Asia Pacific Law Review最新文献

{"title":"Restrictive ISDS clauses under Chinese BITs: interpretations and implications for China","authors":"Juan Du","doi":"10.1080/10192557.2022.2085411","DOIUrl":"https://doi.org/10.1080/10192557.2022.2085411","url":null,"abstract":"ABSTRACT The majority of investment arbitration cases based on Chinese BITs have involved restrictive ISDS clauses, the interpretation of such clauses diverged in arbitration practice. Given the large presence of the restrictive ISDS clauses in Chinese BITs, it will certainly impede Chinese investors to seek jurisdiction of international investment arbitration. In the meantime, the interpretation of such clauses by tribunals will continue to occur frequently, which is an uncertain factor for both the Chinese government and its overseas investors. As China’s dual role in two-way investment, China needs to consider the protection of both the host state and its investors. To deal with the challenges from the predominance of the restrictive ISDS clauses in Chinese BITs, China seems to be updating its restrictive BITs from a multilateral level, and the Chinese investors may circumvent the restrictive BITs by relying on investment contracts or host state’s national laws to seek international arbitration.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"382 - 400"},"PeriodicalIF":0.5,"publicationDate":"2022-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48209376","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":"Avoid opening up the Pandora’s box: treaty parallelism, termination and survival in the reform of the China–EU investment regime","authors":"Keer Huang, Tong Qi","doi":"10.1080/10192557.2022.2085415","DOIUrl":"https://doi.org/10.1080/10192557.2022.2085415","url":null,"abstract":"ABSTRACT The Draft CAI leaves issues pertaining to investment protection and Investor-State Dispute Settlement under future discussion, while acknowledging the effectiveness of previous BITs between China and 26 EU Member States for at least two years after the CAI has been ratified. It is of great significance to clarify the treaty relationships within the China–EU investment regime, which will heavily affect the efforts on investment treaty modernization, and profoundly impact the international investment policy landscape. In the context of treaty parallelism, the Pandora’s box, with multiple issues including but not limited to normative overlaps and contradictions, jurisdiction overlaps and contradictions, might be opened up. Moreover, survival clauses in the previous BITs and the transitional clause in the CAI need to be taken into account to ensure an effective and smooth transition from the previous BITs to the modernized CAI. By examining relevant options for addressing problems regarding treaty parallelism, treaty termination and treaty survival, this paper offers potential choices for the reform of the China–EU investment regime.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"367 - 381"},"PeriodicalIF":0.5,"publicationDate":"2022-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47302511","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":"Digital currencies and great power rivalry: China as a disseminator in the digital age","authors":"J. Slawotsky","doi":"10.1080/10192557.2022.2085412","DOIUrl":"https://doi.org/10.1080/10192557.2022.2085412","url":null,"abstract":"ABSTRACT The United States reign as global hegemon has been empowered by massive structural power over key international economic, technological and ideological networks. As chief disseminator during the era of emerging computer technology and communications, the U.S. became a rules-maker, empowered to shape international governance in its favour. However, a new era of digitalized assets, transactions and networks will provide an opportunity for Central Bank Digital Currencies (‘CBDCs’) to constitute the technological-financial-business bones of the developing digitalized global economy. CBDCs will exert massive influence on the international economic, technological and ideological orders. Moreover, all of these impacts are inextricably connected to the hegemonic rivalry between the United States and China. Astutely, China has been developing the digital Yuan and is the first major economy to distribute a CBDC. If China's CBDC successfully migrates to external usage, and depending upon the degree of crucial Chinese domestic reforms, the digital Yuan may offer an opportunity for China to be a disseminator in the digital age. Chinese influence over global networks and governance frameworks would vest China with advantageous structural power in the economic, technological and ideological spheres – the fulcrums of the U.S.-China hegemonic rivalry.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"242 - 264"},"PeriodicalIF":0.5,"publicationDate":"2022-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45930855","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":"New Asian regionalism in international economic law","authors":"Fang Meng Mandy","doi":"10.1080/10192557.2022.2073928","DOIUrl":"https://doi.org/10.1080/10192557.2022.2073928","url":null,"abstract":"The economic dynamics of Asian countries have undergone a remarkable transformation over recent decades, culminating in unprecedented levels of growth and development. More recently, Asia has also become more connected and economically integrated through the formation of stronger trade and investment linkages. At a time when multilateralism is subject to stalemate or even backlash, Asian regionalism remains on an upwards trajectory. Asia’s rapid growth and integration make it an intriguing region to study, and it is globally important to focus on the legal regimes based on which the region’s trade and investment ties are proliferating. Some of the most pertinent questions are: Is Asian regionalism qualitatively different from previous waves of regionalism? What are the endogenous and exogenous influences that have shaped Asian regionalism? Will Asian countries take the lead in devising a new approach to economic integration for the Global South? How do we assess the significance of Asian regionalism and its impact on the multilateral trading system? In his detailed and ambitious book, Professor Pasha L. Hsieh, Associate Professor at the Singapore Management University, provides sharp observations and rich interdisciplinary analysis to answer the questions raised above. In doing so, Hsieh reveals his deft understanding of the region and its relationship with international economic law through the depth of his insightful ideas, thought-provoking arguments, and astute and pragmatic proposals. At the outset, Hsieh introduces Asian regionalism as a paradigm shift in international economic law, which he describes as representing a new form of regionalism that he calls ‘Third Regionalism’ and the ‘New Regional Economic Order’ (NREO). Here, through detailed research, Hsieh points to the increasing number of countries in the region using their rising economic weight to generate normative changes in new trade dynamics. Given the changing status of Asian countries and regionalism in the twenty-first century, Hsieh argues that a new framework to comprehend these dynamics and their nuances is needed if not overdue. Revisiting existing scholarship on regionalism and international relations theories, Hsieh establishes the NREO as a new normative framework better equipped to take fundamental economic and geopolitical changes into consideration. Having set out the book’s theoretical scope, Hsieh moves on to provide a vivid portrait of the legalization process of the Association of Southeast Asian Nations (ASEAN) framework. The transformation of ASEAN from an apolitically oriented regime to a legal one, imposing both soft-law and hard-law obligations, has rendered it an indispensable pillar of new Asian regionalism. Hsieh’s argument that pragmatic incrementalism as embodied in ASEAN could serve as an(admittedly imperfect) model for developing countries is persuasive, as is his reasoning for why ASEAN does not, cannot, and does not want to simply replicate what has","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"431 - 433"},"PeriodicalIF":0.5,"publicationDate":"2022-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46186128","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 reform of deposit insurance in China: how China evolves from implicit deposit insurance to explicit deposit insurance","authors":"Ningyao Ye","doi":"10.1080/10192557.2022.2073909","DOIUrl":"https://doi.org/10.1080/10192557.2022.2073909","url":null,"abstract":"ABSTRACT Since the global financial crisis (GFC), deposit insurance, as an essential part of the financial safety net, has been significantly developed to be an effective mechanism to contain bank runs and market fears. Unlike many advanced markets having deposit insurance for years, China has just launched its first explicit deposit insurance scheme, effective from 1st May 2015, remarking that the Chinese financial safety net has been primarily completed. This article not only provides a retrospective analysis of the development of deposit insurance in China, but also comprehensively examines the features of the first Chinese deposit insurance scheme with reference to international principles and standards. Through the analysis, this research tries to explore the features of the first Chinese deposit insurance scheme and argues that the Chinese deposit insurance scheme has to be well designed in consideration of the country specifics.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"265 - 286"},"PeriodicalIF":0.5,"publicationDate":"2022-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48826863","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 Chinese-style securities class action mechanism for investor protection: context, content, comparison and consequence","authors":"Fa Chen","doi":"10.1080/10192557.2022.2073907","DOIUrl":"https://doi.org/10.1080/10192557.2022.2073907","url":null,"abstract":"ABSTRACT In December 2019, the modification of the Securities Law of China created a Chinese-style securities class action mechanism, namely the special securities representative action (SSRA) mechanism, which provided investors with a new route to private enforcement by enabling them to launch claims against wrongdoers in a single lawsuit. On 12 November 2021, the court ruled the spotlight-catching first SSRA, i.e. the Kangmei case, opening the chapter of the use of the SSRA mechanism in practice. This article conducts a close examination of the SSRA mechanism, discussing the context of introducing this mechanism and its functioning, comparing it with the US securities class action mechanism as a global counterpart and looking into the effectiveness of the SSRA mechanism for investor protection in practice. This article finds that the SSRA mechanism is carefully designed to solve the problem that most Chinese investors lack the incentive and capacity of litigation engagement, which has been proven effective for investor protection in the Kangmei case.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"287 - 308"},"PeriodicalIF":0.5,"publicationDate":"2022-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44962536","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":"Divorce in China: institutional constraints and gendered outcomes","authors":"Jue Jiang","doi":"10.1080/10192557.2022.2073930","DOIUrl":"https://doi.org/10.1080/10192557.2022.2073930","url":null,"abstract":"research: divorce litigation. Drawing upon extensive empirical data, Prof. He presents a lively and detailed picture of how divorce cases are handled by Chinese courts amidst the latest legal and political reforms on protecting women ’ s rights, as he carefully analyzes how institutional constraints have had an impact on the practice of judges, leading to gendered outcomes in divorce cases. The analytical framework for understanding divorce litigation carefully articulated by Prof. He o ff ers an important lens for making sense of the relationships between law, gender and power in China. 2","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"433 - 437"},"PeriodicalIF":0.5,"publicationDate":"2022-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43369631","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":"Sustainability and corporate mechanisms in Asia","authors":"W. Wan","doi":"10.1080/10192557.2022.2073926","DOIUrl":"https://doi.org/10.1080/10192557.2022.2073926","url":null,"abstract":"member of the Shanghai-based New Development Bank (NDB) (established in 2014) and the Beijing-based Asian Infrastructure Investment Bank (AIIB) (established in 2014). In 2016, India created a new think tank, the Center for Research in International Trade (CRIT), which supports India’s WTO, regional, and bilateral trade work; that work includes deepening regional ties on trade policy. India’s ‘Act East’ policy, which was announced in 2014, similarly seeks to advance regional connectivity. For China, several institutions supporting China’s Belt and Road Initiative have been established over the past several years, including, in the area of commercial dispute resolution, the International Commercial Dispute Prevention and Settlement Organization (located in Beijing) and the China International Commercial Court (tribunals located in Shenzhen and Xi’an). China also has ratified the ASEAN-led Regional Comprehensive Economic Partnership (RCEP) agreement, which creates ‘the largest free trade bloc in the world, covering around 30 percent of global GDP’ (p. 244); the RCEP also advances institution building by establishing an RCEP Secretariat. The world trading system is being reshaped in significant part by emerging powers like Brazil, India and China, with that work primarily occurring in the global South. With respect to emerging powers and the world trading system, the road to Geneva has been significant, but the road from Geneva is equally noteworthy. Shaffer observes that for ‘trade liberals, this book has the arc of a tragedy... As [emerging powers] rose in economic importance and built legal capacity to wield WTO law to defend and advance their positions, the United States became disenchanted with the legal order it had created’ (p. 316). But such an arc also can be considered from a different perspective: a more dispersed world trading system can allow for reconsideration of core policy priorities and respond more effectively to regional norms, practices and expectations. Shaffer’s book is a remarkable achievement: more than two decades of work and more than a few hundred interviews supporting rigorous analysis of how emerging powers have developed trade law capacity to engage with the WTO and are now redirecting that capacity in many new contexts and locations, with such dispersion of trade-related rulemaking and institution building being further accelerated by the US retreat from the WTO. The contribution of Emerging Powers and the World Trading System to our understanding of global trade in the twenty-first century will be enduring and valuable.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"426 - 430"},"PeriodicalIF":0.5,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42703894","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":"Emerging powers and the world trading system: The past and future of international economic law","authors":"M. Feldman","doi":"10.1080/10192557.2022.2073924","DOIUrl":"https://doi.org/10.1080/10192557.2022.2073924","url":null,"abstract":"","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"424 - 426"},"PeriodicalIF":0.5,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47194792","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 relevance of purpose in constitutional equal protection challenges to executive action","authors":"Kenny Chng","doi":"10.1080/10192557.2022.2073708","DOIUrl":"https://doi.org/10.1080/10192557.2022.2073708","url":null,"abstract":"ABSTRACT Written constitutions often include generalized guarantees of equal protection which imply a proscription on unconstitutional differential treatment. This paper will examine what the analytical focus ought to be when evaluating challenges to executive action based on such rights, a particularly relevant issue given recent developments in Hong Kong’s and Singapore’s equal protection jurisprudence. These developments suggest that there are three possible analytical focal points, each of which takes a different perspective on the relevance of the executive’s purpose in utilizing differential treatment: (1) the connection between the chosen differentiation and the specific purpose of the challenged executive action; (2) the connection between the differentiation and the broad purpose for which power was conferred upon the authority to perform the challenged action; and (3) a generalized assessment of the action’s rationality independent of purpose. This paper will critically evaluate each of these possibilities. It will argue that a specific purpose approach (namely (1)) is to be preferred, and that such an approach should be substantiated through a structured proportionality framework.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"203 - 220"},"PeriodicalIF":0.5,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42848478","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}