Municipal Court, but it can still take place in a different, currently undefined setting. In a sense, that would be an even more precarious situation for the aggrieved local Yapese communities. At least in a Municipal Court, there is some semblance of formality and procedure, however bare-bones; in an undefined mediation with Members of the Council, though, there are currently no rules governing that process. Where would such mediation take place? What sort of rules of procedure will be followed? Is there any sort of right of appeal? Would such a mediation be binding?

To Yapese who are thinking of engaging in business dealings with ETG in your local communities, please pay special care to any requirements for mediation by Council Members that you may be asked to subject yourselves to in order to engage in those business dealings.

Again, I apologize for not addressing Kattinow’s point earlier, as well as for possibly contributing to greater confusion on the matter. As always, I welcome all other legal opinions, including dissenting opinions.

Siro.

January 4 at 4:57pm

Clement Yow Mulalap Siro.

I just want to confirm that the quotation from Title 4, Section 162 of the Yap State Code (regarding the jurisdiction of the Municipal Courts in Yap) that I present and discuss in my comment above is accurate and has not been amended. Again, my legal opinions are my own, and I welcome contrary opinions. Thank you.

January 9 at 9:57am

Resource: http://www.facebook.com/groups/404462399564440/permalink/531768123500533/

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