Showing papers in "Asian Journal of Comparative Law in 2021"

Refining the right to information in Vietnamese consumer law: insights from Australia

Abstract: Abstract In upholding a consumer's right to information, regulations prohibiting misleading or deceptive conduct perform a critical role in supporting consumer welfare and encouraging equity in business and commerce. While Vietnam enacted a Law on Consumer Protection in 2010, its provisions in this area are limited in ambit and application. In order to improve the effectiveness of a consumer's right to information in Vietnam, it is useful to examine the Australia Consumer Law which has a sophisticated regulatory framework in this area. By comparing the laws prohibiting misleading or deceptive conduct in the Vietnamese Law on Consumer Protection and the Australia Consumer Law, this article identifies certain similarities and differences between the two legal systems, thereby clarifying shortcomings that can lead to inadequacies and inefficiencies of this area of the law and providing a platform for law reform in Vietnam.

The Guile and The Guise: Apropos of Comparative Law as We Know It

Abstract: The field of comparative law prioritizes the ascertainment of universals or commonalities across laws, two chimerical pursuits. In the process, comparative research abides significant distortion of information, not always in good faith, and a correlative loss of intellectual warrant. This article urges acknowledgment of such serious epistemic deficit, of its detrimental impact on comparative law, and of the need to restore intellectual integrity to comparative research in law through a radically different approach to foreignness.

Venture Capital Law in China by Lin Lin, Cambridge University Press, 2021. 356 pp. Hardcover: £ 85.00

Abstract: Despite having a relatively short history as compared to its western counterparts, China’s venture capital (VC) market witnessed an impressive growth in recent years. With 29.4 per cent of global VC injected into Chinese start-ups in 2018, China’s VC market has become the second largest in the world in terms of deal value, attracting both domestic and foreign investors with immense opportunities and ever-increasing technological innovation. However, the law and practice of VC in China has not been sufficiently examined in academic writings despite its size and significance as well as the immense potential for legal research. There was a lack of discussion from a legal perspective as to how the Chinese government played a role in engineering its domestic VC market. In this regard, as a valuable and timely contribution to the scarce scholarship on the Chinese VC industry, Venture Capital Law in China fills the gap in the literature with sophisticated and systematic case studies of China. Through an in-depth comparative analysis of the VC markets in China and the United States (US), the author highlights the distinctive legal features observed in the creation and the development of the Chinese VC market, thus providing VC scholars, policy makers, and practitioners with insights into this significant yet poorly understood sector. Structurally, the book begins with a useful and pertinent introduction to the VC market in China (p 1–43). Chronologically dividing the historical development of the Chinese VC market into five periods, the author argues that the Chinese government has adopted a top-down approach characterized by a regulatory framework consisting mainly of piecemeal interim regulation to ensure the simultaneous availability of investment capital, specialized financial intermediaries, and entrepreneurs – the three essential factors presented in Ronald Gilson’s ‘simultaneity problem’ in the engineering of a VC market. The following chapters of the book provide a detailed examination of the main stages of a standard VC life cycle including fundraising (p 44–142), investment (p 143–212), and exit (p 213–304) through the lens of the VC market in China. Unique features that exist in VC practice in China have been identified and analyzed in each of the stages. For example, the author includes an in-depth account of the prevalence of the valuation adjustment mechanism (‘VAM’) agreements in VC contracting in China, which is one of the many peculiar characteristics that distinguishes it from its international counterparts (p 177–185). The author further discusses the reasons for the prevalence of this special contractual design as well as the associated problems (p 186–207) in the context of

The Unmeritorious ‘Legality’/‘Merits’ Distinction in Singapore Administrative Law

Abstract: Abstract The Singapore courts often state that judicial review of executive decision-making ought only to involve an inquiry into the ‘legality’ of a decision or the ‘decision-making process’, and not the ‘decision itself’ or its ‘merits’ – let us call this the ‘Distinction’. This article argues that the Distinction should be expunged from Singapore law. The Distinction has its roots in English case law which aimed to prevent the courts from arbitrarily substituting their decision for the executive's by reason of mere disagreement. But Singapore case law has gone further and treated the Distinction as a general principle applicable to all of administrative law. However, the Distinction is too vague for this purpose (as seen from Singapore cases which have interpreted the distinction inconsistently). It is conceptually problematic, incompatible with the practicalities of judicial review (particularly substantive review as recognized in Singapore law), and has occasionally been paid lip service but not followed in substance. The Distinction cannot form a coherent principle to guide the courts and ought to be replaced by a more nuanced application of constitutional principles relevant to determining the appropriate scope of review. Whatever these principles may be, and however they are to be balanced, the Distinction can be but an over-inclusive rough approximation of them which hampers the development of the law.

What We Do and Do Not Know About Standard Form Contracts? An Empirical Study of Wealth Management Product Contracts in China

Abstract: Wealth management products have been popular investment vehicles in China, and they are governed by standard form contracts. Existing studies mainly focus on the risk of such products and suggest having special laws to provide more protection for customers. Little is known about the actual contents of wealth management product contracts. Based on 66 hand-collected wealth management product contracts from major Chinese commercial banks, this article tries to explore the contractual relationship between giant banks and individual customers. It also tests the exploitation theory in a Chinese context by analysing whether the wealth management product contracts are more pro-seller or pro-buyer relative to the laws and regulations in China. Our findings reinforce the argument that standard form contracts are designed in favour of the sellers. The wealth management product contracts are tilted toward the commercial banks relative to the default rules. These contracts contain massive clauses that limit banks’ liabilities and restrict customers’ choice of conflict resolution mechanisms. However, a counter-intuitive finding is that national commercial banks provide less pro-seller terms than the local ones. We argue that the explanations for such variation in contract practices among Chinese commercial banks lie in the enforcement of relevant laws and regulations and the unique nature of national commercial banks.

Media Arbitration Schemes: Addressing the Backlog of Defamation Cases in Malaysia

Abstract: Abstract The rise in defamation claims in Malaysia has placed an onerous workload on the courts to deal with such matters. Against this backdrop, Hamid Sultan Abu Backer JC (as his Lordship then was) (Hamid Sultan JC) suggested in two separate High Court decisions that to alleviate the courts’ burden, matters pertaining to libel and slander ought to be constrained to the criminal courts through appropriate statutory amendments, including to the Criminal Procedure Code (Malaysia). In this paper, the author cautions against the learned Hamid Sultan JC's recommendations and proffers an alternative proposal in the form of media arbitration schemes to handle the growing influx of defamation claims. In particular, the salient features of the IMPRESS and IPSO Schemes from the United Kingdom are scrutinized in detail and measured in terms of suitability for a potential arbitration scheme in the Malaysian jurisdiction.

Interpretation of Corporate Acquisition Contracts in Japan: A Legal Transplant through Contract Drafting

Abstract: This article explores Japanese transactional lawyers’ attempts to transplant American legal practice concerning corporate acquisition contracts into Japan. Despite their extensive efforts to disseminate legal concepts originating from the common law into the Japanese legal community, their transplantation attempts produced somewhat unexpected results by the promoters of the transplant. Faced with unfamiliar drafting styles and legal concepts, Japanese courts interpreted American-style corporate acquisition contracts in accordance with traditional Japanese-style contract interpretation. As a result, attempts by Japanese practitioners at transplantation were incomplete. This incompleteness is attributable to their inattention to the differences in approaches to contract interpretation between Japanese and New York courts. New York's approach is much more formalistic and literal than Japan's. If fully aware, however, they could have filled the gap by using functional substitutes for American techniques of controlling adjudicators’ contract interpretation which would effectively operate under Japanese law. Japan's experience confirms that a widely supported view in comparative law scholarship that transplanted law does not necessarily operate in the recipient jurisdiction as it did in its host jurisdiction is applicable to the transplantation of contract drafting practices.

Sri Lanka's First Election Commission: Strengthening Electoral Management or Advancing Electoral Integrity?

Abstract: The undisputed success of Sri Lanka’s first Election Commission (2015 – 2020) was the conduct of free and fair elections, that is to say, electoral management. I argue in this article that, by design and in practice, it was unable to or failed to advance electoral integrity that is urgently required for the health of Sri Lanka’s constitutional democracy. At critical points when electoral integrity and constitutional democracy were threatened, it is the Court, the traditional institutional check on the Executive and the Legislature, that prevented its further erosion. In this regard, the Commission made a modest contribution, but that contribution was contingent on personal disposition of the Commissioners. The Commission, therefore, was an institutional innovation that addressed symptoms of Sri Lanka’s ailing constitutional democracy but not its root-causes. The Commission has been a necessary but insufficient fix for the electoral pathologies of Sri Lanka’s constitutional democracy. Its ‘guarantor’ function, as I illustrate in this article, is narrowly conceived, perceived and lived out.

The Two Modes of Foreign Engagement by the Constitutional Court of Korea

Abstract: The Constitutional Court of Korea (CCK) has engaged with foreign law and practices in two distinct manners. While the CCK has interacted with foreign constitutional adjudicatory organs outside the courtroom, it has also developed comparative law practices inside the courtroom. This article aims to examine the interaction between the CCK's two modes of foreign engagement. The chronological inquiry, substantiated by the interviews with former and current legal practitioners of the CCK, demonstrates the gap between the CCK's two modes of foreign engagement. The CCK's evolving extrajudicial activities have provided the repositories of information adequate for the deliberation of individual cases. However, the CCK's rigid structure for comparative law practices, which was established in its initial years to learn from traditionally influential jurisdictions, restricts these repositories from being fully utilised inside the courtroom. The CCK's failure to fully incorporate its developments in its extrajudicial activities into comparative law practices disallows the CCK to grasp an evolving picture of foreign constitutional adjudicatory organs.