Asia Pacific Law Review最新文献

{"title":"Are you avoiding me? A reflection on voidness and voidability","authors":"","doi":"10.1080/10192557.2022.2141969","DOIUrl":"https://doi.org/10.1080/10192557.2022.2141969","url":null,"abstract":"ABSTRACT Voidness is an extreme doctrine. Whether a contract or other transaction is or is not void depends upon rules which, although frequently founded in powerful logic or statutory dictat, operate in a rigid way which frequently have little to do with a just or fair outcome between all the persons affected, however hard the law of restitution then seeks to bind up the wounds. By contrast, the equitable principles which regulate the avoidance of a voidable contract by way of rescission are precisely concerned to deliver a just and fair result, particularly to third parties who have acquired rights under the voidable transaction in the meantime. The critical distinction between the two is that the question whether, at strict common law, a contract is or is not void is a mechanical, logical, perhaps philosophical one which has little immediate connection with fairness or proportionality. Restitutionary principles only come into play to clear up the mess once voidness has been recognized or, if in dispute, declared. By contrast, the equitable principles regulating rescission govern whether a merely voidable contract should actually be unwound in the first place, as well as the terms upon which rescission may be ordered. They have fairness and (now) proportionality at their heart.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"1 - 11"},"PeriodicalIF":0.5,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46211097","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":"Comparative studies of available relief for defective aircraft and grounding losses under the legal regimes in China and the U.S.: product tort liability or contractual warranty liability?","authors":"S. Liu, Yun Zhao, Xinhui Wang","doi":"10.1080/10192557.2022.2117489","DOIUrl":"https://doi.org/10.1080/10192557.2022.2117489","url":null,"abstract":"ABSTRACT\u0000 Two crashes of Boeing 737 MAX aircraft in 2019 resulted in the total grounding of all 737 MAX aircraft worldwide. The issue of grounding losses and available relief has attracted widespread attention. From a legal perspective, such losses, which include aircraft devaluation, operating losses, and added costs, constitute pure economic loss. Both Chinese and U.S. law provide for remedies for defects in a sales contract’s subject matter. Under U.S. law, pure economic losses are claimable only by way of a contractual claim. In China, however, current tort law allows for relief for losses other than those arising from aircraft devaluation/losses. Under the Chinese Civil Code, any exemptions stipulated in an aircraft sales contract on grounding losses arising from an aircraft manufacturer’s intentional or grossly negligent acts are invalid. Given the differing regimes in China and the U.S., aviation product liability insurance is an alternative relief channel for grounding losses, for which airlines, under certain circumstances, can directly file a claim with insurance companies. Consequently, characterization of grounding losses as a product tort liability or a contractual warranty liability shall impact on the determination of court jurisdiction, disputing parties and applicable law in the litigation process.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"167 - 191"},"PeriodicalIF":0.5,"publicationDate":"2022-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42697519","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 formulation and determination of expropriation clauses in BITs of Sri Lanka: gaps and prospects","authors":"Niroshika Liyana Muhandiram","doi":"10.1080/10192557.2022.2117488","DOIUrl":"https://doi.org/10.1080/10192557.2022.2117488","url":null,"abstract":"ABSTRACT The expropriation clause is the most frequently challenged provision in Bilateral Investment Treaties (BITs). Differences in the text of treaties and sometimes similar provisions have led the tribunals to offer varying views adopting different tests for determining expropriation. The consequences of such decisions ranged from the denunciation of investment treaty obligations to renewing the investment treaties. Against this backdrop, this article provides a detailed analysis of the expropriation clause in Sri Lanka’s BITs. This paper critically analyses the textual formation of the expropriation clause in all of Sri Lanka’s BITs by mapping each of them and argues that the present formulation of expropriation clause is inadequate for exercising the regulatory power of Sri Lanka to realize its public policy concerns. In light of growing trends in the BIT regime, the article concludes that the expropriation clauses of Sri Lanka’s BITs should be reformulated in a manner balancing investment protection with Sri Lanka’s regulatory power to pursue non-commercial policy concerns.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"146 - 166"},"PeriodicalIF":0.5,"publicationDate":"2022-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43227383","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":"Jumping from mother monkey to bored ape: the value of NFTs from an artist’s and intellectual property perspective","authors":"Jun Chen, Danny Friedmann","doi":"10.1080/10192557.2022.2117485","DOIUrl":"https://doi.org/10.1080/10192557.2022.2117485","url":null,"abstract":"ABSTRACT 2021 was a miraculous year for non-fungible tokens (NFTs), which led to confusion among observers of the phenomenon from both the art industry and regulatory authorities. This article provides a dispassionate analysis of the value of NFTs from an artist’s and intellectual property (IP) perspective. In the longer term, NFTs could improve the fate of artists to authenticate their works, set their conditions and get a resale compensation per transaction. This could happen, once their underlying works can be minted too, so that an NFT entails more than just a self-referential certificate. The article focuses on the US jurisdiction where the NFT phenomenon originated and only touches upon the EU jurisdiction in regard to the droit de suite right and Chinese jurisdiction in regard to the transmutation of NFTs into the speculation-proof ‘digital collectibles’. The introduction provides a primer on the blockchain, NFTs, and the paradox of digital uniqueness and authenticity. Section II addresses the value game of art before and after the emergence of NFTs. Section III investigates the commercial side of NFT art and its new version of Maecenas. Section IV provides an analysis of the rights of the NFT holder versus the rights of the artist from an IP perspective; and focuses on unauthorized use of underlying works and regulation in the US and China. Section V provides the conclusions and contemplates whether NFTs will redefine the future of art and artists: from a showcase of bragging rights to an essential tool for artists to protect their IP rights.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"100 - 122"},"PeriodicalIF":0.5,"publicationDate":"2022-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49361107","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":"Market access for investment and services under the EU–China comprehensive agreement on investment: an appraisal","authors":"Dilini Pathirana, Pascal Kerneis","doi":"10.1080/10192557.2022.2117487","DOIUrl":"https://doi.org/10.1080/10192557.2022.2117487","url":null,"abstract":"ABSTRACT The EU–China Comprehensive Agreement on Investment (CAI or the Agreement) is a politically win-win deal for the EU, driven by the urgency of addressing asymmetries of its investment relationship with China, and China, which wants to safeguard the EU’s openness to its investors. Economically, however, the impact of its market and liberalization offers remains to be seen admit the increased geopolitical tension between the EU and China. Still, Section II of the principally agreed text of the CAI supports the case for rule-based investment liberalization, advocating a level playing field for investors, mainly EU investors in China. At the same time, given its predominant emphasis on market access for investment, the Agreement stands out amongst investment treaties that principally concentrate on investment protection. Similarly, it is unique among Chinese investment treaties that do not (firmly) provide for market access for investment, marking a further step in the EU’s emergent investment treaty-making practice that focuses beyond investment protection.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"123 - 145"},"PeriodicalIF":0.5,"publicationDate":"2022-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44373241","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 concept of proportionality in public law","authors":"P. Lo","doi":"10.1080/10192557.2022.2121994","DOIUrl":"https://doi.org/10.1080/10192557.2022.2121994","url":null,"abstract":"Proportionality analysis is now well recognized in civil law and common law jurisdictions alike as the approach for determining contentious legal issues arising in the public law field. Two sets of such issues readily spring to mind: the legality of an executive decision and the legality of a restriction of a fundamental right. Franco Chung’s book on the concept of proportionality in public law takes the reader in a tour d’horizon of this topic. Adopted from Chung’s doctoral dissertation, it is a grand tour from the conceptual basis for adopting proportionality to the adaptation and application of proportionality by international, supra-national and national courts, particularly the European Court of Justice (CJEU), the European Court of Human Rights (ECtHR), the United Kingdom and Hong Kong. At the conceptual level, Chung explores in Chapters 1 and 2 of the book the justification for the principle of proportionality in holding executive authorities accountable and the methodology of proportionality analysis, including the associated issues of the margin of appreciation that the CJEU and the ECtHR have developed for supra-national adjudication, and the margin of discretion for executive authorities that the CJEU has inspired into the domestic context. At the practical level, Chung uses the jurisprudence of the CJEU and the ECtHR, discussed in Chapters 5 and 6 respectively, to evaluate, in Chapters 7 and 8 respectively, the extent to which the courts of the United Kingdom and Hong Kong have integrated proportionality analysis into their judicial scrutiny of executive action. This represents a ‘functional comparative approach’ of the extent of such integration in the jurisprudence of two domestic jurisdictions. In between, Chung also tackles two related public law issues. In Chapter 3, Chung critiques the Wednesbury standard of review of an administrative decision. In Chapter 4, Chung challenges the bifurcation, in the enforcement of fundamental rights, between civil and political rights and economic, social and cultural rights, and contends that economic, social and cultural rights are both justiciable and ought to be enforceable on separation of powers grounds. These are important issues that need to be addressed, in line with Chung’s stated approach that executive power and its exercise must be subject to judicial scrutiny on a consistent standard, to conform with the rule of law. These two issues (Wednesbury unreasonableness and the justiciability of economic, social and cultural rights) also impact upon his argument about the applicability of proportionality analysis. Proportionality analysis, according to Chung, offers the ‘more structured and intensive approach’ for the omnibus judicial scrutiny of executive action. Full adoption of proportionality analysis in judicial scrutiny of executive action, including over ‘polycentric socio-economic","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"284 - 287"},"PeriodicalIF":0.5,"publicationDate":"2022-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44934062","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":"Comparative analysis of the impact of piracy on International Trade in Korea, Indonesia and Nigeria","authors":"K. Anele","doi":"10.1080/10192557.2022.2117476","DOIUrl":"https://doi.org/10.1080/10192557.2022.2117476","url":null,"abstract":"ABSTRACT\u0000 International trade is crucial to the economic development of states and shipping is pivotal in this transaction. The efficiency of international trade requires secured sea lanes for vessels conveying cargo to traverse from one country to another. These activities are particularly significant to the economies of riparian states. However, piracy adversely implicates these activities. This paper uses a comparative methodology to analyse international trade and piracy in Korea, Indonesia and Nigeria, and argues that though these countries have criminalized piracy, Korea has effectively implemented its antipiracy legislation in the prosecution of pirates in Korean courts. Moreover, unlike Indonesia and Nigeria, Korea has, inter alia, regularly strengthened its piracy institutional regime and entrenched democracy in its governance. Thus, unlike Indonesia and Nigeria, piracy affects Korea through attacks on Korea vessels on international sea lanes, Korean seafarers in foreign-owned vessels and Korean-bound vessels. The paper, therefore, suggests that Indonesia and Nigeria should adopt Korea’s counterpiracy initiatives to curb the spate of piratical attacks off the Indonesian and Nigerian waters.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"12 - 32"},"PeriodicalIF":0.5,"publicationDate":"2022-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43039735","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":"Use of personal information for artificial intelligence learning data under the Personal Information Protection Act: the case of Lee-Luda, an artificial-intelligence chatbot in South Korea","authors":"S. Jeon, Myung Seok Go, Ju-hyun Namgung","doi":"10.1080/10192557.2022.2117483","DOIUrl":"https://doi.org/10.1080/10192557.2022.2117483","url":null,"abstract":"ABSTRACT The data from 10 billion sentences, originally collected for a dating counselling service, were used to develop and operate an AI chatbot, Lee-Luda. However, the chatbot company was fined by the South Korean government for violating the Personal Information Protection Act (PIPA). The case of Lee-Luda is the first case in South Korea that raised the question as to whether the use of personal information for AI learning data falls outside the scope of the original purpose of collection. Although the Lee-Luda is a South Korean case, since the prohibition on using personal information for purposes other than the original purpose of collection is a globally accepted principle, it is expected that the Lee-Luda case will provide meaningful implications not only for South Korea but also for law enforcement in other countries. Similar ethical and legal issues will likely arise in other countries in the foreseeable future because using personal information as learning data for an AI program may conflict with the existing legal principle that requires using personal information only for the original purpose of collection. In this paper, we analyse why the Lee-Luda program’s use of personal information for AI learning data was ruled to violate the Personal Information Protection Act. In addition, we suggest alternative ways for AI services that use personal information as learning data to comply with the law. Therefore, we believe that this paper provides a useful case study for AI operators in other countries about AI programs and personal information protection.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"55 - 72"},"PeriodicalIF":0.5,"publicationDate":"2022-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42712558","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":"Whose data is it anyway? An empirical analysis of online contracting for personal information in China","authors":"Qin Zhou","doi":"10.1080/10192557.2022.2117484","DOIUrl":"https://doi.org/10.1080/10192557.2022.2117484","url":null,"abstract":"ABSTRACT China’s data governance has garnered global attention. An important part of data governance is the protection of personal data. Many believe that the newly issued Personal Information Protection Law (PIPL) can improve the protection of personal information in China. However, the merits of this specialized law rest in part on empirical exams. This paper explores whether the PIPL can solve the issues existing in online contracting for personal information in China. It firstly introduces provisions related to contracting for personal information before the promulgation of the PIPL. It then identifies three critical issues regarding online contracting for personal information in China after reviewing 202 online peer-to-peer lending platforms’ terms of service and privacy policies. These issues include privacy policies that are not readily accessible, the substantial variation between terms of service and privacy policies pertaining to personal information collection, processing, sharing, and protection, and the bias of contractual terms. The paper further discusses whether the PIPL can help address three issues considered in the survey results. It argues that, even though the new law looks promising and may help address some of the issues in online contracting for personal information, its effectiveness ultimately depends on its enforcement and consumers’ reaction to changes in the way firms contract for personal information. Therefore, this paper also calls for more empirical studies on China’s personal information protection.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"73 - 99"},"PeriodicalIF":0.5,"publicationDate":"2022-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47246481","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":"Copyright reformed: the narrative of flexibility and its pitfalls in policy and legislative initiatives (2011–2021)","authors":"Eleonora Rosati","doi":"10.1080/10192557.2022.2117482","DOIUrl":"https://doi.org/10.1080/10192557.2022.2117482","url":null,"abstract":"ABSTRACT This article reviews selected copyright policy and legislation at the international, regional and national levels during the period 2011–2021. It identifies a common and consistent narrative that supported reform initiatives in the surveyed jurisdictions: the modernization of copyright requires greater flexibility so that the undertaking of certain acts without authorization is not unduly restricted and a fairer balance of rights and interests may be, as a result, achieved. Through the analysis of reform initiatives in different areas of copyright and across several different jurisdictions, it is shown how the flexibility narrative has on occasion had the effect of unduly altering the preventive nature of copyright’s exclusive rights, inappropriately referring to exceptions and limitations as rights of users, overlooking relevant legal obligations and introducing undue rigidity within the system of private autonomy. It is ultimately submitted that flexibility should not be conflated with fairness. As such, policy- and law-makers should be wary of superficially framing ongoing and future reform discourse around such a narrative without considering the shortcomings that it has led and might unduly lead to.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"31 1","pages":"33 - 54"},"PeriodicalIF":0.5,"publicationDate":"2022-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47434477","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}