Jingyuan Zhou, Yilin Wang, Ngozi S Nwoko, Saeed Qadir
{"title":"China's New Global Health Governance – CORRIGENDUM","authors":"Jingyuan Zhou, Yilin Wang, Ngozi S Nwoko, Saeed Qadir","doi":"10.1017/asjcl.2023.15","DOIUrl":"https://doi.org/10.1017/asjcl.2023.15","url":null,"abstract":"","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"18 1","pages":"60 - 60"},"PeriodicalIF":0.0,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47111783","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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{"title":"Chinese Investment in Malaysia: COVID-19, Democracy and Beyond – CORRIGENDUM","authors":"Vivien Chen, Weitseng Chen","doi":"10.1017/asjcl.2023.14","DOIUrl":"https://doi.org/10.1017/asjcl.2023.14","url":null,"abstract":"An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135573907","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}
Chinese Communist Party ideologues and a number of prominent legal scholars have become outspoken about the global significance of Chinese legal thought. The question is, however, whether the ambitious statements about the global importance of Chinese legal thought are supported by legal theoretical arguments, which could be influential abroad. This article examines the interaction between the domestic and global stages of Chinese legal speech through the tools of rhetorical theory. Arguments about the nature and global significance of Chinese law are made for different purposes and for different audiences. The most ambitious statements about the global significance of Chinese legal thought are produced within a ‘ceremonial’ genre of speech. Domestic Chinese ceremonial speech is meaningful in the Chinese context, but it translates poorly to globally influential ideological speech. Foreign audiences will find more persuasive arguments about the significance of Chinese legal thought in Chinese deliberative speech, such as parts of Chinese legal scholarship. While arguments made in the deliberative genre are more persuasive than ceremonial speech, specific argumentative moves within this genre are not always helpful for the international advocacy of Chinese legal thought. Moreover, arguments in the deliberative genre are not consistently reflected in Chinese judicial decisions. These observations highlight the role of language and persuasion in the globalisation of law.
{"title":"Chinese Legal Thought on the Global and the Domestic Stage: A Rhetorical Study","authors":"Samuli Seppänen","doi":"10.1017/asjcl.2023.5","DOIUrl":"https://doi.org/10.1017/asjcl.2023.5","url":null,"abstract":"\u0000 Chinese Communist Party ideologues and a number of prominent legal scholars have become outspoken about the global significance of Chinese legal thought. The question is, however, whether the ambitious statements about the global importance of Chinese legal thought are supported by legal theoretical arguments, which could be influential abroad. This article examines the interaction between the domestic and global stages of Chinese legal speech through the tools of rhetorical theory. Arguments about the nature and global significance of Chinese law are made for different purposes and for different audiences. The most ambitious statements about the global significance of Chinese legal thought are produced within a ‘ceremonial’ genre of speech. Domestic Chinese ceremonial speech is meaningful in the Chinese context, but it translates poorly to globally influential ideological speech. Foreign audiences will find more persuasive arguments about the significance of Chinese legal thought in Chinese deliberative speech, such as parts of Chinese legal scholarship. While arguments made in the deliberative genre are more persuasive than ceremonial speech, specific argumentative moves within this genre are not always helpful for the international advocacy of Chinese legal thought. Moreover, arguments in the deliberative genre are not consistently reflected in Chinese judicial decisions. These observations highlight the role of language and persuasion in the globalisation of law.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49202306","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}
Geographical Indications (GIs) have been a ‘must-have’ element for EU FTAs in the last decade. Contemporaneously, the USA has contested these EU GI provisions in its own FTAs often with the same countries. The impacts of the EU-US contestation on GIs on a third country are not sufficiently understood. China has been a long-standing example of the EU-US GI contestation. This article examines how the competing demands of EU-US GI contestation have contributed to the ‘Chinese GI Schizophrenia’, which features triplicate GI protection mechanisms coexisting simultaneously and independently. It discusses how the symptom has developed when China was navigating GI regulations bilaterally and multilaterally in the last four decades, how China has made efforts to manage this schizophrenia through institutional integration, and how recent agreements with the EU and the USA respectively further worsened the situation. Using the case of Chinese GI Schizophrenia, this article warns of similar consequences for any country signing bilateral GI agreements with both the EU and the USA: a compliance dilemma that can ultimately cast doubts on the legitimacy of GI rules and create rule complexity that can bring enormous uncertainty to agri-food producers and exporters.
{"title":"Chinese GI Schizophrenia: Impacts of EU-US GI Contestations","authors":"Wenting Cheng","doi":"10.1017/asjcl.2023.4","DOIUrl":"https://doi.org/10.1017/asjcl.2023.4","url":null,"abstract":"\u0000 Geographical Indications (GIs) have been a ‘must-have’ element for EU FTAs in the last decade. Contemporaneously, the USA has contested these EU GI provisions in its own FTAs often with the same countries. The impacts of the EU-US contestation on GIs on a third country are not sufficiently understood. China has been a long-standing example of the EU-US GI contestation. This article examines how the competing demands of EU-US GI contestation have contributed to the ‘Chinese GI Schizophrenia’, which features triplicate GI protection mechanisms coexisting simultaneously and independently. It discusses how the symptom has developed when China was navigating GI regulations bilaterally and multilaterally in the last four decades, how China has made efforts to manage this schizophrenia through institutional integration, and how recent agreements with the EU and the USA respectively further worsened the situation. Using the case of Chinese GI Schizophrenia, this article warns of similar consequences for any country signing bilateral GI agreements with both the EU and the USA: a compliance dilemma that can ultimately cast doubts on the legitimacy of GI rules and create rule complexity that can bring enormous uncertainty to agri-food producers and exporters.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47463226","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}
Online misinformation endangers the infrastructure of fact essential to public discourse and presents an even greater threat where it is being utilised as a weapon by hostile state actors. In recognition of these dangers, Singapore has implemented legal measures to combat online misinformation, enacting in quick succession the Protection from Online Falsehoods and Manipulation Act (POFMA) and the Foreign Interference (Countermeasures) Act (FICA). These statutes open up novel frontiers of development for Singapore's free speech jurisprudence. Indeed, these statutes confer upon government authorities the power to compel the authors of certain material to display notices stating that the material contains falsehoods or originated from a hostile information campaign. Yet, should one accept that the constitutional right to freedom of speech extends to the freedom not to speak, the compulsion of such expressions may well be unconstitutional under Singapore's free speech guarantee. This article will study the theoretical justifications for a prohibition against compelled speech to evaluate whether Singapore free speech jurisprudence ought to recognise such a prohibition, propose a doctrinal framework to analyse compelled expressions by reference to US, UK, and Canadian jurisprudence, and critically assess how the POFMA and FICA would fare under such a doctrine.
{"title":"Falsehoods, Foreign Interference, and Compelled Speech in Singapore","authors":"Kenny Chng","doi":"10.1017/asjcl.2023.9","DOIUrl":"https://doi.org/10.1017/asjcl.2023.9","url":null,"abstract":"\u0000 Online misinformation endangers the infrastructure of fact essential to public discourse and presents an even greater threat where it is being utilised as a weapon by hostile state actors. In recognition of these dangers, Singapore has implemented legal measures to combat online misinformation, enacting in quick succession the Protection from Online Falsehoods and Manipulation Act (POFMA) and the Foreign Interference (Countermeasures) Act (FICA). These statutes open up novel frontiers of development for Singapore's free speech jurisprudence. Indeed, these statutes confer upon government authorities the power to compel the authors of certain material to display notices stating that the material contains falsehoods or originated from a hostile information campaign. Yet, should one accept that the constitutional right to freedom of speech extends to the freedom not to speak, the compulsion of such expressions may well be unconstitutional under Singapore's free speech guarantee. This article will study the theoretical justifications for a prohibition against compelled speech to evaluate whether Singapore free speech jurisprudence ought to recognise such a prohibition, propose a doctrinal framework to analyse compelled expressions by reference to US, UK, and Canadian jurisprudence, and critically assess how the POFMA and FICA would fare under such a doctrine.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47285208","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 explores and compares the influence of traditional Chinese legal culture of property on contemporary Chinese societies of Hong Kong, Taiwan, and China, who share the same legal cultural heritage but have developed different legal systems under different socio-political environment. These three jurisdictions now proclaim adherence to Westernised legal principles of private property and individual ownership. But in Confucian-dominated traditional China where family was the core societal unit, property was recognised for their collective value, and ownership was structured in network ties of relationships to preserve filial-piety-based sociomoral order. Such property practices and norms form an integral part of traditional Chinese legal culture. By examining the approaches in which customary property-holding practices have been codified, and the reasoning made by courts in parent-child property disputes, this article unveils the interpretive and adaptive ingenuity in which the three Chinese societies embrace Confucian ethos and traditional Chinese legal culture. The article suggests that the differences with the ways divergence between state-imposed systems and social norms are handled may be explained by the nature of legal systems, and that the courts of the three jurisdictions, as they apply Westernised prescripts, display similar tendency to treat belonging and kinship as central components of property.
{"title":"Filial Piety across Legal Systems: Analysing the Influence of Traditional Chinese Legal Culture of Property in Hong Kong, Taiwan, and China","authors":"Alvin Hoi-Chun Hung","doi":"10.1017/asjcl.2023.6","DOIUrl":"https://doi.org/10.1017/asjcl.2023.6","url":null,"abstract":"\u0000 This article explores and compares the influence of traditional Chinese legal culture of property on contemporary Chinese societies of Hong Kong, Taiwan, and China, who share the same legal cultural heritage but have developed different legal systems under different socio-political environment. These three jurisdictions now proclaim adherence to Westernised legal principles of private property and individual ownership. But in Confucian-dominated traditional China where family was the core societal unit, property was recognised for their collective value, and ownership was structured in network ties of relationships to preserve filial-piety-based sociomoral order. Such property practices and norms form an integral part of traditional Chinese legal culture. By examining the approaches in which customary property-holding practices have been codified, and the reasoning made by courts in parent-child property disputes, this article unveils the interpretive and adaptive ingenuity in which the three Chinese societies embrace Confucian ethos and traditional Chinese legal culture. The article suggests that the differences with the ways divergence between state-imposed systems and social norms are handled may be explained by the nature of legal systems, and that the courts of the three jurisdictions, as they apply Westernised prescripts, display similar tendency to treat belonging and kinship as central components of property.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41874286","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 1993, judges in Indian higher judiciary are appointed by a collegium of judges in the Supreme Court headed by the Chief Justice. Academic scholarship on judicial diversity in India has failed to address two important issues arising out of this drastic development. Firstly, while the issue of diversity in the Indian higher judiciary has received limited attention over the years, there has been no attempt to examine the composition of the Supreme Court collegium which controls appointments to the higher judiciary. Secondly, while patterns of appointments have been analysed in relation to different Chief Justices and also the collegium vis-a-vis the executive, no attention has been paid to the specific collegiums which are responsible for the selection of judges. This has allowed the members of the collegium to exercise their power away from public scrutiny. This article unveils the group of judges who have exercised influence as members of the collegium and how this influence has been distributed amongst judges in terms of their social and professional background. Findings in this article show that membership of the collegium and influence within the collegium has not had representative diversity.
{"title":"Unveiling India's Supreme Court Collegium: Examining Diversity of Presence and Influence","authors":"R. Tripathy","doi":"10.1017/asjcl.2023.8","DOIUrl":"https://doi.org/10.1017/asjcl.2023.8","url":null,"abstract":"\u0000 Since 1993, judges in Indian higher judiciary are appointed by a collegium of judges in the Supreme Court headed by the Chief Justice. Academic scholarship on judicial diversity in India has failed to address two important issues arising out of this drastic development. Firstly, while the issue of diversity in the Indian higher judiciary has received limited attention over the years, there has been no attempt to examine the composition of the Supreme Court collegium which controls appointments to the higher judiciary. Secondly, while patterns of appointments have been analysed in relation to different Chief Justices and also the collegium vis-a-vis the executive, no attention has been paid to the specific collegiums which are responsible for the selection of judges. This has allowed the members of the collegium to exercise their power away from public scrutiny.\u0000 This article unveils the group of judges who have exercised influence as members of the collegium and how this influence has been distributed amongst judges in terms of their social and professional background. Findings in this article show that membership of the collegium and influence within the collegium has not had representative diversity.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43485769","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}
Beginning around 1990, judicial interpretation transformed public law in Sri Lanka by blending writs with fundamental rights. On the one hand, the Supreme Court has defined and expanded the constitutional right ‘to equality and equal protection of the law’ by drawing on administrative law concepts of natural justice, reasonableness, legitimate expectation, the duty to provide reasons for decision-making, and proportionality. On the other hand, judges have relied on the Bill of Rights as a standard to assess the decisions of public authorities in writ matters. This relationship between the writs and the rights has had important implications for the growth of public law in Sri Lanka. There has also emerged an incipient ground of review, ‘rights-based review’, as part of the writ jurisdiction, and the ‘public trust doctrine’ in fundamental rights review. Public law has been strengthened by the growth of public interest litigation and the use of new judicial remedies. This article looks at how the writ jurisdiction and rights-based review have evolved in recent times and considers how the two remedies have been used and fused, in a country where the legal and constitutional history has taken a different trajectory to some other post-colonial societies. The article concludes by arguing that this fusion of constitutional and administrative law concepts, together with the expansion in the rules of standing and the emergence of the new concepts of public trust doctrine and fairness, have generated a more robust legal framework that can better protect constitutional rights and democratic freedoms.
{"title":"Mixing Writs with Rights: The Implications for Public Law in Sri Lanka","authors":"Mario Gomez","doi":"10.1017/asjcl.2023.7","DOIUrl":"https://doi.org/10.1017/asjcl.2023.7","url":null,"abstract":"\u0000 Beginning around 1990, judicial interpretation transformed public law in Sri Lanka by blending writs with fundamental rights. On the one hand, the Supreme Court has defined and expanded the constitutional right ‘to equality and equal protection of the law’ by drawing on administrative law concepts of natural justice, reasonableness, legitimate expectation, the duty to provide reasons for decision-making, and proportionality. On the other hand, judges have relied on the Bill of Rights as a standard to assess the decisions of public authorities in writ matters. This relationship between the writs and the rights has had important implications for the growth of public law in Sri Lanka. There has also emerged an incipient ground of review, ‘rights-based review’, as part of the writ jurisdiction, and the ‘public trust doctrine’ in fundamental rights review. Public law has been strengthened by the growth of public interest litigation and the use of new judicial remedies. This article looks at how the writ jurisdiction and rights-based review have evolved in recent times and considers how the two remedies have been used and fused, in a country where the legal and constitutional history has taken a different trajectory to some other post-colonial societies. The article concludes by arguing that this fusion of constitutional and administrative law concepts, together with the expansion in the rules of standing and the emergence of the new concepts of public trust doctrine and fairness, have generated a more robust legal framework that can better protect constitutional rights and democratic freedoms.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42189126","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}
{"title":"Thai Legal History: From Traditional to Modern Law edited by Andrew Harding and Munin Pongsapan. Cambridge: Cambridge University Press, 2021. 350 pp.","authors":"K. Hewison","doi":"10.1017/asjcl.2023.10","DOIUrl":"https://doi.org/10.1017/asjcl.2023.10","url":null,"abstract":"","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41614304","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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