This article examines why Japan is a prominent exception to the global trend towards recognition of same-sex marriage and evaluates the prospects for change. It does so through an analysis of five cases brought on Valentine's Day – 14 February 2019. Unlike many jurisdictions where religious opposition to same-sex relationships has been intense and sometimes violent, Japan has a history of relative tolerance towards LGBT individuals. Nonetheless, despite the creation of civil partnership ordinances in some localities, national legislation seems unlikely, and a group of lawyers filed suit in five district courts across Japan. The litigation was brought under the State Redress Act and is based on tort rather than directly on constitutional doctrine. It claims that marriage equality is constitutionally required and that the failure of the government to recognize same-sex marriage constitutes a tort that has harmed the LGB plaintiffs and entitles them to compensation. This article analyzes the nature of the cause of action founded on the State Redress Act, and examines the arguments, which are based more on the plaintiffs’ suffering than on their desire for self-expression. Subsequently, it presents and evaluates the possible outcomes

The increasing integration of regional markets in Southeast Asia has led to the need for a regional framework for financial consumer protection. Access to affordable redress mechanisms is essential for consumer confidence in ASEAN’s burgeoning regional financial markets. Drawing on established channels of regional cooperation among ASEAN Member States, this article proposes a framework based on international best practices and existing financial consumer dispute resolution mechanisms in ASEAN 5 countries. It explores the need for cross-border cooperation to facilitate the effective resolution of financial consumer disputes arising from cross-border transactions. Key proposals include requiring ASEAN CIS passport operators to submit to the jurisdiction of host country financial consumer alternative dispute resolution mechanisms. The ASEAN Committee on Consumer Protection, with its contact points in each Member State and website on available consumer redress mechanisms across ASEAN, provides a platform for the strengthening of cross-border cooperation and facilitating financial consumer access to affordable redress in cross-border transactions.

Not long after the establishment of its Constitutional Tribunal in February 2011, Myanmar faced a constitutional crisis, when on 6 September 2012, all nine judges of the Tribunal resigned, after the Burmese parliament (Hluttaw) had initiated impeachment proceedings against the Tribunal members. The incident was seen by several commentators as a sign of the growing strength and independence of the Hluttaw, while others argued that the impeachment of the Tribunal could threaten future stability. In February 2013, nine new members of the Constitutional Tribunal were appointed. However, several questions surrounding the role of the Constitutional Tribunal in Myanmar’s reform process remain. In particular, it is not entirely clear how the independence and authority of the Tribunal should be further strengthened. This paper examines the role of Myanmar’s Constitutional Tribunal, against the background of the country’s history and current political situation. By drawing on the experiences of the Indonesian Constitutional Court (Mahkamah Konstitusi), the paper addresses the question of how the post-impeachment Tribunal may be able to fortify its position vis-à-vis the various political actors in the country.

Legal academics were once thought to be parasitic on the work of judges, so much so that citing academic work was said to weaken a judgment's authority. Recent times have however seen prominent academics appointed to the highest courts, and judicial engagement with academic materials appears to have increased. In this light, this article empirically studies academic citation practices in the Singapore High Court. Using a dataset of 2,772 first-instance High Court judgments, we show that citation counts have indeed increased over time. This increase was distributed across most legal areas, and was not limited to, though more pronounced in, judgments authored by judges with post-graduate law degrees. Books, not journal articles, have consistently accounted for the bulk of the court's citations. The study sheds new statistical light on the evolving relationship between judges and academics, particularly in the context of an Asian, first-instance court.

This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.

Online misinformation endangers the infrastructure of fact essential to public discourse and presents an even greater threat where it is being utilised as a weapon by hostile state actors. In recognition of these dangers, Singapore has implemented legal measures to combat online misinformation, enacting in quick succession the Protection from Online Falsehoods and Manipulation Act (POFMA) and the Foreign Interference (Countermeasures) Act (FICA). These statutes open up novel frontiers of development for Singapore's free speech jurisprudence. Indeed, these statutes confer upon government authorities the power to compel the authors of certain material to display notices stating that the material contains falsehoods or originated from a hostile information campaign. Yet, should one accept that the constitutional right to freedom of speech extends to the freedom not to speak, the compulsion of such expressions may well be unconstitutional under Singapore's free speech guarantee. This article will study the theoretical justifications for a prohibition against compelled speech to evaluate whether Singapore free speech jurisprudence ought to recognise such a prohibition, propose a doctrinal framework to analyse compelled expressions by reference to US, UK, and Canadian jurisprudence, and critically assess how the POFMA and FICA would fare under such a doctrine.

Western liberal constitutionalism, the dominant vision of which is rights-oriented and court centric is hegemonic to the discourse. While important, this is a particular rather than total expression of constitutionalism which conflates constitutionalism with liberalism and treat this as paradigmatic. This may obscure all other non-liberal models or fuel their dismissal as sham constitutions. A third space must be found, without collapsing anti-constitutionalist, illiberal despotism with no objective limits on power into the sphere of constitutionalism, and without equating judicial review with constitutionalism. To that end, this article seeks to advance the project of pluralising understandings of constitutionalism, drawing from the rich variety of constitutional experiments in Asia, with its multiplicity of religions, political ideologies government systems, cultures, and levels of economic development. Against an idealised model of liberal constitutionalism deployed as an organisational tool to highlight features of non-liberal constitutionalism in their full variety, the article examines three typologies of constitutionalism: religious, socialist and communitarian. In so doing, the idea of normatively desirable and defensible constitutionalist models is investigated, through an inquiry that goes beyond text and courts to other sites of constitutional practice and governance.

English law has become a commodity for developing, resource-rich economies desirous of diversifying their economies. A small number of special economic zones, chiefly in the Gulf, but also elsewhere, have set up entire legal systems predicated to a large or smaller degree on English law. This transplantation is based on three distinct models, namely: (a) wholesale incorporation of statutes; (b) general reference to English law as residual law and; (c) implicitly, on the basis of the common law origin of judges appointed to the courts of special economic zones. The expectation in all these models is that the specialised courts and other stakeholders (eg, legal professionals) will apply English statutory and common law in conformity with other laws applicable in the special economic zones. Ultimately, the practice of the courts and other participants will give rise to a sui generis common law jurisdiction that is in dialogue with the courts and institutions of England and Wales. The article argues that this has already been achieved in the majority of the special economic zones examined here.

Our research proposes ‘mixed legal transplant’ as a new concept in theories of legal transplantation. While the concept of legal transplantation is real, the phenomenon is much more complicated than what is often depicted and discussed by the academic community. In modern times, legal transplantation is often an informed reception by independent sovereign nations or people of two or more sets of rules from different jurisdictions, rather than a simplistic and passive reception of rules from one country to another. Using Vietnam as a case study, this article analyzes the deliberate consideration of two different models of precedent in the civil and common law traditions by Vietnamese lawmakers, and their choice of a mixed legal transplant in the hope that it would be best suited to the needs of a socialist country in transition. Its methods and results, however, are still in doubt and have been criticized as possibly creating uncertainty due to their structural incoherence. This article therefore concludes by proposing recommendations based on legal tradition to correct the misuse of the mixed legal transplant in Vietnam, and we hope that these recommendations can serve as a model for other countries.

This article reviews some of the roles environmental lawyers have played in ensuring environmental justice in Bangladesh. It leans on law and social movement theories to explicate the choice (and ensuing success) of litigation as a movement strategy in Bangladesh. The activists successfully moved the courts to read the right to a decent environment into the fundamental right to life, and this has had the far-reaching effect ofconstituting a basis forstanding forthe activists and other civil society organisations. The activists have also sought to introduce emerging international law principles into the jurisprudence of the courts. These achievements notwithstanding, the paper notes that litigation is not a sustainable way to institute enduring environmental protection in any jurisdiction and recommends the utilisation of the reputation and recognition gained through litigation to deploy or encourage more sustainable strategies.

The English common law tort of passing off came into the spotlight in 2015 with the UK Supreme Court case of Starbucks (HK) Ltd v British Sky Broadcasting Group settling the current position regarding the question of the territorial scope of goodwill. This article undertakes a comparative study of the tort with Section 18 of the Thai Civil and Commercial Code which, it argues, has been interpreted by the Thai Supreme Court to offer a materially similar remedy to the English tort in two important conceptual aspects: the requirement for misrepresentation and the so-called “hard line” approach to the territorial scope of goodwill, as affirmed by Starbucks. The analysis carries important implications for comparative lawyers and legislators in both the UK and Thailand, and challenges assumptions based on a simplistic categorization of Thailand as a civil law jurisdiction.

China and Australia are extremely significant trade partners and investors. Australia has a very well established competition law, now called the Competition and Consumer Law 2010, with a well-established merger regime. China has a relatively new competition law, the Anti-Monopoly Law 2007. This article compares merger control in the two jurisdictions. The Ministry of Commerce (MOFCOM) has already referred to an Australian decision in rejecting a merger, the only reference to a foreign decision to date, which confirms the utility of the comparison. This article critically evaluates the determinations of MOFCOM and compares the approach of the Australian Competition and Consumer Commission (ACCC), the Australian regulator. It assesses the transparency and predictability of procedures and decision-making in the two jurisdictions.

This article seeks to utilize the existing literature on referendums to discuss the current situation in Hong Kong in order to make some theoretical and practical contributions to the field of constitutional studies. Theoretically, it attempts to situate and analyse Hong Kong’s current situation within Professor Tierney’s influential framework on constitutional referendums in order to further develop the constitutional theory in this area. Practically, it analyses, through comparative study, whether (and if so, how) referendums might provide a mechanism through which Hong Kong’s constitutional debate could productively move forward. It concludes by reiterating aspects of the Hong Kong experience that have aligned with, and further contributed to the constitutional theory on referendums and representative democracy. Moreover, it recommends that the Hong Kong Government begin consultations towards the tabling of legislation for a non-binding advisory referendum to be developed in accordance with the lessons learned from the jurisdictions discussed throughout the article.

Typically one member of a sitting panel of Hong Kong's Court of Final Appeal is a senior jurist drawn from another common law jurisdiction. In the Court's early years, these ‘overseas judges’ were responsible for writing approximately one quarter of the lead opinions across a vast range of cases. This article demonstrates, however, that this practice has changed. The overseas judges now write a smaller share of lead opinions and no longer write lead opinions related to issues of fundamental human rights or the relationship between Hong Kong and the rest of China. This article suggests this change has been made for good reason. Though valid questions about the legitimacy of the role of the overseas judges can be made, they also continue to perform a valuable communicative role regarding the status of Hong Kong's judicial independence under the ‘one country, two systems’ framework. A recent rise in attacks on overseas and other ‘foreign’ judges in Hong Kong can be understood as part of a broader project that seeks to constrain the role of the independent judiciary. By continuing to invite overseas judges to sit on the Court of Final Appeal but reducing their public prominence, the Court has sought not only to reduce avenues for attacks on the legitimacy of particular decisions, but to protect the autonomy and independence of the judiciary more broadly.

This article began as mere curiosity over what appeared to be a paradox – Singapore and Hong Kong share countless economic and geopolitical similarities and compete vigorously for foreign direct investment (FDI), yet only the former has become a pharmaceutical hub while the latter struggles to attract any FDI in the sector. To find the reason for the “drastic” difference in pharmaceutical FDI, we compare the economic, legal, policy, and regulatory frameworks of the two jurisdictions focusing on the factors that have been identified in the economic literature as having the most relevance for FDI decision-making. The analysis discounts economic and legal factors before finding variances in policy and regulatory frameworks as the critical difference accounting for the disparity in the pharmaceutical FDI. Given that Hong Kong occasionally considers transforming itself into the “pharmaceutical centre for the Asia-Pacific”, this article calls for a change in policy approach and strategy before this aspiration is considered more realistically.

The COVID-19 pandemic is reshaping the landscape of Chinese dispute resolution. The aim of this article is to outline China's various approaches to such development in times of global pandemic. The article primarily examines the features of online arbitration in China with a special focus on the significance of party autonomy and the authority of the tribunal in handling virtual hearings. This trend prompts the question as to whether virtual hearings and the use of digital technology ensure the protection of data and privacy. Further, the article analyses the impacts of online dispute resolution on litigation and different sets of new rules adopted in China to handle online hearings. It concludes that China successfully addressed most of the raised questions in terms of data and privacy protection, and that the processes through which dispute resolution becomes increasingly digitalised seems to be an irreversible trend that warrants further research into its consequences.

Insolvency practitioner remuneration is a vexed topic globally and the role of courts in fixing and reviewing remuneration is controversial. This article compares the approaches adopted by the courts in the United Kingdom, Australia and Singapore to the issue of fixing and reviewing corporate insolvency practitioners’ remuneration. The analysis considers the factors that the courts in the three jurisdictions consider in deciding remuneration claims including reasonableness, proportionality and the need for insolvency practitioners to justify their claims. Measures taken in each of the jurisdictions to facilitate predictability in time-based remuneration, whether through legislation, professional codes or judicial development, are examined. Various initiatives towards greater participation of external experts in deciding remuneration claims are also considered. The analysis finds that the three jurisdictions share some similarities despite jurisdictional differences but also differ in some important aspects. The article argues that courts have taken the initiative in each jurisdiction to fill a perceived regulatory gap where legislation provides little or ambiguous guidance, or where the judiciary believes that legislation and regulation have not kept up with community expectations. The results also highlight the cross-pollination of ideas in these jurisdictions.