Abstract Religious freedom in Japan is a legal transplant, introduced due to contact with Western legal systems in the 19 th century and subsequently entrenched by article 20 of the current Constitution. This transplanted norm has operated within a complex religious landscape shaped by Shintō traditions alongside imported religions. Although challenges concerning religious freedom and the separation of religion and state persist, the Japanese experience demonstrates that this transplantation has produced tangible benefits. The constitutional framework has helped to clarify the relationship between religion and state, particularly with respect to Shintō, addressing entanglements that proved problematic in the pre-war period. Central to this development is a sophisticated body of jurisprudence developed by the Japanese Supreme Court, which has refined doctrinal tests attentive to Japan’s social and cultural context, evidencing the effective internalisation of transplanted norms. Constitutional protections have also safeguarded religious freedom, while permitting state intervention to restrict practices considered socially harmful. In this context, claims that the diffusion of religious freedom to Japan has failed are unpersuasive.
Abstract Informal debt collection is a widespread but underregulated phenomenon in Southeast Asia, where institutional enforcement remains weak and access to formal credit is limited. This article offers the first comparative legal analysis of informal debt collection practices and regulatory responses in Singapore, Thailand, Malaysia, and the Philippines, with Australia serving as a reference jurisdiction. Drawing on a functionalist methodology, the study examines how sector-specific rules, soft-law guidelines, and general consumer protection law shape debt recovery processes across divergent legal and institutional contexts. It argues that informal collection methods, while often abusive, also reflect broader socio-economic conditions and governance gaps that cannot be addressed through technical legal reform alone. The article highlights emerging regulatory trends, including protections for small and medium enterprises, targeted safeguards for vulnerable debtors, and incremental licensing regimes, while cautioning against one-size-fits-all solutions. It proposes a phased reform strategy that combines national consolidation of legislative frameworks with the regional convergence of baseline norms around dignity, fairness, and enforcement transparency.
Abstract The human rights situation of gender and sexual minorities in South Korea has been particularly troubling when compared to the recent advancements in other liberal democracies. Strategic obstructions by conservative Christian groups, combined with the passive and deferential attitudes of the legislative and executive branches, have constituted major obstacles to civil society’s persistent efforts to secure and advance these minorities’ rights. In contrast, the judiciary − especially the jurisprudence of the Supreme Court and lower courts − has made meaningful progress in recent years by adopting more principled, human-rights-oriented interpretations of the law. Significant developments include the relaxation of conditions for transgender persons’ legal gender recognition, challenges to the constitutional validity of the military sodomy law, the initiation of legal recognition of same-sex partnerships, and the protection of the freedoms of assembly and association. A close examination of key cases reveals a contrast between the majoritarian tendencies of the legislative and executive branches, on the one hand, and the more rights-protective stance of the judiciary, on the other. This disparity underscores the crucial role of courts in safeguarding equal rights and dignity for marginalised groups, while also highlighting the need for the adoption of a comprehensive anti-discrimination law in South Korea.
Abstract The Arabian Gulf has a chequered history of subjugation and alliances of interest with the British, chiefly as a means of averting Ottoman and other external political control. However, there is evidence that Gulf people had always desired independence from British rule and domination. This aspiration was manifested in the adoption of Arab nationalism as an ideological foundation, both in opposition to the British and in pursuit of a pan-Arab union. Attempts for self-determination found their expression in the formation of distinct groups, associations and clubs whose key concern was the granting of constitutional civil liberties. These groups were directly predicated on Arab nationalism and flourished for roughly a decade from the mid-1950s to the mid-1960s. Political activism exhibited in the Arabian Gulf during this period evinces a high degree of awareness of regional as well as global politics. It shows that Arabs in the Gulf were neither docile adherents to British rule nor happily subservient to the dictates of Westminster. The article’s analysis, while drawing on all Gulf Arab states, places particular emphasis on social movements in Bahrain, Qatar and Kuwait, where such movements were considerably more active than in neighbouring countries.
Abstract How and why is comparative law and society imperative to legal education? In the 21 st century, legal education displays a paradox: despite the rise of Asia economically, socially and politically, the study of comparative law rarely includes Asian laws outside of law schools in Asia. In this article, I contribute to the debate over legal education by arguing for the imperative of comparative law and society, and its benefits for law students. I examine how law schools commit practically to comparative law and society by hiring scholars with relevant expertise and offering such subjects. I illustrate this commitment with a case study of Asian legal studies in Australia over the past seven decades (1960s-2020s). I find that Asian legal studies remains concentrated at a handful of law schools, resulting in a problem I describe as the ‘Asian Century gap’ in legal education. Closing this gap requires a renewed commitment to the study of comparative law and society as Asian legal studies through hiring choices and subject offerings. Such a commitment is necessary to ensure that our law students gain the benefits that an education in comparative law and society has to offer.
Abstract Farmers in India who rely on commercially supplied seeds often face significant challenges in seeking redress when those seeds do not perform as expected. Existing legislation, notably the Seeds Act 1966, regulates only notified varieties and provides no direct remedy or compensation for farmers experiencing losses due to poor seed quality, germination issues, or mismatched varieties. Consequently, farmers must resort to consumer forums for relief, despite unresolved questions about their legal standing as consumers, appropriate jurisdiction, and the criteria used to determine seed defectiveness. These complexities, compounded by inconsistent rulings from the National Commission, make the consumer law route cumbersome and uncertain. This analysis underscores the need for a specialised farmer-centric compensation mechanism contained in seed legislation itself. Such a system would ensure clarity, fairness, and timely relief, alleviating the burdens farmers currently bear under the existing legal framework.
Abstract Legislative intervention to regulate family businesses has been rare globally. This article assesses recent legislative developments in the United Arab Emirates (UAE), where the first law of its kind governing family businesses was recently introduced. It explores and analyses the new law's special dispute resolution mechanisms and provisions on the internal governance of family businesses. The article also identifies recent legal developments in Saudi Arabia, which are seen as the beginning of a new regulatory framework for family businesses. To advance the field, the article proposes an optimal regulatory framework for family businesses that takes into account their unique nature and characteristics. Specifically, this article proposes an opt-out model for governing family businesses instead of the opt-in model introduced in the UAE. The proposed model would ensure a more effective regulatory framework for family businesses.
Abstract Comprehensive anti-discrimination legislation, in which all attributes are protected on an equal footing and well-resourced equality agencies are empowered to effectively enforce such obligations, is not common in the Asia-Pacific region. Centring the Asia-Pacific as a critical site of inquiry, this article examines incremental changes to discrimination laws in the region. It draws on discrimination law reform in Australia and Hong Kong to demonstrate how these processes have resulted in piecemeal rather than comprehensive reform, adding to the patchwork nature of discrimination protections and contributing to uncertainty as to the scope and coverage of anti-discrimination laws. Patchwork protections also exacerbate the regulatory burden on duty holders where there are inconsistencies between obligations and differing compliance requirements. This article argues that governments in the region should enact comprehensive legislation prohibiting discrimination, enabling states to meet their international human rights obligations, minimise legislative inconsistencies and potentially provide greater legal certainty to citizens and duty holders alike. This analysis is timely as jurisdictions in the region – such as Singapore and Taiwan – are considering new legislative frameworks prohibiting discrimination.
This article problematises traditionalist thinking in constitutional adjudication in relation to the rights of same-sex couples, especially those rights that are connected to family life. It identifies two approaches, represented respectively by the case law of the Italian Constitutional Court (ItCC) and the Court of Final Appeal (CFA) of the Hong Kong SAR of the People’s Republic of China. The ItCC has expressly stated that preserving traditional family forms is a reasonable objective per se for the legislature to pursue. The CFA, on the other hand, has challenged this approach to traditionalist thinking in relation to same-sex unions. Despite some contradictory signals within its case law, the CFA has stated that justifying differential treatment based on sexual orientation with reference to tradition is circular reasoning. Drawing on historical, anthropological, and philosophical sources, this article argues that invoking the preservation of tradition, despite its rhetorical force, is empirically and conceptually criticisable and, ultimately, unpersuasive.
The scope of an arbitration agreement shapes and determines an arbitrator’s jurisdiction, making it a key issue in international arbitration theory and practice. Courts in pro-arbitration countries usually interpret the scope of an arbitration agreement broadly to cover all disputes related to the contract between the parties. This ensures that arbitration can function as an effective and efficient ‘one-stop’ forum for business entities. China is a crucial player in the international arbitration system. Despite having maintained an overall pro-arbitration stance, the Supreme People’s Court of China (SPC) misconceptualises the scope of an arbitration agreement by equating it with the boundaries of the contract between the parties. This misconception leads the SPC to adopt two problematic legal doctrines. First, it develops a literal approach to interpretation that focuses on an arbitration agreement’s exact wording. Second, it conflates the existence of an arbitration agreement with its scope. As a result, the SPC frequently interprets scope narrowly, and wrongly applies the New York Convention and the relevant Chinese law. These problematic approaches stand in stark contrast to the international trend to interpret scope broadly and the SPC’s otherwise consistent pro-arbitration stance. So far, this has not received the necessary attention from legal academics. This article identifies the SPC’s misconception and the problematic doctrines it has developed, and argues that the SPC should reconsider its case law. Only by doing so can the SPC bring its jurisprudence in line with international practice, strengthen its pro-arbitration stance, and further facilitate economic cooperation between China and other countries. In addition, by exposing the misconception of the SPC, this article will inform business entities around the world and enable them to avoid possible pitfalls when engaging in commercial dealings with China. At the same time, courts in countries striving to build a pro-arbitration reputation can learn from the mistakes of their Chinese counterparts and reflect on how best to interpret the scope of arbitration agreements.
One of the most pressing regulatory issues of our time is whether, when, and how short selling should be regulated. Short selling facilitates the dissemination of negative information that is otherwise not available to the marketplace, thereby improving market efficiency. However, it may also disrupt market stability, particularly during times of stress. Therefore, regulators seek to regulate this market practice in a balanced manner. This paper examines the Korean short selling regime, the world’s longest ban, instituted following the COVID-19 pandemic. It argues that the regulatory system is run on archaic methods. In particular, our analysis demonstrates that the rules are overly restrictive and complex compared to those in other major jurisdictions. Also, critical decisions are entirely at the government’s discretion, rendering it vulnerable to political interference. Stressing the need for a revamp of the current short selling system, we call for a thorough revision of law and regulations. Market authorities must set out clear standards for regulatory intervention to avoid arbitrary and capricious decisions. In doing so, they can enhance transparency and accountability in law enforcement. Regulators should be aware that it is the most effective way to protect themselves from undue political influences and to restore regulatory trust.
The right of the accused to a timely trial is a fundamental aspect of the right to a fair trial, regarded as a cornerstone of criminal justice systems worldwide. This article explores how this right can be enforced through writ jurisdiction, with a particular focus on Sri Lanka. By comparing writ jurisdiction in Sri Lanka with that of the United Kingdom and Australia, the article examines how developments in these jurisdictions have recognised delays in proceedings as a form of procedural unfairness, thereby establishing it as a valid ground for invoking writ jurisdiction. While the right to a timely trial is an implied fundamental right in Sri Lanka, the article highlights how the rich Indian jurisprudence on this matter could guide in more precisely defining its scope and developing a legal framework for its protection. Furthermore, the article discusses how the intersection of writ and fundamental rights jurisdictions in Sri Lanka has enabled judicial review of violations of the right to a timely trial by inferior courts. Overall, the article offers valuable insights into expanding writ jurisdiction to ensure the timely resolution of criminal trials in other Commonwealth jurisdictions that, like Sri Lanka, follow English legal principles in judicial review.
Since the early 1980s, the Supreme Court of India has recognised a wide catalogue of unenumerated rights as functional extensions of the right to life stipulated in Article 21 of the Constitution of India , including a right to shelter. For the most part, the right has meant unenforceable state duties and access to Francesco administrative justice under Article 32 of the Constitution, in ways that substantively deviate from the standards envisaged under Article 11(1) of the International Covenant on Economic, Social and Cultural Rights , and which find a paradigmatic example of constitutionalisation in Section 26 of the Constitution of South Africa . This relatively uncontested understanding of the right is, however, complicated by a line of High Court decisions, most notably Sudama Singh and Ajay Maken , which heavily rely on international human rights standards and South African constitutional jurisprudence to expand the procedural guarantees afforded in forced evictions. Far from being a general trend, this interpretative approach has the merit of exposing key deficiencies in the traditional right to shelter approach and creatively counterweighing the otherwise constitutionally pre-eminent unconditional prohibition of encroachments on public land.
Abstract The principle of equality of arms, originating in common law systems, is a fair trial requirement designed to preserve the adversarial nature of criminal proceedings. Its basic guarantees are enshrined in universal human rights documents, including the International Covenant on Civil and Political Rights. This article examines how Vietnam, as a socialist country, has adopted the principle of equality of arms in its criminal justice system, considering the complex relationship between socialist ideology underlying its legal concepts, and recent procedural reforms. The findings suggest that, despite the inevitable impact of globalisation on legal diffusion processes, the operation of the criminal justice system remains ultimately shaped by its historical and contextual surroundings as it is a system designed by local institutions for local constituencies. With regard to the specific principle of equality of arms, influencing domestic factors include collectivism, a particular crime control model, the substantive truth doctrine, a blurred separation of function among procedural agencies, and the procuracy’s judicial supervisory role. Since there has been little research on the principle of equality of arms in the domestic context, let alone in national socialist criminal justice systems, this article contributes to filling a gap in the broader legal scholarship on both equality of arms and socialist criminal justice systems.
Abstract Buy Now Pay Later (BNPL) has been lauded as one of the latest global trends in smart ‘ways to pay’, riding on the wave of digital disruption that has gained traction internationally. At the same time, concerns have been raised over harm to vulnerable consumers becoming mired in unanticipated debt. This article facilitates a deeper understanding of the phenomenon from a bottom-up perspective through an analysis of empirical data comprising a survey of 400 consumers, interviews with consumer advocates and BNPL users, and a survey of Malaysian BNPL providers’ websites. The article explores how digitalisation, payment by instalments, and providers’ advertising strategies can collectively mask risks for unsuspecting consumers. Insights from the analysis are used to inform proposals to strengthen the effectiveness of the emerging Malaysian consumer credit framework. As the first country to introduce consumer credit legislation in the ASEAN region, Malaysia’s burgeoning framework provides a model for other ASEAN Member States. In addition to targeted measures aimed at empowering consumer decision-making, there is an urgent need to address the problem of poverty to avoid unintended consequences. The empirical analysis is valuable for other emerging economies seeking to strengthen protections for credit consumers.
