Asian Law eJournal最新文献

{"title":"Legitimisation of the Principle of Party Autonomy from an ASEAN Perspective: Contractual and Non-Contractual Obligations","authors":"Akawat Laowonsiri","doi":"10.2139/ssrn.2881424","DOIUrl":"https://doi.org/10.2139/ssrn.2881424","url":null,"abstract":"The ASEAN Community has gradually developed its Private International Law (PIL) at both national and regional levels. The significance of this development has been the subject of much debate by most, if not all, legislators, enforcers and scholars, among others, since the substantive agreements of the ASEAN Economic Community were enforced by Member States in 2015, thereby fostering regional trade and investment to a greater degree. A role of the PIL is to facilitate the economic flows by securing transactions and activities of private actors through the use of certain methodologies and principles. One of the most acclaimed of these principles, the Principle of Party Autonomy, has undergone a striking development in recent decades, especially outside the region (EU and US), and while this has provoked dialogue among scholars, it has had little effect on the region’s policy-makers and legislators, despite being consolidated into the prevailing Principle of contractual and non-contractual obligations in the Asian Principles of Private International Law (APPIL). It is humbly admitted that the adoption of this Principle entails some major challenges, including the preoccupation with sovereignty impairment, and the doctrinal and technical limitations in the PIL systems in ASEAN countries, among others. Since both of these concepts are currently widespread in Southeast Asia, the legitimisation of the Principle should be considered from an ASEAN perspective, which is driven by the common values and overarching rules in the region, before abruptly adopting it in national vis-a-vis regional systems; yet, the analyses on the subject are narrowed to contractual and non-contractual obligations. The parameters used in this study are the relevant principles of regional economic law and human rights law, which provide the basis for justifying aspects of this Principle at both regional and national levels. Although regional economic law and human rights law approaches may be invoked elsewhere, namely in European PIL treatises, the findings of this paper appear to indicate that there are specific deviations in the ASEAN Community. In this case, the common values and policies, as well as the common legal traditions, need to be explained, which involves an examination of certain dimensions of the Principle, including, but not limited to, the necessary connection between the chosen law and the state, the application of internationally mandatory provisions, the sanction of ordre public, and the special protection of a weaker party, which are briefly discussed in the paper. Possible ways to adapt and adjust the legal systems and configure the Principle itself are proposed, where necessary. Moreover, the study also includes certain selected jurisdictions that use a PIL system, which is more tangible and concrete than that of most ASEAN countries, and which represents particular regimes. The former group includes Singapore, Thailand and Vietnam, and the latter, the Phil","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125925283","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":"A Comparison between Shale Gas in China and Unconventional Fuel Development in the United States: Water, Environmental Protection, and Sustainable Development","authors":"P. Farah, Riccardo Tremolada","doi":"10.4324/9781315571713-31","DOIUrl":"https://doi.org/10.4324/9781315571713-31","url":null,"abstract":"China is believed to have the world's largest exploitable reserves of shale gas, although several legal, regulatory, environmental, and investment-related issues will likely restrain its exploitation. China's capacity to face these hurdles successfully and produce commercial shale gas will have a crucial impact on the regional gas market and on China’s energy mix, as Beijing strives to decrease reliance on imported oil and coal, and, at the same time, tries to meet growing energy demand and maintain a certain level of resource autonomy. The development of the unconventional natural gas extractive industry will also provide China with further negotiating power to obtain more advantageously priced gas. This article, which adopts a comparative perspective, underlines the trends taken from unconventional fuel development in the United States, emphasizing their potential application to China in light of recently signed production-sharing agreements between qualified foreign investors and China. The wide range of regulatory and enforcement problems in this matter are increased by an extremely limited liberalization of gas prices, lack of technological development, and barriers to market access curbing access to resource extraction for private investors. This article analyzes the legal tools that can play a role in shale gas development while assessing the new legal and fiscal policies that should be crafted or reinforced. It also examines the institutional settings’ fragmentation and conflicts, highlighting how processes and outcomes are indeed path dependent. Moreover, the possibilities of cooperation and coordination (including through U.S.-China common initiatives), and the role of transparency and disclosure of environmental data are assessed. These issues are exacerbated by concerns related to the risk of water pollution deriving from mismanaged drilling and fracturing, absence of adequate predictive evaluation regulatory instruments and industry standards: this entails consequences for social stability and environmental degradation which are inconsistent with the purposes of sustainable development.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132424833","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":"Intellectual Property in Asia: ASEAN, East Asia and India","authors":"C. Antons","doi":"10.1093/OXFORDHB/9780198758457.013.18","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198758457.013.18","url":null,"abstract":"This paper covers parts of Asia with very significant recent developments in intellectual property (IP) law. IP reform in the region was initially driven by the concerns of industrialised countries about the lack of IP protection in Asian ‘miracle’ economies. More recently, it has become an important topic in free trade and economic partnership agreement negotiations. The developments in the individual countries are discussed in the context of an ‘Asian development model’, which has often combined short and generalised laws with numerous implementing decrees and administrative discretion. This has allowed for the selective adaptation of IP models from elsewhere, with some countries now strongly promoting higher IP standards to their regional neighbours. Different historical pathways to development and local circumstances suggest, however, that it is difficult to develop regional role models for others or to explain differences about IP exclusively with the divide between ‘developed’ and ‘developing’ countries.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129068395","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 Emergence of Alternatives to Bank Financing in ASEAN","authors":"Michelle Dy","doi":"10.2139/SSRN.2767315","DOIUrl":"https://doi.org/10.2139/SSRN.2767315","url":null,"abstract":"It is an undeniable fact that presently, banks are still the kings of the financial jungle. However, as early as 1997, the Association of Southeast Nations (ASEAN) has learned the hard way that heavy dependence on banking can contribute to an irreversible spiral towards a financial crisis. The currency and maturity mismatches in the banks’ balance sheets caused by the flush of liquidity into the region only became a problem once currency depreciation accelerated and the taps of liquidity dried up. After the dust of the 1997 Asian Financial Crisis settled, the region began the earnest development of its capital markets as a safety net against the cyclicality of capital flows in the banking industry. Almost twenty years hence, the landscape remains the same. Commercial banking assets still accounted for a majority of the total financial assets in ASEAN in 2009 at 82%. Recent developments may possibly finally turn the region’s financial ecosystem on its head, however. An estimated $60 billion USD annually until 2022 was identified as the necessary amount in order to meet all the infrastructure needs in ASEAN. The adoption of tighter banking regulations in response to the 2008 global financial crisis has created a stricter lending environment, making it stubbornly difficult to meet this infrastructure financing requirement through the traditional bank lending channels alone. There is also the problem of lack of appetite by banks for projects with long-term time horizons, a common characteristic of infrastructure projects. The conflux of these events contributed to the emergence of products and initiatives which serve as alternatives to bank financing in ASEAN. The purpose of this paper is to map out the alternative products that have been developed and launched in response to ASEAN’s financing needs, looking closely at their structure, the profile of the investors and the issuers, and the projects which utilize these products. An assessment shall then be made on the progress of these alternatives and what their prospects are in ASEAN’s infrastructure investment space.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116323539","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":"Disclosure Deficit in FOI/RTI Acts of SAARC Nations: An Analysis with Particular Reference to 'Exemptions'","authors":"Raja Mutthirulandi","doi":"10.2139/SSRN.2755417","DOIUrl":"https://doi.org/10.2139/SSRN.2755417","url":null,"abstract":"Freedom of Right to Information (FOI/RTI) has been universally recognized as a Fundamental Human Right. Such a wide recognition of the right has perhaps propelled nearly 104 countries so far to bring into operation specific legal instruments to ensure this right to their people. Pitching with the global trend in this direction, almost all countries in the SAARC do have in force (except Sri Lanka and Bhutan) exclusive Acts (Ordinance in Pakistan) to provide access to public information. But, the legal frame work of the relevant enactments of these countries – globally evaluated on the basis of ‘seven different categories’ – present a glaring mixture of top and bottom scores. This is indicative of the levels of access to information available to the people through relevant Acts in their countries.One of the basic elements of FOI/RTI Act is ‘‘Exemptions’’ and this is also a crucial category of evaluation employed by International bodies assessing the efficacy of laws in this sphere. The “Exemptions” section is often reckoned as the heart of the FOI/RTI legislation. This is mainly because, “exemptions” to a large extent, determine the levels of people’s access to public records under the Legislation. Generally, Acts to provide access to information are expected, among other things, to have very limited but clearly spelt out exclusions as per international norms and be precisely disclosure-oriented. Further, there should be specific, unambiguous provisions for “public interest override”, “severability of information”, “duration to withhold information under exempt category”, “avoidance of blanket exclusions of public bodies” and “supremacy of the Act” in relation to existing legislations.A closer analysis of FOI/RTI Acts of SAARC nations with reference to the aspects listed hereinabove, reveal high level of disparity among them and a clear disclosure deficit. This paper undertakes an in-depth scrutiny of the relevant Acts in force in SAARC countries, with particular reference to the provisions related to “exemptions/exclusions from disclosure” housed in the Acts.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124523305","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 Rise of Anti-Cartel Enforcement in Africa, Asia, and Latin America","authors":"J. Connor","doi":"10.2139/SSRN.2711972","DOIUrl":"https://doi.org/10.2139/SSRN.2711972","url":null,"abstract":"This paper examines the rise of cartel enforcement in Europe, North America, and the Rest of the World (ROW) over the past 25 years in greater detail and with more indicators than previous publications. I find that in the past decade the ROW antitrust authorities have made extraordinarily rapid progress in punishing international price-fixing. The growing share of global fines imposed on cartels by authorities in Africa, Asia, and Latin America (the “ROW”) shows no signs of slowing down. Japan, and most of the Asian Tigers seem increasingly able and willing to impose record fines on cartels. In Latin America, Brazil, Mexico, and Chile are in the vanguard of the anti-cartel bandwagon. Except for South Africa, Israel, and a handful of other small authorities, African and West Asian nations by and large have failed to make the important leap into dealing with international cartels. In the past 15 years, the DOJ has accounted for less than 20% of cartel fines. Moreover, despite spectacular cartel fines, the EC itself has been supplanted by the EU’s NCAs and the ROW authorities. Building in part on legal innovations made by the DOJ and EC, many of these newer authorities are close to matching the effectiveness of the two crucibles of anti-cartel enforcement. In a sense, in the past decade, the last geographic piece of the cartel-enforcement puzzle is now in place. With cartel detection and penalization very largely globalized now, deterrence of global cartels has marginally improved.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121344285","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 Problems and Suggestions of Possible Improvement of the Current Car Insurance in Korea: Focusing on the Compensation of Personal Injury","authors":"Eun-Ok Park","doi":"10.36727/jjlpr.21.3.201512.007","DOIUrl":"https://doi.org/10.36727/jjlpr.21.3.201512.007","url":null,"abstract":"Korean auto insurance industry has experienced serious difficulties due to market saturation, high loss rate and price regulations by authority. There have been various efforts to overcome the current difficult situation through the improvement and reform of automobile insurance system in Korea. In this context I have a very keen interest in Accident Compensation Act of New Zealand. New Zealand has an unique compensation scheme, so called ‘No-fault scheme’, for the injured people by accident including motor accident.<br><br>40 years ago, the New Zealand legislated ‘Accident Compensation Act’ by operated ACC for accomplishment the responsibility of society for the injured. In this paper, I will analysis the current situation and problems of Korean car insurance and examine NZ’s ACC. Thereby, I want to have useful implications for the reform of Korean automobile insurance system.<br><br>This article will focus on compensating personal injury caused by car accident. Korean car insurance has several problems related in personal injury compensation. There are: Insufficient compensation for the victims, Inadequate compensation for the insureds, Increasing in lawsuits against insurers and Expensive medical fees.<br><br>There are two ways in approaching the reform of the current Korean compensation scheme for physical injuries. Firstly, maintaining the framework of the tort law compensation system and the liability insurance in order to strengthen the social security through social welfare and social insurance. On the other hand, the compensation for a physical injury issues to be handled only by the social insurance process. The compensation system that acclimatized to the principle of liability with fault may be difficult to change it to the no-fault system straight away in the first place. However, it is important to take a step by step. Looking from the long term perspective, those steps will later shift from the fault based compensation system to the no-fault based compensation system; make worker’s compensation scheme and the accident compensation scheme unified; and finally it will become one entity system like New Zealand where all accident injuries covered under the ACC which are governed by the Accident Compensation Act.<br><br>New Zealand's universal injury compensation scheme might resolve the problems of overlapped compensations by social insurance and private insurance and of different charges for medical treatments. And also it provides prompt compensations for injured persons and operates efficiently because all the processes take place in the one entity.<br><br>In these respects this study on the New Zealand's accident compensation scheme will contribute to social cost reduction of the operation of auto insurance system in Korea.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114586529","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":"Can the Day Understand the Night? Brief Introduction into Problems of the Current Insolvency System in China","authors":"X. Gong","doi":"10.2139/ssrn.2694044","DOIUrl":"https://doi.org/10.2139/ssrn.2694044","url":null,"abstract":"The national insolvency system in China has developed synchronously with its economic reform. The current insolvency system is established on the basis of the Enterprise Bankruptcy Law of the P.R.C. (EBL), which was adopted in 2006. Almost one decade after its implementation, despite of more specific and systematic arrangements under the current insolvency system, the caseload of insolvency proceedings continues to decline annually in China. Moreover, the cross-border elements in the course of global economic contact make different insolvency systems from different jurisdictions interactive. It is observed that China’s jurisdiction on insolvency proceedings has been intentionally avoided due to lack of confidence in its insolvency system on international level. This article briefly discusses a few problems concerning China’s current insolvency system, including participation in distribution system, involvement of the government, cautious attitudes of the courts towards insolvency cases, and attempts to promote mutual understanding by providing insight into the reasons behind those problems.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124181762","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":"How China Promotes Its State-Owned Enterprises at the Expense of Multinational Companies Doing Business in China and in Other Countries","authors":"D. Chow","doi":"10.2139/SSRN.2669503","DOIUrl":"https://doi.org/10.2139/SSRN.2669503","url":null,"abstract":"China’s mercantilist approach towards international business and trade uses a two pronged strategy to promote China’s state-owned enterprises (SOEs) at the expense of multinational companies (MNCs) doing business in China and other foreign countries. Within its borders, China uses the Anti-Monopoly Law (AML) and the Anti-Unfair Competition Law (AUCL) to pressure, harass, and intimidate MNCs. China uses the AML to coerce MNCs to transfer assets to SOEs, provide access to their advanced technologies to Chinese companies, and to protect famous Chinese brands from being acquired by foreign companies. China has also used the AUCL and various associated laws to crack down on commercial bribery by MNCs using dawn raids and other heavy handed tactics.Outside of its borders, China uses free trade agreements with its trading partners that do not contain provisions relating to workers’ rights, the environment, and transparency in government. China’s SOEs are also not being prosecuted for bribing foreign officials in exchange for business opportunities. By contrast, U.S.-based MNCs are subject to myriad restrictions on their conduct abroad by a complex set of federal laws, including treaties imposing obligations concerning workers’ rights, the environment, and transparency. Bribery of foreign officials by U.S.-based MNCs is subject to intense scrutiny by U.S. authorities. China’s lack of restrictions on SOEs allows them to do business abroad at lower costs and with almost complete freedom on how they wish to conduct their business activities. While China is slowly and quietly creating SOEs that will dominate international business, the international business community does not seem to have taken much notice and may not realize this development until China’s SOEs become so powerful that there may little if anything that can be done to curtail their dominance.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132007771","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":"Understanding China's Two Constitutions: Re-Assessing the Role of the Chinese Communist Party","authors":"J. Mittelstaedt","doi":"10.2139/ssrn.2682609","DOIUrl":"https://doi.org/10.2139/ssrn.2682609","url":null,"abstract":"The relationship between the Party Constitution and the State Constitution is the most important question pertaining China’s legal development today. This essay situates the question within the larger problem of the relation between Party and law. By drawing from Chinese scholars of political constitutionalism, the author attempts to re-assess the role of the Party as the principle driver of constitutionalism with Chinese characteristics. The fundament of this relationship is the CCP’s transcendence of politics and practical and theoretical unity with China. Based on this analysis, it is further suggested that intra-Party rules and regulations play a major role as a testing ground for future laws.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124118852","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}