journal: Asian Journal of Comparative Law

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Published from May 1, 2006 to December 10, 2014

Asian Journal of Comparative Law

ISSN: 1932-0205

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Volume 9 Issue 1

January 2014

Publicly Available December 11, 2014

Preface to Special Issue

October 30, 2014

Socio-legal Scholarship on Southeast Asia: Themes and Directions

Lynette J. Chua, Melissa Crouch

Page range: 1-4

Articles

October 21, 2014

Charting Socio-Legal Scholarship on Southeast Asia: Key Themes and Future Directions

Lynette J. Chua

Page range: 5-27

Abstract

This article discusses the state of socio-legal scholarship on Southeast Asia and situates the special journal issue in relation to its key patterns, emerging trends, and future directions. Southeast Asian literature in leading socio-legal journals exhibits an imbalanced geographical coverage and tends to cluster around research on state law’s intersection with Islamic and/or customary norms, women’s equality and legal status, and land and the natural environment. These prevailing patterns lead to uneven attention paid to Southeast Asia. However, growing bodies of work along the major themes of legal pluralism, law and development, and dispute processing show the potential of Southeast Asian research to advance important debates and sub-fields in the scholarship at large. Proposals from a December 2012 workshop initiative further identified research directions that could enrich this field of study as well as understandings of law-society relations in Southeast Asia.

May 9, 2014

Revolution Imagined: Cause Advocacy, Consumer Rights, and the Evolving Role of NGOs in Thailand

Frank Munger

Page range: 29-64

Abstract

This article describes the founding and evolution of a “Thai-style” NGO dedicated to consumer protection. Through a description of the NGO and the career of its founder, the article brings to light features of the evolution of NGO-based advocacy in Thailand from the student uprising in 1973 to the present. The legacy of the 1973 October Generation of activists continues to influence development of NGOs but new emphasis on rights has emerged since the era of constitutional reform in the 1990s. Many NGOs now make use of litigation to attempt to achieve social change, but litigation, like other long-standing methods of advocacy involving reliance on networks that penetrate government itself, reflect the particular opportunities and pathways for change opened by Thailand’s politics.

December 3, 2013

New Transnational Governance and the Changing Composition of Regulatory Pluralism in Southeast Asia

John Gillespie

Page range: 65-95

Abstract

Over the past three decades, Transnational Production Regimes (TPRs) have become the main source of technical and regulatory knowledge for Southeast Asia corporations. Typically TPRs transfer knowledge from lead firms located in the industrial North to supplier firms located in Southeast Asia. Regulatory knowledge transferred through TPRs largely bypasses Southeast Asian laws and legal institutions to directly influence the behavior of supplier firms. Although socio-economic studies show that TPRs are responsible for generating much wealth creation in the region, they hardly register in the socio-legal literature. Drawing on ethnographic studies conducted in Vietnam, this paper will attempt to explain why different types of TPRs produce different regulatory responses in Vietnamese firms. Preliminary findings suggest differences in the way that regulatory knowledge transmitted through Northeast Asian and Euro-American TPRs is absorbed and integrated into the organisational fabric of Vietnamese firms. They also shed light on two well-documented phenomena in Vietnam. In conclusion the paper will argue that TPRs displace state commercial laws and are partially responsible for the slow progress of conventional law and development projects in changing regulatory practices. It will contend that the different kinds of TPRs generate regulatory pluralism and the uneven application of state law in different business sectors.

September 17, 2014

The Conceptualisation of Pro Bono in Singapore

Helena Whalen-Bridge

Page range: 97-143

Abstract

“Pro bono” is a familiar phrase in North American jurisdictions that generally refers to a lawyer’s provision of free legal services to indigent persons. The phrase “pro bono” has also come to imply a particular approach to a lawyer’s relationship to indigent persons, one that stresses the obligatory as opposed to the charitable nature of the services provided. To what extent has this phrase, and its conceptualisation of a lawyer’s role, been used in Asian jurisdictions? This article examines how one Asian jurisdiction, Singapore, conceptualises a lawyer’s relationship to indigent persons by examining newspaper usage of phrases describing legal services for indigent persons. The article argues that changes in usage over time, from free legal services and legal aid to inclusion of pro bono, coupled with increased discussions of access to justice, represent a shift to a more obligatory concept of indigent legal services. An obligatory conceptualisation potentially exerts greater pressure on lawyers to provide indigent legal services, but can also exert pressure to revise the historical lack of broad-based government funded criminal legal aid in Singapore.

October 21, 2014

Alliances and Contestations in the Legal Production of Space: The Case of Bali

Agung Wardana

Page range: 145-171

Abstract

The controversy over the provincial spatial planning regulation for Bali Province reflects the dynamic of Balinese society in the era of regional autonomy. The dynamic is polarised between expanding the tourism and real estate industry for economic reasons and constraining such expansion for the sake of protecting Bali’s environment and culture. Thus, the law governing space becomes an essential means to intervene in crafting the relations between competing interests over space. The application of the law itself is also complicated by the condition of legal pluralism which provides different and sometimes conflicting sources of legality to be used to justify the interests of legal actors. This article aims at highlighting how space is produced in a pluralistic legal setting and examining whose interests are served by the condition of legal pluralism in contemporary Bali. Employing socio-legal methods with Lefebvre’s conception of space and legal pluralism as an integrating analytical framework, the article contributes to the literature on spatial planning law in Indonesia that is dominated by “legal centralism” and a given notion of space.

April 18, 2014

The Philippine Supreme Court and Regime Response, 1970–2000

Stacia L. Haynie, Tao L. Dumas

Page range: 173-196

Abstract

The behaviour of appellate courts has long fascinated scholars. Specifically, scholars have been attentive to the effect of the political context on judicial outcomes. This paper focuses on the decision-making of the Philippine Supreme Court (“Court”) over multiple decades with particular attention to the influence of changes in the executive branch on the outcomes of cases brought to the Court. The analysis evaluates the decisions of the Court from 1970 through 2000, encompassing the turmoil of the Marcos years through the first few years of the tumultuous tenure of Joseph Estrada. We test the hypothesis, grounded in Galanter’s seminal work, that the government has substantial advantages in the legal system and thus enjoys greater success than other litigants. The government has theoretically unlimited resources with which to litigate, control over the staffing of the bench, and authority over, or at least major influence on, the laws that the courts interpret. As a result, the government is expected to win the majority of the challenges that come before the Court. The Philippines provides an excellent laboratory to test this thesis. In the Marcos era the Court faced a dictator professing “constitutional authoritarianism” whose regime ultimately was toppled by the People Power Revolution. His successor, Corazon Aquino, was initially embraced as the popular wife of an assassinated hero, Senator Benigno Aquino, Jr., but later faced a series of attempts to topple her regime. President Fidel Ramos served for 6 years leading the nation through a period of economic growth. Elected by a wide margin in 1998, President Joseph Estrada quickly lost the confidence of the Filipino people as well as the business and military sectors. By 2001, he was removed from office through political actions which some consider the People Power II. This analysis evaluates the winners and losers before the Philippine Supreme Court across the tenures of these presidencies with particular focus on the ability of the Filipino government to succeed when compared to individuals and businesses and the success of different regimes over time as the executive’s popularity surges and wanes. The results suggest, that like other institutions, the Philippine Supreme Court responded to the rise and fall of the personal politics that dominates the distribution of power in this Asian archipelago.

July 18, 2014

Comparative Law, Anti-essentialism and Intersectionality: Reflections from Southeast Asia in Search of an Elusive Balance

Arif A. Jamal

Page range: 197-211

Abstract

This paper explores the paradox of diversity and similarity within legal “traditions”. More particularly, in looking especially at comparative law scholarship on Southeast Asia, it asks if there are any lessons that comparative law theory can learn about how to account for commonality and difference in large and diverse contexts from the perspectives of intersectionality and anti-essentialism that have been developed in feminist scholarship. The paper concludes that feminist scholarship does not resolve the paradox that comparative legal study makes evident but that it does make us better realise the importance of open-textured “narratives of affinity” and “contingent classification” in legal contexts.

May 23, 2014

Historicising “Law” as a Language of Progress and Its Anomalies: The Case of Penal Law Reforms in Colonial India

Mohammad Shahabuddin

Page range: 213-240

Abstract

This paper dispels the myth of liberal Enlightenment in relation to penal law reforms in colonial India by advancing two sets of argument. First, the liberal project of codification on the basis of universalist notion of utilitarianism never broke with cultural hierarchy inbuilt in the very act of colonisation. In this paper, I specifically look into the emerging phenomenon of evolutionary science in the nineteenth century – social Darwinism – to explain the dominant normative, as opposed to realist, justification of such racial hierarchy in colonial discourses since the nineteenth century. Second, using Dipesh Chakrabarty’s theoretical framework, I provincialise the penal law reform project in colonial India through the examination of literature in the field, and substantiate how the notion of utilitarian universality remained vague and unpromising in face of instrumental needs on ground – both in the colony and in the metropolis. Taken together, these propositions dispel the myth of the liberal project of penal law reforms in colonial India based on this universalist position and underscore the fallacies of the transition narrative of modernity itself.

October 29, 2014

Is Japan Ready for Enduring Powers? A Comparative Analysis of Enduring Powers Reform

Trevor Ryan

Page range: 241-266

Abstract

This article seeks to understand why the uptake of “third generation” enduring powers in Japan has been disappointing from the perspective of reformers who introduced the powers in 2000. In addition to questions about optimum design of this particular legal instrument, it is an opportunity to explore deeper questions about regulation and the role of law and the market in ageing, post-industrial societies such as Japan. First, the article explains the form that enduring powers take in Japan. Second, it presents statistics on the uptake of enduring powers. Third, the article presents possible reasons for this low uptake, including unsuitable social norms, a lack of awareness, excessive regulation, unresponsive doctrine, and entrenched judicial values. Finally, the article concludes that while these reasons all have explanatory value and are not easily disaggregated, comparative analysis presents some promising developments in Japan such as the growth in candidates to take on enduring powers who are regulated and organised through legal professions, civil society, local government, and the court system. At a deeper level, the article concludes that the fate of enduring powers turns not only on regulatory and doctrinal levers but also on the relative strengths within Japan’s continuing legal development of divergent views on the imposition of formal legal norms and market mechanisms upon relationships previously regulated by informal social norms or administrative decree.

December 19, 2013

Controlling Shareholders: Issues and Challenges for Shareholders’ Empowerment in Directors’ Remuneration in Corporate Malaysia

Shanthy Rachagan, Aiman Nariman Mohd Sulaiman

Page range: 267-294

Abstract

Current reform concerning directors’ remuneration relies on improving legal rules and self-regulation to minimise expropriation of minority shareholders. These have prominently focussed on empowering shareholders. Nonetheless, it is unclear as to the extent these reform proposals are compatible within the concentrated shareholding structure. Some of the reforms taking place in developed countries are suited for dispersed shareholding structure and thus transplanting them to emerging economies with concentrated shareholders may be ineffective. Malaysia poses an interesting case study, especially to countries with similar ownership structure as the concentrated shareholding structure raises different agency problems. The issue of protection of minority shareholder rights and the prevention of abuse of the controlling power by paying excessive remuneration to the executives is therefore a subject of due consideration in Malaysia and countries with similar shareholding structures. This article recommends that Malaysia and other emerging countries look into encouraging limited shareholder empowerment in tandem with laws.

December 4, 2014

Competition Law and the Regulation of Buyer Power and Buyer Cartels in China and Hong Kong

Ariel Ezrachi, Mark Williams

Page range: 295-315

Abstract

The paper focuses on the application of competition law in HK and China to buying alliances and buyer cartels in intermediate markets. The discussion set to clarify the legality, under the competition provisions, of purchase price fixing agreements between buyers.

June 6, 2014

Dishonest Assistance in Singapore and Malaysia since Barlow Clowes

Stewart Manley

Page range: 317-343

Abstract

Determining civil liability for dishonest assistance in breach of fiduciary duty requires courts to consider a combination of subjective and objective factors. Taking into account the person’s experience, intelligence and reasons for acting (subjective factors), did the person have sufficient knowledge of the transaction (subjective factor) so as to render participation in the transaction contrary to ordinary standards of honest behaviour (objective factor)? The piecemeal development of this test, as well as its complexity, led to inconsistency and confusion in application. In 2006, the Privy Council in Barlow Clowes International Ltd (in liq) v. Eurotrust International Ltd clarified that the person accused of dishonest assistance need not actually realise that involvement in the transaction would breach ordinary standards of honesty. This article assesses how the dishonest assistance test has been applied since Barlow Clowes in two Commonwealth countries: Singapore and Malaysia. The article submits that recent Singaporean and Malaysian judgments have not satisfactorily articulated the various elements of the dishonest assistance test, and thus an attempt is made to provide a clear and concise formulation of the test. The article further posits that while Barlow Clowes indeed added badly needed clarity, it did so only with respect to the particular issue addressed by the Privy Council’s judgment. In other areas no less important – whether there is an active–passive dichotomy between dishonest assistance and knowing receipt, and the nature of wilful blindness in the non-criminal law context – fundamental questions about the contours of the test remain. The article proposes that there should not be an active–passive distinction, and that the test for wilful blindness – a type of dishonest assistance involving suspicion and turning a blind eye – should be revised to contain both subjective and objective elements.

September 6, 2014

A Bolder Step towards Privacy Protection in Hong Kong: A Statutory Cause of Action

Yun Ching Jojo Mo, A. K. C. Koo

Page range: 345-380

Abstract

Privacy is an important value which is internationally recognised as worthy of protection. However, it has been under constant challenge for a number of reasons including changes in technology which facilitate informational and other forms of surveillance and privacy-invasive media practices. Because of its multi-faceted nature, privacy is typically regulated by a variety of different means. Data protection laws seek to ensure the fair handling of personal information. Criminal sanctions are used to outlaw more serious invasions of privacy, including certain breaches of communications privacy and uses of surveillance devices. Assorted civil actions are relied on to protect broader interests in privacy. However, the piecemeal nature of privacy protection is often found to be inadequate and victims frequently lack appropriate remedies. Therefore, many common law countries either provide for or are actively considering the introduction of civil remedies to specifically address general privacy issues. There has also been active consideration of measures to regulate media organisations, especially in the light of the Murdoch scandal in the United Kingdom. The inadequacies in the law have prompted calls for law reform in Hong Kong, and recommendations have been made in the report on Civil Liability for Invasion of Privacy (2004). It examined the need of individuals to be able to seek civil remedies for unwarranted invasion of privacy. In it the Law Reform Commission of Hong Kong (HKLRC) proposed the introduction of specific statutory torts of privacy to cover acts and conduct frustrating the reasonable expectation of an individual’s privacy. It proposed that a person, who invaded another’s privacy by intruding upon their solitude or seclusion, or by intruding into their private affairs or concerns, should be liable in tort. It also recommended another tort for invasion of privacy arising out of public disclosure of private facts. This article focuses on the issue of civil liability and analyses the inadequacies of existing laws and regulatory regimes and attempts to come up with a model that is most suitable for Hong Kong. It takes the HKLRC’s recommendations as its starting point but refines and modifies them, drawing on the insights that have since become available from the work of other law reform bodies and further developments in overseas case law.

Book Review

October 21, 2014

Jie Huang: Interregional Recognition and Enforcement of Civil and Commercial Judgments

Tan Lee Cheng

Page range: 381-385

Abstract

Review of “Interregional Recognition and Enforcement of Civil and Commercial Judgments” by Professor Jie Huang (Oxford and Portland, Oregon: Hart Publishing, 2014) which analyses the status quo of judgment recognition and enforcement in the Mainland China, Macao and Hong Kong under the ‘One Country, Two Systems’ regime. The book also presents a comparative study of the interregional recognition and enforcement of judgments in the US and EU.

(Deutsch)

View latest issue

Online ISSN: 1932-0205
Type: Journal
Language: English
Publisher: De Gruyter
First published: May 1, 2006
Last published: December 10, 2014
Publication Frequency: 1 Issue per Year

Asian Journal of Comparative Law

Frontmatter

Socio-legal Scholarship on Southeast Asia: Themes and Directions

Charting Socio-Legal Scholarship on Southeast Asia: Key Themes and Future Directions

Abstract

Revolution Imagined: Cause Advocacy, Consumer Rights, and the Evolving Role of NGOs in Thailand

Abstract

New Transnational Governance and the Changing Composition of Regulatory Pluralism in Southeast Asia

Abstract

The Conceptualisation of Pro Bono in Singapore

Abstract

Alliances and Contestations in the Legal Production of Space: The Case of Bali

Abstract

The Philippine Supreme Court and Regime Response, 1970–2000

Abstract

Comparative Law, Anti-essentialism and Intersectionality: Reflections from Southeast Asia in Search of an Elusive Balance

Abstract

Historicising “Law” as a Language of Progress and Its Anomalies: The Case of Penal Law Reforms in Colonial India

Abstract

Is Japan Ready for Enduring Powers? A Comparative Analysis of Enduring Powers Reform

Abstract

Controlling Shareholders: Issues and Challenges for Shareholders’ Empowerment in Directors’ Remuneration in Corporate Malaysia

Abstract

Competition Law and the Regulation of Buyer Power and Buyer Cartels in China and Hong Kong

Abstract

Dishonest Assistance in Singapore and Malaysia since Barlow Clowes

Abstract

A Bolder Step towards Privacy Protection in Hong Kong: A Statutory Cause of Action

Abstract

Jie Huang: Interregional Recognition and Enforcement of Civil and Commercial Judgments

Abstract