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.

This paper critically discusses the issue of enforceability of investment treaty arbitration (ITA) awards against India under the Indian domestic law on arbitration. In this regard, the paper discusses the relevant provisions of the Indian arbitration law and its interpretations by the Indian judiciary to understand their ramifications for the enforcement of ITA awards against India. The paper also discusses the proposed amendments to the Indian arbitration law and its ramifications on ITA. The issue of enforcement of ITA awards in India has become important due to India's gigantic international investment treaty programme where each treaty allows for investor-state treaty arbitration to settle disputes between investors and India. This issue has also become important in light of the growing observation that enforcement of foreign commercial arbitral awards in India is extremely difficult especially after the Venture Global engineering case. Thus, India is endeavouring to change the arbitration law so as to alter this perception. This paper argues that in spite of these proposed changes; enforcement of ITA awards may still face problems. Thus, the paper suggests that India should address the issue of enforceability of ITA awards given its gigantic investment treaty programme aimed at attracting foreign investment.

Since the “open doof” policies adopted by China in 1978 ended 30 years of isolation, introduced massive economic and legal reforms, encouraged foreign investment and resurrected private enterprise, China has become the world's second largest and fastest growing economy. In these circumstances, the development of franchising was inevitable. However, in addition to the normal commercial and cultural issues which challenge any franchise system in its international expansion, foreign franchisors proposing to enter China have faced additional regulatory obstacles. Market entry, participation in particular business sectors, and even the use of franchising as a method of business operation and expansion have all raised complex regulatory issues.

This paper addresses the liberalisation of market access for foreign franchise systems under China's World Trade Organisation accession commitments, and the new regulatory regime for franchising in China under the 2007 Commercial Franchise Regulation.

What is the fate of legal transplants when they arrive from one culture to another? Using the theoretical framework of legal transplantation developed by Masaji Chiba and the theory of religion developed by S.N. Balagangadhara the problem is tested with two different types of indigenous law, in Japan and India, which do not have religion. When certain kinds of legal ideas, embedded as norms within the Western culture, which is constituted by a religion, Christianity, enter non-Western cultures that do not have religion, those ideas break down, become distorted, absurd or nonsensical, and induce conflict. The secular state engages in the process of suppressing what it implicitly regards as false religion or idolatrous practices. As Chiba foresaw, this process can even lead to the identity postulate of a legal culture being altered or destroyed.

Constitutional theory dating to Montesquieu identified three branches of government, each with a specific function: the legislature enacted general rules, the executive enforced the rules, and the judiciary resolved disputes about the rules’ meaning and application. Every government had to have these branches in some form; that is, the branches were necessary elements in a governance structure. In addition, the branches were exhaustive: that is, taken together they did everything a government could do.

This article compares the Korean and Japanese jury systems, evaluating the performance of jury trials as reflected in empirical studies in these countries, and identifying some innovative practices in Korean and Japanese systems that can be adopted by other jurisdictions. This comparative study of Korean and Japanese jury systems will also address common problems and investigate different approaches to those problems. At this juncture, numerous existing empirical studies conducted in both countries provide a good framework for comparison. Although jury trials are firmly entrenched within the Korean and Japanese legal systems, there are several common challenges faced by each country that uses lay juries: avoidance of bias, judicial oversight and intervention for reasoned decision-making, importance of rationality in the jury deliberation process, etc. A careful analysis of the Korean and Japanese experiences will provide useful guidance to not only policymakers in Asia but also criminal justice scholars around the world.

Electoral administration in Indonesia is complex. The Electoral Commission (Komisi Pemilihan Umum) is responsible for planning and running five-yearly elections for one national and two regional legislatures, and one additional national regional representative body, as well as direct presidential, gubernatorial, mayoral and regent elections. Because candidates and parties often have significant financial stakes in their outcome, these elections are hotly contested and the results quite commonly disputed, including in Indonesia's Constitutional Court (Mahkamah Konstitusi). Electoral contestants often point to mistakes in administration and vote counting, which appear to be natural consequences of the great logistical challenges these elections present. For example, on 17 April, 2019, well over 150 million citizens attended one of over 800,000 polling stations to vote for candidates to fill 19,817 legislative seats in national and subnational parliaments. Many of these elections are said to be marred by attempts by candidates and their parties to gain illegal advantage, whether through misuse of incumbency or vote buying. There is also said to be much potential for corruption amongst electoral administrators themselves in registering candidates, verifying parties, procuring equipment for polling stations, and counting and tallying votes on election day. Given the potential of mistakes and illegality to jeopardise the legitimacy of election results, lawmakers in Indonesia have created multi-layered oversight mechanisms to oversee the planning and running of the elections by the Electoral Commission, as well as to oversee the Election Supervisory Board (Bawaslu, Badan Pengawas Pemilihan Umum) itself, which is charged with supervising that Commission. This article examines the work and performance of these institutions, and the Electoral Administration Honour Council (DKPP, or Dewan Kehormatan Penyelenggara Pemilu), which hears allegations of breaches by the Commission and the Board.

Under GATS, Mode I involves the supply of a service from the territory of one Member into the territory of any other Member. Few negotiators of the Uruguay Round would have imagined the significance that this mode has come to acquire, or that on-line gambling service would flourish so much as to raise a dispute between Members of the WTO. As the first precedent on Mode I of GATS, “US-Measures Affecting the Cross-Border Supply of Gambling and Betting Services” contains important suggestive interpretations of Members' Schedules as well as general exceptions of the GATS, including burden of proof. The authors review the reports of the Panel and Appellate Body, and explore the implications of the case beyond GATS.

The death penalty is one of the most contentious issues in Korea. In contrast to other Asian countries, the issue of whether the death penalty should be abolished has been actively debated and reviewed at governmental levels and in civil society. It is important to note that it is not just civic organizations that have begun to favor abolition of the death penalty but also state organizations including the National Assembly and the National Human Rights Commission. The Constitutional Court has invalidated some disproportionate provisions in relation to the death penalty. Since President Kim Dae-Jung took office in February 1998, there has been an “unofficial moratorium” on executions.

This article provides an overview of the legal regime governing the death penalty and the ongoing debate on the death penalty in Korea. It begins by briefly reviewing international treaties that call for the abolition of the death penalty, contrasting them with the retentionist trend in most Asian countries. It then reviews the major decisions of the Korean Supreme Court and the Korean Constitutional Court. It also discusses recent moves in the National Assembly and the National Human Rights Commission to abolish the death penalty. It suggests that the Korean death penalty debate has potentially significant implications for its retentionist Asian neighbours grappling with similar issues.

This article examines the operation of the Malaysian statutory derivative action through an analysis of Malaysian judicial decisions from 2008 to 2015. It considers the extent to which the statutory derivative action has achieved its underlying objective of facilitating better shareholder access to redress. The analysis focuses on applications for leave to bring derivative actions for breaches of directors’ duties, considering the manner in which the courts have interpreted and applied the criteria for granting leave and the rate of success in obtaining leave. The findings are compared with an analysis of Australian statutory derivative actions and situated in a broader comparative context. The article considers the effectiveness of the Malaysian statutory derivative action in facilitating better shareholder access to redress and canvasses possible explanations for the Malaysian approach.

Singapore aims to be a legal service hub for its region and, therefore, aims to provide legal services to the civil law countries of Southeast and East Asia. One would therefore think that the teaching of at least the rudiments of the civil law (the law of obligations – contracts, delictual liability (tort), quasi-contracts – and property) would be a high priority. However, for all its talk of being ‘Asia's Global Law School’, the NUS Law School does not train its students to handle work from, or in, most of this region. The students are simply not required to learn the very foundations of the civil law tradition. The requirement that they take a course entitled ‘Legal Systems of Asia’ does not ensure that they know the very basics of the civil law. The fact that they must take a course on the law of a civil law country does not ensure that they learn about the civil law. This article suggests how the NUS Law School can make sure that it prepares its students, or at least some of its students, for regional work that includes civil law work.

This article offers a typology of comparative law research and assesses the state of this body of research in one Asian country – the State of Israel. To identify the work that should be considered ‘comparative’, I classify studies into three groups. Following a short overview of Israel's political and legal system, I assess the ways comparative public law is addressed in the country. Relying on a first-of-its-kind quantitative study of Israeli legal scholarship in English in the field of public law that compares at least two systems, the article shows that the compared systems in Israeli comparative legal research are predominantly western, and that materials from the United States by far outweigh all other sources. The article then considers several possible reasons for the limited gaze eastwards and beyond the United States, granting special attention to the cultural ‘Americanization’ of Israel. Directions for future research are considered in the conclusion, including the expansion of the findings from public law to other fields of law; the comparison of these findings with those of similar systems in Asia and beyond; and the possible ways legal education may promote the development of eastern-bound comparative exercises.

In 2001, the Faculty of Law at the National University of Singapore embarked on a bold initiative to teach legal skills in a more determined and focused way than ever before in its L.L.B. Programme. This paper documents how the experience of teaching skills in the United States was adapted and re-created for Singapore. It describes the challenges and the responses fashioned to deal with intensive and interactive small group teaching, research and mooting. The paper calls for student and learning centeredness and a keen appreciation of their cultural and social assumptions.

Are Asian law schools adequately preparing law students to handle problems raised by cross-border disputes? Preparation has generally been limited to courses in conflicts of law, international law and comparative law, but the successful presentation of a legal position in a foreign legal system arguably requires more than an understanding of legal rules. Studies in legal culture suggest that participants in different legal systems think about the law in radically different ways. Comparative examples from the criminal justice systems of the United States and Japan demonstrate that some knowledge of a comparative rhetoric of argument - which arguments are appropriate in different legal systems - is required. Legal Writing Programmes can play a role in teaching comparative argument by expanding the concept of “audience” to include foreign legal systems.

In 2007 the Academy Award winning director of Shall We Dance released his new film, a critique of the Japanese criminal justice system from a wrongful conviction perspective. In this article, I use the filmas avehicle to serve three disparate goals. First, I provide the firstlegal critique of the film, a genre of legal scholarship developing over the past 15 years. Second, I use the film to reflect on criminal justice reforms in Japan, in particular the introduction of the Lay Judge System (quasi-jury saiban-in seido) from 2009. Third, I critically ask whether use of film as a legal text assists or distracts from my primary pedagogical objectives in teaching comparative Japanese law. I conclude with a cautious recommendation of I Just Didn't Do It as legal cinema, as a catalyst for reform of the Japanese criminal justice system and as an educational text.

Two recent Hong Kong cases have highlighted the developing dissonance between family law norms in Hong Kong and other jurisdictions. The first entailed a challenge to the Hong Kong Director of Immigration’s refusal to recognize an overseas same-sex civil partnership as analogous to marriage. The second concerned a parental order for a child born overseas as a result of a surrogacy arrangement to an unmarried commissioning couple. These two cases challenged a specific conceptualization of the family in Hong Kong law: a preference for a heterosexual, married couple as the basis for the family unit. However, other common law jurisdictions would recognize the applicants’ claims to family status, as do international human rights principles. This article explores the scope and intersection of Hong Kong’s family law values, its private international law obligations, and the potential for invoking the public policy exception in these cases. In doing so, it tests the extent to which Hong Kong law’s conceptualization of the “Ideal Family” can be legitimately imposed to oust the claims of the “Other Family” to legal recognition.

In Thailand, the concept of corporate criminal liability is commonly identified with significant theoretical and practical uncertainties. Only limited attention, however, has been devoted to the notion's historical roots in English legal transfers. This article examines the relevant legislation, court cases, academic literature, and other records. It carves out the continuous English influence on Thai corporate crime doctrine and highlights the legal irritation that occurred along the way. It argues that irritation was not automatic but driven by the Supreme Court, whose choices were shaped by decades of English impact on Thai legal education and practice. The article thereby highlights the dynamics between legal transfers and local drivers of legal development. It expands the growing research on the continued relevance of English law in Thailand and concludes with an outlook on the future of Thai corporate crime doctrine.

The rise and proliferation of International Commercial Courts has become a perceptible trend across the European and Asian continents over the past two decades. One such dispute resolution hub exists within the Astana International Financial Centre, a special jurisdiction within the Republic of Kazakhstan that operates on the basis of common law principles. The Astana International Financial Centre and its Court were modelled on the international financial centres of Dubai and Qatar; however, there are substantial differences between the legal systems of the Gulf States and that of the Republic of Kazakhstan. As a result, the creation of a new court has led to considerable criticism within the local legal community, raising serious doubts as to whether the Kazakh state should be maintaining and financing a ‘caviar-court’ instead of using resources to reform and develop the national judicial system. Nevertheless, despite the scepticism surrounding the financial centre, there is potential for the Astana International Financial Centre and its Court to become a regional dispute resolution hub for post-Soviet countries and the Central Asian region, following the example of Singapore and Dubai.