After over a decade of timorous steps in reforming its power industry, the Philippine Government ("Government") approved bold legislation that overall augurs well for both the public and private sectors. The new law-the Electric Power Industry Reform Act of 2001 ("EPIRA")--calls for the restructuring of the power industry, including the total privatization of power generation and transmission, which previously had been the exclusive domain of the state-owned Philippine National Power Corporation ("NPC," also referred to as "Napocor"). The term "privatization" can have different meanings, and implicate the use of different techniques. Privatization, in a narrow sense, can mean the permanent transfer of control of a public enterprise to the private sector.' In a broader sense, privatization can mean varying degrees of private sector participation, or "any measure that results in temporary transfer to the private sector of activities exercised ... by apublic agency."' The level of privatization, then, can range from build-own-and-transfer ("BOT") arrangements, representing temporary privatization, to complete divestiture? The objectives of privatization make eminent sense, and include: promotion of competition, especially by abolishing monopolies; promotion of domestic and foreign investment; introduction of new technologies and the promotion of innovation; upgrading of plants and equipment; introduction of new management methods and teams; maximization of net privatization receipts to fund government expenditures, trim the public sector deficit, or pay off public debt; reduction of the financial drain of state-owned enterprises on the state; and reduction of the opportunities for corruption and misuse of public property by government officials and managers. To be sure, the foregoing objectives are relevant to the privatization efforts now underway in the Philippine power industry; and especially relevant if the country is to measure up to the economies of its APEC5 and ASEAN6 partners. Part II of this paper provides a brief country overview of the Philippines, while Part III provides an essential historical perspective of the Philippine power industry. Part IV discusses and comments on the general restructuring and privatization plan envisaged by the EPIRA, with particular emphasis in the generation and transmission sectors. For completeness, Part IV also discusses the distribution and supply sectors, as well as "open access." Aside from the soundness of the privatization law itself, the question of "political risk" will also be an important consideration for investors in the power industry. Accordingly, Part V discusses political risk in the context of (1) the Government-mandated review of independent power producer ("IPP") contracts, and (2) the legislative imbroglio regarding the National Transmission Corporation ("Transco") franchise. Part V argues that these two factors work at painful cross-purposes with the Government's goal of attracting private capital to the power industry and, unwittingly, raise the red flag of political risk.
A paper that deals with law, culture, and Confucianism is perhaps doomed to be a collection of vague and general platitudes. This is because all three of these terms are notoriously plagued with definitional problems. Legal theorists continue to disagree about the nature and scope of the concept of law, while anthropologists and sociologists constantly argue about the utility of the concept of culture. Similarly, philosophers, historians, journalists, politicians-indeed, almost anyone with a voice-seem to have different ideas about what Confucianism means. One of the main reasons for such disagreements, in my opinion, is an all-too-human tendency to want neat and simple categories that can encompass, represent, and take the place of the messy and intractable realities of life. We are all too familiar with the problem that "law" in modern life encompasses vastly different norms and institutions which cannot be easily grouped under the same rubric without in some sense straining the usefulness of the term "law."' The same is true of "culture" and "Confucianism"-with each term, it is often difficult to engage in any discussion beyond the most preliminary stages without being forced to ask, "culture in what sense of the term?" or, "Confucianism according to whose interpretation?' This shows that all these terms are very elastic and that different practices and ideas are often subsumed under the same concept, which in turn aggravates the lack of conceptual clarity.
With the advent of the new millennium and a rapidly changing international outlook, Japan, China, and Korea' have been at the forefront of recent media attention, focused primarily on the rapidly gaining influence and power that these countries wield on a level no longer limited to Asia. Some observers argue that these countries have untapped economic potential, especially with regard to China, which is in the position to become a global economic powerhouse as its economy continues to grow and expand internationally. Furthermore, participation in the World Trade Organization and other multilateral agreements, such as GATS, has created the need for a global standardization of services offered to support and safeguard the rights of foreign investors. The gradual opening of these three major players in East Asia to international organizations and standards suggested to many observers that the legal services market, under the same premise, would also be opened to foreigners who wished to practice the law of their home countries abroad. However, the current trend suggests otherwise. Recent revisions to China's Lawyers Law put stricter standards and compliance measures on foreign lawyers and foreign law firms, while Japan still prevents Japanese lawyers (bengoshi) from being hired by non-Japanese firms. Korea won't even permit foreign law firms to set up shop in their country. What force is behind the protectionist nature of the largest East Asian economies regarding legal services and the relationship between domestic and foreign lawyers? One important difference between these three countries' legal systems is the role of the lawyer within the system, and more specifically, the number of "lawyers" currently existing within the system. China, with over 110,000 lawyers, has structured a very different legal community than Japan, where the exceedingly strict pass rate on the Japanese bar exam means that only 1,000 Japanese can become lawyers each year. This number does not, however, include the separate positions of patent agent (benrishi), tax agent (zeirishi), in-house corporate attorneys, drafters of private legal documents (shiho shoshi) and document drafters for administrative agencies (gyosei shoshi), which greatly increases the number of the legal community if the definition of "lawyer" is an open one. Another fundamental difference in the legal systems of these three countries lies in the structure of their bar associations. While China's Ministry of Justice ("MOJ") has actively played the functional role of China's bar association, Japan's tiered bar system and Korea's independent bar association have remained separate from each country's Ministry of Justice, creating at times inconsistent policy decisions between the bars and the governments. The differing connections between the state and the lawyer population for each of the three countries might also suggest something about the level of strictness with which each country chooses to regulate its foreign lawyer population. For example, a more tightly controlled, government-regulated community might implicate a different set of regulations and barriers than a country where there is a more loosely structured relationship between the state actor and the private community. This paper argues that the interplay between each country's Ministry of Justice and its local bar association creates a pervasive protectionist atmosphere surrounding the legal profession, with strongly perpetuated domestic worries over job security being the driving factor behind the stringency of recent changes to the regulations. While the degree and means of protectionism vary by country due to individual characteristics inherent to each nation, the uniform concept of state management and involvement in the private legal sector shared between these countries helps to create pervasive protectionist control over the legal profession in all three. With the government and, in certain cases, the local bar associations having so much pull over regulations dealing with foreign lawyers, this effectively creates a lockout for foreign lawyers in certain crucial sectors of the legal services market. While cooperation with the WTO and other multinational standards is likely, at least more openly than before, the protectionist force in each of these countries will be hard to unseat through the simple threat of defaulting on international agreements.
Capital markets have the potential to be powerful engines of economic growth in developing nations. An efficient stock market provides the public with investment opportunities and mobilizes their savings, as well as international capital, for productive corporate financing. Market forces serve to discipline management and public ownership improves the accountability of the business sector. But developing a robust and efficient capital market is a difficult task for many emerging economies. One of the many challenges they encounter is creating an effective securities regulatory regime. In a mature capital market, securities regulations form the framework within which the market operates. They are designed to protect the investor, prevent systemic crises and promote the market they govern. But in what capacity do securities regulations operate in smaller, developing capital markets? The purpose of this paper is to analyze the role of securities regulation in the development of the Thai stock market. The first half of this paper provides some basic background information on the Thai legal system, stock market and economy, and then offers an analysis of the role of securities regulations in the 1997 financial crisis and subsequent process of recovery. The second half addresses the future of securities regulation in Thailand. It begins with an examination of the obstacles that face effective oversight by securities regulators and the regulators' efforts to overcome these obstacles. The paper concludes with an evaluation of the current reform initiative and a proposal for an alternative strategy. In short, this paper seeks to analyze the role that securities regulation has played, will likely play and could play in the development of the Thai stock market.
The extraordinary rise of China’s economy has made understanding Chinese corporate governance an issue of global importance. A rich literature has developed analyzing the Chinese Communist Party’s (CCP) role as China’s largest controlling shareholder and the impact that this has on Chinese corporate governance. However, the CCP’s role as the architect—and direct and indirect controller—of institutional investors in China has been largely overlooked in the legal literature. This Article aims to take the first step in filling this gap in the literature by drawing on Chinese sources and fresh hand-collected empirical, interview, and case study evidence to analyze the meteoric rise of institutional investors in China. It provides a taxonomy of institutional investors in China and reveals how the market for institutional investors has grown and has become increasingly “atomized” as different types of institutional investors have proliferated. The Article reveals how the CCP has actively and gradually promoted the growth of domestic institutional investors, in terms of types and size, through the relaxation of policies and law reforms to improve corporate governance and stabilize the stock market, while limiting the influence of foreign institutional investors. It further analyzes all the Activist Campaigns undertaken by institutional investors in China and maps the network of government bodies, regulations, and tactics that the CCP has developed to directly and indirectly control State-Owned Institutional Investors (SOIIs) and Private-Owned Institutional Investors (POIIs) for the purpose of policy channeling. This Article concludes by taking a step back and briefly considering what this examination of institutional investors tells us about China’s unique form of capitalism and system of corporate governance. It suggests that the rise of institutional investors in China has been strategically developed in a way to reinforce the CCP’s ultimate control over the financial system. However, contrary to what some conceptions of “state capitalism” may suggest, the CCP does not micro-manage institutional investors on a day-to-day basis. Rather, institutional investors normally function according to free-market forces and increasingly perform an important corporate governance role—with the CCP using its policy channeling in a targeted way to stabilize the market in times of crisis, execute important legal and market reforms, and to maintain calm in society during critical political events: what this Article termed as the “market within the state” for institutional investors in China.
Antitrust Remedies: A Comparison Between the Cases against Alibaba and Facebook
The continuous disclosure compliance of Chinese cross-border companies listed in Australia has long been a concern, as Chinese companies are either frequently delisted or rejected by the Australian Securities Exchange. The particularity of cross-border listings generates information asymmetry between securities regulators based out of the host jurisdiction and the home jurisdiction. This then impacts the effectiveness of the host jurisdiction’s supervision of the cross-border listed companies and each company’s continuous disclosure compliance. The purpose of this article is to clarify the issues surrounding cross-border supervision by the securities regulators in China to shed light on current dilemmas and suggest possible reform proposals. Considering the similarities of the securities markets in the US and Australia, as a case study example, this article looks at Luckin Coffee, a US-listed Chinese company, which created a scandal in 2020 when it was accused of continuous disclosure fraud. The case points out relevant lessons for Australia–China securities cross-border supervision.
India’s water federalism is at a crossroads. It is a unique two-tier system that has the constitutional and enabling provisions for water management and inter-state water dispute resolution as its base. These support the tribunal system that adjudicates inter-state river water disputes and administers water justice. More than six decades have elapsed since its establishment. At the same time, during this period, the per capita water availability has fallen drastically. India is now one of the world’s most water-stressed countries. Water disputes between States are becoming more animated and highly volatile. This article examines water federalism in India in terms of two questions: 1) Should water be transferred from the State List to the Concurrent List? 2) Should India persist with the tribunal system or replace it with the judicial process at the Supreme Court level? The first assumes importance as India persists with the river linking project. The second is relevant because the Inter-State River Water Disputes Act is almost 65 years old. In 2016, India’s Supreme Court re-wrote the law, and, more recently, the Union Government sought to revamp the Inter-State River Water Disputes Act through amendments. All these impel the need to re-look the idea of water federalism as it operates in India in its entirety.
The globalization of China and active international migration across Chinese borders involving millions of people have made understanding Chinese nationality law an issue of tremendous importance. In recent years, disputes concerning nationality have arisen out of undefined terms in the Nationality Law. At the center is the term “settled abroad,” which impacts the nationality of those who acquire foreign nationality and children born to overseas Chinese citizens. The limited literature and legislative interpretations do not clearly define the term. A thorough analysis shows that “settled abroad” means permanent or long-term residency and generally does not scrutinize the length of the actual residence period except for a complete absence of actual residence or undocumented migration. This Note further examines all publicly available cases disputing nationality in the past seven years to understand the judicial practice. It turns out Chinese courts also refrain from inquiring about the actual residence period in non-criminal cases. In recent years, the sensitive nature of the issue and the discoordination among authorities have prevented amendment or interpretation of the nationality law. This Note makes two key contributions to the literature. First, it provides a much-needed interpretation of the key provisions in Nationality Law that have profound implications for millions of people. In contrast to prior literature, which often lacks sufficient comparison and analysis, this Note addresses all prior discussions in a comprehensive way. Second, it is the first work that applies empirical methods to examine how Chinese courts apply the Nationality Law. Finally, this Note also offers several explanations for the stagnant amendment of the Nationality Law from a policy angle.
This study explores the evolution of cyber regulation in Vietnam since its inception, that is from the events of January 1997, when cyberspace first arrived in Vietnam, to the momentous protests instigated by the Cybersecurity Draft Law in June 2018. A Vietnamese cyber regulatory regime is imagined as an analytically constructed regulatory space where different actors enter, struggle, and gain in their pursuit of regulatory interests. The study argues that cyberspace in contemporary Vietnam has aided non-state actors to participate in the law-making and regulatory processes by inducing state actors to respond with cyber laws, regulatory approaches, and measures. Moving beyond the dichotomy of cyberspace as an inevitable tool for liberation or oppression, Vietnamese cyberspace has been both an instrument for non-state actors to participate in lawmaking, and a regulatory measure for state actors to regain control. A sociological landscape in contemporary Vietnam is depicted through the evolution of a Vietnamese cyber regulatory regime, shaped by dynamic interactions between domestic actors. In sharp contrast to the previous image of an authoritarian Vietnam, cyberspace has aided contemporary Vietnam to metamorphose into a more pluralistic society where organically formed social actors co-regulate cyberspace.
Gross negligence is a severe form of negligence. Its severity has been characterized using the presence of a mental element or mens rea accompanying the negligent act. Within the context of professional negligence, gross negligence is important as it constitutes professional misconduct. For auditors, a finding of professional misconduct through disciplinary proceedings can result in suspension or expulsion from the profession. The Securities and Exchange Board of India also uses this concept to determine whether an auditor has violated any securities regulations. Given the implications of a finding of gross negligence on the practice of an auditor, this paper seeks to examine the legal standard in detail. The paper examines all reported High Court decisions from 1950s till 2019 and finds that the standards applied by the High Courts have been inconsistent. In the absence of any precedent from the Supreme Court of India that details what comprises gross negligence in the context of auditors, the inconsistent approach of the High Courts poses a problem. The Supreme Court decision in the P.K. Mukherjee case (1968) dealt with an auditor’s misconduct, however, it did not examine the question of gross negligence. This paper offers a starting point for a discussion to minimize the uncertainty currently associated with auditors’ liability for professional misconduct, especially hoping to assist the newly established the National Financial Reporting Authority in its decision-making process.
This article argues for law reform in Thailand concerning the protection of health data, particularly laws involving the data’s disclosure to third parties. It has been found that several pieces of Thai legislation governing this area are conflicting, causing confusion and disquiet to Thai physicians. Recently, Parliament has enacted the Personal Data Protection Act 2019. The said GDPR-style Act should have clarified all already-existing confusion regarding the inconsistency of legislation, but it has further complicated the matter instead. Doctors cannot disclose patients’ health data to third parties, even to protect others or public interests. Court cases from other jurisdictions show that courts are willing to impose on physicians the duty to disclose patients’ health data to third parties under certain circumstances, which makes the issue more significant to the Thai legal and medical communities. The article provides proposals to rectify the issue by amending relevant statutes and calling for professional guidance on this area which should be addressed by pertinent legislation. The relevant professional guidelines alongside the amended legislation will serve the interests of medical professionals, patients, and society at large.
Drawing on the conceptual framework of implicit-explicit CSR, this paper distinguishes governmental/regulatory force and market/societal force as the two main determinants of CSR and argues governmental/regulatory force is the dominant drive for implicit mandatory CSR while market/societal force is the dominant drive for explicit voluntary CSR. By using China, the world’s second largest economy, as an example, this paper examines how do the governmental/regulatory force shape a country’s CSR system, as opposed to the market/societal force. Moreover, due to the rise of corporations’ explicit CSR activities and shrink of implicit mandatory CSR rules in the West, this paper also endeavors to find out whether implicit practice of business responsibility in China will transform into explicit CSR activities. After looking into the tradition, current momentum as well as the inadequacy of conventional business casereasoning in China, this paper concludes that despite the increasing role of market/societal force in advancing CSR, governments remain the dominant drive for CSR development in China, which in turn implies for example more governmental intervention and regulations defining minimum standards of corporate behavior. This paper also discusses different functions that governments can potentially take in further shaping and promoting CSR.
This article analyses the effectiveness of the Chinese road traffic liability system in terms of both deterrence and compensation. We utilize the neo-classical economic model of accidents to assess the key features of the system, such as the basis of liability, the level of the benefits, the impacts of liability insurance and regulation, as well as the capacity of risk-spreading. The analysis shows that the road traffic liability system in China can only achieve partial deterrence. Under-compensation and insufficient risk-spreading seem to be serious problems, at least in the economically underdeveloped regions. Therefore, we propose several legislative changes that the policymaker could implement to improve the system.
The People’s Republic of China is embarking on an ambitious program to revolutionize its judicial institutions through information technology. Millions of cases have been published online as part of a move towards greater transparency. Courts are piloting artificial intelligence systems that promise to streamline adjudicatory processes and expand access to justice. Although other jurisdictions have employed statistical and computational methods to improve judicial decision-making, few have sought to exploit technology to the same degree. A way of understanding this exceptionalism is to view the integration of technology into law as a microcosm of China’s ambitions to emerge as a global artificial intelligence powerhouse and thereby establish itself in the first rank of nations. Seen from a different perspective, however, the technologization of the legal system responds to certain oppositions in Chinese justice. First, courts today are straining under the burden of their caseloads. The contemporary turn towards legality has swelled the number of lawsuits while the professionalization of the judicial corps also culled its ranks. Artificial intelligence enhances the speed and consistency of adjudication while online disclosure cultivates public trust in the courts. Second, adherence to legal rules and forms restored normality to a society upended by revolutionary struggle but its inflexibility also foments dissatisfaction and disrupts relationships. The ensuing governmental imperative for judges to mediate disputes has resulted in coerced settlements and delayed verdicts. Machine predictions of case outcomes, supplied by courts, guide parties to bargain in the shadow of the law, thereby preserving the voluntariness of peace and the sanctity of justice. Third, while the party-state encourages citizens to know the law and use it as their weapon, civil society and activist lawyers may rally behind a legal cause to challenge the ideological hegemony of the party-state. By helping citizens learn the law and claim their rights, databases and applications foster legal consciousness while disintermediating lawyers. Technological initiatives for administering justice simply, swiftly, and singly have thus blossomed in China because they relieve some of the tensions in its legal system. An original survey of roughly a thousand netizens and interviews of over a hundred legal aid seekers suggest that internet and artificial intelligence technologies have the potential to realize and refine a Chinese brand of authoritarian legality. But there is also a larger warning here that transcends jurisdictional boundaries and legal cultures. Obverse to the democratization of law is the marginalization of the legal profession. The advent of technology thus surfaces a tension between two dimensions of legality. The first dimension sees law as the disciplining of human conduct through rules. The second dimension, on the other hand, conceives of law as a dynamic force that, by responding to reason, has the potential to reshape the normative status quo. To the extent that lawyers are integral to the vitality of the legal order, innovations that displace them may also undermine one conception of the rule of law.
A unique feature of the Indian insolvency regime is itsclassification of debt into “operational” and “financial” debt. InSwiss Ribbons v. Union of India, the Supreme Court of Indiatenaciously upheld the difference between operational andfinancial creditors and declared this classification constitutionallyvalid. Last year, the Insolvency and Bankruptcy Code, 2016 (IBC)was amended to include amounts raised from allottees (persons towhom an apartment or plot in a real estate project has beenallotted) within the definition of “financial debt,” thus makingallottees financial creditors. Though the amendment was passed toempower allottees in India’s real estate sector, it revived a moregeneral discussion on the characteristics of operational andfinancial creditors.This paper posits that the amendment was enacted at thecost of stretching the definition of “financial creditor” beyond itsconceptual limit and interfering with the IBC’s insolvencyresolution mechanism. We use the United States’ and the UnitedKingdom’s insolvency regimes as a point of reference forascertaining the role of creditors in insolvency proceedings andwhether operationalizing the insolvency regime to solve problemsin a particular sector is justified.
