KTurbo Inc v The Government of the United States of America - Notice of Intent to Submit A Claim to Arbitration Under Chapter 11 of KORUS-FTA - 28 October 2019
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Re: Notice of Intent to Bring Arbitration against the United States for Violation of Obligations Under the US-Korea Free Trade Agreement
1. The Disputing Investor in this matter is a Korean enterprise, KTurbo Inc. ("KTurbo") and Investment is a US enterprise, KTurbo USA Inc. under Article 11.28 DEFINITIONS. The Disputing Investor intend to bring claims pursuant to KORUS Chapter 11. The Disputing Investors have appended proof of their nationality and ownership to this submission.
2. KTurbo Inc. specializes in the production of high efficiency turbo compressors and turbo blowers, having built the world's first environmentally friendly turbo compressors which does not use lubricant oil. KTurbo USA, Inc. is a subsidiary of KTurbo that was registered in 2010 as a corporation in 1183 Pierson Dr., Unit 118, Batavia, IL 60510 USA. KTurbo USA is wholly owned by KTurbo Korea.
3. On April 8, 2015 CEO of KTurbo was illegally extradited to the United States, which will be next dispute. (12-CR-109, Northern District of IL)
4. KTurbo was never indicted or punished, but the district court who lacks power over KTurbo and its properties forfeited properties of KTurbo, which is EXPROPRIATION prohibited under Article 11.6. See Case: 1:12-cr-00109 Document#: 334.
5. Furthermore, even if District court has jurisdiction over KTurbo without prosecution, District court ordered forfeiture and restitution after ruling that the government failed to prove any loss and gain, which is illegal under the United State law.
6. Even if the breach was initiated September of 20 I 0, before treaty entered into force on March 15, 2012, under the "continuing violation doctrine" the limitations period for a continuing offense does not begin until the offense is complete.
7. KTurbo submits this Notice of intent to bring arbitration against the United States("USA") pursuant to Article I 1.6(2) of the Free Trade Agreement between Korea and the United States (the "FTA").
8. The contact information for the Disputing Investor appears below:
THE UNITED STATES KNOWINGLY DENIED EXECISING DUE DILIGENCE
9. We do not argue merits of judicial proceedings, but we argue that the judicial proceedings themselves are illegal, that is beyond official capacity or frivolous.
10. We do not argue that the officer's actions are unauthorized or ultra vires, but argues that the actions are illegal, that is beyond their official capacity.
11. The United States Government not only authorized and participated in the deprivation, but also failed to protect KTurbo's investments, which give rise to liability. "Restitution is loss based, while forfeiture is gain based." U.S. v. Genova, 333 F.3d 750, 761 (7th Cir. 2003)
DAMAGES and CLAIM
12. It is trite that if a state is responsible for conduct that is unlawful under international law, it is obliged to take full reparation for the consequences of its wrongful conduct and that this involves putting the wronged party in the position it would have been in had the wrongful conduct not occurred.
13. Since KTurbo itself was directly expropriated, KTurbo claims the fair market value of the properties and its interest.
14. Since KTurbo lost opportunity, KTurbo claims loss of profit.
15. Accordingly, we seek compensation for the loss and damage suffered in relation to illegal forfeiture in breach of treaty in an amount to be qualified and currently estimated to be approximately IO million dollars. 16. However, we invite representative of the United States to find amicable solution to the present dispute and reserves its right to submit its claim to arbitration under Article 11.16 of the KORUS-PTA should no amicable resolutions be reached within 90 days of receipt of this notice.
 See Annex I.
 "the government has failed to prove, ..., the defendant's gain in this case. Based on its prior determination that the government failed to establish the defendant's actual or intended loss ..." (Dkt.273)
 "The amount of restitution is limited to the actual losses" United States v. Kennedy, 726 F.3d 968, 973 (7th Cir. 2013)
 The doctrine relieves a plaintiff of a limitations bar if he/she can show a series of related acts to him/her, one or more of which falls within the limitations period. Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004).
 "190.... An unauthorized or ultra vires act of a governmental entity of course remains, in international law, the act of the State of which the acting entity is part, if that entity acted in its official capacity. But something more than simple illegality or lack of authority under the domestic Jaw of a State is necessary to render an act or measure inconsistent with the customary international law requirements of Article 1105(1)" ADF v. United States
 Articles on the Responsibility of States for Internationally Wrongful Acts, drafted by the International Law Commission, and annexed to United Nations General Assembly Resolution 56/83 of 12 December 2001, Article 31.
 Factory at Chorzow (Merits), pen, Series A, No 17 (1928), p 47.