As mandatory environmental, social, and governance (ESG) disclosure proliferates, jurisdictions often adapt financial enforcement mechanisms to complex ESG information, creating regulatory gaps and excesses. Japan relies on resource-constrained public sanctions, leading to under-enforcement; the USA employs investor litigation, which chills disclosure; and the European Union (EU) mandates costly, narrow third-party assurance. To address these structural deficiencies, this article proposes a hybrid model. The analysis begins with a comparative two & times; two matrix (ex-ante/ex-post & times; public/private) that maps the enforcement measures of Japan, the USA, and the EU, revealing distinct trade-offs among cost, coverage, and deterrence. An empirical study of Japanese enforcement reveals systemic under-enforcement and the Securities and Exchange Surveillance Commission's capacity deficits. Findings demonstrate that neither singular reliance on private-led mechanisms (such as third-party assurance or investor litigation) nor resource-constrained public enforcement alone can reliably secure ESG information without distorting incentives. The proposed hybrid strategically allocates tools to their comparative advantage: (i) reserving ex-ante assurance for high-impact, readily verifiable metrics; (ii) enlarging public audit resources for broader disclosures; and (iii) tying private liability thresholds to context-specific materiality reflecting ESG's qualitative character. Such an integrated framework can achieve a more balanced alignment between investor protection, stakeholder transparency, and compliance costs, thereby reinforcing market trust and avoiding the twin perils of greenwashing and disclosure chill.
The COVID-19 pandemic exposed the rigidity of will-making laws requiring in-person witnessing. Jurisdictions responded differently: some introduced temporary measures, others implemented permanent reforms allowing remote witnessing. This article compares responses in England and Wales, selected Australian states, Singapore, and Hong Kong SAR, tracing developments toward potential recognition of electronic wills. The central argument is that law reform should balance accessibility with safeguards against fraud and undue influence, avoiding overly burdensome formalities that deter compliance. The article concludes by examining how national digital identity systems could be used for the execution of electronic wills.
China is often characterized as an outlier in veil piercing, with courts perceived as being more willing than their common law counterparts to disregard corporate personality. This article reassesses that claim by examining the newly codified recognition of horizontal veil piercing among sibling companies under common control. Article 23(2) of the 2023 Company Law provides an express statutory basis for intra-group liability where corporate personality is abused to evade debts and seriously harm creditors. Drawing on an empirical study of published judgments involving sibling-company claims decided before and after the reform entered into force, and supported by doctrinal and comparative analysis, the article finds that codification has not narrowed judicial intervention. On the contrary, post-reform decisions display a higher piercing rate and a greater willingness to extend liability where documentary evidence of cross-company commingling is established. Judicial reasoning has become more standardized and increasingly formalistic, with courts in some cases applying a lower evidential threshold once key indicia of commingling are established. From a comparative perspective, these findings challenge the assumption that statutory clarification necessarily constrains a doctrine framed as exceptional in common law systems. The article argues that codification may instead facilitate more routine application when it aligns with adjudicative incentives and broader policy priorities. It concludes by proposing doctrinal and evidential benchmarks to better balance creditor protection with limited liability and entity shielding in corporate groups.
Unexpected events, such as the Covid-19 pandemic, can have a dramatic impact on the ability of contracting parties to perform their contractual obligations and can create real hardship for contracting parties by substantially increasing the cost of contractual performance. In such circumstances contracting parties may look to the applicable law for relief. An alternative approach, and the one explored in this paper, is for contracting parties to make their own provision in the contract for the occurrence of such events. It is, however, no easy task to draft such clauses. These clauses take different forms, such as a force majeure clause, a hardship clause or a material adverse change clause, and they have different potential remedial consequences. One of the central questions for contracting parties is whether they should attempt to make provision in one of these forms for the impact of events which, by definition, have not occurred at the time of entry into the contract or whether they should leave it to national courts, particularly in those jurisdictions where a legal doctrine of hardship is being developed, to resolve the difficulties that have arisen and when the courts can use the benefit of hindsight to develop a solution which is appropriate for the events which have in fact occurred. This question does not admit of a single answer which will be suitable for all contracts but parties seem more likely to wish to make their own provision for the occurrence of such events where the contract is of high-value, entered into over a long term and drafted with some sophistication with the benefit of professional legal advice.
This article examines how artificial intelligence (AI) is reshaping the board of directors' monitoring function in an era of heightened corporate accountability. Modern corporate governance has long assumed that boards of large, complex corporations primarily serve as monitors of managerial decision-making. Yet, persistent institutional failures, limited director time, inadequate and asymmetric information, and constraints in board composition continue to undermine effective oversight, contributing to significant compliance and ethical lapses. At the same time, escalating regulatory obligations, particularly in areas such as climate-related risk and sustainability reporting, intensify pressure on boards to obtain timely, accurate, and comprehensive information. AI presents both a potential remedy and a profound challenge to this governance landscape. AI systems promise efficiency gains, enhanced data analysis, and the capacity to augment board expertise, thereby mitigating traditional constraints. However, their use also creates new risks relating to opacity, bias, and diminished human vigilance, amplified by cognitive-miser behaviour and automation bias. Current corporate law frameworks were developed for human decision-makers and provide limited guidance on accountability when directors rely on AI-generated insights or when AI systems drive core corporate functions. Existing defences, such as reliance, delegation, or business-judgment safe harbours, offer little protection where decisions stem from opaque or inadequately supervised AI processes. The article argues that effective integration of AI into corporate governance requires an explicit, legally grounded 'human-in-the-loop' approach. It proposes reforms that mandate human oversight of AI-facilitated decisions, ensure transparency through auditability and disclosure of AI use, and assign responsibility to individuals with appropriate AI-related expertise: the 'right human in the loop'. External audits and regulatory supervision should complement internal governance mechanisms to prevent erosion of accountability. As AI increasingly permeates corporate decision-making, governance frameworks must evolve to preserve responsibility, transparency, and trust in the board's monitoring role.
Restrictive standing rules, adverse litigation costs, and proof of causation are major barriers to access to courts for Environmental Public-Interest Litigation (EPIL). A doctrinal and comparative examination of the relevant laws in Ethiopia reveals that these issues have not been sufficiently and unequivocally addressed. Primarily, there are controversies pertaining to standing, contestable actions, and potential defendants in environmental litigation. The rules related to the proof of causation and litigation costs are also not favourable for effective EPIL. In contrast, China has made significant strides in addressing these barriers by introducing different types of EPIL and bestowing the standing to initiate EPIL upon various actors, including social organizations, administrative organs, and procuratorial organs. Furthermore, Chinese laws allow for the deferment, reduction, or elimination of litigation costs in environmental matters. In addition, several laws in China shift the burden of proof in environmental matters to the defendants. Several stakeholders, including the judiciary, legislature, local governments, and non-governmental organizations, have played a significant role in the evolution of these legislative laws. Hence, following China's approach to addressing the barriers to effective EPIL, Ethiopia must adopt laws that bestow the right to initiate EPIL upon a broad array of actors, relax the standing requirements unequivocally, and clearly outline the possible contestable actions and defendants. Ethiopia should introduce special treatment for EPIL, including reduced initial lawsuit payments and protection from adverse costs. A reverse burden of proof in EPIL cases should also be introduced to enhance citizen participation in environmental law enforcement.
This article examines how case law from the European Court of Human Rights and the Court of Justice of the European Union influences judicial decision-making in Kenya, Ghana, and Nigeria. Although no direct jurisdictional or institutional links exist, domestic courts in these African jurisdictions refer to European jurisprudence in their rulings. The study, based on decisions from appellate and supreme courts between 2010 and 2023, distinguishes between situations where European case law is conclusive in resolving a dispute or legal issue and those where it serves as comparative material. It also identifies recurring motivations for these references, including the persuasive authority of European rulings, gaps in domestic law, the shared features of democratic legal systems, and the reconstruction of domestic legal concepts. It also briefly flags factors not explicit in the judgments' reasoning that may facilitate such references. The findings reveal a broader trend of judicial dialogue and convergence in legal reasoning across continents. The article argues that European jurisprudence provides African courts with normative guidance and conceptual tools that support constitutional interpretation and legal development. By highlighting this transnational exchange, the study contributes to comparative law scholarship and demonstrates the importance of cross-continental judicial reference for the evolution of legal systems.
The coronavirus disease-2019 (COVID-19) pandemic has been cited as a factor that has accelerated the development of artificial intelligence (AI) across several areas, unsurprisingly including healthcare and epidemic management. AI was a critical tool in the fight against COVID-19 and has been utilized in pandemic surveillance, diagnosis, outcome prediction, drug discovery, and vaccine development. With the rapid development of AI that was catalysed by COVID-19, the Law will yet again be challenged and have to adapt to technology. This article considers one aspect of this, namely the rules relating to contract formation at common law. The article outlines two important types of AI by purpose-Generative AI and Agentic AI. As agentic AI is the focus of this article, it goes on to discuss the role of the law of agency in the context of agentic AI. This is followed by a section on how the rules of Offer and Acceptance in Contract Law can accommodate scenarios where contracts are being formed with minimal human intervention and awareness. And, if a contract can be formed in such a manner, how might the law of mistake be used to mitigate errors that may arise?
This study examines the normative linkages between the concept of decent work and the Belt and Road Initiative (BRI) and explores avenues for materializing the normative content of decent work in the BRI context. Despite a large body of literature addressing economic, geopolitical, or institutional aspects of the BRI, the normative dimensions of sustainable development and decent work remain less explored. This article addresses this gap by examining the BRI from a dual methodological perspective that integrates public international law and private international law considerations, offering a previously unexplored lens through which to analyse the governance structures of the BRI and their implications for labour standards and protections. We argue that international labour standards, Chinese domestic law, soft law instruments, and private international law regulatory approaches constitute channels for the realization of decent work in BRI projects.
This article addresses the complex legal landscape surrounding Advance Directives (ADs) in the Guangdong-Hong Kong-Macao Greater Bay Area (Greater Bay Area), where distinct legal traditions exist. Presently, discrepancies in AD regulations pose significant challenges, potentially leading to the disregard of individuals' end-of-life preferences when crossing jurisdictional boundaries. While Hong Kong (with the incoming Advance Decision on Life-sustaining Treatment Ordinance) and the city of Shenzhen stand as pioneers in China with AD legislation, inconsistency persists nationwide. To mitigate these challenges, this article proposes a model law harmonizing AD application in cross-border jurisdictions. Emphasizing the primacy of personal autonomy, the model law advocates for the binding nature of ADs, ensuring legal protection and accountability for physicians who honor individuals' directives. By bridging legal disparities and safeguarding individuals' rights, this model law aims to promote consistency and respect for end-of-life preferences in the Greater Bay Area.
From the mid-19th century onwards, China abandoned the traditional worldview of "All under Heaven" and turned to (Western) international law, struggling for membership in the "family of nations". This century-long process was reoriented by the founding of the People's Republic of China. As a result of China's ideological turn to Marxism and political alignment with the Union of Soviet Socialist Republics (USSR), Soviet theory of international law was introduced during the 1950s and 1960s, while Western theory of international law was denounced, and pre-PRC international lawyers educated in the West also turned to Marxism-specifically, the Soviet approach. However, influenced by nationalism, China did not fully accept the Soviet conceptions of Marxism and international law. More importantly, this stance shifted due to several key developments: the worsening of China-USSR relations from the late 1960s, China's integration into the Western-led international order beginning in the late 1970s, and its more recent rise as a state of global prominence. Consequently, Chinese international lawyers have departed from the Soviet model, instead developing a Marxist approach to international law "with Chinese characteristics".
International law is usually conducive to stability and peace. In the context of the China-India border and territorial disputes, however, international law exacerbates tensions and increases risks, as the incidents at the border in 2020 illustrate. Factors that explain this pattern include: the impossibility of ‘thick’ exercises of sovereignty in marginal, uninhabitable territory, the ambiguities of the human rights to self-determination of minority peoples and the dilemmas they pose for States’ central governments, China’s distinctive views on the invalidity of ‘unequal treaties,’ the relevance of various history-based claims to sovereignty, and the special place of the Five Principles of Peaceful Coexistence in international law. These law-related problems are compounded by political aspects of the border and territorial disputes and China-India relations, including: rising nationalism in both States, concentrations in and near disputed territory of minority populations with cross-border ties, China’s and India’s status as rising or renascent powers, and alignments with third-party States.
The Macau SAR has a civil law legal system, historically connected to the Portuguese legal system included in the Roman-German family of legal systems. Until Law 5/2016 (Medical Error Act), medical malpractice claims could be framed in tort and/or contract. Certain aspects of administrative law related to treatment provided by public healthcare providers, in particular as regards their duties and liability, have a bearing on the applicable substantive and procedural legal regime and entail the jurisdiction of administrative courts. Aggrieved patients faced the challenge of navigating an uneven level playing field and the burden of proving fault, damages, and causation. The approval of Law 5/2016 was protracted, and there was a lack of consensus in society. Nevertheless, it has unique features: a public committee is created and charged with providing forensic expertise in cases of alleged medical malpractice and another public committee is created to handle and conciliate medical malpractice claims, award just satisfaction, and prevent lawsuits. The aim of this contribution is to explain this legislative shift, critically examine the challenges that it has brought forth, and analyse it in a comparative law context. Building on existing scholarship, this article presents Macau’s novel medical liability system, which has unique features, to a wider global audience: it identifies the aspects that can be perfected in future revisions of the law and highlights the merits of the missed chance, envisaged in the 2005 Green Paper, to move away from fault-based liability towards a no-fault compensation system.
This study examines the personal data protection practices within the banking sectors in the Greater Bay Area-Hong Kong, Macau, and Mainland China. Our analysis reveals significant inconsistencies in the application of related privacy policies of banks across the three regions, with specific focus on aspects such as personal and sensitive data, data processing, and the protection of minors' personal data. The discrepancies stem from diverse regional laws, regulations, and judicial practices that generate legal uncertainties, subsequently impacting cross-border data transfer. The study emphasizes an urgent need for a harmonized approach to data protection within the Greater Bay Area and highlights practical challenges encountered in harmonizing the relevant laws across the three regions. It recommends developing data protection standards for the banking industry and using such standards as useful guidelines for addressing the existing discrepancies in data protection regulations and practices. This could ensure consistency, allow for daily banking operations that comply with the diverse data protection rules across the three regions, and foster data flow within the banking sector in the Greater Bay Area.
The recent rise of the modern state and market-driven economies in Asia has been accompanied by a modernization of their insolvency laws. The centerpiece of such laws has been improved inclusivity, time-bound resolution of corporate distress, and a growing emphasis on viable rescue, social welfare, and preservation of the human (social) capital. In this vein, it has become more and more recognized that the collapse of a corporate entity may have substantial and across-the-board effects on a number of people associated with it, their life, and livelihoods. While the notion of ‘public interest’ is an important element of various areas of law, as far as its interface with insolvency law is concerned, it has received minimal attention. Going beyond the paradigm of neoclassical economics, which treats workers like any other factor(s) of production, this research focusses on the human and social dynamics of corporate insolvency laws, in their applicability to the workers and employees of the distressed companies.
Traditionally, takeovers are seen as a mechanism to improve societal efficiency by acquiring low-value firms at low costs, thereby eliminating poorly managed companies. This article challenges this conventional view, demonstrating that certain ‘market infrastructure’ issues can cause pricing distortions in capital markets. These issues include information asymmetry, imperfect industrial organizations, support from the government or corporate groups, and capital-market imperfections. Stock price distortions from market infrastructure issues can keep the value of bad-quality companies high. Conversely, high-quality companies may be undervalued, making them takeover targets. In either case, the disciplinary role of takeovers is undermined. Therefore, countries with serious corporate governance problems should address market infrastructure issues before encouraging hostile takeovers and relaxing related rules that have previously restricted bidders’ activities. In addition, this article argues that, in countries with certain market infrastructure issues, hostile takeovers are not necessarily effective in enhancing the general quality of management competitiveness, corporate efficiency, or the level of corporate governance. In essence, this article contends that the (in)efficiency of hostile takeovers depends on the soundness of market infrastructure, a factor often overlooked by academia and policy makers.
The excessive data collection and (mis)use of data can result in the coexistence of two market failures—namely, market dominance and information asymmetry—which in turn interact with each other in digital markets and trigger simultaneous concerns about competition law and data protection law. This article establishes a law and economics framework to study the divergence in response to the concerns caused by excessive data collection and (mis)use of data by dominant technology undertakings in the European Union and China. The German competition authority, the Bundeskartellamt, found that Facebook, a dominant social network platform, abused its dominant position by excessively collecting and misusing user data without consent, whereas the Cyberspace Administration of China addressed similar concerns caused by Didi, a dominant ride-hailing undertaking, via data protection law. Based on the comparative analysis of the German Facebook case and the Chinese Didi case, a competition law approach to deal with excessive data collection and the (mis)use of data by a dominant technology undertaking results in high enforcement costs due to the prerequisites of market definition and dominance determination under abuse of dominance, while contributing to minimizing error costs, especially false negatives in the absence of data protection enforcement. In contrast, a data protection approach would be a cost-effective way to intervene in the market ex-ante by decreasing the likelihood of excessive collection and misuse of data, reducing the exclusionary and/or exploitative effects of competition and lowering the market entry barrier that benefits from the collection and processing of significant amounts of data.
Technology has disrupted corporate law in many ways and continues to do so. Influencers on social media who have started having influence in the personal finance space, which includes providing ideas and tips about how and where to invest, have come to be known as finfluencers. Whether or not what they do qualifies as ‘financial advice’ has been a matter of regulatory interest across jurisdictions. This article provides an account of the rise of finfluencers with a focus on two Asian jurisdictions—South Korea and India—and argues that social media has enabled them to connect corporations and society like never before. Thus, while the focus of this article is finfluencers, the infrastructure making it possible for finfluencers to operate and have an impact—social media—is also an important consideration. The article further argues that it is key to ensure that any regulation of finfluencers should address the dark side of the finfluencing world without stymieing the many benefits. The aim of this article is to stake out the phenomenon in the context of broader social media disruptions of corporate law.
This special issue collects the insights and discussions that emerged during a conference held at the Faculty of Law of the University of Macau in May 2022. As the Greater Bay Area (GBA) evolves into a pivotal hub for economic development, it also presents a unique opportunity to explore the complexities of juxtaposing diverse legal systems within a single sovereign State. This collection of contributions from leading scholars and practitioners seeks to address the multifaceted legal challenges and opportunities inherent in the GBA's development, focusing on topics of regulatory law. By examining these themes, we aim to foster a deeper understanding of how regulatory frameworks can be shaped to enhance cross-border cooperation and openness while respecting the distinct legal traditions of the region.
