Asia Pacific Law Review最新文献

{"title":"Towards a three-tiered ombuds system for investment dispute prevention: principles and challenges","authors":"Chen Yu","doi":"10.1080/10192557.2022.2073710","DOIUrl":"https://doi.org/10.1080/10192557.2022.2073710","url":null,"abstract":"ABSTRACT In the ongoing discourse of investor-State dispute settlement (ISDS) reform, dispute prevention mechanisms (DPMs) have attracted extensive attention among States. As a typical form of DPM, the investment ombuds mechanism not only serves as a decentralized and cost and time-efficient avenue to resolve disputes before they escalate into investment arbitration but also plays an irreplaceable role in the formation of a plural investment law regime. Despite the mechanism’s unequivocal potential to benefit both investors and States, scholarly research on the topic is scarce. Against this backdrop, this article – learning from relevant practice in areas such as human rights protection – aims to contribute to the literature by outlining the fundamental principles relating to the establishment and operation of investment ombuds institutions, namely independence, accessibility, and effectiveness. It further canvasses the potential challenges to the implementation of the mechanism arising from the unique characteristics of international investment law and dispute settlement procedures. Lastly, it calls for the creation of a three-tiered international ombuds system integrating local laws, treaty rules and multilateral guidance.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"401 - 423"},"PeriodicalIF":0.5,"publicationDate":"2022-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48056563","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":"Understanding policy diffusion mechanism of financial regulatory innovation: the experience of Taiwan","authors":"Cheng-Yun Tsang, Ping-Kuei Chen","doi":"10.1080/10192557.2022.2045705","DOIUrl":"https://doi.org/10.1080/10192557.2022.2045705","url":null,"abstract":"ABSTRACT This paper thoroughly examines the adoption of the financial regulatory sandbox regime in Taiwan. As the first civil law country that has promulgated a new law to implement this regime, Taiwan contributes towards and embodies an archetype of policy diffusion mechanisms of financial regulatory innovation. The discussion on sandbox diffusion remains incomplete in the literature, and this paper is an attempt to fill in the gaps. Our analysis suggests that financial regulators, the legislative branch, foreign regulators, government-supported fintech hubs, and private institutions are all affiliated in this process of policy diffusion. Forerunner states provide essential references and sometimes offer direct assistance to help promulgate the sandbox regime. This paper also explores the three main diffusion mechanisms: competition, learning, and emulation, which have all played different roles in this process of diffusion. Despite different and sometimes conflicting interests, stakeholders are concerned with fintech-related regulatory issues. Their shared interests in the regulatory sandbox regime result from a strong consensus, thus leading to the successful enactment of sandbox legislation. Taiwan’s case study holds policy implications on how a civil law country adopts financial regulatory innovation and through which mechanisms the popular regulatory sandbox was diffused into the country.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"21 - 43"},"PeriodicalIF":0.5,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41672690","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":"Exploring energy resilience in China’s energy law in the carbon neutrality era","authors":"Hao Zhang","doi":"10.1080/10192557.2022.2045711","DOIUrl":"https://doi.org/10.1080/10192557.2022.2045711","url":null,"abstract":"ABSTRACT Through the lens of scholarly discussion on law, resilience, and adaptive capacity, this article critically discusses the extent to which energy law and governance in China has been steered towards better resilience. By looking at the laws and regulations in China’s electricity sector, this article argues that China’s efforts to create a more resilient and adaptive electric power system that can respond to disruptions is challenged by three key factors. The first of these is the historic focus in China on assuring adequate supplies of energy to support economic growth, an approach that relies more on the conventional aspect of the resilience theory, known as engineering resilience, rather than transformational resilience. The second factor is the multi-level and fragmented authoritarian governance structure in China’s energy sector that opens the door to local authorities and SOEs favouring especially coal generation and curtailing generation from renewable energy sources. Finally, the laws supporting the transition to a cleaner, lower carbon and more efficient energy system in China essential to transformational resilience need to be strictly enforced since the current enforcement regime has not achieved the desired result.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"167 - 187"},"PeriodicalIF":0.5,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41834630","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":"Scoping the impact of the Comprehensive Agreement on investment: liberalization, protection, and dispute resolution in the next era of EU–China relations","authors":"Qian Xu","doi":"10.1080/10192557.2022.2045708","DOIUrl":"https://doi.org/10.1080/10192557.2022.2045708","url":null,"abstract":"ABSTRACT Ensuing the commencement of bilateral EU–China Comprehensive Agreement on Investment (CAI) negotiations in 2014, European Union (EU) took seven years to confirm the agreement ‘in principle’. The finalization of the agreement owing to politicization will take time. However, both EU and China have committed to conclude the awaiting negotiations on investment protection and investment dispute settlement by the first half of 2022. EU's main objective is replacing bilateral investment treaties (BITs) between China and its own individual Member States. The article confers a first comprehensive analysis of CAI with advancing EU's international investment policy. It further analyzes the CAI provisions in light of both, pre-existing BITs between EU Member States and China and the EU-Vietnam FTA investment chapter. The comprehensive analysis helps to apprehend CAI's influence on the global regime for investment concerning investment liberalization, investment protection, and investment dispute resolution.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"93 - 122"},"PeriodicalIF":0.5,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47057365","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":"Who are my parents? Determining parenthood of surrogate children under Chinese law","authors":"Di Chunyan","doi":"10.1080/10192557.2022.2045709","DOIUrl":"https://doi.org/10.1080/10192557.2022.2045709","url":null,"abstract":"ABSTRACT The underground domestic surrogacy market is an open secret in China and many rich Chinese people have had their own children by using overseas surrogacy services. Although the Chinese national legislature has not expressed its legal position with respect to the legality of surrogacy, courts have taken an increasing number of surrogacy disputes in the past two decades, a substantial portion of which dispute over parenthood of surrogate children. The question ‘who are my parents’ requires a legal answer; otherwise, surrogate children will be left in legal limbo in terms of their parentage and sometimes nationality as well. Given its theoretical and practical significance, this article systematically analyses the issue of parenthood of surrogacy children under Chinese law and its implications for the issue of the legality of surrogacy. It finds that Chinese law, which accepts a three-parent model in certain circumstances, has recently creatively developed a dual approach to solving this legal question: the dominant biological connection test and the supplementary test of ‘constructive parenthood based on the stepparent-stepchild relationship’, the latter enabling courts to grant parenthood to a nonbiological intended parent. After assessing the dual approach, it further argues that the approach results in a backdoor acceptance of surrogacy arrangements and Chinese law, therefore, should face up to the increasing demand by infertile families for surrogacy and draw a clear line between lawful and unlawful surrogacy arrangements in accordance with the prevailing ethical views, the newly introduced three-child policy, and the relevant policies concerning woman and minor protection.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"123 - 144"},"PeriodicalIF":0.5,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44538318","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":"Constitutional transition and the travail of judges: the courts of South Korea","authors":"Amal Sethi","doi":"10.1080/10192557.2022.2045712","DOIUrl":"https://doi.org/10.1080/10192557.2022.2045712","url":null,"abstract":"Few jurisdictions are more illuminating of constitutional law and politics than South Korea (‘Korea’). As autocratic legalism gradually shows its face in various corners of the world, Korea’s tumultuous history serves as a cautionary tale with respect to the extent to which autocratic legalism can be stretched. Whereas numerous countries had their first encounter with autocratic legalism only in recent decades, Korea was living under it back in the 1960s. During Korea’s lengthy authoritarian rule, the judiciary was timid and avoided head-to-head confrontations with the authoritarian regime. Nevertheless, it arguably showed signs of independence and an ability to mitigate the effects of authoritarian laws. Additionally, Korea is one of the handful of countries that have emerged from authoritarian rule and managed to stay democratic for an extended period. The Korean Constitutional Court has had a certain role to play in this achievement, challenging conventional scholarly wisdom on the extent to which courts can have a hand in democratization. Legal historian, Marie Seong-Hak Kim’s book is an ambitious attempt to unpack many of these facets, viewed through the lens of Korean courts from 1945 to the present day. Kim’s book comes with two methodological qualifications. Firstly, Kim states that since judges in authoritarian contexts are apprehensive about political reprisals, they rarely speak publicly about laws or their decisions. Therefore, she has tried to infer ‘jurisprudential and juristic belief’ from ‘the terse language in judicial opinions which were pervaded with mechanical and seemingly callous positivistic reasoning’. Secondly, Kim focuses ‘on law rather than politics’ and makes little attempt to do otherwise. After an introductory first chapter that provides background information and outlines the book’s arguments, Chapter 2 discusses Korea’s legal traditions, the making of its 1948 constitution and the Korean courts from 1945 to 1962. In 1948, after almost half a decade of Japanese colonial rule followed by three years of American military occupation, Korea promulgated a new constitution. There were serious attempts by the constitution’s drafters to leave behind the remnants of the colonial past. Simultaneously, to avoid a legal vacuum, they retained several colonial judicial personnel and judges to operate the court system. Since there were apprehensions about giving power to a judiciary with links to the colonial past, the Supreme Court and other lower courts under it, were only given the power to review administrative decrees and regulations. Meanwhile, a new part-judicial, part-political body, the Constitutional Committee, was entrusted with reviewing statutes issued by the legislature of Korea – the National Assembly. The choices made by the drafters generally remained untouched","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"188 - 192"},"PeriodicalIF":0.5,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48544098","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 complexification of disputes in the digital age","authors":"Sundaresh Menon","doi":"10.1080/10192557.2022.2045704","DOIUrl":"https://doi.org/10.1080/10192557.2022.2045704","url":null,"abstract":"ABSTRACT The ‘complexity problem’ is the concern that there is now a growing class of disputes so factually rich and complex that they are virtually impossible to adjudicate fairly and properly. The complexity problem will only intensify with time – as our understanding of the world becomes more complex, so too will our disputes; and advances in information technology have led and will continue to lead to explosions in the quantities of data (and therefore, potential evidence) that adjudicators and advocates may be called on to consider. Complexity can have serious consequences not just for the time and cost of resolving such disputes, but also for our ability to properly resolve them – some disputes are now so massive and complex that they have become extremely difficult for the adjudicator to fully and properly understand, much less decide. Solutions directed at improving the efficiency of legal proceedings are, at best, only part of the answer. The problem is more fundamental and requires that we reconsider our approach to the resolution of complex disputes. We might see a shift away from a narrow conception of justice as always and invariably requiring a full and exhaustive determination of the facts, to a more holistic view of what it means to adjudicate disputes – one that embraces procedures which, whilst not as thorough, are nonetheless capable of producing reasonably accurate and broadly acceptable decisions more quickly and at far lower cost.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"1 - 20"},"PeriodicalIF":0.5,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48031368","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":"Access to Justice for the Chinese Consumer: Handling Consumer Disputes in Contemporary China","authors":"André Janssen","doi":"10.1080/10192557.2022.2045716","DOIUrl":"https://doi.org/10.1080/10192557.2022.2045716","url":null,"abstract":"much-loved person, and thoughtful ruminations over a broad range of topics, principally in dispute resolution, that occupied so much of Derek’s life. As the Contributing Editors put it, no single volume can hope to do justice to him, but it is hoped that the book will keep his memory alive and his erudition forever available. In this, there is no doubt the objectives of the book have been well met.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"198 - 201"},"PeriodicalIF":0.5,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41328648","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 Indian legal system: an enquiry","authors":"Rustam Chaudhuri","doi":"10.1080/10192557.2022.2045713","DOIUrl":"https://doi.org/10.1080/10192557.2022.2045713","url":null,"abstract":"India is one of the most ethnically, religiously and socio-economically diverse countries in the world, and this diversity is protected under Articles 25–31 of the Indian Constitution, which provides constitutional safeguards for religious, cultural and educational rights. On the other hand, India was also under British rule for two hundred years, during which time various Western-style institutions and legal systems and a formal bureaucracy were developed. With respect to these institutions, little has changed since independence. This gives rise to competing legal norms in India, as reflected in its constitution, which is based, first, on democratic aspirations inspired by the English and Welsh common law and French constitutional ideals of liberty, equality and fraternity, and, second, on the need to safeguard the interests of various sectors of the community and emerging religious, ethno-regional and tribal sentiments. The book The Indian Legal System: An Enquiry by Mahendra Pal Singh and Niraj Kumar seeks to address this delicate balance between the various normative forces present in India’s postindependence legal system. It asks whether India has been successful in striking this balance between the various Western and Eastern legal traditions subsumed within it, and if permitting the continuance of certain traditional legal systems is permissible under international human rights law and what the scope and direction for the future development of the legal system might be.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"192 - 196"},"PeriodicalIF":0.5,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41658023","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":"Fabricating insurance subject matter and defrauding insurance money: a civil wrong or a criminal offence?","authors":"Z. Jing","doi":"10.1080/10192557.2022.2045710","DOIUrl":"https://doi.org/10.1080/10192557.2022.2045710","url":null,"abstract":"ABSTRACT Insurance fraud is a serious problem and is dealt with mainly by the mechanisms of civil liability and criminal punishment in China. This article critically examines these mechanisms and their application to different types of fraud, identifies the existing and potential problems with them, and also propose solutions to the problems with reference to the English common law fraudulent claims rule and the Fraud Act 2006 (UK). Chinese Criminal Law provides a unique type of insurance fraud, namely, ‘fabricate insurance subject matter and defraud insurance money’, but no definition of this type of fraud is provided in the Law, this causes judicial difficulty in the trial of the fraud cases. This type of fraud is committed at two stages: ‘fabricate insurance subject matter’ at the stage of conclusion of the contract and ‘defraud insurance money’ at the stage of making claims. It argues that the phrase of ‘fabricate insurance subject matter’ should be construed in a narrow sense that it only refers to the fraud where a non-existent insurance subject matter is fabricated into an existent one; while fabrication of the features or characters of the insurance subject matter should not be taken as the fraud of ‘fabricate insurance subject matter’. This article examines the circumstances under which this type of fraud may be dealt with by civil law or criminal law and puts forward guidelines for the determination of this type of fraud and for the correct application of civil remedies or criminal sanction for the fraud.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"30 1","pages":"145 - 166"},"PeriodicalIF":0.5,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42227684","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}