Asian Journal of Comparative Law最新文献

International Sanctions and the Rule of Law 国际制裁与法治

Asian Journal of Comparative Law Pub Date : 2024-07-15 DOI: 10.1017/asjcl.2024.10

Tun Richard Malanjum

引用次数: 0

How Can Malaysian Courts Consistently Perform Meaningful Constitutional Rights Review? Lessons from Past Cases and the Way Forward 马来西亚法院如何持续进行有意义的宪法权利审查？过去案例的教训与未来之路

Asian Journal of Comparative Law Pub Date : 2024-05-24 DOI: 10.1017/asjcl.2024.9

Benjamin Joshua Ong

{"title":"How Can Malaysian Courts Consistently Perform Meaningful Constitutional Rights Review? Lessons from Past Cases and the Way Forward","authors":"Benjamin Joshua Ong","doi":"10.1017/asjcl.2024.9","DOIUrl":"https://doi.org/10.1017/asjcl.2024.9","url":null,"abstract":"\u0000 In the past, Malaysian courts performing constitutional rights review played a merely clerical role, applying a test that was trivially easy for legislation to pass. Then a more rigorous proportionality test took root. However, the Federal Court in the 2020 case of Letitia Bosman whittled the test down again, and the courts once more played a minimal role in checking state action. The reasons for this cannot be explained merely by diversity in judicial philosophy or political contextual factors. Rather, the near-demise of proportionality (and, with it, robust constitutional review) was made possible by a lack of a clear sense of the doctrinal foundations of proportionality (and, indeed, of constitutional rights review generally), and the relative roles of the courts and the legislature therein. As a result, there is a risk that the courts’ important role in safeguarding constitutional rights has been minimised to near vanishing point. This article aims, through an analysis of the case law and its foundations, to explain how this came to be, and hence highlight important issues which Malaysian constitutional law must grapple with if meaningful rights review is to take place.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141099454","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}

引用次数: 0

Confused Purposes and Inconsistent Adjudication: An Assessment of Bail Decisions in Delhi's Courts 混乱的目的和不一致的裁决：德里法院保释裁决评估

Asian Journal of Comparative Law Pub Date : 2024-04-24 DOI: 10.1017/asjcl.2024.7

Anup Surendranath, Gale Andrew

{"title":"Confused Purposes and Inconsistent Adjudication: An Assessment of Bail Decisions in Delhi's Courts","authors":"Anup Surendranath, Gale Andrew","doi":"10.1017/asjcl.2024.7","DOIUrl":"https://doi.org/10.1017/asjcl.2024.7","url":null,"abstract":"\u0000 A persistent issue in the Indian criminal justice system has been the over-incarceration of pre-trial detainees, which is inextricably linked with the practices of trial courts in deciding on the detention and release of accused persons pending trial. The present statutory law and judicial discourse provides little guidance on the process for deciding bail matters. There has also not been much effort to empirically research decision-making in such matters and/or the impact of these decisions on the pre-trial detainee population in prisons. The present study is an attempt to plug this gap, analysing ‘regular’ bail orders of Sessions Courts of Delhi available from the eCourts system between 2017 and 2019 for the offences of theft and rape. The data reveals a failure to recognise the fundamentally preventive purpose of bail, as well as to develop individualised and specialised processes in compliance with this purpose. Such failure in guidance has resulted in judges importing factors from the trial process that remain unjustified outside of the punitive detention process, such as guilt. In conclusion, we argue that a fundamental reimagination of the approach to bail is required – one that is distinct from the trial process and focuses instead on the individualised assessment of risk.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140659457","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}

引用次数: 0

Soviet Legacy of Vietnam's Intellectual Property Law: Big Brother is (No Longer) Watching You – CORRIGENDUM 越南知识产权法的苏联遗产：老大哥（不再）监视着你 - CORRIGENDUM

Asian Journal of Comparative Law Pub Date : 2024-04-01 DOI: 10.1017/asjcl.2024.5

Van Anh Le

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Conceptualising State-Centric Mediation: An Analysis of China's Foreign Investment Complaints Mechanism – ERRATUM 以国家为中心的调解概念化：中国外商投资投诉机制分析 - ERRATUM

Asian Journal of Comparative Law Pub Date : 2024-04-01 DOI: 10.1017/asjcl.2024.4

Mark McLaughlin

引用次数: 0

Comparative Perspectives on the Protection of Food Geographical Indications in Asian Countries 亚洲国家保护食品地理标志的比较视角

Asian Journal of Comparative Law Pub Date : 2024-02-26 DOI: 10.1017/asjcl.2024.2

Sayantani Datta, P. Manchikanti, N. S. Bhattacharya

{"title":"Comparative Perspectives on the Protection of Food Geographical Indications in Asian Countries","authors":"Sayantani Datta, P. Manchikanti, N. S. Bhattacharya","doi":"10.1017/asjcl.2024.2","DOIUrl":"https://doi.org/10.1017/asjcl.2024.2","url":null,"abstract":"\u0000 The significance of food is beyond its gastronomic value. Food symbolises a community's enriched past and holds cultural expressions and traditional knowledge. The linkage of food with religious beliefs, geo-climatic factors, social standards, and various health benefits builds the reputation of the food, which is essentially attributable to its geographic origin. Following the ratification of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the contracting states that have enacted Geographical Indications (GI) legislation (particularly those in Asia) have come forward to protect foodstuffs as GI in order to safeguard their communities and their traditional knowledge associated with foodstuffs. Against this background, the present article attempts to compare foodstuff GIs in eight selected Asian countries with a sui generis system of GI protection as TRIPS compliance. The comparative analysis of the evolution and scope of foodstuff protection, pre-registration and post-registration impact, and quality maintenance provides important insights into convergence and divergence among the selected Asian countries. The study further identifies policy implications for the sustenance of GI.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140430826","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}

引用次数: 0

Conceptualising State-Centric Mediation: An Analysis of China's Foreign Investment Complaints Mechanism 以国家为中心的调解概念化：中国外商投资投诉机制分析

Asian Journal of Comparative Law Pub Date : 2024-02-22 DOI: 10.1017/asjcl.2024.1

Mark McLaughlin

引用次数: 0

The Path to Judicial Management in Malaysia is Paved with Obstacles: Lessons from Singapore and the United Kingdom 马来西亚司法管理之路障碍重重：新加坡和英国的经验教训

Asian Journal of Comparative Law Pub Date : 2024-02-14 DOI: 10.1017/asjcl.2024.3

Thim Wai Chen, Ruzita Azmi, R. Abdul-Rahman

{"title":"The Path to Judicial Management in Malaysia is Paved with Obstacles: Lessons from Singapore and the United Kingdom","authors":"Thim Wai Chen, Ruzita Azmi, R. Abdul-Rahman","doi":"10.1017/asjcl.2024.3","DOIUrl":"https://doi.org/10.1017/asjcl.2024.3","url":null,"abstract":"\u0000 In embracing corporate rescue, Malaysia introduced Judicial Management (JM) into its company law framework on 1 March 2018. The mechanism was modelled on Singapore's Judicial Management, which itself was based on the United Kingdom (UK) Administration Procedure. Despite its laudable objective of facilitating the rescue of financially distressed companies, the path to JM is paved with obstacles. This article identifies some of these obstacles and examines the issues that give rise to them. At the same time, the article proposes legislative reforms, drawing on comparative laws in Singapore and the UK. For the purposes of this article, three obstacles are examined: first, the power of a secured creditor or debenture holder to veto the JM application; second, the stringent and prohibitive burden imposed on an applicant company caused by the judicial interpretation, at times conflicting, of the provisions governing the application of a JM order; and third, the higher threshold imposed by legislative requirements on creditors’ meeting to approve the JM proposal. These obstacles are encountered at three stages of a JM application: first, at the initial stage of the application; second, in considering the merits of the JM; and third, when the creditors vote to approve the application.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139837624","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}

引用次数: 0

The Path to Judicial Management in Malaysia is Paved with Obstacles: Lessons from Singapore and the United Kingdom 马来西亚司法管理之路障碍重重：新加坡和英国的经验教训

Asian Journal of Comparative Law Pub Date : 2024-02-14 DOI: 10.1017/asjcl.2024.3

Thim Wai Chen, Ruzita Azmi, R. Abdul-Rahman

{"title":"The Path to Judicial Management in Malaysia is Paved with Obstacles: Lessons from Singapore and the United Kingdom","authors":"Thim Wai Chen, Ruzita Azmi, R. Abdul-Rahman","doi":"10.1017/asjcl.2024.3","DOIUrl":"https://doi.org/10.1017/asjcl.2024.3","url":null,"abstract":"\u0000 In embracing corporate rescue, Malaysia introduced Judicial Management (JM) into its company law framework on 1 March 2018. The mechanism was modelled on Singapore's Judicial Management, which itself was based on the United Kingdom (UK) Administration Procedure. Despite its laudable objective of facilitating the rescue of financially distressed companies, the path to JM is paved with obstacles. This article identifies some of these obstacles and examines the issues that give rise to them. At the same time, the article proposes legislative reforms, drawing on comparative laws in Singapore and the UK. For the purposes of this article, three obstacles are examined: first, the power of a secured creditor or debenture holder to veto the JM application; second, the stringent and prohibitive burden imposed on an applicant company caused by the judicial interpretation, at times conflicting, of the provisions governing the application of a JM order; and third, the higher threshold imposed by legislative requirements on creditors’ meeting to approve the JM proposal. These obstacles are encountered at three stages of a JM application: first, at the initial stage of the application; second, in considering the merits of the JM; and third, when the creditors vote to approve the application.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139777629","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}

引用次数: 0

Precedential Value of Judicial Decisions in Increasingly Hybridised Civil Law Systems: Chinese Choreographies at the WTO 在日益混合的大陆法系中司法判决的先例价值：中国在世贸组织的编排

Asian Journal of Comparative Law Pub Date : 2024-01-25 DOI: 10.1017/asjcl.2023.38

Riccardo Vecellio Segate

{"title":"Precedential Value of Judicial Decisions in Increasingly Hybridised Civil Law Systems: Chinese Choreographies at the WTO","authors":"Riccardo Vecellio Segate","doi":"10.1017/asjcl.2023.38","DOIUrl":"https://doi.org/10.1017/asjcl.2023.38","url":null,"abstract":"\u0000 Pursuant to Article 63 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), a state may require other treaty parties to disclose their intellectual property case law ‘of general application’. While most domestic judgments in common law are indeed of general application, civil law systems theoretically employ judgments as reference only. Nevertheless, to value consistency and predictability, the hybridisation of civil law jurisdictions is increasingly leading them to devise special lists of judgments that acquire formal or factual binding status on lower-ranked courts. This trend is particularly evident in China, whose Supreme People's Court's ‘Guiding Cases’ join other specific categories of holdings within ‘Judicial Interpretations’ and further guideline documents that are factually binding domestically. When the United States and the European Union requested, through the World Trade Organization, that China disclose the full range of its case law of general application, China responded that civil law jurisdictions do not issue judgments that are binding beyond the parties. This article examines the limitations and merits of the Chinese stance.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2024-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139596832","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}

引用次数: 0