Members’ Featured Publications

Professor CHAISSE, Julien

Abstract:

Since China adopted its “open door” policy in 1978, which altered its development strategy from self-sufficiency to active participation in the world market, its goal has remained unchanged: to assist the readjustment of China's economy, to coordinate its modernization programs, and to improve its quality of life. With the 1997 launch of the 'Going Global' policy, an outward focus regarding foreign investment was added, to circumvent trade barriers and improve the competitiveness of Chinese firms. In order to accommodate inward and outward investment, China's participation in the international investment regime has underpinned its efforts to join multilateral investment-related legal instruments and conclude international investment agreements. This collection, compiled by award-winning scholar Professor Julien Chaisse,  explores the  three distinct  tracks of China's investment policy and strategy: bilateral agreements including those with the US and the EU; regional agreements including the Free Trade Area of the Asia Pacific; and global initiatives, spear-headed by China's presidency of the G20 and its 'Belt and Road initiative'. The book's overarching topic is whether these three tracks compete with each other, or whether they complement one another - a question of profound importance for the country's political and economic future and world investment governance.

Abstract:

This article makes a major contribution to the emerging Belt and Road Initiative (BRI) scholarship (and international economic law) by highlighting that (i) China's existing investment treaty network along the Belt and Road is dated, (ii) many or most of those treaties include Most Favored Nation provisions, (iii) these treaties have hitherto, been subject to a static three generations analysis which does not reflect the reality; and (iv) there is significant authority supporting the use of the Most Favoured Nation provisions by Chinese investors to upgrade the BRI investment treaty network. This article demonstrates that an investment treaty for the BRI already exists via the Most Favored Nation clause present in China’s bilateral investment treaties. Moreover, the article further identifies that China’s treaty network is unique (by being so extensive) and assesses the potential for investment claims in light of BRI jurisdictions past involvements in Investor-State Dispute Settlement and by doing so, the article sheds a new light on the predicted increased use of such procedure by Chinese investors.

Dr CHAN, Chi Hin Peter

Abstract:

This Article tests Galanter’s party capability theory in China’s grassroots courts by empirically examining 858 sampled judgments of rural land dispute lawsuits between married- out women (the “have-nots,” or the less resourceful party) and village collectives (the “haves,” or the more resourceful party) throughout China from 2009 to 2017. An analysis of this study’s results yields a groundbreaking discovery, the “have-nots” came out ahead in China’s courts by a substantial margin. This finding contradicts Galanter’s theory—under which the “haves” should prevail—and the established view that the “haves” should come out ahead in China (a leading study on Shanghai courts found the “haves” prevailing by large margins). This discovery is significant because the Chinese judicial system, like its counterparts in other authoritarian states, is commonly seen as a system that favors the “haves” in a disproportionate manner due to the lack of judicial independence, which enhances the likelihood of courts being swayed by powerful external influence in favor of the stronger party. This Article argues that Galanter’s theory is inapplicable, as the data shows, when courts favor the “have-nots” over the “haves.” It is believed that the courts’ favor for the “have-nots” neutralized the party-capability advantages enjoyed by the “haves” and propelled the “have-nots” to victory.

Abstract:

This article explores the position of mediation as a means of civil disputes resolution in China's legal history. While civil adjudication existed in imperial China, the legal tradition of wu song ('[a society] free from litigation') played a fundamental role in shaping China's imperial civil justice system. Under the Confucian ideology, disputes of a civil nature should be settled through conciliatory means so that the amicable relations of the disputants could be maintained. The culture of face-saving and the maintenance of cordial relations remains a distinctive characteristic of the modern Chinese society. This legal historical background provided the ideological foundation for civil procedural systems during the Republican era (1911-1949) and the early days of the People's Republic (since 1949). The current debate on the contemporary mediation system is placed into the appropriate context when one understands that civil process in China today still operates under the shadow of cultural norms of the traditional Chinese legal order.

Dr DE REY, Sébastien

Abstract:

In addition to damages, non-monetary relief for either breach of contract or tort, remains in many legal systems a blind spot. Indeed, to compensate for the harm, damages are considered almost automatically. This research goes beyond this dogma. Although damages may remain quantitatively the most important type of compensation, this research claims that non-monetary relief has a full role to play within a modern legal system. It highlights the under-utilisation of this remedy and provides numerous examples for which non-monetary relief could be for the creditor, the debtor and sometimes both parties, a useful alternative to damages. For instance, imagine the buyer claiming repair or replacement of the goods instead of damages, or the traveler claiming alternative accommodation as the hotel appears to be overbooked. In tort, non-monetary relief has been found to increase victims’ emotional well-being, for example, by claiming apologies rather than damages. The analysis provides a general legal framework within which non-monetary relief could be applied. It examines its concept, legal basis and legal regime, within a comparative continental European perspective, including both Romanist and Germanic legal traditions, such as Belgian, French, Dutch, German and Swiss law.

Abstract:

Because of its potentially healing effect, some legal systems enable the courts to order the tortfeasor to make apology. In some countries, the right to enforce apology is laid down as a general remedy in tort or imposed as a remedy for specific torts (as is the case under the laws of discrimination in certain South African provinces and Australian states). In other jurisdictions, such as Switzerland, it is the courts that have recognized the right to order apology, even though there has been no legislation which lays down this opportunity. In other jurisdictions still, where the right to order apology is accepted by neither legislation nor the courts – as is the case in The Netherlands – a growing number of authors are advocating this remedy. All these legal systems regard the ordering of apology as a form of non-monetary relief for emotional injury. It is no coincidence that it is the common law jurisdictions which, departing from their traditionally pecuniary approach towards legal redress, have expressly embodied apology as a legal remedy in appropriate legislation, and have accordingly led the field in developing this type of legal redress for others to follow. This paper – awarded the TPR-prize [2.500 EUR] – provides a perspective from the French legal tradition, illustrated by the case law of the European Court of Human Rights. It argues that under the Law of Torts of the Napoleonic Civil Code, a victim can claim apologies. The conditions to be met for tortious liability are therefore necessary, but not sufficient. Limits and possibilities are examined.

Professor TAN, Cheng Han

Abstract:

This Article provides an early assessment of the impact on corporate governance of the most recent wave of State-owned Enterprise (SOE) reform announced by the Chinese Communist Party (CCP) in 2013, officially known as the mixed-ownership reform (MOR). It offers a comprehensive and detailed account of the background, policy and regulatory frameworks, and rationale of the MOR in light of the history of ownership reform in China. It also conducts empirical studies of the change in ownership and board composition in over 30 SOEs which have recently completed their MOR experiments, as well as, several case studies including China Unicom’s MOR. We observe that MOR’s impact on SOE corporate governance has been embodied in the “retreat of the state”, the “advance of the (Chinese Communist) Party”, and a limited yet emerging separation of power between the Party and the board in SOEs. On the rationale, we argue that the MOR programme is driven by three current beliefs of the Chinese Party-state on the future of SOEs in China. First, ownership and ownership reform matter. Second, sharing control, rather than dominance by a single state shareholder, improves both the efficiency and governance of SOEs. Third, the MOR was designed to develop partnerships or alliances between the state shareholders and strategic investors in order to help the post-MOR state enterprises improve their efficiency and enhance market opportunities.

Abstract:

The term intermediary is a broad and even ambiguous one that encompasses different types of activity. The sheer range of intermediaries and consequences from using intermediaries has made it impossible for there to be a unified law governing such persons. Instead the law relating to intermediaries has to be gathered from many distinct fields, including contract, tort, equity, laws relating to enterprises, employment, and agency. As regards the law of agency, its role goes beyond true agency. For instance, agency law through estoppel can ascribe legal consequences to principals in relation to the unauthorised acts of intermediaries whether such intermediaries are agents with some limited authority or are non-agent intermediaries with no authority at all. As such, the broader the role of estoppel within the law of agency, the greater is agency’s reach in the framework of legal rules that apply to intermediaries. This paper considers three areas of estoppel operating within the law of agency which expand or potentially expand agency’s reach well beyond its paradigm sense. Within these areas only apparent authority is well established. It will be suggested that the other two areas of estoppel do not exist independently and some of the cases attributed to them can be rationalised within the framework of apparent authority while other cases are better explained outside the law of agency.

Abstract:

State-owned enterprises are generally regarded as inefficient firms because of political objectives, external interference, and corruption. Notwithstanding this, studies have shown that Singapore state-owned enterprises exhibit higher valuations than those of non-government-linked companies (GLCs) after controlling for firm specific factors and also have better corporate governance practices. In this paper, the authors posit an explanation. This explanation draws on the political, social and economic context that Singapore found herself in during the period of self-governance to the early years of independence from the late 1950s to the early 1970s. The paper offers the view that the difficult economic conditions coupled with a contested democratic political environment in Singapore during this period played a significant role in fostering good political governance in Singapore which was in turn transposed to her state-owned enterprises.

Professor WAN, Wai Yee

Abstract:

The UNCITRAL Model Law on Cross-Border Insolvency (“Model Law”) was conceived with the aim of providing a framework for States to obtain consistency in the recognition of foreign insolvency proceedings and granting relief in aid of the foreign courts. The Model Law has achieved moderate success internationally and four states in the Asia-Pacific, namely Australia, Singapore, Japan and Korea, have enacted legislation based on the Model Law. Scholars agree on the importance of consistent implementation of the Model Law in managing cross-border insolvency to achieve quick, certain, and predictable outcomes.

However, the Model Law’s aims have not been completely met and existing accounts have pointed out that there is a lack of complete harmonization for two reasons. First, States have not fully implemented the Model Law in their domestic law. Second, the judiciary in the States have not interpreted their legislation enacting the Model Law consistently. This lack of harmony is reflected in the fact that UNCITRAL recently felt the need to promulgate a supplemental Model Law on Recognition and Enforcement of Insolvency-Related Judgments.

In this Article, we examine the divergent implementation strategies of the Model Law in Australia, Singapore, Japan, and Korea, and explain the reasons for the divergence. In the case of Japan and Korea, legal origins have been put forward as a reason for the divergence; as these two jurisdictions are not based on common law, they require greater local modification to assure the Model Law will fit into their legal systems. However, we argue that legal origins are incomplete reasons for the lack of uniformity. Instead, we argue that where States, like Australia and Singapore, are shifting from a moderately territorialist approach with cross-border insolvency to the modified universalist approach as envisaged by the Model Law, they are more likely to implement the Model Law in full. Where States start from an exclusively territorialist approach (such as Japan and Korea), they are likely to recognize foreign insolvency proceedings as a broad signal of their international commitment towards adopting global norms, but would demand changes to allow for some room to depart from all of the consequences of recognition of foreign proceedings, even in situations where there may be no real impediment for the Model Law to be implemented. However, insofar as Korea is concerned, there are signs that judicial attitudes are changing as the judiciary sees the benefits of the Model Law in cooperation and communication, and there may be a greater chance of implementation.

Our study illustrates the limitations of achieving the objectives of the Model Law. We argue that when determining the strategies for uniform implementation of UNCITRAL, in the context of “soft law,” we should take into account the importance of signalling effect and path dependency to the countries, which will have implications for other jurisdictions considering the adoption of the Model Law or the supplementary Model Law on insolvency-related judgments.

Abstract:

The market for corporate control (operating through hostile takeovers) acts as a key corporate governance mechanism to discipline corporate managers. However, the process and substance of regulating hostile takeovers differs remarkably among various jurisdictions. Existing and influential scholarship has focused on the differences in hostile takeover regulation between the United States (US) and the United Kingdom (UK), with the explanations being founded in interest group politics. We pose the question whether the theory can be extended outside of the US and the UK, particularly to their legal transplants in Asia. In the last few decades, several Asian jurisdictions have drawn heavily from the US and the UK when framing their own takeover regulation. Yet, Asia differs significantly from the US and the UK, particularly in respect of the much higher concentration of shareholdings among their publicly listed companies, and their institutions supporting takeover regulation, such as the securities regulator, the stock exchange and the judiciary. Thus, it is not surprising that the outcome of the substantive regulation also differs despite the legal transplantation, though there may be superficial formal convergence. The differences in takeover regulation and the reasons therefor have not been the subject matter of extensive study in the existing scholarship.

Our study fills the gap by focusing on the regulation of hostile takeover regimes in Asia. In this article, drawing from an earlier work that studies, among others, takeover regulation in six significant Asian economies of China, Hong Kong, Japan, India, Korea and Singapore, we examine the differences in the takeover law and regulation between the exporting countries (US and the UK) and recipient countries (the six Asian economies), and we explain the reasons for the differences. In particular, we focus on three questions. First, what interest groups are relevant to the choice of initial takeover regulation in Asian economies? Second, after the selection has occurred, what are the reasons for the continued lack of functional convergence? Third, are there any unintended consequences of legal transplantation of the US or UK model of takeover regulation in the Asian economies? We argue that takeover regulation in Asia must be viewed through a lens that is different from the Anglo-American approach in view of the institutional factors that are at play when choices were (and are continuing to be) made. Our study has important implications on the academic debates on the efficacy of legal transplantations, comparative studies of hostile takeover regimes and the role of interest groups in shaping takeover regulation to a wider set of Asian countries than examined by current scholarship.

Abstract:

In 1999, both Hong Kong and Singapore brought into force legislation that permitted a supermajority of apartment owners within a building development that met certain statutory criterion to force a minority of dissents to sell the development as a whole. Both territories did so because, as land scarce cities, it was considered that the redevelopment of aging buildings was an urgent imperative. In so doing, although they claimed to be following other jurisdictions, both Hong Kong and Singapore broke new ground in pioneering the private takings of land among common law jurisdictions. These developments have proven controversial in both territories although the controversies have differed because of differences in implementation and historical background in both cities, despite their sharing a past as British colonies in Asia. This paper compares the two regimes against each other as well as against the more mature regime permitting private takings of shares in mergers and acquisitions law to highlight the lessons to be learnt in order to prevent abuse.

Professor WANG, Jiangyu

Abstract:

This paper aims to build an analytical framework and a research agenda for a study of the potential impact of the rise of China and India on international law. In the light of the possibility that the two states may, together or individually, make changes in international law and shift it from its present Europe-America moorings, this paper attempts to analyse and answer three topics: (1) the common and different stances of China and India on the existing international legal order; (2) the changes China and India have sought to the international status quo; and (3) the contributions that have been or could be brought by China and India to the development of international law and their implications for the future. It proposes an analytical framework in which these questions are viewed through two lenses: the romantic vision and the realist vision.

Abstract:

This chapter explores the development of international economic law in Asia and the Pacific. International economic law (IEL), which is based on liberal economic theories, holds a special meaning for Asia because it has been associated with colonization, modernization, and globalization ever since it was first encountered by countries in the region. Asian countries’ subscription to IEL is thus a historical journey. Generally, Asia’s participation in the making of IEL has been rather limited, but a number of Asian countries—including China, India, Japan, Korea, and certain Southeast Asian countries—have benefited from the Western-dominated international economic order by making use of its rules, though at different times of history. The chapter then turns to several recent IEL related initiatives in Asia, including the Asian Infrastructure Investment Bank, the New Development Bank, and China’s Belt and Road Initiative.

Abstract:

This paper aims to compare and critically examine the circumstances under which veil piercing takes place against the objectives of incorporation. Both common law jurisdictions, including England, Singapore, and the United States, and civil law countries, including China and Germany, are discussed in this paper. The main purpose of this comparison is to offer a reasonably comprehensive and thorough examination of how courts in these jurisdictions apply the principle of veil piercing, which has been formally adopted either through case law or legislation. This paper employs the functional method in comparative law, but we also consider other aspects, including the law in context method and the historical method. The countries being compared, whether they use common law or civil law systems, share many parallels in part because the historical circumstances leading to the rise of corporate personality were very similar, and also because the corporate laws in Asian countries referred to in this paper are legal transplants. The paper argues that in almost all the jurisdictions examined, some cases of veil piercing ought not to have been decided as such because such decisions give rise to sub-optimal outcomes. Instead, other legal tools should have been used, particularly those in the law of torts. We believe this paper fills a gap in the literature of comparative corporate law, as the doctrine of veil piercing has been frequently misapplied and there is a paucity of academic commentary in this area