Pub Date : 2017-03-31DOI: 10.4337/9781785362637.00025
C. Hofmann
Shadow banking is a phenomenon of global concern because it entails risks for financial stability that need to be adequately addressed by regulation. Easier said than done, one could object, because it is a tricky task for regulators to respond appropriately. Singapore, one of the largest financial centres in Asia and the world, is a hub for financial intermediaries that are considered shadow banks. Data transmitted by Singapore to the Financial Stability Board provides the basis for this analysis of the relevance of shadow banks and risk-containing regulation applicable to them - the first of its kind for Singapore. In line with global efforts to curb risks for financial stability while avoiding excessive limitations on useful financial services, the article points out areas in which particular vigilance is indicated and suggests changes to existing regulation.
{"title":"Shadow Banking in Singapore","authors":"C. Hofmann","doi":"10.4337/9781785362637.00025","DOIUrl":"https://doi.org/10.4337/9781785362637.00025","url":null,"abstract":"Shadow banking is a phenomenon of global concern because it entails risks for financial stability that need to be adequately addressed by regulation. Easier said than done, one could object, because it is a tricky task for regulators to respond appropriately. Singapore, one of the largest financial centres in Asia and the world, is a hub for financial intermediaries that are considered shadow banks. Data transmitted by Singapore to the Financial Stability Board provides the basis for this analysis of the relevance of shadow banks and risk-containing regulation applicable to them - the first of its kind for Singapore. In line with global efforts to curb risks for financial stability while avoiding excessive limitations on useful financial services, the article points out areas in which particular vigilance is indicated and suggests changes to existing regulation.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126303617","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}
Some standards of interpretation used by the Court of Final Appeal, for interpretation of the Basic Law of Hong Kong, are undesirable, because they are variable standards. In order for a court to be a judicial body, it must use fixed standards. A political body, in contrast, uses variable standards. Example 1: An interpretive standard of the Court of Final Appeal is not correcting a drafting deficiency in an ordinance. The related interpretive standard is not reading an ordinance literally, to forestall an absurd result. Choosing not to correct a drafting deficiency yields a different outcome than does choosing to forestall an absurd result. Example 2: Another interpretive standard, used for finding whether there is an unlawful legislative derogation from a right guaranteed by the Bill of Rights, is the proportionality test. A legitimate proportion between a domiciliary of Hong Kong and the government of Hong Kong is variable, depending on which judges, on this Court of Final Appeal panel or that panel, undertake to measure proportionality. Example 3: An additional interpretative standard is whether ‘a fair balance has been struck’ in disputed legislation. Fairness is in the eye of the beholder. Case law of the Court of Final Appeal notwithstanding, the Basic Law of Hong Kong has a fixed meaning: the legislative intent of the Drafting Committee for the Basic Law of the Hong Kong Special Administrative Region, the drafter of the Basic Law. If a deficiency in the Basic Law is revealed, the remedy is amendment of the Basic Law in accordance with the amendment procedure prescribed in it. Amendment of the Basic Law by the Court of Final Appeal, in the guise of interpreting it, is impermissible. See also ‘Police Demands for Hong Kong Identity Cards' http://ssrn.com/abstract=1451238.
{"title":"How to Interpret, and Not Interpret, Hong Kong Law","authors":"S. Kruger","doi":"10.2139/SSRN.1451237","DOIUrl":"https://doi.org/10.2139/SSRN.1451237","url":null,"abstract":"Some standards of interpretation used by the Court of Final Appeal, for interpretation of the Basic Law of Hong Kong, are undesirable, because they are variable standards. In order for a court to be a judicial body, it must use fixed standards. A political body, in contrast, uses variable standards. Example 1: An interpretive standard of the Court of Final Appeal is not correcting a drafting deficiency in an ordinance. The related interpretive standard is not reading an ordinance literally, to forestall an absurd result. Choosing not to correct a drafting deficiency yields a different outcome than does choosing to forestall an absurd result. Example 2: Another interpretive standard, used for finding whether there is an unlawful legislative derogation from a right guaranteed by the Bill of Rights, is the proportionality test. A legitimate proportion between a domiciliary of Hong Kong and the government of Hong Kong is variable, depending on which judges, on this Court of Final Appeal panel or that panel, undertake to measure proportionality. Example 3: An additional interpretative standard is whether ‘a fair balance has been struck’ in disputed legislation. Fairness is in the eye of the beholder. Case law of the Court of Final Appeal notwithstanding, the Basic Law of Hong Kong has a fixed meaning: the legislative intent of the Drafting Committee for the Basic Law of the Hong Kong Special Administrative Region, the drafter of the Basic Law. If a deficiency in the Basic Law is revealed, the remedy is amendment of the Basic Law in accordance with the amendment procedure prescribed in it. Amendment of the Basic Law by the Court of Final Appeal, in the guise of interpreting it, is impermissible. See also ‘Police Demands for Hong Kong Identity Cards' http://ssrn.com/abstract=1451238.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123626707","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}
As promised, China brought a WTO dispute against the US and the EU respectively regarding their antidumping laws, which continue to authorise the application of the so-called non-market economy (NME) methodology. This case was initiated one day after the expiry of paragraph 15(a)(ii) of China’s WTO Accession Protocol on 11 December 2016. Through a preliminary analysis of China’s claims in the request for consultation with the EU, this paper argues that the expiration of paragraph 15(a)(ii) has terminated the right of WTO Members to use surrogate prices or costs for price comparison in antidumping actions against China solely based on their national market economy criteria. The use of surrogate prices or costs must now comply with the relevant WTO rules applicable to all WTO Members. On this basis, the challenged EU measure is likely to be found WTO-inconsistent. Towards this end, WTO Members may continue to label China as an NME for political or other reasons under their national laws. However, whatever this label may entail, it no longer justifies the application of the NME methodology.
{"title":"China's Litigation on Non-Market Economy Treatment at the WTO: A Preliminary Assessment","authors":"Weihuan Zhou","doi":"10.2139/SSRN.3069691","DOIUrl":"https://doi.org/10.2139/SSRN.3069691","url":null,"abstract":"As promised, China brought a WTO dispute against the US and the EU respectively regarding their antidumping laws, which continue to authorise the application of the so-called non-market economy (NME) methodology. This case was initiated one day after the expiry of paragraph 15(a)(ii) of China’s WTO Accession Protocol on 11 December 2016. Through a preliminary analysis of China’s claims in the request for consultation with the EU, this paper argues that the expiration of paragraph 15(a)(ii) has terminated the right of WTO Members to use surrogate prices or costs for price comparison in antidumping actions against China solely based on their national market economy criteria. The use of surrogate prices or costs must now comply with the relevant WTO rules applicable to all WTO Members. On this basis, the challenged EU measure is likely to be found WTO-inconsistent. Towards this end, WTO Members may continue to label China as an NME for political or other reasons under their national laws. However, whatever this label may entail, it no longer justifies the application of the NME methodology.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127937057","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 is the first article that analyzes Professor Ronald Gilson’s theory of “simultaneity” in engineering a venture capital market in the context of China. Based on both quantitative and qualitative data collected by the author, this article analyzes how China has created the fastest developing and the largest engineered venture capital market in the world within three decades. It concludes that the rise of venture capital in China is attributable to (1) increasing capital supply through various governmental programs, easing regulatory barriers towards institutional and foreign investors, providing tax incentives and improving exit environment; (2) enhancing the availability of financial intermediaries by introducing the limited partnership that creates an efficient relationship between venture capitalists and investors; and (3) encouraging entrepreneurship by improving the regulatory environment for small businesses. Through these measures, China has facilitated the simultaneous availability of capital with the appetite for high-risk, long-term investments and the emergence of a class of entrepreneurs with the skills and incentives to put that capital to work. One key factor to the rapid development of the Chinese market has been its increased reliance on market forces in allocating capital. On the other hand, a residual degree of bureaucratic allocation prevents the Chinese regime from being fully efficient. China serves as an (imperfect) model for other governments seeking to engineer a venture capital market where enfettered market forces have failed to do so.
{"title":"Engineering a Venture Capital Market: Lessons from China","authors":"Lin Lin","doi":"10.2139/SSRN.2643311","DOIUrl":"https://doi.org/10.2139/SSRN.2643311","url":null,"abstract":"This is the first article that analyzes Professor Ronald Gilson’s theory of “simultaneity” in engineering a venture capital market in the context of China. Based on both quantitative and qualitative data collected by the author, this article analyzes how China has created the fastest developing and the largest engineered venture capital market in the world within three decades. It concludes that the rise of venture capital in China is attributable to (1) increasing capital supply through various governmental programs, easing regulatory barriers towards institutional and foreign investors, providing tax incentives and improving exit environment; (2) enhancing the availability of financial intermediaries by introducing the limited partnership that creates an efficient relationship between venture capitalists and investors; and (3) encouraging entrepreneurship by improving the regulatory environment for small businesses. Through these measures, China has facilitated the simultaneous availability of capital with the appetite for high-risk, long-term investments and the emergence of a class of entrepreneurs with the skills and incentives to put that capital to work. One key factor to the rapid development of the Chinese market has been its increased reliance on market forces in allocating capital. On the other hand, a residual degree of bureaucratic allocation prevents the Chinese regime from being fully efficient. China serves as an (imperfect) model for other governments seeking to engineer a venture capital market where enfettered market forces have failed to do so.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126008371","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}
China’s fuzzy corporate governance rules (whether hard or soft) do not help company managers, government officials and others coordinate and cooperate – the raison d’etre for corporate governance rules. In a corporate system dominated by personal relationships and rules, clarity and specificity – even in principles-based corporate governance – serve Chinese corporations far better than passing rules into law or visa versa. We show how existing rules (whether soft, lard, mandatory, voluntary, etc.) harm corporate interests. We illustrate how adding clarity makes the hard/soft law distinction moot. “Coordinatable” rules which help new Chinese participants in corporate governance understand government expectations, follow these understandings, and seek recourse through existing mechanisms, will serve Chinese companies better than best practice or rules of thumb like having a certain proportion of independent directors, internal auditors, etc.
{"title":"Hard Corporate Governance Law in a Soft Law Jurisdiction","authors":"Bryane Michael, S. Goo","doi":"10.2139/ssrn.3101276","DOIUrl":"https://doi.org/10.2139/ssrn.3101276","url":null,"abstract":"China’s fuzzy corporate governance rules (whether hard or soft) do not help company managers, government officials and others coordinate and cooperate – the raison d’etre for corporate governance rules. In a corporate system dominated by personal relationships and rules, clarity and specificity – even in principles-based corporate governance – serve Chinese corporations far better than passing rules into law or visa versa. We show how existing rules (whether soft, lard, mandatory, voluntary, etc.) harm corporate interests. We illustrate how adding clarity makes the hard/soft law distinction moot. “Coordinatable” rules which help new Chinese participants in corporate governance understand government expectations, follow these understandings, and seek recourse through existing mechanisms, will serve Chinese companies better than best practice or rules of thumb like having a certain proportion of independent directors, internal auditors, etc.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132572917","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}
An effective judiciary is key to prosperous markets and sustained economic development, yet empirical evidence on the functioning of courts in the developing world is very scarce. We examine a court-level panel dataset from the resource-starved, post-conflict Nepal to assess the determinants of the volume of case disposition and presence of a quantity-quality tradeoff. We advance the existing empirical literature on courts by utilizing a novel measure of judicial staffing and suggesting a new instrumental variables approach to address the associated endogeneity concerns. Unlike previous research on judiciaries elsewhere, we find that in Nepal judicial staffing exhibits a robustly positive effect on court output and that caseload-induced congestion effects may be important. We do not find evidence implying that increasing court output would decrease adjudicatory quality. We discuss the policy implications of our results.
{"title":"Courts in a Resource-Starved Developing Economy: Case Disposition and the Quantity-Quality Tradeoff in Post-Conflict Nepal","authors":"Peter Grajzl, S. Silwal","doi":"10.2139/ssrn.2859218","DOIUrl":"https://doi.org/10.2139/ssrn.2859218","url":null,"abstract":"An effective judiciary is key to prosperous markets and sustained economic development, yet empirical evidence on the functioning of courts in the developing world is very scarce. We examine a court-level panel dataset from the resource-starved, post-conflict Nepal to assess the determinants of the volume of case disposition and presence of a quantity-quality tradeoff. We advance the existing empirical literature on courts by utilizing a novel measure of judicial staffing and suggesting a new instrumental variables approach to address the associated endogeneity concerns. Unlike previous research on judiciaries elsewhere, we find that in Nepal judicial staffing exhibits a robustly positive effect on court output and that caseload-induced congestion effects may be important. We do not find evidence implying that increasing court output would decrease adjudicatory quality. We discuss the policy implications of our results.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130566784","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}
According to the summary of the multilateral, bilateral and three sides of the international intellectual property were signed by China, the article formally analyze contents classification of the international intellectual property law, international intellectual property law signed time, sorting by total number member of the international intellectual property law, ranking international intellectual property law general principles. The article substantially analyze the influence of international intellectual property law in China on development of China patent law, trademark law and copyright law. The conclusion is that the influence of international intellectual property law in China on development of China intellectual property law.
{"title":"The Influence of International Intellectual Property Law in China on Development of China Intellectual Property Law","authors":"Shi Zhang","doi":"10.2139/SSRN.2838681","DOIUrl":"https://doi.org/10.2139/SSRN.2838681","url":null,"abstract":"According to the summary of the multilateral, bilateral and three sides of the international intellectual property were signed by China, the article formally analyze contents classification of the international intellectual property law, international intellectual property law signed time, sorting by total number member of the international intellectual property law, ranking international intellectual property law general principles. The article substantially analyze the influence of international intellectual property law in China on development of China patent law, trademark law and copyright law. The conclusion is that the influence of international intellectual property law in China on development of China intellectual property law.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116416085","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 paper was submitted to the Philippine Competition Commission ("PCC") on 08 August 2016 in response to its call for comments on whether the co-acquisition by Philippine Long Distance Telephone Company ("PLDT") and Globe Telecom ("Globe") of Vega Telecom, Bell Telecommunication Philippines, and Eastern Telecom will substantially prevent, restrict, or lessen competition in the relevant market or adversely impact consumer welfare. The PCC's authority to review the transactions has been met with strong resistance by PLDT and Globe, who together control 99.9% of the market for mobile telecommunications in the Philippines. With the PCC's first set of commissioners appointed only last January 2016, the transactions pose as the first real challenge to the PCC's mandate of enforcing the country's competition policy, particularly in the highly concentrated mobile telecommunications market.
本文于2016年8月8日提交给菲律宾竞争委员会(“PCC”)，以回应其关于菲律宾长途电话公司(“PLDT”)和环球电信(“环球”)共同收购Vega Telecom, Bell Telecom Philippines和Eastern Telecom是否会实质性地阻止，限制或减少相关市场的竞争或对消费者福利产生不利影响的意见征询。PCC审查交易的权力遭到了PLDT和Globe的强烈抵制，这两家公司共同控制着菲律宾移动通信市场99.9%的份额。由于2016年1月才任命了PCC的第一批专员，这些交易对PCC执行该国竞争政策的任务构成了第一个真正的挑战，特别是在高度集中的移动通信市场。
{"title":"Comment to PLDT and Globe's Acquisition of Vega, Bow Arken, and Brightshare","authors":"Raymond Pasiliao","doi":"10.2139/SSRN.2834033","DOIUrl":"https://doi.org/10.2139/SSRN.2834033","url":null,"abstract":"This paper was submitted to the Philippine Competition Commission (\"PCC\") on 08 August 2016 in response to its call for comments on whether the co-acquisition by Philippine Long Distance Telephone Company (\"PLDT\") and Globe Telecom (\"Globe\") of Vega Telecom, Bell Telecommunication Philippines, and Eastern Telecom will substantially prevent, restrict, or lessen competition in the relevant market or adversely impact consumer welfare. The PCC's authority to review the transactions has been met with strong resistance by PLDT and Globe, who together control 99.9% of the market for mobile telecommunications in the Philippines. With the PCC's first set of commissioners appointed only last January 2016, the transactions pose as the first real challenge to the PCC's mandate of enforcing the country's competition policy, particularly in the highly concentrated mobile telecommunications market.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126774485","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 Exit and Entry Administration Law 2013 (EEAL) in China has been widely considered to be a major step forward in developing a more comprehensive legal regulatory regime for dealing with the rising inflow of foreigners to the country in recent decades. Situated in a policy discourse aimed at combating the so-called ‘three illegalities’ (sanfei) of illegal entry, residence, and work, the EEAL introduces a range of restrictions on the admission of foreign migrants, controls over their employment and residence, as well as enforcement mechanisms that involve employers and members of the general public. This paper examines the ways in which China’s immigration law regime regulates ‘illegal work’ and thereby constructs precarious statuses that shape migrants’ vulnerability to precariousness in their employment relations.
{"title":"Regulating ‘Illegal Work’ in China","authors":"Mimi Zou","doi":"10.2139/SSRN.2811301","DOIUrl":"https://doi.org/10.2139/SSRN.2811301","url":null,"abstract":"The Exit and Entry Administration Law 2013 (EEAL) in China has been widely considered to be a major step forward in developing a more comprehensive legal regulatory regime for dealing with the rising inflow of foreigners to the country in recent decades. Situated in a policy discourse aimed at combating the so-called ‘three illegalities’ (sanfei) of illegal entry, residence, and work, the EEAL introduces a range of restrictions on the admission of foreign migrants, controls over their employment and residence, as well as enforcement mechanisms that involve employers and members of the general public. This paper examines the ways in which China’s immigration law regime regulates ‘illegal work’ and thereby constructs precarious statuses that shape migrants’ vulnerability to precariousness in their employment relations.","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129647291","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 ‘globalisation’ of Council of Europe data protection Convention 108 beyond its European origins has been underway since the start of this decade, when the first non-European accession (by Uruguay) was assessed and approved. The global nature of this process was demonstrated by the completion of the second non-European accession with Mauritius’ deposit of its instrument of accession in a ceremony at today’s Conference. Four other non-European countries are now at various stages of the accession process, and there is increasing interest from other countries (by both governments and NGOs), exemplified by participants in today’s conference from 16 countries outside the Council of Europe, and from many international organisations.This presentation first sets the global context of Convention 108’s ‘globalisation: 111 countries now with data privacy laws, and the majority (57/54) from outside Europe. By 2011 the data privacy Acts outside Europe included on average about 7/10 of the higher ‘European standards’, and this has continued in the last five years. The number of potential Convention 108 ‘candidates’ for accession has yet to be assessed, but the potential for greater ‘globalisation’ is clear.The presentation then sets out 13 benefits that countries outside Europe can obtain from accession to Convention 108: (i) realistic prospects; (ii) no realistic alternative; (iii) voluntary obligations; (iv) international ‘best practice’ recognition; (v) reciprocal data exports; (vi) moderate standards; (vii) minimum standards; (viii) a ‘whitelist’ substitute; (ix) ‘adequacy’ assistance; (x) development assistance; (xi) business benefits with exports and imports; (xii) individual benefits from minimum protections; and (xiii) assistance to international organisations. The significance of these potential benefits, or potential disadvantages, will vary between countries. For each country, they require a balanced assessment of the interests of that country and its government, of businesses operating within it, and of its citizens and residents.The ‘Convention bodies’ (Consultative Committee (T-PD), Secretariat and Committee of Ministers) have significant responsibilities to help ensure that Parties are only required to export their citizens’ data to other countries which have sufficiently high standards of data protection, and their enforcement. However, the current Convention 108 does not explicitly recognise these responsibilities, and the current practice of the ‘Convention bodies’ does not make it transparent enough that they are being carried out. This should be improved.Compared with Europeans, citizens of non-European states that accede to the Convention are at a disadvantage in lacking means under international law to enforce the Convention. The UN Special Rapporteur on the Right to Privacy may be able to help make UN instruments relevant to privacy more able to be used for this purpose.The presentation concludes that the expansion of Convention 108 h
{"title":"Balancing Globalisation's Benefits and Commitments: Accession to Data Protection Convention 108 by Countries Outside Europe","authors":"G. Greenleaf","doi":"10.2139/ssrn.2801054","DOIUrl":"https://doi.org/10.2139/ssrn.2801054","url":null,"abstract":"The ‘globalisation’ of Council of Europe data protection Convention 108 beyond its European origins has been underway since the start of this decade, when the first non-European accession (by Uruguay) was assessed and approved. The global nature of this process was demonstrated by the completion of the second non-European accession with Mauritius’ deposit of its instrument of accession in a ceremony at today’s Conference. Four other non-European countries are now at various stages of the accession process, and there is increasing interest from other countries (by both governments and NGOs), exemplified by participants in today’s conference from 16 countries outside the Council of Europe, and from many international organisations.This presentation first sets the global context of Convention 108’s ‘globalisation: 111 countries now with data privacy laws, and the majority (57/54) from outside Europe. By 2011 the data privacy Acts outside Europe included on average about 7/10 of the higher ‘European standards’, and this has continued in the last five years. The number of potential Convention 108 ‘candidates’ for accession has yet to be assessed, but the potential for greater ‘globalisation’ is clear.The presentation then sets out 13 benefits that countries outside Europe can obtain from accession to Convention 108: (i) realistic prospects; (ii) no realistic alternative; (iii) voluntary obligations; (iv) international ‘best practice’ recognition; (v) reciprocal data exports; (vi) moderate standards; (vii) minimum standards; (viii) a ‘whitelist’ substitute; (ix) ‘adequacy’ assistance; (x) development assistance; (xi) business benefits with exports and imports; (xii) individual benefits from minimum protections; and (xiii) assistance to international organisations. The significance of these potential benefits, or potential disadvantages, will vary between countries. For each country, they require a balanced assessment of the interests of that country and its government, of businesses operating within it, and of its citizens and residents.The ‘Convention bodies’ (Consultative Committee (T-PD), Secretariat and Committee of Ministers) have significant responsibilities to help ensure that Parties are only required to export their citizens’ data to other countries which have sufficiently high standards of data protection, and their enforcement. However, the current Convention 108 does not explicitly recognise these responsibilities, and the current practice of the ‘Convention bodies’ does not make it transparent enough that they are being carried out. This should be improved.Compared with Europeans, citizens of non-European states that accede to the Convention are at a disadvantage in lacking means under international law to enforce the Convention. The UN Special Rapporteur on the Right to Privacy may be able to help make UN instruments relevant to privacy more able to be used for this purpose.The presentation concludes that the expansion of Convention 108 h","PeriodicalId":137430,"journal":{"name":"Asian Law eJournal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115410159","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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