Asian Law eJournal最新文献

{"title":"Adaptive Authoritarian Policing: A Journey From China and Japan to Taiwan","authors":"Weitseng Chen","doi":"10.2139/ssrn.3560725","DOIUrl":"https://doi.org/10.2139/ssrn.3560725","url":null,"abstract":"Authoritarian policing could be resilient and coexist with various types of polity including democracy. This essay aims to discuss how authoritarian policing in Taiwan, with its origins in China and Japan, operated and evolved in various periods of post-WWII Taiwan, including the period of pseudo-democracy (1945-1987), democratic transition (1987-1996), and liberal democracy (1996-present). By examining its interaction with other institutions and actors, such as political parties, dissidents, and the judiciary, this essay discusses how authoritarian policing adapted to changing political climate and, in particular, legality and political accountability that could transform authoritarian policing into a democratic one.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122083869","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Novel and Noteworthy Aspects of Australia’s Recent Investment Agreements and ISDS Policy: The CPTPP, Hong Kong, Indonesia and Mauritius Transparency Treaties","authors":"Ana Ubilava, L. Nottage","doi":"10.2139/ssrn.3548358","DOIUrl":"https://doi.org/10.2139/ssrn.3548358","url":null,"abstract":"Investment treaties, and especially investor-state dispute settlement (ISDS) provisions, became a political hot potato from around 2011 when Philip Morris brought the first-ever ISDS claim against Australia under an old bilateral investment treaty (BIT) with Hong Kong. A Labor-Greens Government declared that it would no longer agree to ISDS provisions in future treaties, but when a centre-right Coalition Government regained power from 2013 it reverted to concluding treaties containing ISDS clauses on a case-by-case assessment. Australia therefore agreed to ISDS in FTAs with Korea and China, but not bilaterally with Japan. However ISDS-backed provisions apply between Australia and Japan since the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) can into force between them (and five other Asia-Pacific nations so far) from January 2019. Yet the Australian parliament engaged in robust debate about ratification of the CPTPP, with Labor Opposition (and Greens) parliamentarians continuing to voice concerns over ISDS provisions, despite the Philip Morris claim against Australia’s tobacco plain packaging having been rejected on jurisdictional grounds in 2015. \u0000 \u0000This paper examines how (US-style) CPTPP drafting compares with two important recent investment agreements subsequently signed by Australia over 2019, namely with Indonesia as part of a wider free trade agreement (IA-CEPA), and with Hong Kong (AHKIA, alongside a bilateral FTA covering non-investment matters). AHKIA came into force from 17 January 2020, while IA-CEPA has been ratified by Australia but not yet by Indonesia. IA-CEPA adds a provision unique in the universe of over 3000 investment agreements world-wide, probably proposed by the Indonesian side: a compulsory mediation step prior to arbitration, if the host state requests mediation after the foreign investor initiates ISDS. The paper also highlights other features of both treaties that may help reduce delays and hence costs in ISDS. The paper summarises empirical data about delays and costs, as well as transparency around ISDS as another growing public concern, including some of our own empirical data provided as evidence to an Australian parliamentary inquiry into ratifying the CPTPP. \u0000 \u0000We also examine the 2019 parliamentary inquiry that agreed with the submission that Australia should ratify the Mauritius (“UN ISDS”) Convention, thereby retrofitting extensive transparency provisions on pre-2014 treaties between Australia and other states that might also accede to that framework Convention. Even if Mauritius Convention ratifications proliferate, however, it will not retrofit extra transparency provisions to treaties concluded even after 1 April 2014 even among those states (say between Australia and Indonesia, where the investor chooses the ICSID Rules rather than UNCITRAL Rules option for arbitration). Accordingly, states ratifying the Mauritius Convention will still need to agree bilaterally to expand any","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127683335","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Land Law in Chinese History","authors":"Taisu Zhang","doi":"10.2139/ssrn.3547494","DOIUrl":"https://doi.org/10.2139/ssrn.3547494","url":null,"abstract":"Although land law or “real property law” is but one of several branches of what scholars commonly call “economic law,” or laws that regulate everyday economic activity, its history has drawn, over the past several decades, an unusually large amount of attention from legal theorists, economists, and comparative scholars of all methodological orientations. This has been especially true within the field of Chinese legal history: few scholars outside the field have any clear sense of pre-modern, early modern, or even modern Chinese family law, the law of personal injury, or even criminal law, but a much larger number will likely have some impression of historical Chinese land law, and may even have an educated opinion about it. This is not because land law was any more important to everyday socioeconomic life than those other bodies of law, but rather because land law has played a much larger role in theoretical and comparative scholarship, particularly in scholarship that seeks to explain global economic divergence—specifically, the divergence between China and the West in the 18th and 19th Centuries. Although this literature has perpetrated its share of myths about Chinese property institutions, much progress has been made over the past few decades, to the point where something approaching an academic consensus on core institutional features has emerged. \u0000 \u0000This chapter outlines these core features of Chinese land law, focusing primarily on the late imperial era, and provides a short summary of how the field arrived at them. Whereas it was once thought that Chinese property rights were comparatively less secure or less alienable than Western European property rights, it now seems unlikely that major differences existed at this general level. They did exist, however, in the finer institutional details of tenancy law and collateralization instruments, and potentially in inheritance law as well. In these latter features, Chinese land law tended to produce institutional incentives that leveled and fractured the pattern of rural landholding, thereby reinforcing the economic dominance of household-level production throughout the late imperial era, and well into the 20th Century. The chapter then discusses relatively recent trends in the academic literature, reaching back to 1970s and 1980s, when the study of Chinese land law became deeply intertwined with debates over economic divergence. It concludes by briefly pondering the costs and benefits of such intertwinement, and what it means to study “the history of Chinese land law” as a consolidated subject.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115728827","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal Opinion & Analysis – Corporate Liability of Employees Pursuant to the Laws of Malaysia","authors":"S. Woodhull","doi":"10.2139/ssrn.3563586","DOIUrl":"https://doi.org/10.2139/ssrn.3563586","url":null,"abstract":"The primary issues raised in this article are with regards to the potential corporate liabilities faced by corporate entities formed pursuant to the laws of Malaysia when entering into e-Contracts with their Customers/Merchants. The following legal advice is rendered upon research undertaken into assessment of the matter and analysis of the same. The purpose of this legal opinion and analysis is to alert the Board of Directors of corporate entities about the potential corporate liability that the Board of Directors, Senior Management as well as the employees of corporate entities may be exposed to.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124867026","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"When is an Individual Investor Not in Need of Consumer Protection? Comparative Analysis of Singapore, Hong Kong, and Australia","authors":"W. Wan, Andrew Godwin, Qi Yao","doi":"10.2139/ssrn.3510134","DOIUrl":"https://doi.org/10.2139/ssrn.3510134","url":null,"abstract":"In Singapore, Hong Kong, and Australia, standard retail investor protection laws do not apply to special categories of individual investors. Issuers and intermediaries can avoid preparing a prospectus and assessing the suitability of a financial product or investment when financial advice is given for these investors. However, with the increasing complexity of products and potentially unregulated alternative investments such as crypto-assets, this legal framework is increasingly being debated and challenged. More disclosure is not the answer. \u0000 \u0000This paper explores the rationale behind the special categories, the implications of falling into these categories from a consumer protection perspective and the current debates as to whether these special categories should continue to be recognised. The paper argues that the existing wealth or income based criteria that determine eligibility are anachronistic and inappropriate. Instead, all individuals making investment decisions should have the benefit of a rating framework that is based on both complexity and risks and be subject to a suitability test in the case of complex products.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117294509","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Belt, Road and (Legal) Suspenders: Entangled Legalities on the 'New Silk Road'","authors":"Tomer Broude","doi":"10.2139/ssrn.3489749","DOIUrl":"https://doi.org/10.2139/ssrn.3489749","url":null,"abstract":"The Belt and Road Initiative, formerly known as the \"New Silk Road\" is a central part of the People's Republic of China (PRC)'s 13th 5-year plan, an ambitious program of infrastructure project finance in 65 countries, to the tune of 1 Trillion USD invested over 20 years. Geo-politically, this might be the most important global governance initiative since the end of the first cold war. But what does it mean for law? Surely it is an exemplar of entangled legalities. It means very different things to the investment protection lawyer at MOFCOM in Beijing, the public procurement regulator in Greece, the (insert big-law firm name) Associate or Partner in Kazakhstan, or insurgents in Balochistan (Pakistan), and Judges in constitutional courts and indeed the European Court of Human Rights. This paper argues that structures of practice as well as cognitive limitations and sociological factors keep law's engagement with complexity enmeshed but separate, along the lines of (most obviously) national law, but more so along the lines of policy-issues and the object-oriented nature of distinct legal fields. This short paper will narrate – hypothetically, though firmly based in reality – different views of actors engaging with the Belt and Road Initiative, to demonstrate the parallel phenomena of separateness and entangledness, and also demonstrate the inevitable interdependence of entangled legal strands, looking at the case of the Belgrade-Budapest rail modernization project. In addition, it will emphasize the close connection between legal entanglement and empire.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129106750","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Impact of Investment Treaties on Domestic Governance in Myanmar","authors":"J. Bonnitcha","doi":"10.2139/ssrn.3644056","DOIUrl":"https://doi.org/10.2139/ssrn.3644056","url":null,"abstract":"Supporters of investment treaties argue that the treaties encourage good governance and respect for the rule of law in countries that are bound by them. Critics argue that the treaties discourage legitimate, public interest regulation of foreign investment. The claims of both the supporters and the critics rest on a set of assumptions about the impact of investment treaties on government decision-making in the states that are bound by them. To date, these assumptions have been subject to little investigation. <br><br>This paper examines the impact of investment treaties on domestic governance through a single, detailed case-study of Myanmar. Myanmar is a powerful case study because, if investment treaties do have positive effects on domestic governance, it is a country where one would expect to see such effects. The paper draws on a series of semi-structured interviews with government officials, investment lawyers and foreign advisors to the Myanmar government, as well as an analysis of primary and secondary documents. <br><br>The findings cast doubt on supporters’ claims that investment treaties promote good governance and the rule of law, as well as complicating critics’ claims about regulatory chill. The overall finding is that investment treaties’ effects on domestic governance are primarily mediated through processes within the executive branch of government and that these effects are limited and often ad hoc. Investment treaties have no discernible impact on the judicial system in Myanmar, and little impact on legislation or regulatory rule-making processes.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132530605","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Compulsory Notification Mechanism under Merger Control in China: Evaluation and Reform","authors":"Jian Li, Liyang Hou","doi":"10.2139/ssrn.3469361","DOIUrl":"https://doi.org/10.2139/ssrn.3469361","url":null,"abstract":"The compulsory notifications for mergers transactions under the framework of antitrust law aims to remedy anti-competitive harm by blocking or conditionally approving mergers ex ante in conjunction with the deterrence effects. However, such a mechanism brings prominent costs in addition to the benefits. It is thus necessary to evaluate both the costs and benefits to implement such a mechanism to see if there is an efficient alternative. The first decade of the enforcement of China’ merger control demonstrated insufficient benefits due to the low proportion of blocked and conditional approved cases and unsatisfactory deterrence effects. In the meanwhile, the costs to implement the compulsory mechanism in China is substantially larger, including high investigation costs, high opportunity costs associated with suspended merger transactions, and high notification costs. In comparison, the voluntary notification mechanism, though superficially producing less benefits in preventing anti-competitive mergers, can significantly save implementation costs. Given the limited administrative budget and the active ex post antitrust enforcement currently ongoing in China, the voluntary mechanism is advisable to be the most feasible option for the future reform.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131250062","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Chinese Social Credit System: A Model for Other Countries?","authors":"Daithí Mac Síthigh, M. Siems","doi":"10.1111/1468-2230.12462","DOIUrl":"https://doi.org/10.1111/1468-2230.12462","url":null,"abstract":"Many countries know financial consumer credit ratings, and recent years have also seen a proliferation of rating systems in relation to online platforms and in the ‘sharing economy’, such as eBay, Uber and Airbnb. In the view of many Western observers, however, the emerging Chinese Social Credit System indicates a paradigm shift compared to these former rating systems as it aims for a comprehensive and uniform social rating based on penalty and award mechanisms. By contrast, this article suggests that the evolving forms of the Chinese system should be seen as a specific instance of a wider phenomenon. Thus, it develops a framework that compares different rating systems by reference to their drafters, users, aims, scoring systems, application, use of algorithms, enforcement and accountability; it identifies shortcomings of both low and high interventionist rating systems; and it discusses a range of regulatory approaches and emerging issues that law makers should consider.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130617615","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Investment Arbitration Reform and the Pacific Rim Consensus","authors":"M. Feldman","doi":"10.2139/ssrn.3444733","DOIUrl":"https://doi.org/10.2139/ssrn.3444733","url":null,"abstract":"As UNCITRAL Working Group III discussions on investment arbitration reform continue, geography remains a relevant factor when analyzing investment treaty practice, although not along traditional North-South lines. Over the past several years, three distinct models of investment treaty practice have emerged, which can be identified by geographic region: (i) a European model (as reflected in recent European Union practice), (ii) a ‘regional South’ model (as reflected in recent practice by Brazil, India, and the Southern African Development Community), and (iii) a Pacific Rim model (as reflected in the CPTPP as well as recent treaty practice by the ASEAN States, the Pacific Alliance States, China and Korea). \u0000 \u0000Of the three models, the Pacific Rim approach most closely resembles the extraordinarily active investment treaty practice that occurred in the 1990s and 2000s. The Pacific Rim model can be seen as retaining three fundamental elements from that earlier treaty practice: (i) the ability of disputing parties to select decision-makers, (ii) the imposition of treaty obligations on States but not investors, and (iii) the inclusion of a core set of substantive obligations. \u0000 \u0000Recent treaty practice by ASEAN, the Pacific Alliance, China and Korea, together with the entry into force of the CPTPP, illustrate the resilience of the Pacific Rim model. This Pacific Rim consensus on investment treaty practice could be further confirmed by the conclusion and entry into force of an RCEP investment chapter that follows the Pacific Rim approach. The availability of investment chapters following the Pacific Rim model in two mega-regional FTAs (CPTPP and RCEP) would create significant opportunities for institutionalization in the Pacific Rim region, in particular through the potential development of a CPTPP appellate mechanism and an RCEP appellate mechanism. In addition, China's recent UNCITRAL submission illustrates how the Pacific Rim model can be preserved while considering, at the same time, significant levels of institutionalization within the investment arbitration regime. \u0000 \u0000The compatibility of the Pacific Rim model with ambitious investment arbitration reform, together with the widespread acceptance of the model, confirm the importance of the Pacific Rim consensus for the future of the investment arbitration regime.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114438951","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}