Asia Pacific Law Review

Articles

Vol. 25, No. 1, 2017

The First Step of the Long March: Implementing the Exclusionary Rules in China
(ProQuest: ... denotes non-US-ASCII text omitted.)I.IntroductionA.BackgroundThe exclusion of illegally obtained evidence has long been the focus of theoretical research and legislative reform in China.1 'Though China ratified the UN Convention against...
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Can Employers Lawfully ‘Opt out’ of Their Statutory Obligations? A Call for Reform of Fixed-Term Employment in Hong Kong
I.IntroductionIn 2016, a pastry chef, after 13 years' work in a restaurant, was 'lawfully' dismissed without severance pay.1 Such dismissal has caused outrage among employees and trade unions because the chef, while being completely unaware of the legal...
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The Politics of Police Detention in Japan: Consensus of Convenience
The politics of police detention in Japan: consensus of convenience, Silvia Croydon, Oxford, Oxford University Press, 2016, 211pp., GBP ?69 (hardback), ISBN: 0198758340The Japanese police detention system - 'daiyo kangoku' (the literal translation meaning...
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Vol. 24, No. 2, 2016

Identity Crisis: Taiwan's Laws and Regulations on the Status of Indigenous Peoples
(ProQuest: ... denotes non-US-ASCII text omitted.)I.Introduction'Who am I?' This is one of humanity's oldest questions. It is about our individual and our social identity; it is about how we view ourselves, our relations to others, and the value we attach...
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Constitutional Dialogue in Common Law Asia
Constitutional Dialogue in Common Law Asia, Po Jen Yap, Oxford, Oxford University Press, 2015, 272 pages, GBP £60 (hbk), ISBN: 978-0-19-873637-0I.IntroductionFor many decades, strong judicial review was perceived as the courts' sole mechanism to review...
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Civil Disobedience as Transformative Power under a Non-Democratic Regime: Does the Umbrella Movement Undermine the Rule of Law?
I.IntroductionThe issue of the rule of law is particularly significant and distressing for the protesters in Hong Kong. The Hong Kong government is not a democratic government, and the rule of law, including its institutions and social culture, has been...
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The Lack of Sovereignty, the Umbrella Movement, and Democratisation in Hong Kong
I.IntroductionThe Umbrella Movement of 2014 highlighted a massive political crisis in Hong Kong as thousands of people occupied the streets and were for the first time confronted with tear gas. The unprecedented violence came as people led by an active...
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The 'Legalisation' of Corporate Social Responsibility: Hong Kong Experience on ESG Reporting
I.IntroductionThe concept of corporate social responsibility (CSR) has attracted considerable publicity and controversy in recent years.1 Prior work focuses on its voluntary dimensions, whereby companies decide voluntarily to contribute to a better society...
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A New Dimension of Foreign Investment Law in China - Evolution and Impacts of the National Security Review System
(ProQuest: ... denotes non-US-ASCII text omitted.)I.IntroductionIn January 2015, the Ministry of Commerce of the People's Republic of China (MOFCOM) published a draft version of the Foreign Investment Law (FIL) for public comment.1 Chapter 4 of the draft...
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Out of the Shadows and Back to the Future: CPC and Law in China
(ProQuest: ... denotes non-US-ASCII text omitted.)I.IntroductionIn November 2013, the Central Committee of the Communist Party of China (CPC) adopted the Decision on Certain Major Issues in Comprehensively Deepening Reform.1 Although this document is...
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Vol. 24, No. 1, 2016

Arbitration and Public Policy: 2016 Goff Lecture
I. IntroductionThe man in whose name this Annual Lecture is presented, Lord Goff of Chieveley, has an honoured place in the pantheon of great lawyers of the common law world. I thank the City University of Hong Kong for inviting me to present this address,...
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Patterns of Judicial Behaviour in the Thai Constitutional Court, 2008-2014: An Empirical Approach
I.IntroductionThe concept of the judicialisation of politics has been widely explored in the United States, Europe and Latin America for a number of decades.1 In his article 'The Judicialization of Politics in the Philippines and Southeast Asia' published...
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China's Stance on Free Trade-Related Intellectual Property: A View in the Context of the China-Japan-Korea FTA Negotiations
I.IntroductionIntegrating intellectual property with a trade system is a precedent created by the World Trade Organization (WTO)'s Agreement on Trade-Related Aspects of Intellectual Property Rights, known as the TRIPS Agreement.1 With this backdrop,...
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The Legal Recognition of Indigenous Interests in Japan and Taiwan
I.IntroductionThe extension of effective state jurisdiction across the states of Japan and Taiwan left little room for the indigenous peoples living in those territories. Indigenous groups, practising a traditional lifestyle, did not accept the notions...
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Legal Dissonance: The Interaction of Criminal Law and Customary Law in Papua New Guinea
Legal dissonance: the interaction of criminal law and customary law in Papua New Guinea, Shaun Larcom, New York, Berghahn, 2015, 178 pp., US$85 (hbk), ISBN: 9781782386483The Independent State of Papua New Guinea, like many other countries, struggles...
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Vol. 23, No. 2, 2015

Law, Collective Action and Culture: Condominium Governance in Comparative Perspective
I. Private Law Reform, Collective Action and Cultural ChangeThis article offers a comparative analysis of self-governance of condominiums. It does so through a theoretical framework that unveils the ties between private law design, the structure of organisations...
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Assessing the Constitutionality of Legislation: Constitutional Review in Taiwan's Legislative Yuan
I. IntroductionDemocracies often tinker with mechanisms of constitutional governance. One of the current topics debated regarding such mechanisms is how involved legislatures should be in the constitutional assessment of laws. While some jurisdictions...
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The High Frequency of Piercing the Corporate Veil in China
I. IntroductionThe principle of the corporate veil - that a company's shareholders are separate from the company they own and its debts and obligations - has endured well since its origins more than four centuries ago. Remarkably, the principle fundamental...
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Condominium Law in Taiwan: Doctrinal Overview under the Lens of Information-Cost Theory
(ProQuest: ... denotes non-US-ASCII text omitted.)I. IntroductionBefore I built a wall I'd ask to know,What I was walling in or walling out,And to whom I was like to give offense.- Mending Wall by Robert Frost1In Mending Wall, American poet Robert Frost...
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Alternative Access to Investor-State Arbitration for Taiwanese Corporate Investors against China Via Treaty Shopping
I. IntroductionAccording to statistics, Taiwanese investment to China has accumulated to 40,907 cases from 1991 to early 2014, with the total amount of US$137.3 billion, which is 62.9 percent of Taiwan's total overseas investment.1 Inevitably the number...
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Competition Law and Policy in Singapore (Second Edition)
Title: Competition Law and Policy in Singapore (Second Edition) Authors: Lim Chong Kin and Cavinder Bull SC Publisher: Academy Publishing, Singapore Publication date: 2015 Format: Softcover ISBN: 9789810941536 Length: 326 pagesThe evolution of competition...
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The Death Penalty: A Worldwide Perspective (Fifth Edition)
Title: The Death Penalty: A Worldwide Perspective (Fifth Edition) Authors: Roger Hood and Carolyn Hoyle Publisher: Oxford University Press Publication date: 2015 Format: Softcover ISBN: 9780198701743 Length: 597 pagesPerhaps no single book better illustrates...
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Vol. 23, No. 1, 2015

The Uphill Battle for Sustainable Development: Can the Use of Public Interest Litigation Protect the Natural Environment in Hong Kong?
I. IntroductionHong Kong is developing at a faster pace than it has ever before. With infrastructure and construction projects continually launched the economy keeps progressing on its path of vibrancy and prosperity. Yet, the capacity of the tiny space...
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The Rhyme of History: A Transition of Legal Culture in China Crowned by the Criminal Procedure Law 2012
I. Introduction'History does not repeat itself, but it does rhyme.'1 The aim of this article is to illustrate one such 'rhyme of history', relating to some recent changes in China's legal culture. Specifically, it seeks to explain how amendments made...
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Extraterritorial Application of the Korean Capital Markets Act: Lessons from Securities Regulations in the United States
I. IntroductionThe Financial Investment Services and Capital Markets Act ('Capital Markets Act') took effect on 4 February 2009 in Korea.1 By consolidating the six separate laws that governed capital markets in the past, the Capital Markets Act aims...
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Wealth Management Products in the Context of China's Shadow Banking: Systemic Risks, Consumer Protection and Regulatory Instruments
I. IntroductionShadow banking in China refers to lending that is not subject to banking regulations, and includes banks' off-balance-sheet vehicles such as commercial bills, entrusted loans, underground lending as well as wealth management products ('WMPs').1...
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An Impediment to Accord or a Springboard for Change? the Proposal to Introduce a Common Qualifying Exam in Hong Kong
I. IntroductionHong Kong and New Zealand and England and Wales (ordinarily) expect those entering the profession to complete an academic stage of learning doctrinal law as well as a stage of practical learning skills ('PLT').1 In relation to the PLT...
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Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges
Title: Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges Authors: Larissa van den Herik and Nico Schrijver (eds) Publisher: Cambridge University Press Publication date: January 2015 Format: Softcover ISBN:...
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Vol. 22, No. 2, 2014

Rule of Law with Chinese Characteristics: An Empirical Cultural Perspective on China, Hong Kong and Singapore
I. IntroductionThe phrase 'rule of law with Chinese characteristics' has been a slogan for many years in China.1 The phrase is an adaptation from the phrase 'socialism with Chinese characteristics,' a slogan that was used to justify market reforms that...
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Will Hong Kong Succumb to International Pressure on Taxation Matters?
I. Introduction and BackgroundInternationally the pressure on nations perceived to be uncooperative and lacking in transparency in the operation of their taxation systems is intensifying. International organisations, such as the Organisation for Economic...
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Financial Regulatory Reforms in Korea Responding to the 2008 Global Financial Crisis: Are They Following the Global Trends?
I. IntroductionIn the wake of the global financial crisis ('GFC') in late 2008, many countries around the world have reformed their financial regulatory systems, including banking and financial regulation, by responding to the crisis in line with the...
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Termination of Public Housing Tenancies in Hong Kong
I. IntroductionHong Kong is well known for its expensive accommodation. In recent years, due to the drastic rise of prices and rental charges for private residential property1 and the complete abolishment of rent control in Hong Kong,2 public housing...
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Rule by Law or Rule of Law?
I discuss here several variants of the idea of rule of or by law, with the aim of illuminating some difficulties associated with the idea of what I will call 'mere' rule-of-law constitutionalism in a nation where a single party controls the government...
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Capitalism with Chinese Characteristics? - the Case of the Developing Securities Law in China
I. IntroductionAnyone who visited China in 2006-2007 could not help but have the impression that urban Chinese people belonged to two camps - those who were in, and those who were not but wanted to be in, the securities market. In any case, both groups...
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Vol. 22, No. 1, 2014

Who Is an Insider? A Case Study on Chinese Insider Trading Enforcement Principles
I. IntroductionInsider trading has been a chronic problem for every capital market in the world.1 Although regulation of insider trading and the justifications for punishment are controversial, most countries have a negative attitude towards insider...
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Selective Adaptation in Treaty Compliance: The Implications of Japan's Implementation of the World Trade Organization's Agreement on Government Procurement
I. IntroductionAs the world's third largest economic power, Japan depends heavily on international trade. Japan is not only a long-time member of the World Trade Organization (WTO), but also a founding member of the WTO's Agreement on Government Procurement...
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The Writing Is on the Forum: Liability of Internet Intermediaries in Hong Kong
Of late, there has been increasing discourse on the liability of Internet intermediaries, notably whether 'new intermediaries' which provide conduits, platforms and services for other people's speech and communications will be regarded as primary publishers,...
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The Choice of Competition Law and the Development of Enforcement in Asia: A Road Map towards Convergence
I. IntroductionSince the United States (US) enacted its first antitrust law,1 the Sherman Act, in 1890, more than 120 countries have adopted competition laws or similar types of anti-monopoly laws. In particular, a significant number of developing countries...
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Hong Kong's Court of Final Appeal: The Development of the Law in China's Hong Kong
Title: Hong Kong's Court of Final Appeal: The Development of the Law in China's Hong Kong Authors: Simon N M Young and Yash Ghai (eds) Publisher: Cambridge University Press Publication date: January 2014 Format: Hardback ISBN: 9781107011212 Length: 735...
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Interpreting Exceptions in the WTO Agreement: Lessons from the New Haven School
I. IntroductionThe manner of conceiving and interpreting exceptions in international adjudications is one of the principal challenges of interpreting international agreements despite its historically peripheral setting and, on occasion, non-existent...
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Asean and the Hague Conventions
I. IntroductionASEAN is hoping to inaugurate an ASEAN Economic Community (AEC) by the end of 2015.1 The AEC will transform the ASEAN region into a common market where there will be a free flow of goods, capital, labour, investment, and services among...
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Bridging the Gap between the Ideal and Reality: Services Liberalisation in the China - Japan - South Korea Free Trade Agreement
I. IntroductionChina, Japan, and South Korea all are important global economies.1 On the economic scale three nations rank only behind the European Union (EU) and North America. These three countries are also major trading nations with close business...
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The Applicability of International Human Rights Law to the Regulation of International Trade of Genetically Modified Organisms: A New Haven Perspective
I. IntroductionSince genetically modified (GM) tomatoes came on the market in 1994 in the United States (US), the growth in the quantity and variety of genetically modified organisms (GMO) has steadily increased.1 As the general public becomes more aware...
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Vol. 21, No. 2, 2013

A Democratic Dialogue? Parliament and Human Rights in the United Kingdom
Human rights are fundamental to a liberal democracy. In other systems, be they non-democratic regimes or what LeDuc, Niemi and Norris have characterised as electoral autocracies and electoral democracies,1 the fundamental issue is whether one can achieve...
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Defining Characteristics of 'Judicial Power' and 'Court' - Global Lessons from Australia
I. IntroductionThe objective of this article is to provide an excursus on how the High Court of Australia has resolved disputes about the boundaries of judicial power and the nature of courts with reference to notions of judicial independence and impartiality....
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The Duties of Fairness and Impartiality in Non-Judicial Justice
I. IntroductionThe study of values underlying the justice system is an important one in every national legal system as it is essential to guaranteeing democracy and liberty. The maintenance of a fair, impartial, and independent justice system is also...
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'Rule by Media' - the Role of Media in the Present Development of Rule of Law in Anti-Corruption Cases in Transitional China
(ProQuest: ... denotes non-US-ASCII text omitted.)I. IntroductionChina has become a major global economic power and its rapid growth has been accompanied by the evolution of its rule of law, albeit at a somewhat slower pace and with its unique 'Chinese...
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Corporate Governance and the New Companies Ordinance in Hong Kong
I. IntroductionThe new Companies Ordinance (No 28 of 2012) (new CO) in Hong Kong was passed on 12 July 2012 by the Legislative Council. It is anticipated to come into operation in the first quarter of 2014. The new CO is the culmination of what was referred...
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The Spectre of Crown Immunity after the End of Empire in Hong Kong and India
I. IntroductionThere are grave constitutional issues with a legal system that allows the State to enjoy immunity for its acts, and for those acting on its behalf, which unlawfully injure the civilian population. As Wade and Forsyth note, it 'is fundamental...
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Vol. 21, No. 1, 2013

The Scope of Investor-State Dispute Settlement in International Investment Agreements
I. IntroductionWith the advent of treaty arbitration, dispute settlement clauses in international investment agreements (IIAs) have become a crucial aspect of the protection afforded by such treaties. While initially the substantive standards of treatment...
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The Rotterdam Rules Effect on Chinese Cargo Owners
I. IntroductionThe United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules or the Convention), adopted by the United Nations ('UN') in 2008, is the fourth international convention concerns...
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Free Trade Agreements and the US-China-Australia Relationship in the Asia-Pacific Region
Trade theories articulate the benefits that flow from free trade between nations. By and large the World Trade Organization (WTO) agreements (GATT, GATS, and TRIPS) seek to capture the benefits that flow from free trade. GATT and GATS also permit WTO...
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Evolving Concept of Law in Korea: A Historical and Comparative Perspective
(ProQuest: ... denotes non-US-ASCII text omitted.)I. IntroductionThe primary purpose of this paper is to analyse the evolving concept of law in Korea from a historical and comparative perspective in order to understand a basis for 'East Asian Jurisprudence'1...
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China's Preferential Trade Remedy Approaches: A New Haven School Perspective
I. IntroductionIn international trade, 'free' and 'fair' are the two basic values that the postwar international community has reached consensus, towards which countries develop and coordinate their trade activities mainly within the so-called rule-based...
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Air Transport Association of America and Others V Secretary of State for Energy and Climate Change and the Accountability of International Organisations for Member Obligations
I. IntroductionAfter the European Union (EU) enacted the Aviation Directive of 20081 to include the activities of airlines in the European Union Emissions Trading Scheme cap-and-trade regulation,2 ('EU-ETS'), three American airlines, a Canadian airline...
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Case Note: Hubei Gezhouba Sanlian Indus Co V Robinson Helicopter Co
I. Background to the CaseOn March 29, 2011, the United States (US) Court of Appeals for the Ninth Circuit (the Ninth Circuit Court) affirmed the judgment of the United States District Court for the Central District of California (the District Court)...
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Vol. 20, No. 2, 2012

Trading in Humans: A New Haven Perspective
I. IntroductionThere is no such a thing as trading without limits. In our globalized world, as countries interact commercially inter se and enjoy the advantages of free trade, they also establish policies, enact laws and impose rules to regulate the...
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Factoring Cultural Element into Deciding the 'Likeness' of Cultural Products: A Perspective from the New Haven School
(ProQuest: ... denotes non-US-ASCII text omitted.)I. IntroductionThe McDougal-Lasswell-Reisman approach to international law, otherwise known as the 'New Haven' School, by borrowing and adapting the tools of a variety of social science disciplines -...
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Self-Determination of Indigenous Peoples: The Case of the Orang Asli
I. IntroductionIt is crucial to clarify some relevant legal concepts under international law when speaking of indigenous peoples: 'indigenousness', 'peoples' and 'minorities'. Thus, the position of indigenous peoples under international law becomes the...
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The New Haven School of Legal Theory from the Perspective of Traditional Chinese Culture
Every theory is rooted in the society where it has developed and as such reflects the culture and value thereof. As the contemporary world is being highly globalized - characterized by a high degree of interdependence of all countries and between States...
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The Secessionist Movement in the Southernmost Provinces of Thailand: A View from the New Haven School of International Law
I. Introduction[H]istorical territorial grievances are so ancient and so plentiful on all sides that they cannot be disentangled in any meaningful way ... [and] ... Any attempt to resolve such problems by redrawing borders to fit a particular critical...
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Goods in Transit: Enforcement of IP Rights by Customs Officers
I. IntroductionMembers of the World Trade Organization (WTO) are not obliged to enforce border measures by customs authorities for protection of intellectual property rights (IPRs) related to goods in transit.1 There were no disputes between WTO Members...
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Vol. 20, No. 1, 2012

The Rule of Law: Rhetoric or Universal Principle?
I was greatly honoured when the City University of Hong Kong asked me to give this, the first in a new series of Asia Pacific Law Lectures. The Asia Pacific Law Review is now in its 20th year and has gained international recognition. It is also a privilege...
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Designing Redress: Who Does It, How and Why?
I. IntroductionDesign: 'A plan or scheme conceived in the mind and intended for subsequent execution; the preliminary conception of an idea that is to be carried into effect by action; a project'.1 Redress: 'To set right, repair, rectify (something complained...
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Improving Accountability in the Solomon Islands: A Review of Auditor-General Enabling Legislation
I. IntroductionCorruption and its multiple damaging consequences in developing countries has become an issue of increasing concern and interest, both among analysts and policy-makers.Every year US$20-40 billion is stolen from developing countries through...
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Securing Natural Justice in Arbitration Proceedings
I. IntroductionThe principles of natural justice,1 enshrined in the legal culture of all mature legal systems, may be said to be the grundnorms2 of any system of adjudication forming part of a legal system based on the rule of law.3 These legal systems...
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A Review of the Taiwanese Court's Ruling on Ad Hoc Arbitral Awards
(ProQuest: ... denotes non-US-ASCII text omitted.)I. IntroductionOf all the recent judgments and rulings issued by Taiwanese courts regarding arbitral awards, Jin Cheng Feng Construction Co Ltd v National Taiwan University Hospital Bei-Hu Branch1 (the...
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Access to Non-Judicial Justice through Islamic Courts in Sri Lanka: Palm Tree Justice or Accessible Justice?
Dispute resolution is the earliest known, and arguably continues to be the most fundamental, reason for the existence of a system of law and rules.1 The law indeed serves many other purposes. For instance, law facilitates cooperative action; it constitutes...
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Vol. 19, No. 2, 2011

A 'New Haven' Solution to the Protection of Private Rights in China's FTAs
I. IntroductionAccording to the official statistics of the World Trade Organization (WTO ), as of 31 July 2010, 474 regional trade agreements (RT As) had been notified to the GATT /WTO , of which 283 were in force.1 RT As and free trade agreements (FTAs)...
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Universalism and Human Rights in the 21st Century
I. UniversalityThe cultural relativist thesis circumvents the traditional philosophical function of absolute truth, because by applying its critique to its own method, relativists' views themselves are limited to their own cultural historic tradition...
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Balancing the Domestic Regulatory Need to Control the Inflow of Foreign Direct Investment against International Treaty Commitments: A Policy-Oriented Study of the Korean Foreign Investment Promotion Act and the Korea-US FTA
I. IntroductionRecognising the potential contribution of foreign direct investment (FDI) to the national economy, many countries around the world pursue legal strategies to promote the inflow of FDI into their territories. The legal strategy most commonly...
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Access to Justice in European Competition Law - Public Enforcement as a Supplementary Channel for 'Corrective Compensation'
I. IntroductionThe notion of 'access to justice' is wide-ranging and encompasses, among other things, the fundamental right of access to the court system,1 procedural rules concerning such access,2 remedies3 and alternative dispute resolution mechanisms.4In...
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Environmental Public Interest Litigation in China
I. IntroductionPublic interest litigation is a special type of lawsuit which is brought to the court by an individual, organisation or agency to prevent harmful behaviour (including the behaviour of citizens, legal persons and organisations, government...
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National Human Rights Institutions and the Courts in the Asia-Pacific Region
I. IntroductionIn recent years, National Human Rights Institutions (NHRIs) have assumed a role of increasing prominence in promoting and protecting human rights in the Asia-Pacific. There are currently 20 NHRIs in the region, most of which are less than...
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Administrative Tribunals and Adjudication
Title: Administrative Tribunals and Adjudication Author: Peter Cane Publisher: Hart Publishing Publication date: 2009 Pages: 285 ISBN: 978-1-84113-009-5Professor Peter Cane's book is a historical and comparative study of administrative tribunals and...
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Vol. 19, No. 1, 2011

In Personal Performance Codes, One Size Doesn't Fit All: Clarifying the Professional and Ethical Responsibilities of Decision Makers
Explicit performance codes are usually associated with skill groups characterised as 'professions'. In social process, the designation of 'profession' is a jealously guarded asset, access to which is carefully controlled and often ritualised. At the...
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Global Governance and International Financial Institutions
The Berlin Wall came down in November 1989. With the collapse of the Soviet Union in December 1991, the Cold War also ended. Mikhail Gorbachev referred to the end of the Cold War as 'our common victory' in January 1992. The wind of 'freedom' and 'liberalism'...
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Chinese Foreign Investment Laws: A Review from the Perspective of Policy-Oriented Jurisprudence
I. IntroductionAlthough still in an evolutionary process, China's legal regime on foreign investment already plays a significant role in safeguarding and promoting foreign investments. It seems that the regime is embarking on a new stage because of the...
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The Europeanisation of Contract Law and Its Significance for Asia
I. IntroductionThroughout the last 200 years, the history of private law has been linked to the emergence and existence of the nation state. The first codes of the 18th century were still, essentially, meant to make the law more accessible by collecting...
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What Is the 'Law' in Chinese Tax Administration?
I. IntroductionParadoxically, the discourse in China about the rule of law in taxation is going through both a primitive and a dynamic phase. The discourse is primitive in obvious ways. The meaning and scope of 'law' are not yet clear, and there is wide...
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Some New Haven International Law Reflections on China, India and Their Various Territorial Disputes
I. The Issues Defined by India and China in Terms of Formalist, Western International Law ConceptsA. The McMahon LineThe continued problem of the India-Tibet/China border, along the so-called McMahon Line is a legacy of British colonisation. The dispute...
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Development as a Universe of Human Aspirations: A New Haven School Perspective
I. IntroductionThis article discusses the basic concepts surrounding the theme of human development. It seeks to explore and examine the current state of art, as regards the fundamental understanding of economic and social development, and to offer alternatives...
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