In Bangladesh, disputes over custody and guardianship involving Muslim parties are principally governed by Muslim personal law. There remains a constant dilemma in judicial decisions over custody and guardianship matters as to what should be the paramount consideration in awarding child custody to a party – should traditional Muslim personal law rules or the welfare of the child prevail? The findings of this study indicate that there is a steady but inconsistent trend towards child welfare considerations. However, it cannot conclusively be said that a child’s welfare is now the most dominant, or the only consideration for the courts. Focusing on this shift towards a welfare approach, this article critically examines some of the leading reported judgments of the Supreme Court of Bangladesh on the issue.

This article examines the likely role of competition in the regulatory analysis of bank mergers in China. Despite financial reforms, the banking sector remains subject to a complex web of financial regulation, with industrial policy favouring stability to facilitate national economic development. While there are currently no Ministry of Commerce (MOFCOM) bank merger determinations under the Anti-Monopoly Law (AML), examples of MOFCOM’s merger analysis in other sensitive industries diverge from a pure competition-based analysis, favouring grounds linked to national economic development broadly within the terms of the AML. Given the importance of banking to the Chinese economy, this article argues that competition is unlikely to play a large part in any assessment of bank mergers by MOFCOM, particularly where a foreign bank is involved. Instead, issues linked to ‘national economic development’ and stability are likely to play the most important role, leading to less predictable merger approval outcomes.

The Yogyakarta Ombudsman was established in 2005 as the first Local Ombudsman in Indonesia. Its introduction forms part of the democratic reforms aimed at tackling the problem of corruption within the bureaucracy. This article examines the Local Ombudsman's first year of operation, and asks whether it is addressing corruption and promoting good governance as hoped.

A combination of factors has led to an increasing imbalance in the sex ratio of China's population. China's sex ratio at birth is 119 boys per 100 girls, far above the global norm of 106. This paper will focus on the abnormal sex ratio as a consequence of traditional Chinese gender attitudes holding women inferior and subordinate to men, which have been brought to the fore by a combination of fertility decline and technological advancement. Accordingly, any solution to the demographic problem must address these prevalent, entrenched mind-sets. The government appears to realise that existing laws prohibiting sex-selective abortion and infanticide will fail to correct the sex ratio. This paper examines the trend in government responses towards efforts to address traditional gender attitudes and argues that the demographic crisis may have turned the Chinese government into an unlikely champion of gender equality.

There is vast literature on secularism in India and on the effects of Hindu nationalism on secular constitutionalism. This article takes a different tack. It focuses on cases where minority status is contested or competing rights of minorities are at stake. The article uses three exemplary recent cases to illustrate how judicial doctrines devised to reform discriminatory religious practices or to protect minority interests have, perversely, favoured certain groups at the expense of others. In each area examined, the jurisprudence privileges the more powerful of those interests: the sanctity of Muslim personal law over the rights of Muslim women; Hindu dalits over dalits that converted to other religions; and minority educational institutions over children from ‘weaker’ and ‘disadvantaged’ sections of society. The article concludes by proposing a new jurisprudence of religion and constitutional practice for India, one that takes account of these inequalities and gives meaning to the fundamental rights of the most vulnerable individuals and groups.

This article analyses China's global health governance (GHG) practices and GHG legal infrastructure in the wake of COVID-19. It posits that China has pursued a mix of bilateral and multilateral strategies during the pandemic to promote global cooperation and domestic regulation to shape an effective GHG response. It demarcates China's proactive role in norm-setting to respond to the global health crisis. It first considers China's responses to COVID-19 and its interaction model with multilateral institutions including WHO and GAVI. It then examines China's bilateral health strategies, taking its interactions with African countries as an example, before analysing and comparing existing norms and practices on the ‘right to regulate’ under the rules of the World Trade Organisation and treaties that China participates in that call for more regulatory recognition. The article then proceeds to examine China's new initiatives in shaping GHG strategy during COVID-19. Finally, it concludes and calls for a coordinated multilateral approach to handle global health crises.

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.

It is likely that no criminal behaviour breeds as much condemnation and fear as sex offences. Tragic examples of young victims of sex offenders from around the world have raised societal concerns and prompted calls for increased surveillance and control. It is responsible public policy to address these concerns in ways that will increase public protection and allay unnecessary fears. The purpose of this paper is three-fold. First, the paper examines Hong Kong’s recently implemented Sexual Conviction Record Check Scheme against the Territory’s low crime victimization rate. Second, it compares the Scheme with pre-employment screening checks in Australia and the UK. The paper finally concludes with proposals for changes to the Scheme.

This article analyzes the liability of the Philippine President for the tort of constitutional negligence in relation to the murders and forced disappearances of leftists, journalists, and other dissidents. It uses the international law doctrine of command responsibility as a form of attribution that may be used, by analogy, to hold the President accountable for a culture of impunity. The article describes the role of the President as the regulator of a human rights-conducive information ecology and argues that massive human rights violations meant to silence dissidents are a source of liability for which a class action suit is an available remedy. Finally, it looks at the concept of presidential immunity from suit from a comparative perspective and argues that the continued application of restrictive immunity rules established during the American colonial era is misplaced considering the universalist design of the present Philippine Constitution and developments in immunity jurisprudence in the United States.

This article is based on a case study of the developing process of devolution of powers in Sarawak as an aspect of the operation of cooperative federalism in Malaysia. The argument developed is that devolution can be seen and used in conjunction with and in reinforcement of federalism, rather than being simply an alternative method of decentralizing powers. The study finds that this approach may be more promising than a more confrontational approach based on arguments around the fulfilment of the original federal bargain, and is also potentially more open-ended and creative (a process rather than an event), embracing issues within the federal bargain but also issues that are not dealt with in that bargain. The study is based on a unique opportunity to canvass the views of Sarawak leaders at the iteration of the devolution process.

By religious legal pluralism we usually mean state-recognised legal pluralism, such as the kind of legal pluralism implemented in Singapore through the Administration of Muslim Law Act. But there is also religious legal pluralism outside State recognition and enforcement. Many religions have very long legal traditions which have survived, often without much support or official recognition by States (Jewish law, for example). In this paper we shall look at one such tradition, the canon law of the Latin Church of the Roman Catholic Church and its implementation by the Church in Singapore, including the establishment of very busy ecclesiastical tribunals in Singapore to administer disputes relating to the possible nullity of religious marriages, for example. The hope is that this example of Canon Law in Singapore will show that there can be very detailed and formal religious laws implemented by formal institutions such as tribunals outside the ambit of the State.

The corporate law reform initiatives proposed by the Korean government in 2008 are still pending before the National Assembly. While the Korean government was sympathetic to the arguments by business interests for liberal rules conducive to business organization, these demands have to be weighed against the desire for good corporate governance norms that promote accountability and transparency. Such a tension has unfortunately resulted in internal contradictions and uncertainties in the context of Korea. This article points out the uncertainties that the reform initiatives have left unresolved and the potential for their resolution by the judiciary. More fundamentally, the author argues that, in order to resolve the issues currently left unanswered, there is a need to address the debates regarding the theoretical foundations of the corporation.

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.

This article explores the constitutional provisions that define the role of Islam and the shariah in Afghanistan’s many constitutions. It highlights that successful Afghan constitutions have always recognized Islam and the shariah and established a method of realizing them, while leaving open the possibility that the government could change its approach to realizing them in the future. Unsuccessful Afghan constitutions, by contrast, have allowed actors at the center to try to realize and interpret Islam in a rigid way that does not allow for ongoing negotiations with actors who would prefer to realize and interpret Islam in a different manner. In other words, Afghanistan’s longest-lived and successful constitutions have not entrenched Islam in a way that imposes the desires of one side of the debate. Instead, they have designed religious provisions in vague and ambiguous terms, thereby deferring to the future the question of what Islam really means and how it should be realized in practice – a strategy that proved considerably effective in preventing conflict over the role of Islam in a severely divided and heavily armed society. Drawing on this insight, the article explores how in overwhelmingly, but diversely, Muslim societies, it is important to create constitutional regimes that recognize Islam but leave room for rival interpretations of Islam. Incremental constitution writing is a useful tool in creating such constitutional regimes.

In recent decades, States have concluded numerous regional investment treaties, even as the feverish growth in bilateral investment treaties worldwide continues apace. This increasing regionalism within international investment law is a double-edged phenomenon. On the one hand, the risks of fragmentation and incoherence increase exponentially as a regional layer is added to the already-messy “spaghetti bowl” of investment treaties. The noble dream of a uniform, multilateralized set of investment-protection standards thus looks ever more unattainable. On the other hand, a regional investment treaty affords an opportunity for a group of States to balance, in a particularistic manner, between investment-related obligations and other non-investment priorities. This essay focuses on the ASEAN Comprehensive Investment Agreement signed in 2009, arguing that it is a region-specific bargain embedded within ASEAN's wider normative and institutional framework. The potential conflicts between ASEAN Member States' investment-related obligations and their commitments under two other regional projects are explored, and recommendations are made as to how arbitral tribunals can manage such conflicts.

Pursuant to Article 63 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), a state may require other treaty parties to disclose their intellectual property case law ‘of general application’. While most domestic judgments in common law are indeed of general application, civil law systems theoretically employ judgments as reference only. Nevertheless, to value consistency and predictability, the hybridisation of civil law jurisdictions is increasingly leading them to devise special lists of judgments that acquire formal or factual binding status on lower-ranked courts. This trend is particularly evident in China, whose Supreme People's Court's ‘Guiding Cases’ join other specific categories of holdings within ‘Judicial Interpretations’ and further guideline documents that are factually binding domestically. When the United States and the European Union requested, through the World Trade Organization, that China disclose the full range of its case law of general application, China responded that civil law jurisdictions do not issue judgments that are binding beyond the parties. This article examines the limitations and merits of the Chinese stance.

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.

A key feature of British rule in India was the formation of a class of elite metropolitan lawyers who had an outsized role within the legal profession and a prominent position in Indian politics. This paper analyzes the response of these legal elites to the shifting social and political terrain of post-colonial India, arguing that the advent of the Indian nation-state shaped the discursive strategies of elite lawyers in two crucial ways. First, in response to the slipping grasp of lawyers on Indian political life and increasing competition from developmentalist economics, the elite bar turned their attention towards the consolidation of a national professional identity, imagining an ‘Indian advocate’ as such, whose loyalty would ultimately lie with the nation-state. Second, the creation of the Supreme Court of India, the enactment of the Constitution of India, and the continuous swelling of the post-colonial regulatory welfare state partially reoriented the legal elite towards public law, particularly towards the burgeoning field of administrative law.

This article examines the effectiveness of the Consumer Protection Act 1999 in ensuring that Malaysian consumers can make informed decisions and that their interests are adequately protected in modern electronic commerce (e-commerce) transactions. It first identifies the key elements required of a modern consumer protection framework and subsequently uses this model as a yardstick to assess the legal frameworks in two jurisdictions. The first jurisdiction is Malaysia, a common law country that, although considered a potentially important regional player in the development of e-commerce, has a relatively underdeveloped consumer protection framework. The second jurisdiction is England and Wales, which is likewise a common law jurisdiction but one whose consumer protection framework has been influenced by European Union consumer protection policy and legislation that has further provided the impetus for significant legal reform in both offline and online environments. This article examines the extent to which the laws in both jurisdictions provide appropriate protection, considering countervailing issues (eg, protection of commercial innovation and competition) and identifying potential gaps in provision (eg, inadequate regulation of new platforms or business methods). Based on these analyses, the article proposes an ‘evergreen’ consumer protection framework to improve the legal landscape of e-commerce in Malaysia.

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.