This article presents findings from an empirical network analysis of citation practices in Singapore’s highest court. A network of all 987 reported Court of Appeal judgments handed down from 2000 to 2017 is constructed. Network centrality algorithms are used to rank judgments by centrality. Judgments on contract law, particularly on contractual interpretation and terms, emerge as the most central. Based on this, this article argues that more attention can be paid to interpretation per se as a legal skill. More generally, this article establishes a framework for applying network analysis to Singapore jurisprudence on a larger scale.
{"title":"A Network Analysis of the Singapore Court of Appeal's Citations to Precedent","authors":"Jerrold Soh","doi":"10.2139/ssrn.3346422","DOIUrl":"https://doi.org/10.2139/ssrn.3346422","url":null,"abstract":"This article presents findings from an empirical network analysis of citation practices in Singapore’s highest court. A network of all 987 reported Court of Appeal judgments handed down from 2000 to 2017 is constructed. Network centrality algorithms are used to rank judgments by centrality. Judgments on contract law, particularly on contractual interpretation and terms, emerge as the most central. Based on this, this article argues that more attention can be paid to interpretation per se as a legal skill. More generally, this article establishes a framework for applying network analysis to Singapore jurisprudence on a larger scale.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126551743","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}
This article is written to serve as a guide in relation to contracts governed by the laws of Malaysia which incorporate provisions pertaining to ‘confidentiality’. The nature and implication of this provision entails the consideration of legal issues which may run deeper than the perceived simplicity of the language in which the clause is worded where the true effect and implications may not be ‘prima facie’ obvious or apparent. The guidance given in this article is premised upon legal analysis arrived at by the author after deliberating upon the issues faced in the course of her work as an in-house Legal Counsel and the writer disclaims any and all legal liability for relying upon this advice. The writer advices that the opinion of independent legal counsel is to be sought for each unique and individual scenario.
{"title":"Assessment of Confidentiality Clauses in Contracts Governed by Malaysian Laws: Some Tricky Issues to Consider and Pitfalls to Avoid","authors":"S. Woodhull","doi":"10.2139/ssrn.3267136","DOIUrl":"https://doi.org/10.2139/ssrn.3267136","url":null,"abstract":"This article is written to serve as a guide in relation to contracts governed by the laws of Malaysia which incorporate provisions pertaining to ‘confidentiality’. The nature and implication of this provision entails the consideration of legal issues which may run deeper than the perceived simplicity of the language in which the clause is worded where the true effect and implications may not be ‘prima facie’ obvious or apparent. The guidance given in this article is premised upon legal analysis arrived at by the author after deliberating upon the issues faced in the course of her work as an in-house Legal Counsel and the writer disclaims any and all legal liability for relying upon this advice. The writer advices that the opinion of independent legal counsel is to be sought for each unique and individual scenario.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117029610","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}
The Accord on Fire and Building Safety in Bangladesh (the Accord) is generally seen as a positive development in ensuring that Bangladeshi garment industry workers have access to safe working conditions. A central structural difference between the Accord and earlier corporate social responsibility (CSR) initiatives is that the Accord takes the form of an enforceable contract that directly connects first-world buyers with representatives of the third-world laborers of their supply chains. Traditionally, CSR mechanisms tread a fine line between a promise of decent labor conditions, often targeted at first-world consumers, and the nonbinding nature of such mechanisms, at least from the perspective of third-world laborers. The chief competitor of the Accord, the Alliance for Bangladesh Worker Safety (the Alliance), follows the traditional model. Thus the Accord represents a break from earlier nonbinding and worker-exclusive CSR by providing a new paradigm stressing enforceability and inclusivity. The novel structural aspects of the Accord are viewed positively by scholarship, interest groups, and general reporting. My starting point is this distinction between the positive, empowering image attributed to the enforceable agreement in the case of the Accord and the negative, hollow-words image of compliance mechanisms that do not take the form of an enforceable agreement, such as the Alliance. I argue that the possibilities for controlling liability allowed by an enforceable governance agreement can outweigh the possibilities for controlling liability allowed by reliance on strict conceptions of privity. From this perspective, the Accord can be critiqued as the herald of a new CSR paradigm that allows buyers new methods for controlling liability over their global supply chains. Additionally, the new paradigm comes with a whitewashing effect towards consumers and regulators. I argue that even more pronounced, however, can be its whitewashing effect towards adjudicators. Courts and arbitral tribunals may be prone to value the sanctity of the four-corners private ordering of transnational contracts, such as the Accord, over locally embedded legal safeguards.
{"title":"The Accord on Fire and Building Safety in Bangladesh: A New Paradigm for Limiting Buyers’ Liability in Global Supply Chains?","authors":"J. Salminen","doi":"10.1093/AJCL/AVY030","DOIUrl":"https://doi.org/10.1093/AJCL/AVY030","url":null,"abstract":"The Accord on Fire and Building Safety in Bangladesh (the Accord) is generally seen as a positive development in ensuring that Bangladeshi garment industry workers have access to safe working conditions. A central structural difference between the Accord and earlier corporate social responsibility (CSR) initiatives is that the Accord takes the form of an enforceable contract that directly connects first-world buyers with representatives of the third-world laborers of their supply chains. Traditionally, CSR mechanisms tread a fine line between a promise of decent labor conditions, often targeted at first-world consumers, and the nonbinding nature of such mechanisms, at least from the perspective of third-world laborers. The chief competitor of the Accord, the Alliance for Bangladesh Worker Safety (the Alliance), follows the traditional model. Thus the Accord represents a break from earlier nonbinding and worker-exclusive CSR by providing a new paradigm stressing enforceability and inclusivity. \u0000The novel structural aspects of the Accord are viewed positively by scholarship, interest groups, and general reporting. My starting point is this distinction between the positive, empowering image attributed to the enforceable agreement in the case of the Accord and the negative, hollow-words image of compliance mechanisms that do not take the form of an enforceable agreement, such as the Alliance. I argue that the possibilities for controlling liability allowed by an enforceable governance agreement can outweigh the possibilities for controlling liability allowed by reliance on strict conceptions of privity. From this perspective, the Accord can be critiqued as the herald of a new CSR paradigm that allows buyers new methods for controlling liability over their global supply chains. Additionally, the new paradigm comes with a whitewashing effect towards consumers and regulators. I argue that even more pronounced, however, can be its whitewashing effect towards adjudicators. Courts and arbitral tribunals may be prone to value the sanctity of the four-corners private ordering of transnational contracts, such as the Accord, over locally embedded legal safeguards.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115131884","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}
Since Narendra Modi took the prime minister's office in May 2014, India has grown into one of the fastest growing emerging markets with an annual average economic growth rate of over 7%. Under the vision of "sustainable economic growth based on structural reforms and open policy," the Modi government focused on lifting restrictions on investment, building governance, expanding infrastructure, and strengthening international economic cooperation to achieve macroeconomic stability and stimulate investment. Thanks to the government's so-called Modinomics, India's economic growth rate has risen above China's, and the country has grown to become the sixth largest economy in the world as of 2017.
This paper evaluates the progress of the core development policies of Modinomics - Make in India, reforms in tax (GST), labor and land acquisition, and the flagship urban development programs (Smart Cities) - and draws policy implications for Korea's New Southern Policy towards India.
{"title":"India's Modinomics and Korea's New Southern Policy","authors":"Chihyun Yun, C. Cho","doi":"10.2139/ssrn.3299395","DOIUrl":"https://doi.org/10.2139/ssrn.3299395","url":null,"abstract":"Since Narendra Modi took the prime minister's office in May 2014, India has grown into one of the fastest growing emerging markets with an annual average economic growth rate of over 7%. Under the vision of \"sustainable economic growth based on structural reforms and open policy,\" the Modi government focused on lifting restrictions on investment, building governance, expanding infrastructure, and strengthening international economic cooperation to achieve macroeconomic stability and stimulate investment. Thanks to the government's so-called Modinomics, India's economic growth rate has risen above China's, and the country has grown to become the sixth largest economy in the world as of 2017.<br><br>This paper evaluates the progress of the core development policies of Modinomics - Make in India, reforms in tax (GST), labor and land acquisition, and the flagship urban development programs (Smart Cities) - and draws policy implications for Korea's New Southern Policy towards India.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126688018","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}
Pub Date : 2018-08-20DOI: 10.48108/jurnalbppk.v11i1.175
Azwar Iskandar, Rahmaluddin Saragih
Corruption is likely to increase poverty because it reduces the potential income earning of the poor. Therefore, eradicating corruption is a crucial issue in the poverty reduction process. This study is set out to investigate and analyze the short and long-run relationship between corruption and poverty. It uses secondary data from World Bank and Transparency International then Autoregressive Distributed Lag (ARDL) and dynamic Error Correction Model (ECM), focuses on capability poverty using headcount poverty index during year 1995-2017. The results of study indicated that corruption have positive significant effect on the level of poverty ratio in 1% significance level In the long run. This implies that in the long run, there is relationship between corruption and poverty. In the long run, the coefficient of corruption effect implies that 1% increase in corruption would increase the poverty ratio by 1.36%. The negative implication of corruption on the life of the citizens is a major disaster in the economy and harmful to the growth and development of the citizens in particular and the economy in general. The simple pearson correlation findings also show that corruption has significant distributional consequences by affecting growth and government expenditures. High and rising corruption increases poverty by reducing the level and effectiveness of groth and social spending (education and health). For effective sustainable and management of this disaster, government should embark on policies that will reduce the level of corruption significantly so as to have positive influence on the standard of living of the citizens in terms of quality and efficient education, sound management of our natural resources, provision of good health facilities and other infrastructures that will transcend to the growth of the economy.
{"title":"Does Corruption Affect Poverty in Indonesia?","authors":"Azwar Iskandar, Rahmaluddin Saragih","doi":"10.48108/jurnalbppk.v11i1.175","DOIUrl":"https://doi.org/10.48108/jurnalbppk.v11i1.175","url":null,"abstract":"Corruption is likely to increase poverty because it reduces the potential income earning of the poor. Therefore, eradicating corruption is a crucial issue in the poverty reduction process. This study is set out to investigate and analyze the short and long-run relationship between corruption and poverty. It uses secondary data from World Bank and Transparency International then Autoregressive Distributed Lag (ARDL) and dynamic Error Correction Model (ECM), focuses on capability poverty using headcount poverty index during year 1995-2017. The results of study indicated that corruption have positive significant effect on the level of poverty ratio in 1% significance level In the long run. This implies that in the long run, there is relationship between corruption and poverty. In the long run, the coefficient of corruption effect implies that 1% increase in corruption would increase the poverty ratio by 1.36%. The negative implication of corruption on the life of the citizens is a major disaster in the economy and harmful to the growth and development of the citizens in particular and the economy in general. The simple pearson correlation findings also show that corruption has significant distributional consequences by affecting growth and government expenditures. High and rising corruption increases poverty by reducing the level and effectiveness of groth and social spending (education and health). For effective sustainable and management of this disaster, government should embark on policies that will reduce the level of corruption significantly so as to have positive influence on the standard of living of the citizens in terms of quality and efficient education, sound management of our natural resources, provision of good health facilities and other infrastructures that will transcend to the growth of the economy.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122475097","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}
Pub Date : 2018-08-20DOI: 10.1108/JPPEL-01-2019-0003
Edward S W Ti
Purpose The paper aims to analyse and compare how UK and Singapore deal with compensation with respect to regulation of land (short of a physical taking). The purpose is to determine whether the non-compensation in each jurisdiction is justified. Design/methodology/approach A comparative method using case law, statutes and secondary material across both jurisdictions (as well as some US case law) is adopted. Findings Both the UK and Singapore do not provide compensation when land is affected by regulation, so long as a physical taking has not occurred. Partly because of the abolition of development rights in the UK since 1947, this position may be justified. Conversely, Singapore’s Master Plan seeks a great deal of public reliance and advertises development potential, and non-compensation is not defensible. Originality/value There is very limited analysis on regulatory effects of land in the UK, and virtually none in Singapore. This would also be the first attempt to compare this aspect of the UK and Singapore’s planning regime.
{"title":"Compensating Regulation of Land: UK and Singapore Compared","authors":"Edward S W Ti","doi":"10.1108/JPPEL-01-2019-0003","DOIUrl":"https://doi.org/10.1108/JPPEL-01-2019-0003","url":null,"abstract":"\u0000Purpose\u0000The paper aims to analyse and compare how UK and Singapore deal with compensation with respect to regulation of land (short of a physical taking). The purpose is to determine whether the non-compensation in each jurisdiction is justified.\u0000\u0000\u0000Design/methodology/approach\u0000A comparative method using case law, statutes and secondary material across both jurisdictions (as well as some US case law) is adopted.\u0000\u0000\u0000Findings\u0000Both the UK and Singapore do not provide compensation when land is affected by regulation, so long as a physical taking has not occurred. Partly because of the abolition of development rights in the UK since 1947, this position may be justified. Conversely, Singapore’s Master Plan seeks a great deal of public reliance and advertises development potential, and non-compensation is not defensible.\u0000\u0000\u0000Originality/value\u0000There is very limited analysis on regulatory effects of land in the UK, and virtually none in Singapore. This would also be the first attempt to compare this aspect of the UK and Singapore’s planning regime.\u0000","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126638632","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}
This case study comparatively analyzes the various dispute settlement bodies identified by the researchers and these include the: National court system, the government-backed Shari’ah court system, known as PD 1083, the Land Management Bureau of the Department of Environment and Natural Resources (LMB-DENR) systems, and the MILF (shadow) Shari’ah court system in the Bangsamoro, particularly in the province of Maguindanao. It generally examined the process, speed, effectiveness, efficiency, and equitability of the land dispute settlement bodies existing in the province. Specifically, it tried to explain the following Objectives: Knowing the land dispute cases filed in these settlement bodies and the nature and current status of these cases; and getting the perceived level of preference on the existing dispute settlement bodies in terms of economics, convenience and accessibility. The respondents of this study are 18, eight (8) of them served as the key informants who were involved in the land disputes, while the other ten (10) are the respondents for the self-administered quick survey. This study made use of the qualitative approach and employed the descriptive-evaluative method of research in order to determine the existing best practices of the justice systems in the Bangsamoro. The Major findings of the study are: A total of 46 land dispute cases in Maguindanao province filed in Cotabato City Civil Court from 1991-2014. Only 22 or 48% of the 46 cases were resolved, 24 or 52% were unresolved. This means that about one (1) land dispute case is resolved per year for 18 years. There are 72 land dispute cases happened in Maguindanao from 1991 to 2014 filed at the Shari’ah Circuit Court in Cotabato City. 68 or 94% were resolved. 4 or 6% were unresolved. For Land Management Bureau (DENR), only 5 cases were filed from 2013– 14 due to unavailability of record. From 2004-2014 there were 389 cases filed at the MILF Shadow Supreme Shari’ah Court in Camp Darapanan alone. 97% were resolved. Records from 1991to 2003 were not recovered due to All-Out-War of the Estrada administration.
{"title":"Competing Land Conflict Resolution Mechanisms in the Bangsamoro: Case Study in Maguindanao","authors":"Badrudin K. Abdul, Datumanot O. Pendaliday","doi":"10.2139/ssrn.3396606","DOIUrl":"https://doi.org/10.2139/ssrn.3396606","url":null,"abstract":"This case study comparatively analyzes the various dispute settlement bodies identified by the researchers and these include the: National court system, the government-backed Shari’ah court system, known as PD 1083, the Land Management Bureau of the Department of Environment and Natural Resources (LMB-DENR) systems, and the MILF (shadow) Shari’ah court system in the Bangsamoro, particularly in the province of Maguindanao. It generally examined the process, speed, effectiveness, efficiency, and equitability of the land dispute settlement bodies existing in the province. Specifically, it tried to explain the following Objectives: Knowing the land dispute cases filed in these settlement bodies and the nature and current status of these cases; and getting the perceived level of preference on the existing dispute settlement bodies in terms of economics, convenience and accessibility. The respondents of this study are 18, eight (8) of them served as the key informants who were involved in the land disputes, while the other ten (10) are the respondents for the self-administered quick survey. This study made use of the qualitative approach and employed the descriptive-evaluative method of research in order to determine the existing best practices of the justice systems in the Bangsamoro. The Major findings of the study are: A total of 46 land dispute cases in Maguindanao province filed in Cotabato City Civil Court from 1991-2014. Only 22 or 48% of the 46 cases were resolved, 24 or 52% were unresolved. This means that about one (1) land dispute case is resolved per year for 18 years. There are 72 land dispute cases happened in Maguindanao from 1991 to 2014 filed at the Shari’ah Circuit Court in Cotabato City. 68 or 94% were resolved. 4 or 6% were unresolved. For Land Management Bureau (DENR), only 5 cases were filed from 2013– 14 due to unavailability of record. From 2004-2014 there were 389 cases filed at the MILF Shadow Supreme Shari’ah Court in Camp Darapanan alone. 97% were resolved. Records from 1991to 2003 were not recovered due to All-Out-War of the Estrada administration.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131659182","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}
Sedfrey M. Candelaria, Katherine M. Peralta, R. Mendoza
This paper develops a unique dataset of Supreme Court land dispute cases in the Philippines spanning 2002 to 2016. The sample includes 1,409 cases with complete information on the estimated land value (through zonal value estimation), land size, land location, litigation time, and win rate across the case lifecycle. This study is one of the first to leverage such a comprehensive Philippine dataset on these types of cases. Specifically, the objectives of this study are: 1) To estimate the total approximate size and value of the land assets that have been processed in the court system and the length of time they have been tied up in the court system; 2) To analyze the possible factors influencing the speed of resolution of these types of cases, as well as the patterns behind favorable decisions; and, 3) To identify the possible judicial reforms that could try to reduce the time these assets are tied up in courts, thus contributing to the release of land assets for productive investments and utilization in the Philippine economy. The data shows that the average size of the land asset tried in court is about 1.477 million square meters and valued at about P1,790,000,000. The land assets can be tied up in the court system from anywhere between 1-66 years, averaging about 12.574 years in litigation. About 99% of the 1,409 land assets in dispute are private land. In addition, this paper presents evidence that litigation of land disputes in Regions VI, Region XI, Region XII, and the ARMM is associated with a longer litigation time. In addition, higher estimated land asset value is also associated with longer litigation periods.
{"title":"Economic Implications of Judicial Entanglements: An Empirical Analysis of Land Cases in the Philippines Supreme Court","authors":"Sedfrey M. Candelaria, Katherine M. Peralta, R. Mendoza","doi":"10.2139/ssrn.3226885","DOIUrl":"https://doi.org/10.2139/ssrn.3226885","url":null,"abstract":"This paper develops a unique dataset of Supreme Court land dispute cases in the Philippines spanning 2002 to 2016. The sample includes 1,409 cases with complete information on the estimated land value (through zonal value estimation), land size, land location, litigation time, and win rate across the case lifecycle. This study is one of the first to leverage such a comprehensive Philippine dataset on these types of cases. Specifically, the objectives of this study are: 1) To estimate the total approximate size and value of the land assets that have been processed in the court system and the length of time they have been tied up in the court system; 2) To analyze the possible factors influencing the speed of resolution of these types of cases, as well as the patterns behind favorable decisions; and, 3) To identify the possible judicial reforms that could try to reduce the time these assets are tied up in courts, thus contributing to the release of land assets for productive investments and utilization in the Philippine economy. The data shows that the average size of the land asset tried in court is about 1.477 million square meters and valued at about P1,790,000,000. The land assets can be tied up in the court system from anywhere between 1-66 years, averaging about 12.574 years in litigation. About 99% of the 1,409 land assets in dispute are private land. In addition, this paper presents evidence that litigation of land disputes in Regions VI, Region XI, Region XII, and the ARMM is associated with a longer litigation time. In addition, higher estimated land asset value is also associated with longer litigation periods.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132997563","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}
Observers of the first ten years of Bhutan’s constitutional experience too often fall into the trap of comparing it to its 21st century contemporaries, many of which have decades’ more experience in constitutional order. The author instead compares the first ten years of Bhutan’s constitutional democratic monarchy (2008-18) with those of the United States (1781-1791) and India (1949-1959), in hopes of establishing a better benchmark. This paper was originally published in the Bhutan Law Review, Volume X, 2018. Issued by the Bhutan National Legal Institute (BNLI).
{"title":"Comparing Apples and Apples: Ten Years of Constitutional Experience in Bhutan, India and the United States","authors":"M. Peil","doi":"10.2139/ssrn.3266300","DOIUrl":"https://doi.org/10.2139/ssrn.3266300","url":null,"abstract":"Observers of the first ten years of Bhutan’s constitutional experience too often fall into the trap of comparing it to its 21st century contemporaries, many of which have decades’ more experience in constitutional order. The author instead compares the first ten years of Bhutan’s constitutional democratic monarchy (2008-18) with those of the United States (1781-1791) and India (1949-1959), in hopes of establishing a better benchmark. This paper was originally published in the Bhutan Law Review, Volume X, 2018. Issued by the Bhutan National Legal Institute (BNLI).","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123513650","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}
In July 2011 Moody's Investors Service Hong Kong issued a report that used a system of red flags to highlight corporate governance and accounting risks in a specified population of listed companies. Although the report is not itself a credit rating, it remains unclear whether Moody’s publication of it should be subject to the disciplinary powers of the Securities and Futures Commission (“SFC”). At issue is the construction of section 193(1)(d) of the Securities and Futures Ordinance (“SFO”), which provides that an act or omission relating to the carrying on of a regulated activity is liable to be regarded as misconduct subject to the disciplinary powers of the SFC under section 194 SFO. The earlier determination of the Securities and Futures Appeals Tribunal and the judgment of the Court of Appeal both supported a broad, purposive interpretation of relation to find that the SFC’s disciplinary oversight applied. Moody’s appeal to the Court of Final Appeal is likely to have ramifications that go well beyond the credit rating industry. As the case concerns the interpretation of a disciplinary provision that all regulated persons are subject to, the Court’s ruling will have significant implications on the ambit of the SFC’s disciplinary powers over all companies engaging in regulated activities that require a license from or registration with the SFC. This article examines the approach taken by the Tribunal and the Court of Appeal and suggests it is flawed and ill suited to the complexities of the business environment surrounding the undertaking of regulated activities. In the absence of an acceptable degree of legal and commercial certainty, there is a risk that regulatory oversight of a wide range of activities other than statutorily defined regulated activities may be introduced via a backdoor opened by the prospect of the SFC’s discipline. An alternative view of relation is proposed that may assist develop a test of relation that better serves statutory purposes, as well as regulatory and commercial needs. It is hoped the Court of Final Appeal will take the opportunity to clarify the law in this area in order to facilitate greater certainty as to the extent of the regulatory obligations of licensed corporations as well as the ambit of the SFC’s disciplinary powers.
2011年7月，香港穆迪投资者服务公司(Moody's Investors Service Hong Kong)发布了一份报告，使用了一个红旗系统来突出特定上市公司的公司治理和会计风险。尽管该报告本身并非信用评级，但尚不清楚穆迪公布该报告是否应受到香港证券及期货事务监察委员会(“证监会”)的纪律处分权力的约束。争议的焦点在于《证券及期货条例》(“《证券及期货条例》”)第193(1)(d)条的解释。该条订明，与进行受规管活动有关的作为或不作为，可被视为受证监会根据《证券及期货条例》第194条的纪律处分权力规管的失当行为。证券及期货上诉审裁处较早前的裁定及上诉法院的判决均支持对关系作出宽泛而有目的的解释，以认定证监会的纪律监督适用。穆迪向终审法院提出上诉，其影响可能远远超出信用评级行业。由于本案涉及对所有受规管人士都须遵守的纪律条文的解释，法院的裁决将对证监会对所有从事受规管活动(须向证监会申领牌照或向证监会注册)的公司的纪律处分权力的范围产生重大影响。本文探讨审裁处和上诉法院采取的方法，并指出该方法存在缺陷，不适合从事受规管活动的商业环境的复杂性。在缺乏可接受程度的法律和商业确定性的情况下，存在一种风险，即对法律定义的受监管活动以外的广泛活动的监管监督，可能会通过香港证监会的纪律前景打开的后门引入。提出了另一种关于关系的观点，这种观点可能有助于制定一种更好地服务于法定目的以及监管和商业需要的关系检验方法。我们希望终审法院能借此机会澄清这方面的法律，以便更明确持牌法团的规管责任范围，以及证监会纪律处分权力的范围。
{"title":"A Red Flag for the Licensing Regime (A Postscript to ‘A Red Flag for Hong Kong Credit Ratings’)","authors":"S. Johnstone","doi":"10.2139/ssrn.3223425","DOIUrl":"https://doi.org/10.2139/ssrn.3223425","url":null,"abstract":"In July 2011 Moody's Investors Service Hong Kong issued a report that used a system of red flags to highlight corporate governance and accounting risks in a specified population of listed companies. Although the report is not itself a credit rating, it remains unclear whether Moody’s publication of it should be subject to the disciplinary powers of the Securities and Futures Commission (“SFC”). At issue is the construction of section 193(1)(d) of the Securities and Futures Ordinance (“SFO”), which provides that an act or omission relating to the carrying on of a regulated activity is liable to be regarded as misconduct subject to the disciplinary powers of the SFC under section 194 SFO. The earlier determination of the Securities and Futures Appeals Tribunal and the judgment of the Court of Appeal both supported a broad, purposive interpretation of relation to find that the SFC’s disciplinary oversight applied. Moody’s appeal to the Court of Final Appeal is likely to have ramifications that go well beyond the credit rating industry. As the case concerns the interpretation of a disciplinary provision that all regulated persons are subject to, the Court’s ruling will have significant implications on the ambit of the SFC’s disciplinary powers over all companies engaging in regulated activities that require a license from or registration with the SFC. This article examines the approach taken by the Tribunal and the Court of Appeal and suggests it is flawed and ill suited to the complexities of the business environment surrounding the undertaking of regulated activities. In the absence of an acceptable degree of legal and commercial certainty, there is a risk that regulatory oversight of a wide range of activities other than statutorily defined regulated activities may be introduced via a backdoor opened by the prospect of the SFC’s discipline. An alternative view of relation is proposed that may assist develop a test of relation that better serves statutory purposes, as well as regulatory and commercial needs. It is hoped the Court of Final Appeal will take the opportunity to clarify the law in this area in order to facilitate greater certainty as to the extent of the regulatory obligations of licensed corporations as well as the ambit of the SFC’s disciplinary powers.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124979439","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}
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