The Chinese Securities Regulatory Commission (CSRC) has significantly revised its overall market supervision framework over the last two decades. China’s insider trading laws, however, remain broad and abstract, while most enforcement measures take place inside a black box. These circumstances have led to an unpredictable and ineffective enforcement regime. This article examines all administrative sanctions cases from 2000 to 2013 in order to examine the CSRC’s actual enforcement practices. This data shows that the agency has a history of inconsistent enforcement, which stands as a warning against the consequences of unpredictable regulation. Moreover, it argues that the Commission’s current approach to recognizing illegal gains is both unreasonable and illegal, and that the CSRC has failed to adequately enforce actions for loss evasion cases. By adjusting enforcement policy to take these considerations into account, the CSRC would significantly improve the efficacy of the sanctions regime in China.

Collective bargaining is the best mechanism to attain a cordial relationship between employers and employees. It is also an effective forum to agree on terms and conditions of employment. In order to achieve such purposes, industrial relations systems in a country must provide legal mechanism to enable parties to bargain collectively with a view to concluding a collective agreement. The ILO has adopted a convention providing a framework for member states to enact laws that would facilitate such a mechanism. In this respect, Malaysia has enacted the Industrial Relations Act 1967, which provides among others a mechanism for collective bargaining. In this article we argue on the extent of the right of Malaysian workers to collective bargaining in the context of the ILO standards. Here we argue that despite the legal mechanism available that facilitates collective bargaining between the two parties, Malaysian workers and their trade unions face some difficulties in bargaining with their employers.

In Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat, the Federal Court of Malaysia asserted that the Federal Constitution continues to vest a distinct and independent judicial power in the judiciary notwithstanding earlier constitutional amendments, and also gave substantive effect to the ‘basic structure doctrine’ for the first time in Malaysia. This has contributed significantly to the long-standing discussion of whether, and to what extent, the ‘basic structure doctrine’ applies in Malaysia. Situating that landmark decision within the context of the evolving judicial practice in Malaysia and other jurisdictions on the ‘Westminster model’, this article evaluates the extent to which Semenyih Jaya has contributed towards strengthening constitutionalism and the rule of law in Malaysia. Considering that the apex court stopped short of directly invalidating the relevant constitutional amendments, this article argues that Semenyih Jaya represents a sophisticated modification of the ‘basic structure doctrine’ to fit the current context of Malaysian constitutionalism. This article also examines how Semenyih Jaya advances the ‘constitutional dialogue’ between the judiciary and its co-equal branches of government, and assesses the strengths and weaknesses of the approach taken by the Federal Court in that case.

Amidst the understandable enthusiasm for enlarging the traditional state-centred view of security and embracing a “human security” agenda, little scholarly attention has been paid to the implications of this shift for international law. This article first charts the scope and genesis of “human security,” including within the United Nations and in the Asia-Pacific region, and traces the views of key Asian governments on the concept. It then analyses the relationship between human security and human rights and highlights the likely adverse impacts on human rights law. The remainder of the article considers how the human security agenda may destabilize the constitutional distribution of powers among UN organs under the UN Charter, especially by transferring power away from the more participatory General Assembly and towards the less representative and less accountable Security Council. In line with the position of some Asian States, this article reasserts that UN organs other than the Security Council, along with other major international institutions, are the appropriate bodies within which to pursue and address human security issues. In particular, the General Assembly and the Economic and Social Council require revitalization to avoid the trap of securitizing issues that are better framed as developmental and social concerns.

This article examines the legal and political context for prosecuting corporate crime in Indonesia. It presents a case study of the landmark case in which a migrant labour recruitment agency was successfully prosecuted for human trafficking. This article explains the rationale and motivation of the prosecution in four sections. First, it considers the development and purpose of corporate liability as a legal concept to foreground the second section, which outlines the legal and policy framework for pursuing corporations that commit crime in Indonesia. This section also offers a detailed discussion about how individuals have been proceeded against in human trafficking cases that involve corporations. Third, this article presents a case study of the first and only instance where a corporation was successfully prosecuted for human trafficking to highlight the sequence of events that made the effort possible. Fourth, the discussion that follows identifies the prosecution's motivations for bringing the case, and makes empirical conclusions about the purpose of prosecuting corporations for human trafficking through the Indonesian legal system. In conclusion, this article argues that the institutional drive to punish corporate involvement in economic crime has created the necessary systems to seek the punishment of a wider range of other corporate crimes, including human trafficking.

In 2006, China enacted its first rescue-oriented Enterprise Bankruptcy Law with the aim of establishing its corporate rescue culture. But the corporate reorganization procedure that is at the heart of the new bankruptcy law has not been used frequently. It is appropriate to ask why the use of China’s new corporate rescue law has been so low. Meanwhile, in the existing corporate reorganizations under the 2006 Law, most debtors were excluded from the reorganization process, so that the Chinese new debtor-in-possession model, which seems to be a desirable control format, was largely shelved. Why so? This article explores these two issues through the use of empirical data collected from Zhejiang, a province with a significantly larger number of reorganizations than most other Chinese provinces.

Institutional investors are acknowledged as an influential force in markets worldwide. As a result of increased focus on the impact from the investing and shareholding practices of institutional investors, stewardship codes were first introduced in the UK, followed by Malaysia. This article evaluates the theory and practice of institutional investor stewardship in Malaysia through functional and contextual lenses, as juxtaposed against the more established position of stewardship in the UK. Notwithstanding an analogous legal framework for shareholder rights and the textual similarities of the UK Stewardship Code and Malaysian Code for Institutional Investors, the dominance of government-linked investment companies and government-linked companies in Malaysia results in a distinct set of issues in relation to institutional investor stewardship. This article then argues that the stewardship codes are in themselves insufficient in increasing the quality and scope of institutional investor engagement as they fail to address the underlying agency conflicts between the institutional investors and ultimate beneficiaries or clients. In learning from the UK's experience, it is important that Malaysian policymakers pay attention to the overarching structural factors and incentives driving institutional investor engagement alongside the development and take-up of the stewardship code.

The evolution of China’s trade and investment regime since the late 1970s has been a process of constant liberalization of FDI control with a special focus on national development and self-determination. This so-called Beijing Consensus presents a sharp contrast with the neo-liberalist Washington Consensus. A theoretical analysis of this contrast from the law and development critique reveals that, while setting forth itself as the development model and excluding other development alternatives, the legitimacy deficit of the Washington Consensus stems from a self-sufficient ontological myth of legal voluntarism. The Beijing Consensus, with its attention to local conditions and emphasis on self-determination, gains its legitimacy through the dynamic process of selective adaptation of limit-transgression through which it challenges and at the same time enriches international development legitimacy. This article suggests that the Beijing Consensus’ roots in the African Continent’s Agenda 2063 and its First Ten-year Implementation Plan offer positive future prospects.

Prevailing discourse on multiculturalismi tend to focus on its merits in protecting the cultures and traditions of minority groups within the framework of the politics of accommodation. Less discussed are its implications on the rights and autonomy of members of the groups themselves who may be adversely affected by the arrangement. This paper attempts to fill the lacunae. It focuses on the problems arising from autonomy granted to the Muslim community of Singapore to determine its personal law, on some segments of the community. Unlike the rest of the citizens of Singapore, the Muslims are bound by their personal law in the domain of the family which they cannot relinquish as long as they remain Muslims. The system which began during the period of British colonial administration has remained ever since. Differences in the mechanisms as well as the orientation of social agencies in determining the Muslim law from those affecting the nonMuslims, invite unwarranted implications on the rights of Muslims, specifically. The problem is reinforced by the strong tendency of state actors to over-rely on dominant groups within the Muslim community in determining matters of Muslim law at the expense of competing ideas and orientation. The absence of choice of law for Muslims poses a predicament to those who do not wish to renounce their religion but maintain differences in perceptions of the Muslim law. This paper analyzes these problems in the arena of the Muslim law on marriage, divorce and inheritance. It also highlights how the arrangement has, in some instances, resulted in the exclusion of Muslims as a whole from the purview of specific national laws and influence policies affecting them against the preferences of the group's members. These issues have generally received scant attention, if at all, eclipsed perhaps by the greater focus on the merits of multiculturalism in protecting minority rights. Some plausible ways, in which the unwitting implications of legal pluralism on the members of the Muslim community can be addressed, taking into consideration both their right as members of the group as well as citizens of the state, are also discussed.

This article argues that effective co-operation between the antitrust authorities of Mainland China and Hong Kong in antitrust enforcement and the removal of anti-competitive state restraints is essential to the promotion of market competition in, as well as free trade and economic integration between, the two regions. This entails the careful design and conclusion of a bilateral co-operation agreement embracing not only comity co-peration in antitrust enforcement, but also the adoption of a diplomatic solution of mutual self-restraint for the removal of anti-competitive state restraints at the Mainland China-Hong Kong interface. This would also require the co-operation of Mainland Chinese and Hong Kong government authorities. Only with such bilateral cooperation can anti-competitive business practices and state restraints obstructing free trade and economic integration between the two regions be eliminated.

This article seeks to examine the constitutional and legal aspects of Malaysia's election laws (within its first-past-the-post electoral system) seen within the broader socio-political context of Malaysia's plural society and ethnic-based political representation to evaluate if they conform to democratic principles and equitable standards. In particular, this article seeks to: (i) explore how the growth of the dominant political elite has had direct implications for the development of Malaysia's electoral regime and arrangements for the holding of democratic elections; (ii) survey the implementation and enforcement of the election laws, including the Elections Act, Election Offences Act, Election Commission Act, Election Petition Rules and Elections (Conduct of Elections) Regulations; (iii) examine the need of immunity for the Election Commission; (iv) examine the role of the judiciary; and (v) highlight the areas for urgent electoral reforms to restore public confidence in the electoral system and ensure the legitimacy of the political system.

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.

This study seeks to unravel the puzzle underlying China's and India's differing experiences in attracting two types of foreign investment: namely foreign direct investment (‘FDI’) and foreign venture capital investment (‘FVCI’). Complementing the law and finance literature, we argue that foreign investors prefer the direct investment mode in China despite its poor governance environment because direct investment provides private means of control over the business, and China's institutional environment provides a more facilitating arena for FDI than India's. In contrast, India's legal infrastructure and related institutional settings prove to be better than China's in accommodating foreign portfolio (indirect) investment especially in the form of venture capital. The conclusion of this article has implications for the two countries' legal reform in the direction of the desired type of foreign investment. It also provides comparative insights into the legal institutions of China and India in fostering national innovative capacity and entrepreneurship.

Transforming a pluralistic tenure system into unified statutory rights has been a major objective of the development of property law in many developing countries. Many law and development scholars have assumed that unified land rights are a pre-condition to development and that a pluralistic tenure land system is a major source of uncertainty and insecurity. This article challenges this commonly held assumption by way of a case study of Indonesia's effort to unify the laws governing land. The author demonstrates that the unification of land law in Indonesia has not resulted in certainty and security of tenure. Instead, this process has been adversely affected by an imprecise private law system, and an inadequate administrative/public law system which has created even more forms of pluralism. The resultant effect of this process is the creation of multiple legal orders governing the current land affairs in Indonesia, such as a formal system, a customary system and a “semi-formal” system.

Hong Kong recently amended its Domestic Violence Ordinance (“DVO”). During the deliberations, the issue of whether protection under the DVO ought to be extended to same-sex couples arose for discussion and has since been the subject of extensive debate. Religious and conservative groups have argued that including these groups within the DVO risks overhauling the traditional meaning of “family” and could implicitly legitimize same-sex marriage whilst others have insisted that failing to provide equivalent civil remedies under the DVO to such groups amounts to sexual orientation discrimination and is contrary to Hong Kong's international human rights commitments. This paper reviews the various arguments that have been raised against the inclusion of same-sex couples within the DVO and argues that Hong Kong's international and constitutional commitments to the principles of equality and non-discrimination require that samesex couples be brought within the purview of this legislation.

This article considers whether the academic inquiry of comparative constitutionalism in Japan, South Korea, and Taiwan may be further developed by a full consideration of the relevance of social movements. Integrating social movement theories into comparative constitutional law, this article argues that a more nuanced positive account of the creation and consolidation of constitutionalism in these East Asian polities must be situated within the engagement of social movements in discursive venues for formal and informal constitutional change.

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.

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.

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.