Asia Pacific Law Review最新文献

{"title":"Sword of damocles? Assessing the compulsory sharing of essential data under the Chinese competition law","authors":"Bo Yuan","doi":"10.1080/10192557.2023.2285525","DOIUrl":"https://doi.org/10.1080/10192557.2023.2285525","url":null,"abstract":"ABSTRACT As data have become an increasingly important asset of modern companies in the digital era, certain types of data, known as ‘essential data’, have become particularly crucial in market competition. The refusal to share ‘essential data’ may raise competition-relevant concerns, and the intervention by competition law to ensure its sharing is thus in demand. Yet, three dimensions should be carefully assessed before the legal interventions are deployed and applied. First, clear criteria should be crafted for identifying ‘essential data’. Second, it is vital to assess the role of ‘essential data’ concerning potential abuses of market dominance and merger control by corporations. Finally, the reasonable conditions under which the sharing of ‘essential data’ is compelled should be specified.","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"15 1","pages":"102 - 122"},"PeriodicalIF":0.5,"publicationDate":"2023-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139211486","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Geography has little impact: a comparative study on the role of judges in Singapore and Indonesia in the taking of evidence in civil proceedings","authors":"Junianto James Losari","doi":"10.1080/10192557.2023.2274635","DOIUrl":"https://doi.org/10.1080/10192557.2023.2274635","url":null,"abstract":"ABSTRACTIndonesia and Singapore are neighbouring countries with vibrant economic relations. Despite the geographical proximity, the legal systems in both countries are strikingly different. The author suggests that the most influencing factor of a country’s legal system is often its former colonial master. Singapore (a former British colony) applies the common law legal system while Indonesia (a former Dutch colony) applies the civil law legal system. Chan and van Rhee suggest that the differences between the two legal systems are often exaggerated, but differences remain. This paper sets out these differences with a focus on the judges’ role in taking evidence in civil proceedings, given the inevitable fact that disputes would arise among the business players of the two countries and that taking of evidence is an essential part that may be decisive to the outcome of a dispute. Doctrinal and comparative methods will be used, namely through analysing various procedural laws as found in the statute, case laws, as well as commentaries. This paper contributes to the scant collection of comparative literature on the two legal systems and assists business players in understanding better the procedures of taking evidence applied by the relevant dispute resolution forum that they can choose to resolve their commercial disputes.KEYWORDS: Civil proceedingsevidencecomparative law AcknowledgementsThe author expresses sincere gratitude to the two anonymous reviewers for their invaluable comments, as well as the exceptional support provided by the editorial team at Asia Pacific Law Review and Taylor & Francis in bringing this article to its final form.Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 Peter C H Chan and C H (Remco) van Rhee, Civil Case Management in the Twenty-First Century: Court Structures Still Matter (Springer, 2021).2 Peter C H Chan, ‘Comparing the Civil Court Structures of Mainland China, Taiwan, Hong Kong and Macau from a Case Management Perspective’ in ibid 13; CJ Hamson, ‘Civil Procedure in France and England: An Introductory Lecture’ (1950) 10 Cambridge Law Journal 411; Squire Patton Boggs, ‘Gathering Evidence: How Does France Compare?’ (10 June 2013) <https://larevue.squirepattonboggs.com/gathering-evidence-how-does-france-compare_a2075.html> accessed 3 October 2023; Takeshi Kojima, ‘Japanese Civil Procedure in Comparative Law Perspective’ (1998) 46 University of Kansas Law Review 687; Shozo Ota, ‘Reform of Civil Procedure in Japan’ (2001) 49 The American Journal of Comparative Law 561; see more generally Nader Ghanbari, Hassan Mohseni and Dawood Nassiran, ‘Comparative Study of Civil Procedure in Common Law and Civil Law Systems’ (2016) 9 Journal of politics and law (Toronto) 267; see also Louis Myers, ‘UPDATE: Comparative Civil Procedure: Finding Primary and Secondary Sources’ (GlobaLex, May/June 2023) <https://www.nyulawglobal.org/globalex/Comparative_Civil_Procedure1.html> accessed 7 Octobe","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"11 17","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135390572","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A tale of two immunities: the ongoing transition from absolute to restrictive sovereign immunity in China","authors":"Xueliang Ji","doi":"10.1080/10192557.2023.2274633","DOIUrl":"https://doi.org/10.1080/10192557.2023.2274633","url":null,"abstract":"ABSTRACTThis article examines the doctrine of sovereign immunity and its implications in the context of China’s evolving stance on this principle. The paper delves into the historical foundations and theoretical underpinnings of sovereign immunity, distinguishing between absolute immunity and the more recent concept of restrictive immunity. The analysis focuses on China’s position on sovereign immunity, considering its historical adherence to absolute immunity and its endorsement of the United Nations Convention on Jurisdictional Immunities of States and Their Property. The paper also addresses China’s law on foreign state immunity and critically examines the impact of this law and its difference compared with the FSIA and UN Convention. Drawing on comparative legal analysis and case studies, the paper evaluates China’s shift from absolute to restrictive immunity, taking into account the interests of the private sector and the need for a fair and predictable legal framework. It explores the challenges and benefits associated with this transition, emphasizing the importance of harmonization with international legal norms and the enhancement of China’s reputation as a reliable player in global commerce. Ultimately, the paper argues that China’s transition towards restrictive immunity is not only necessary to protect its economic interests but also crucial for maintaining diplomatic credibility and fostering international cooperation. By embracing this shift, China can contribute to the harmonization of global legal norms and enhance its standing as a responsible participant in the international legal landscape.KEYWORDS: Sovereign immunityChina’s law on foreign state immunitythe Congo caseFSIAthe UN Convention AcknowledgementsThe author wishes to acknowledge the recommendations of the two anonymous reviewers, whose comprehensive evaluations addressed both foundational topics and recent regulatory shifts. Additionally, the editorial expertise provided by the team at the Asia Pacific Law Review, which aided in refining the article, is also duly recognized.Notes1 H Fox and P Webb, The Law of State Immunity (3rd edn, OUP, 2013) 1. See also M Brenninkmeijer and F Gélinas, ‘The Problem of Execution Immunities and the ICSID Convention’ (2021) 22(3) The Journal of World Investment & Trade 429; J Martin Hunterand JG Olmedo, ‘Enforcement/Execution̓ of ICSID Awards Against Reluctant States’ (2018) 12(3) The Journal of World Investment & Trade 307; S McKenzie, ‘Sovereign Immunity of Uncrewed Surveillance Vehicles and the Limits of Enforcement Jurisdiction’ (2023) Nordic Journal of International Law (published online ahead of print 2023) <https://doi.org/10.1163/15718107-bja10062>.2 D Gaukrodger, ‘OECD Working Papers on International Investment: Foreign State Immunity and Foreign Government Controlled Investors’ (OECD, 2010) 7, 11, 13–14.3 Ibid, 11; The movement started in civil law jurisdiction; following the Foreign Sovereign Immunities Act of 1976 adopted in ","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"65 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135342063","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bad faith litigation of intellectual property as a violation of China’s anti-monopoly law: How should the current approach be improved?","authors":"Peicheng Wu","doi":"10.1080/10192557.2023.2274634","DOIUrl":"https://doi.org/10.1080/10192557.2023.2274634","url":null,"abstract":"ABSTRACTDespite that access to justice is a universally recognized human right, comparative antitrust experience from both sides of the Atlantic demonstrates that bad faith litigation of intellectual property may constitute the abuse of dominance under the competition law. There has been an anti-monopoly case in China where bad faith litigation of intellectual property raised competition concerns, yet the Chinese anti-monopoly authority does not have sufficient experience in addressing these concerns, leaving some problems to be solved. Arguably, the Chinese authority neither provided a clear test for the assessment of bad faith litigation of intellectual property nor considered the interest balance in the case. This paper critically examines the US and EU approaches to analysing the bad faith litigation of intellectual property under antitrust law, and argues they in nature share a similar approach. In this regard, by learning from comparative experience, this paper suggests that China should establish an antitrust counterclaim in an infringement lawsuit of intellectual property and adopt a clear-up test for the bad faith litigation of intellectual property under the anti-monopoly law. Additionally, China should specify two specific circumstances: the first is related to a circumstance where the intellectual property holder has known that it was not entitled to any kind of legal intellectual property rights, and the second is related to another circumstance where the intellectual property in question becomes a standard.KEYWORDS: Bad faith litigationintellectual propertyanti-monopoly lawChinacomparative experience Disclosure statementNo potential conflict of interest was reported by the author(s).AcknowledgementsThis article is supported by the Fundamental Research Funds for the Central Universities named ‘Cross-disciplinary Research on Departments of Law’, Zhejiang University.Notes1 Francesco Francioni, Access to Justice as a Human Right (Oxford University Press, 2007).2 United Nations, ‘Access to Justice’ <https://www.un.org/ruleoflaw/thematic-areas/access-to-justice-and-rule-of-law-institutions/access-to-justice/>.3 For example, when it comes to trade secret cases, Professor Harry First considers refusal to supply and sham litigation as two primary abusive practices in relation to trade secrets that may violate the US monopolization law. See Harry First, ‘Trade Secrets and Antitrust Law’ in C Dreyfuss Rochelle (ed), The Law and Theory of Trade Secrecy: A Handbook of Contemporary Research (Edward Elgar, 2011) 358. See also Michael D Oliver, ‘Antitrust Liability for Bad Faith Assertion of Trade Secrets’ (1989) 18 (3) University of Baltimore Law Review 544.4 For instance, competition law scholars argued that in the context of intellectual property litigation, it is necessary for antitrust law to intervene if some litigants abuse the litigation process. See Ioannis Lianos and Pierre Regibeau, ‘“Sham” Litigation: When Can It Arise and How Can It Be","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":"3 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135390608","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"China’s treaty policy and practice in international investment law and arbitration: a comprehensive and analytical study","authors":"Xuejie Su","doi":"10.1080/10192557.2023.2232618","DOIUrl":"https://doi.org/10.1080/10192557.2023.2232618","url":null,"abstract":"","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49620857","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The comprehensive implementation of the registration-based system of IPO regulation in China: practice, progress, problems and prospects","authors":"Fa Chen, L. Zhao","doi":"10.1080/10192557.2023.2232612","DOIUrl":"https://doi.org/10.1080/10192557.2023.2232612","url":null,"abstract":"","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2023-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47500433","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Determinants of prosecuting cases about driving while intoxicated in China: an empirical case law analysis","authors":"Zhijian Wang","doi":"10.1080/10192557.2023.2232616","DOIUrl":"https://doi.org/10.1080/10192557.2023.2232616","url":null,"abstract":"","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2023-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47104604","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unpacking the legal status of platform workers in China: an empirical analysis of judicial attitudes and challenges in the food delivery sector","authors":"Qian Wang, Yujia Chen, Yayun Yang","doi":"10.1080/10192557.2023.2233222","DOIUrl":"https://doi.org/10.1080/10192557.2023.2233222","url":null,"abstract":"","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2023-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48111752","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Religious offences in Common Law Asia: colonial legacies, constitutional rights and contemporary practice","authors":"A. Rahman, Ahmad Jalili","doi":"10.1080/10192557.2023.2233223","DOIUrl":"https://doi.org/10.1080/10192557.2023.2233223","url":null,"abstract":"","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2023-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43340306","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"China’s legal efforts to facilitate cross-border data transfers: a comprehensive reality check","authors":"Feng Jiang","doi":"10.1080/10192557.2023.2232613","DOIUrl":"https://doi.org/10.1080/10192557.2023.2232613","url":null,"abstract":"","PeriodicalId":42799,"journal":{"name":"Asia Pacific Law Review","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2023-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45400479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}