Asian Journal of Comparative Law最新文献

{"title":"Asia and the Drafting of the Universal Declaration of Human Rights by Robin Ramcharan & Bertrand Ramcharan Singapore: Palgrave Macmillan, 2019. 255 pp. Hardcover: €99.99","authors":"Atul Alexander, Smriti Rajhesh","doi":"10.1017/asjcl.2022.6","DOIUrl":"https://doi.org/10.1017/asjcl.2022.6","url":null,"abstract":"Asia and the Drafting of the Universal Declaration of Human Rights is one of the pioneering works on Asian contributions to the drafting of the Universal Declaration of Human Rights (UDHR). Authors Robin Ramcharan and Bertrand Ramcharan detail the Asian values of freedom, tolerance, equality, equity, respect, and diversity in ten chapters, which focus on the drafting of the UDHR, the principles of the UDHR, as well as its implementation and future. The book’s focus is on the drafting stages of the UDHR. The authors’ prime contention is that even after 70 years of the adoption of the UDHR, Asian states continue to repose faith in the UDHR both in governance and development. According to the authors, until 1993, Asian states expounded the relativist argument, which disputed the universality of the Western values of individualism on the basis of the lived experiences of Asian societies. The 1993 Bangkok Declaration was a watershed event for human rights in Asia. The Bangkok Declaration recognised that all human rights were universal and therefore must be interpreted in the context of a dynamic and evolving process of international norms. Moreover, the Bangkok Declaration reaffirmed the commitments laid down in the UDHR. These acknowledgments were contrary to the main narrative of Third-World scholars, who perceived the universal nature of human rights as an attempt to impose western practices on Asian countries. The book discusses Asian approaches to the drafting of the UDHR. The authors point out that, whereas the Western drafters preferred a non-binding instrument, the Asian drafters called for a solid, binding legal instrument. Asian delegates argued for self-determination and emancipation (Romulo), non-discrimination and gender equality (Hansa Mehta), and the freedom of religion (Zafarullah Khan). The Chinese delegate, PC Chang, pointed out that the Western thinkers on human rights had been influenced by Chinese values. The book also describes the Asian vision for the UDHR, which sought to bring into focus the ‘new humanism’ of the declaration and its universal values. The authors demonstrate that Asian values influenced concepts in the UDHR, such as the right of self-determination, equality and justice. The authors also provide a comprehensive account of the role of Asian constitutions in the formulation of the UDHR. In this respect, the authors could have delved more into the subsequent developments in terms of Asian contribution in interpreting UDHR, which would have rendered a complete picture of contemporary Asian practice. Having said that, the authors discuss the inefficacy of the regional and national protection systems with the growing human rights violations across countries, arguing that a strong state, the rule of law, and democratic accountability are fundamental for implementing the principles of UDHR.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43984962","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":"Corporate Governance In Russian State-Owned Enterprises: Real Or Surreal?","authors":"Roza Nurgozhayeva","doi":"10.1017/asjcl.2022.3","DOIUrl":"https://doi.org/10.1017/asjcl.2022.3","url":null,"abstract":"Abstract The narrative that defines privatisation, corporatisation, and the separation of ownership and regulatory functions as the key prerequisites for a successful state-owned enterprises’ (SOE) governance structure represents the literature's leading approach. This approach has been embedded in national laws and policies across many countries. Nonetheless, some legal scholars have scrutinised and questioned this single-minded perspective, emphasising the impact of existing institutional conditions and calling for an alternative understanding of corporate governance dynamics in different SOEs. Notwithstanding a vigorous debate on SOEs, it almost exclusively focuses on China, while Russia, being another large state-driven economy, has been missing. This article fills this gap and offers a comparative and critical perspective on the state ownership system in Russia. The analysis of Russian SOEs reveals classic governance and incentive problems attributable to state ownership. However, the question is how despite close affiliation to the State and high transaction costs caused by state interference, Russian SOEs have gained a substantial international market presence. This article answers this paradox.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-04-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49453753","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 Governance of Charities in China","authors":"Hu Jing","doi":"10.1017/asjcl.2021.18","DOIUrl":"https://doi.org/10.1017/asjcl.2021.18","url":null,"abstract":"Abstract The passage of the Charity Law signals the beginning of a new era in the legal regulation of charities in China. Its provisions reflect the increasing autonomy of charitable actors in exercising their management rights and the reduced control of the government over the use of charity resources. The shift of the state's attitude towards its relationship with the charitable sector brings new insights into the governance of charities in China. This article highlights the public-private law hybrid nature of the new legislative arrangement for charities and outlines the policy dynamics underlying its operation and development. It argues that the hybrid nature of the Charity Law was intentionally created by legislators, and the design of the governance framework for charities should therefore be responsive to this new legislative arrangement. Following on this reasoning, the article explores the implications that analysis of the hybrid nature of the Charity Law has for the governance of charities in China. It identifies the parties relevant to charity governance, the way in which they interact, and the governance principles that can be applied to charities.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44546903","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":"Governing Democracy Outside the Law: India's Election Commission and the Challenge of Accountability","authors":"M. A. Bhat","doi":"10.1017/asjcl.2021.30","DOIUrl":"https://doi.org/10.1017/asjcl.2021.30","url":null,"abstract":"Abstract Comparative law and politics literature widely recognizes the role of election management bodies (EMBs) in securing the well-being of constitutional democracies. Scholars have noted the political desirability of both independence and accountability of these institutions. But striking balance between these two values is easier said than done. This Article highlights the dilemma of accountability by focusing on India's Election Commission (ECI) as a paradigmatic version of a powerful EMB. Scholars of Indian politics have long noted the institution's widening powers – often beyond the original constitutional intent or parliamentary legislation – over the last few decades. This, they argue, has impaired its institutional accountability. This Article adopts a fresh perspective on the ECI's expansive functions, and the attendant concerns these raise. It argues that the ECI regulates the electoral process not through what we may ordinarily identify as the law. The most compelling and consequential of its functions are through extra-legal modalities of regulation. Drawing from recent scholarship on regulation, the Article argues that the ECI shapes the electoral environment and behaviour through non-legal modalities of architecture, nudge and notice-based regulations. Much like the other fields where they are deployed, these extra-legal modalities exhibit unique, and in many ways, inherent limitations with respect to transparency. It is thus this character of the ECI's functions – rather than only their widening breadth – that poses the most significant challenge for democratic accountability. Based on this assessment, the Article notes that for powerful EMBs like the ECI, accountability in the form of on-going operational accountability is inherently limited in compelling ways. This increases the stakes for accountability of these institutions through other means, particularly by securing their constitution, composition and tenure.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47324696","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":"ACL volume 16 issue S1 Cover and Back matter","authors":"","doi":"10.1017/asjcl.2021.38","DOIUrl":"https://doi.org/10.1017/asjcl.2021.38","url":null,"abstract":"","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47539876","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":"Canaries or Colonials? The Reduced Prominence of the ‘Overseas Judges’ on Hong Kong's Court of Final Appeal","authors":"Stuart Hargreaves","doi":"10.1017/asjcl.2021.15","DOIUrl":"https://doi.org/10.1017/asjcl.2021.15","url":null,"abstract":"Abstract Typically one member of a sitting panel of Hong Kong's Court of Final Appeal is a senior jurist drawn from another common law jurisdiction. In the Court's early years, these ‘overseas judges’ were responsible for writing approximately one quarter of the lead opinions across a vast range of cases. This article demonstrates, however, that this practice has changed. The overseas judges now write a smaller share of lead opinions and no longer write lead opinions related to issues of fundamental human rights or the relationship between Hong Kong and the rest of China. This article suggests this change has been made for good reason. Though valid questions about the legitimacy of the role of the overseas judges can be made, they also continue to perform a valuable communicative role regarding the status of Hong Kong's judicial independence under the ‘one country, two systems’ framework. A recent rise in attacks on overseas and other ‘foreign’ judges in Hong Kong can be understood as part of a broader project that seeks to constrain the role of the independent judiciary. By continuing to invite overseas judges to sit on the Court of Final Appeal but reducing their public prominence, the Court has sought not only to reduce avenues for attacks on the legitimacy of particular decisions, but to protect the autonomy and independence of the judiciary more broadly.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42574808","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":"Right to Life and Capital Punishment in Transnational Judicial Dialogue","authors":"Jimmy Chia-Shin Hsu","doi":"10.1017/asjcl.2021.22","DOIUrl":"https://doi.org/10.1017/asjcl.2021.22","url":null,"abstract":"Abstract In this article, I bring the constitutional jurisprudence of major East Asian courts into reconstructive dialogue with that of the United States, South Africa, and several former Soviet-bloc countries, on per se review of capital punishment. This fills in a gap in the literature, which has failed to reflect new developments in Asia. Besides analysing various review approaches, I extrapolate recurrent analytical issues and reconstruct dialogues among these court decisions. Moreover, I place the analysis in historical perspective by periodising the jurisprudential trajectory of the right to life. The contextualised reconstructive dialogues offer multilayered understanding of my central analytical argument: for any court that may conduct per se review of capital punishment in the future, the highly influential South African Makwanyane case does not settle the lesson. The transnational debate has been kept open by the Korean Constitutional Court's decisions, as well as retrospectively by the US cases of Furman and Gregg. This argument has two major points. First, the crucial part of the reasoning in Makwanyane, namely that capital punishment cannot be proven to pass the necessity test under the proportionality review, is analytically inconclusive. The Korean Constitutional Court's decision offers a direct contrast to this point. Second, the exercise of proportionality review of the Makwanyane Court does not attest to the neutrality and objectivity of proportionality review. Rather, what is really dispositive of the outcome are certain value choices inhering in per se review of capital punishment.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43982228","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":"Democratic Constitutions, Electoral Commissions and Legitimacy – The Example of Australia","authors":"Paul Kildea, S. Murray","doi":"10.1017/asjcl.2021.35","DOIUrl":"https://doi.org/10.1017/asjcl.2021.35","url":null,"abstract":"Abstract This article explores the structure, management and institutional design of commissions in Australia and unpacks how these institutions operate within the Australian political landscape. Part 1 looks at the structure of Australian electoral commissions and how they maintain structural independence. Part 2 seeks to better understand Australian electoral institutions, through an examination of how they have manoeuvred administrative and political challenges and emergencies when they have arisen. Finally, Part 3 employs a neo-institutionalist lens to focus on the internal and external dynamics that assist or hinder the operation of commissions in Australia and how legitimacy and institutional trust can be created, maintained and harmed by electoral agencies in the Australian context.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46323968","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":"Conceptualising A Role for The Common Law in Environmental Protection in Singapore","authors":"Kenny Chng","doi":"10.1017/asjcl.2021.16","DOIUrl":"https://doi.org/10.1017/asjcl.2021.16","url":null,"abstract":"Abstract In Singapore, the key institutions driving environmental protection are the legislature and the executive. The judiciary's role in environmental protection has thus far been relatively minor. By drawing upon environmental law theory and comparative analysis of other common law jurisdictions, this article explores avenues through which the common law can be engaged more meaningfully to further environmental protection in Singapore. A conceptualisation of environmental law as directed at furthering the rule of law by promoting carefully-considered and participatory environmental governance will be suggested as a fruitful way forward for thinking about the role of the common law in environmental protection. Drawing upon this theory, as well as the experience of other common law jurisdictions, the article proposes a set of concrete steps by which greater common law engagement with environmental protection in Singapore can be achieved.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42168255","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":"Comparative Perspectives on Specialised Intellectual Property Courts: Understanding Japan's Intellectual Property High Court Through the Lens of the US Federal Circuit","authors":"D. Tilt","doi":"10.1017/asjcl.2021.17","DOIUrl":"https://doi.org/10.1017/asjcl.2021.17","url":null,"abstract":"Abstract This article develops a comparative analysis of specialised courts in intellectual property across both Japan and the US. This article considers the IPHC through the lens of the CAFC to investigate the differing institutional impact and illuminate the most pressing issues in Japanese patent law that have emerged as a result of transplanting this specialised court. Rather than a more conventional analysis of the implementation of these institutions, this article focuses instead on a comparative investigation of the soft law elements that have significantly influenced their effectiveness, providing a different insight on the relationship between these institutions and their broader contextual impact. The main findings of the comparative analysis are found in two primary areas – the impact of specialised courts on the consistency and reliability of patent law; and secondly, recommendations regarding the potential reform of Japanese patent law as it relates to the role of the IPHC. In terms of reform, this article analyzes the double-track problem in Japanese patent law and the key role that, with some modification to the court/patent office relationship, the IPHC could play in addressing this issue with a more fundamental realignment of patent law with its Continental history.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46289088","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}