Asia Pacific Law Review最新文献

{"title":"Labour and trade in Asia Pacific: origin, development, and prospects","authors":"Yue Yan","doi":"10.1080/10192557.2023.2216416","DOIUrl":"https://doi.org/10.1080/10192557.2023.2216416","url":null,"abstract":"ABSTRACT Labour rights protection has been an important issue in international trade law, and its significance has gained momentum in recent times. Historically, countries from the Global North and the Global South have advocated opposing positions on a trade-labour linkage in the World Trade Organization system. Despite this long debate, one can observe a rise of labour clauses in bilateral and regional trade agreements. Previous literature has primarily focused on the United States (US) and the European Union (EU) perspectives, neglecting the practices and policies of Asia-Pacific countries. With the emergence of New Asian Regionalism, it is crucial to investigate how Asia-Pacific economies are promoting labour rights through free trade agreements (FTAs). This paper first presents an empirical study of labour clauses in Asia-Pacific FTAs, analysing their number, trend, concentration, and distribution. It finds that there is an increasing number of Asia-Pacific FTAs where labour clauses are inserted and that these provisions have presented a great diversity. However, in terms of substance, the latest legal framework of labour protection in Asia-Pacific FTAs is heavily influenced by the labour policies of the EU, while intra-Asia-Pacific trade agreements display inconsistent practices. This paper also identifies potential complaints that Asia-Pacific countries may face while enforcing labour commitments in FTAs, illustrated by the recent EU-Korea dispute. Overall, this paper provides a comprehensive understanding of the current state of labour rights protection in Asia-Pacific FTAs and highlights the need for further research to investigate the practices and policies of individual countries in the region.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"576 - 595"},"PeriodicalIF":0.5,"publicationDate":"2023-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42109002","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International investment law regionalism in Asia: the tale of South Asia","authors":"Prabhash Ranjan","doi":"10.1080/10192557.2023.2216059","DOIUrl":"https://doi.org/10.1080/10192557.2023.2216059","url":null,"abstract":"ABSTRACT International investment law regionalism in the ASEAN region has been a spectacular success. It presents what can be described as ‘third regionalism’. This has prompted scholars to present the ASEAN success model representing the whole of Asia. But there are multiple ‘Asias’. Large swathes of Asia have reluctantly pursued regionalism. One such region is South Asia, whose experience is very different from that of the ASEAN region. The South Asian region has failed in achieving any significant economic integration including investment integration. The most prominent South Asian institution and vehicle for regionalism, SAARC, which was meant to facilitate investment integration, has miserably failed. There are hopes from another institution, BIMSTEC, to deliver on this front, but that would depend on whether South Asian countries value regionalism or not. There is much that South Asia can learn from ASEAN’s experience and imbibe the ‘ASEAN Consensus’ that marks the wave of ‘third regionalism’ based on incrementalism and flexibility.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"514 - 534"},"PeriodicalIF":0.5,"publicationDate":"2023-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48802909","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"From Marx to Market: a legal and empirical analysis of the maritime labour convention in China","authors":"L. Zhao, Pengfei Zhang, Minghua Zhao, Gaochao He","doi":"10.1080/10192557.2023.2194755","DOIUrl":"https://doi.org/10.1080/10192557.2023.2194755","url":null,"abstract":"ABSTRACT\u0000 Shipping is the ‘invisible’ backbone that keeps the global economy moving, even during the COVID-19 crisis. This article examines the extent to which seafarers have access to satisfactory shore-based welfare services/facilities (SBWS) that meet global regulatory standards under the Maritime Labour Convention (MLC). In particular, this article provides an empirical analysis of the implementation of relevant laws and MLC in European countries and China. While China has become a dominant player in world trade in recent years, the existing literature (especially in English) pays little attention to China’s implementation of MLC provisions, including SBWS provisions. To bridge this research gap, this article critically evaluates SBWS in practice in China, using manually collected data, and compares China’s arrangements with those of European countries. After exploring the different models adopted by Western countries and China, this article evaluates key SBWS providers in China through various lenses – past, present, and future initiatives.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"329 - 357"},"PeriodicalIF":0.5,"publicationDate":"2023-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45701623","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The kite on a string: state power and the Chinese IPO mechanism on the path to liberalization","authors":"Shunyu Chi","doi":"10.1080/10192557.2023.2181774","DOIUrl":"https://doi.org/10.1080/10192557.2023.2181774","url":null,"abstract":"ABSTRACT The Chinese stock market has introduced a registration-based IPO mechanism, showing the state’s determination to further liberalize the stock market. However, during its implementation, administrative intervention practices were frequently observed throughout the entire IPO process. This article argues that such practice is expected to persist independent of legal enforcement mechanisms improvement, due to the state’s multiple roles in the market. The state is the exclusive supplier of the IPO mechanism as well as the regulator, which responds to a hybrid demand of the market and the state. The state needs administrative interreference to meet its demands to give preferential treatments to politically connected firms, to contain investment risks in market turbulences, and to use the IPO market as a tool to implement its strategic polices. At the meanwhile, a more predictable and transparent IPO mechanism is demanded. Therefore, the equilibrium interaction between an active government and a more liberalized market should be found. In this regard, the ongoing development of the Chinese IPO mechanism is on a viable track.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"308 - 328"},"PeriodicalIF":0.5,"publicationDate":"2023-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46300464","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Investment screening put to the test of the Covid-19 Pandemic: typology, legality and externality","authors":"Cheng Bian","doi":"10.1080/10192557.2023.2181784","DOIUrl":"https://doi.org/10.1080/10192557.2023.2181784","url":null,"abstract":"ABSTRACT The Covid-19 Pandemic has introduced or revived a concern in the foreign direct investment (FDI) context that was less emphasized pre-Pandemic, namely public health. This article discusses the typology of Covid-19 related FDI screening, expounds on the legality of these measures in the context of both national investment law and international investment law, and identifies the potential negative externalities to foreign investors and to the host state. Newly promulgated FDI screening measures intensify governmental intervention and scrutiny in cross-border takeovers in the health sector and beyond to protect domestic companies from being taken over by predatory foreign buyers. FDI screening during Covid-19 has become more comprehensive and inclusive in its scope than what was already considered a system capable of excessive and arbitrary use pre-Pandemic. FDI screening on grounds of public health may be justified for its legality under both national and international investment law, nonetheless certain conditions need to be satisfied. The negative externality of FDI screening during Covid-19 pertains to a concern that, if applied aggressively in practice, FDI screening might potentially result in a deterrence effect on the cross-border capital flow that is much needed for market revival after a global economic shutdown.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"380 - 401"},"PeriodicalIF":0.5,"publicationDate":"2023-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59888235","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Cooperative federalism with Chinese characteristics","authors":"Yan-Ye Lin","doi":"10.1080/10192557.2023.2181759","DOIUrl":"https://doi.org/10.1080/10192557.2023.2181759","url":null,"abstract":"ABSTRACT\u0000 In China, the dynamics of the central–local relations vary significantly within legislative, executive, and judicial branches. In the field of law enforcement oversight, signs of cooperative federalism have emerged, presenting a drastic contrast to the unitary system. The lacking of a legal basis to directly supervise local governments forces the National People’s Congress Standing Committee to actively seek cooperation from local governments. Three different approaches have been applied by the top legislature to achieve the goal. Easing the resistance from local governments through delegating the oversight power represents a move of compromise. Removing hurdles affecting law enforcement, reducing law enforcement cost, and soliciting suggestions on statutory revision from localities is a form of reciprocity. Eliminating local protectionism, enhancing cross-regional law enforcement, and sharing law enforcement experiences is an act of altruism.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"289 - 307"},"PeriodicalIF":0.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49058560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The small island states in the Indo-Pacific: sovereignty lost?","authors":"Ryan Mitra, Sanskriti Sanghi","doi":"10.1080/10192557.2023.2181806","DOIUrl":"https://doi.org/10.1080/10192557.2023.2181806","url":null,"abstract":"ABSTRACT The consequences of climate change are being experienced asymmetrically, with States which were exploited during the colonial era disproportionately bearing the costs. Among these States, the case of the Small Island Developing States (SIDS) is haunting due to their increasing uninhabitability amidst rising sea-levels. This article will interrogate the crystallized Western notion of Statehood and urge a vision of its four pillars as interconnected. By training a postcolonial lens, it will then exemplify the ways in which international law and policy has been constructed and wielded so as to invert the interests of the SIDS, thereby necessitating the proposed shift in the understanding of Statehood. The article will thereafter analyse the array of options available to the SIDS as recourse, with the endeavour of initiating a dialogue that is mindful of their particularities and trajectories.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"428 - 450"},"PeriodicalIF":0.5,"publicationDate":"2023-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43520923","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Financial Action Task Force entrapped within hypocrisy and rhetoric: using India as a case study","authors":"Ishita Chakrabarty","doi":"10.1080/10192557.2023.2181757","DOIUrl":"https://doi.org/10.1080/10192557.2023.2181757","url":null,"abstract":"ABSTRACT This paper discusses the FATF and its relationship with other normative frameworks (security, human rights), and actors (states, private institutions, civil society). It explains how the FATF, was appropriated willingly by states, beyond the peer-pressure, or financial repercussions explanations. It finds that one of these reasons was that states could use them to their own benefit through ‘rhetorical adaptation’. At the same time, it explains that the FATF’s frameworks go beyond merely being ‘vague and broad’; they are erroneous in terms of their methodology and contradict certain human rights such as the freedom of association, and the rights to due procedure. To illustrate this, it takes the case of India which has been coerced by the FATF to amend its security legislations to comply with its standards, but which has also instrumentally used these standards against minorities and political dissenters – particularly those that have organized themselves into some form of association (a segment specifically identified by the FATF as being vulnerable to money laundering and financing terrorism). Despite drawing attention to these issues, the FATF continues to operate with empty promises, and the standards continue to be supported and endorsed by the UN mechanisms, in what would otherwise be ‘hypocrisy’. This is because the FATF and the UN too, operate within institutional and material limitations – in this case, that its primary members are states or (in fact) representatives of the states, for whom security and political expediency stand at the forefront. Under these circumstances, the organizational doublespeak is but necessary.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"402 - 427"},"PeriodicalIF":0.5,"publicationDate":"2023-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44071570","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Human Rights in Eastern Civilisations: Some Reflections of a Former UN Special Rapporteur","authors":"D. Desierto","doi":"10.1080/10192557.2023.2181842","DOIUrl":"https://doi.org/10.1080/10192557.2023.2181842","url":null,"abstract":"lished in recent years. It gives a clear picture of how the CCP has failed to institutionalize, and how reforms have caused the Party structure to atrophy. It will be of interest first and foremost to political scientists seeking to understand how power actually works in China, and how efforts to impose binding norms on the Party elite have largely failed. It will also be of interest to legal scholars seeking to understand why the Party has largely turned away from legal reform, and why a renewed emphasis on building up state legal institutions seems highly unlikely during Xi’s tenure.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"645 - 649"},"PeriodicalIF":0.5,"publicationDate":"2023-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45040528","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rethinking Chinese Politics","authors":"T. Kellogg","doi":"10.1080/10192557.2023.2181826","DOIUrl":"https://doi.org/10.1080/10192557.2023.2181826","url":null,"abstract":"The Chinese Communist Party’s 20th Party Congress, held in October 2022, was seen by many observers as a norm-smashing event. As expected, Party Secretary Xi Jinping broke with prior precedent and was appointed to a third five-year term. Other seemingly well-established norms were broken as well: the age 68 retirement rule was suspended for Politburo members Wang Yi, 69, and Zhang Youxia, 72, as well as for Xi himself, also 69. The informal norm that those who hadn’t reached retirement age would hold onto their Politburo seats was also dispensed with, which meant that key figures like Wang Yang were unceremoniously shoved into early retirement. Premier Li Keqiang’s departure signalled the end of the prior norm of balancing among groups or factions on the Standing Committee – Li was a member of the Central Party School faction, which had served as the path to power for many senior leaders prior to Xi’s tenure. Perhaps most crucially, the lack of any relatively young officials on the Politburo Standing Committee (PSC) meant that Xi had declined to anoint a successor. (Hu Jintao and Jiang Zemin had been forced to do so, in both cases years before they stepped down.) The results of the Party Congress made clear Xi’s intention to rule China indefinitely, perhaps for life. Only Chairman Mao, alone among PRC leaders, has been able to accomplish that feat. But are Xi’s appointment to a third term, and his moves to stock the Politburo with loyalists, in fact unprecedented? Or would the outcome of the 20th Party Congress be better described as a reversion to the CCP’s historical pattern? In his important new book, Rethinking Chinese Politics, Joseph Fewsmith argues that the extent of institutionalization of elite Chinese politics has been overstated, and that the norms governing promotions, transfer of power, and powersharing that emerged over the past forty years were in fact quite weak. A better account of Chinese politics would focus instead on the efforts of senior leaders to hold onto as much power as possible, and on the CCP’s desire to preserve the flexibility and responsiveness that are a key part of its Leninist structure. To be sure, nascent norms did emerge in the 1980s, and have played a role in shaping elite politics since then. After the calamity of the Cultural Revolution, the CCP leadership embraced reforms that would, they hoped, turn the page on a disastrous decade. Importantly, however, these reforms were meant to strengthen the Party’s hold on power. They were simply not meant to turn China into a multi-party democracy, or to turn the Party-state into a Weberian-style technocratic bureaucracy. At first glance, the Deng-era set of reforms seemingly worked: Jiang Zemin was elevated to the chairmanship of the CCP in the aftermath of the 1989 Tiananmen Square crackdown, and went on to serve two terms as Party leader, from 1992 to 2002. His successor, Hu Jintao, was elevated to the Politburo Standing Committee (PSC) in 1992, allowing him to ","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"641 - 645"},"PeriodicalIF":0.5,"publicationDate":"2023-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59888240","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}