33-AsiaPacific Fall03 Neilson Teresa

8/11/2019 33-AsiaPacific Fall03 Neilson Teresa

1/101

LECTURE 1: Thursday 4 September

An approach to comparative law Alan Watson

Legal families -> hybrids

Descriptive Path- Choosing foreign jurisdiction and writing on a piece of law- Especially commercial and investment- ot this path as it is from one!s perception- "rigins# how is it fashioned and used perceptive analyst- Law and practice

But what is law

1! "#rmal-

statues# rgulations$subordinate instruments- how officials interpret regulations- bureaucratic manuals

$! %&'#rmal- non-public law

- %&ic has right to create own regulations- 'rivate statutory body ()E

'ublic vs 'rivate*udicial

Law has many faces legal culture

Loo+ing for instruments# ideological conte,t surrounding them

An in uiry into a foreign legal culture where we admit out shortcomings .loo+ingat it with Alford eyes/

Rule #' Law- )et of Western democratic legal norms that increasingly aid organisations#

law reformers and political figures- Attached to their measurement of foreign legal systems

- &ery comple, formula- Captures whole set of minimum cultural re uirements for political and

legal systems- 0ifferent layers$greys

- Loo+ing at bills effectively and apolitically made


2/101

- Assumes elections# civil society present i1e1 liberal governance culture i1e1 huge assumption

- eed to hold bac+ 2"L view .loo+ at origins/

'age 34 'eter 5it6patric+ .Aust critic/-

7All theory8 not how it really wor+s# there are faults5ocus9 A)EA member states and China and :;

A lot of comparatice law is Euro-centric esp1 W Europe and %)- )aw law as rules .instrumentalist view/- )tarted loo+ing at 7legal families83/ Civil law


3/101

Colonists have e,ploited village codes- ired to codify them to establish stability and order .turned them into

coercive instruments/

Legal system is a 7vessel8C#&clusi#&3/ Loo+ at legal reception and its variety in reference to )EA


4/101

LECTURE $: Tuesday * September

Recap #' last class- 0efining how we approach materials# what materials .Clar+ article/# were

written at different times-

2eflect substantial uncertianty about researching Asian law- ot much substantive legal writing of Asian legal practice- )ally @ary her discipline wasn!t law 7legal systems8- ?ary ell )ingapore Canadian trying to define attributes

- Legal traditions# legal culture# legal systems

Le+al Culture- A layered intermingled concept- 5ormal and informal law within its setting

- :istory# institutions

Western comparative approach9

1! Le+al 'amilies- 75amiliar legal families8- socialist# civil# common and 7residue8- :indu# @uslim# village$customary law

$! Descriptive a&alysis- 7'ic+ a country and write it up8- eutered system of analysis

, C#&clusi#&s

3/ Avoid the legal families trap .Eurocentric and e,clusionary/- Local +nowledge and global doctrine is needed


5/101

- What colonies do to bring in colonist!s law but +eeps room for owndevelopment

- )ale of ?oods and ills of E,change Acts were originally fully transplanted has been amended

Tra&spla&tati#&- Watson!s article9 rarely uniform or complete .adminitered and interpreteddifferently/

- Applied law is different from formal law e1g1 )ingapore- Law of defamation freedom of speech law- Censorship through private law .often against government/

2i+rati#&- e1g1 2oman law to )cotland still evident- :as a mi,ed legal system 2oman and ritish- )cottish Court system totally different from %;

Tra&s'er - %nthin+ing physical act .voluntary$involuntary /

Tra&sp#siti#&-


6/101

Parallel Devel#pme&t- @any e,amples in commercial law

Satelisati#&- W " models for admittance and compliance

Emulati#&- Bmitate 6ealously- )A constitution Canadian Charter 72"L state8

Salad B#wl- &ietnam so many new laws and regluations mess- Want to be modern law based state- Laws often don!t connect to each other# seen as singular e,ercises

deficient .can!t get a holistic sense of where law is going/

3#w d# y#u e ami&e a le+al system which is i& c#&sta&t 'lu- ew laws affect previous laws made- When new laws made# need to loo+ at old ones but it is hard to do this in

some countries- Bn many developing countries add9

7Any conflicting laws e,isting are now null and void8 Hnull and void clauseI- :ave no choice if want to be the law in effect- @ost drafters and law ma+ers don!t care

1! C#&se5ue&tial (me&dme&ts-

"ther provisions in other Acts that are affected by new law .identified#gives readers +nowledge/

$! %&terpretati#& (ct- Affects all legislation framewor+ can amend old legislation- A running capacity to continually develop

,! Revised Statutes (ct- All consolidated and reprinted

@ost countries don!t have the above three J> can never catch up

(LS.Limited 'arliamentary time to consider legislation- "ften have to wait K-3< months to pass amendments and in meantime old

law is in effect and constant confusion e,ists

Bmportant consideration for A' region


7/101

- @any countries are in process of modernisation of their legal systems .e1g1China and &ietnam/

When we loo+ at legal reception# +eep practival considerations in mind

(UT3.RS

1! Sally E&+le 2erry- LE?AL 'L%2ALB)@9 < or more co-e,isting legal systems

- )pea+s to multitude of sources of lawI- "bservations on colonised law are very Westernised7Living Law8- 2efers to fact that there are legal rules# traditions and customs that affect

a lot of people all the time- 2egulations9 @ight have more impact on a certain group than the Act itself

i1e1 just as important as formal lawWe tend to see law in state$citi6en views- 2"L norms9 device for loo+ing at the state$citi6en relationship- 2ole of state# constitutional rights as well as duties for citi6ens

$! 0ary " Bell- )ingapore legal system- Wonderful legal laboratory- E1g1 of post colony legal system transplant and migration .which has to

be reconsidered, rejected in some areas# adoption of Bslamic law/- rouble defining legal culture system# traditions- A lot of international influence A)EA # independence- Bn flu, cultural roots are deep based on race and ethnicity- Colonists law has been reconfigured in country!s interests

- ?rand theory is badly disguised effor to use our current values to judgeother countries- ot a plea for relativists approach- eed ot understand previous legal e,perience

Alford loo+ed at Cohen and &ictor Lee-

)aid that even though carry out comparative analysis need to be mindfulof reliable sources- E1g1 K !s China interviewed refugees in :;- Ansley Chinese Court is not a Court


8/101

LECTURE ,: Thursday 11 September

Alford9 read carefully in conte,t- A constitution is a continuing document- 0on!t ta+e descriptive approach-

7Bdeological formula8 for a state .changed often/ developing countries- 0ualism approach in many countries- versus D2ights documents! versus Drights and duties documents!

:ong ;ong putting forward new law in interests of national security vs citi6ensrights .freedom of speech/

Recap a&d c#&clusi#&

1! Le+al systems have pluralistic s#urces- erritorially based system that governs relations between state vs persons

and persons vs persons- 72ules8 J norms of conduct# behaviour# regulation- i1e1 normative framewor+ for public$private and private$private relationships- 7@ultiple legal receptions8 implied transplants# involuntary$voluntary etc

$! 6essel has levels- 5ormal$informal- Customary law# village law- otality of these legal receptions is something called living law thin+

more holistically .go beneath the surface/

,! 7he& we l##8 at ather le+al system &eed t# l##8 at evaluati#&character

/values prism

Emphasised by Alford and Co1- Clive Ansley9 his way of showing his prism 7not a court8

4! 2ea Culpa p#i&t- Ac+nowledge our shortcomings of 7sources8- Always deficient in our research for reasons such as language barriers#

time restrictions- 75ormal8 what is actual practice- What is 7law8

9! (&y c#mparativist must l##8 at '#rei+& systems with respect 'air&essa&d ri+#ur

- )ee page =M Alford


9/101

;! This ca& rarely be d#&e< 7hy

3/ 'urely descriptive analysis is easier and it sells


10/101

$! The buyer - he recipient of legal change

Law a&d Devel#pme&t

he venue for buying and selling of change has predominantly been in )EA- Coming out of WWBB# colonisation# getting caught up in Cold War .post

34NF/

/L(7 (-D DE6EL.P2E-T- "verview on page FK- Bmportant legal change sales caused by failure to appreciate difference

between common and civil law .Constitution is declaratory not operationalunless are subject to separate legislation &ietnam O Cambodia/

1! Law > Devel#pme&t %: Law > Devel#pme&t Studies ? (merica& Libraria&- Would you call law and development a 7movement8- i1e1 phrase# comes and goes# Dmissionary!- )aid it was a %)-driven movement sellers to buyers- 5inanced by corporations such as 5ord# %) Aid# 2oc+erfeller - 0oes law complement or follow development

$! Law > Devel#pme&t %%: 7ashi&+t#& C#&se&sus- Constitution of the movement- Bnternational 5inancial Bnstitutes B@5# World an+- )ays essential for development of democratic# openly governed#

accountable state without which there will be ade uate social and economicdevelopment- Economists stood up and said economic development should be tac+led

first legal development should follow- 7Economic roadmap8

y beginning of 4 !s clear things weren!t wor+ing- After Cold War collapsed# cound had gone into LO0 BB- Economists didn!t have the answers- uyers were transitional economies93/ Central Aisa and Eastern Europe previously part of )oviet %nion


11/101

- 344 -< J major changes to the point that almost couldn!t absorb anymore change

e1g1 B@5 in order to have credit# had to ma+e large changes

7ashi&+t#& C#&se&sus says L(7 is esse&tial t# devel#pme&t

=supp#rts c#&tracts i&creased i&vest#r security re5uires acc#u&tabledevel#pme&t!

,! Law > Devel#pme&t %%%: Le+al Liberalism- points why it didn!t wor+

31 0riven too much by sellers .mostly the %)/


12/101


13/101

LECTURE 4: Tuesday 1; September

7ester& C#u&triesA Le+al Systems- Logical# formal and rational- Legal criteria and methods legal principles

Chi&a- @agistrates- "wn interpretation and judgment of customary norms

Weber9 7Arbitrary or irrational +adi justice8

2atteiAs Tirpartite Ta #my

= types of legal systems# based on primary source9

3/ law


14/101

Purp#se #' classi'icati#&- 0escriptive- Assessment

)tic+s to formalistic law rather than from e,periential learnings of the legal

systems1

$! %& very summary terms why d#es Chi&a seem t# p#se such achalle&+i&+ test case #' /le+al systems classi'icati#&

- elieves that culture and traditionalist Dbo,! is not correct- Confucianism did not stand$fit with law- :as such a rich history and aspects that don!t! come under any one

grouping- What viewpoint are they coming from-

Western is most li+ely comparative- Law historically was not resorted to in China magistrate performed allfunctions# more concerned with social stability

/Bad t# +##d 'rimitive to modernBrrational to rational

raditional to professional

%se the same lunguistic register to help them understand but not to measure

)B ?A'"2E- Article 3F


15/101

- Converges at a point where we &eed to e1g1 sharing space


16/101


17/101

C#&'ucia& Phil#s#phy- )table social and politival order in which humans could flourish# meant to be

highly practical and applied- :uge implications for morality and public good- @ain concern of 7what is the uestion of good governance8-

"nly mention of subjects# not citi6ens1- oo+ it as automatic that society divided into those fit to rule and those fit tobe ruled

- 5orms of egalitarianism absent- 'eople must fulfil obligations appropriate to their social roles- 'aternalistic attitude to the commoners and they are to be treated with

consideration and concern- 2uler has to deal uprightly with the people# this will inspire respect and

obedience# it will be earned1 Bf rulers are good# no need for law to settledispute since law of good always in accord with what is right

- 2ulers and system had no place for sta+eholders# no place for citi6en groups#

civil society# no partisan - moral authority of a good man is always absoluteeven if common people cannot understand the reason1

De'i&iti#& #' C#&'ucia&ism- Bs it a religion- )ome commentators style it today as a civil religion no church# ministers- Bt is a way of conduct it is an ideal society

Common for E Asian leaders to cherry-pic+ Confucian values# statements orcondect to e,plain or defend systems of govt1 Bn statements spo+en about#usually have ref to family# shift# deference# statement of duty# little emphasis on

rights not a rights-based philosophy# wor+ ethic# duty344K @alaysia '@ declared that Asians are universal vlaues# European valuesare European calues344 shared values in )pore

All boils down to what Confucian means Confucian influences in *apan0r &ai in < Q years she!s been there no mention of Confucianism in *apan

:ow Confucianism can co-e,ist with other allegiences- 5rom a *apanese perspective# they are the modern state a civil law state

but can see Confucian values such as in *apan- 'enal code# punishment for murder of fater much greater than of a stranger - )trong# prevalent idea of group responsibility in *apan but yet# there also

co-e,ists presumption of innocence etc1

@any transitional states are adept at ta+ing models and grafting them with theirown history# their own application etc1


18/101

Law as seen in China necessary to protect the state# the emperor# to achievestability and order1 Later on# see merging of legalist view and confucianism1?rafting confucianism into legalist school1


19/101

LECTURE ;: "riday 1* September

6%ET-(2 %-TR.DUCT%.-

Devel#pme&t

5ree us from colonisationWe love our )oviet friends

he American War @ar,ist Leninism

0#ver&i&+ phil#s#phy is w: 3# Chi 2i&h Th#u+ht- Collection of moral statements .much li+e Confucious/- ?overnance# fairness# e uality# loyalty# patriotism- he 7glue8 that has ben contrived in schools# media- 'rovides chec+ and balance in management of society

7"f the people# by the people# for the people8 34NF Constitution

Were going to use &ietnamese to fight *apanese# but 5rench were there- 5rench had set up &ichy government in the area and installed officials who

accomodated the *apanese .who were allies of ?ermany/

:o Chi @inh did get into :anoi and read his Constitution governed the orthfor a short period

)outh9 @ore commercially e,ploitable-

?overnment movement was strongLord @ount atten helped 5rench +eep control of )aigon . uelled local unrest/

%) 5rance China

Bndicative of their resiliance and courage

)aigon J 70allas of &ietnam89 corporatised# economy

6illa+es a&d States ? 0.6ER-(-CE- S of &ietnamese live in &illages- &ietnam had a @andarin principle that e,ceeded that of China

slavish commitment to the embodiment# bearing of what @andarins shouldloo+ li+e to the e,tent that they were too separate from the people theygoverned

- 2esult9 %prisings and political# social instability


20/101

- oo much concerned with their importance- Warlords were prevalent village self-governance

- &illage codes became very comprehensive and developed

D#i m#i: Economic renovation the good aspects have always been there

Always 7&ietnamese8 variations- rac+ing change in China &ietnam!s change often came F years later

he copy of the 7Ching code8 was almost identical but did not eventualte to bethe same in application

- )ingle party wanting power affirmation- ow have a strong legalist approach- 'olitically law is an instrument of direction# stability and development- /Law ca& d# a&ythi&+ appr#ach

6%ET-(2 T.D(@- 5amily importance still prevalent more mobility- Women have more power

Previ#us classes:- @erchants were distained .concerned with money/ mainly the Chinese- Artisans- 'easants- )cholars

"amily was a& ec#mic u&it- Law affirmed protection of these units$lineage under stong male leadership- ut due to mortality rates# elder women had to often ta+e leadership- Law did not facilitate the fact that women had to ta+e over many people had

to ignore the law- Eg1 &ietnamese women were able to inherit land from their parents .when

there was no son/

"amily a&d 0e&der ? 1**$ C#&stituti#&-b< 4 th C#&stituti#& si&ce 1*49

- ew constitutions are not uncommon in socialist states- 2eflect party policy- Bdeological statement that legitimises changes to social# political order# foreign

policy

34 K9 5oreign investment commenced but not recognised until 344< .whenmar+et was fully opened/- )tate enterprises could only engage in foreign activities


21/101

Chapter 9: "u&dame&tal Ri+hts a&d Duties #' the CitiFe&

%mbilical cord which joins93/ )tate


22/101

LECTURE H: 2#&day $$ September

0L.B(L D.CTR%-E > L.C(L I-.7LED0E L(7 %- SE(- (&drew 3ardi&+

What is the object of analysing another country- &alue-free or value-laden 6one- 'rejudice- (ou won!t find law here law wor+s differently

C#mparative Law 6iews

1! Ca&t tra&spla&t law- here is no such thing as a legal transplant

$! Le+al tra&spla&ts are what start le+al systems they are the very

esse&ce #' law =7ats#&!- Bt is where global doctrine comes in- Civil law# common law# Bslamic law has spread throughout the world

*urisprudence didn!t helf in the slightest- 7 lac+stone!s ower8

Legal Anthropologist derivation of title- ?lobal doctrine- Local +nowledgee1g1 Bndonesia# hailand

/Ev#luti#& #' law a&d p#litical the#ry i& %&d#&esia- Washington %niversity 'rof 0an Lef- Law and legal traditions# politics and sociology of law- 5ate of 0utch legal system and adat- Bslamic Courts- Law and legal traditions loo+ed at in terms of class

- @ar,ist elements- Who is putting things forward and why

uesti#& #' applicati#&- Critical towards comparative law approach

Mathir triangle updating the Dlegal family!

2A0B B" 9 2eligion O custom

LE?AL '2"5E))B" '"LB BC)9 What the state imposes


23/101

Legal families are useful in a very limited way- 0oesn!t even tell you the important aspects or differences- Even the change doesn!t help as some countries have all aspects of L# O '

Diversity #' SE (sia- Legal pluralism is not dealt with- )ociety is different what is common is the pluralism of each society

)hould find out how the L) wor+s with the pluralism present not what is wrongwith it

e


24/101

Bn Western L) it is so 'u&dame&tal that it is almost always assumed it is a given1Bn )EA conte,t# the prevailing view is not always that the 2"L should alwaysapply1

hai!s have their own way of ma+ing things wor+ it may be illegal but not

entirely illegitimate7Law must always be applied# certain etc8 may not always be self-evident in the)EA conte,t

"ther value systems such as religion# informal mar+ets# realities of economicdevelopment sometimes need to ta+e priority

/7#r8i&+ misu&dersta&di&+- D"rder loo+s so much li+e chaos!- L)!s actually do work! -

he groups don!t actually have a very good understanding of the othergroup!s law .is acutally about/- Cultural tolerance goes hand in had with polarisation tolerate needs and

re uirements but not necessarily understanding what is behind it

%&d#&esia- Customary law is ac+nowledged maybe not to the e,tent of being the primary

law system- %sed in dispute resolution# personal law# Court!s considerations

(dat is c#mi&+ bac8 original autonomy drive officials at local level given

more power and accountability- 'eople have wa&ted adat to come bac+- ased on values# harmony# collective rights and interestes encouraged

advanced models of democracy- % difficulty in applying adat in modern# commercialised cities


25/101

LECTURE : Tuesday $, September

%-S%03TS %-T. T3E 2.DER- C3%-ESE LE0(L S@STE2

2ea+ha& Su&derla&dAs (ppeal article

AL5"20- e careful about being careful- "utsider!s view still valid as bring different perspective part and parcel of

academic e,ercise- Cautious legal scholar s+ewed perspective

)% 0E2LA 0- Appeal process- %se of capital punishment- %se of mitigating sentencing-

)entencing of corrupt officialsBmperial$modern comparison good# not comparing with Western L)

Words suggesting a s+ewed view- @odernisation- 2"L naturally we Daspire! to less capital punishment- @oving towards internationally acceptable norms positive steps

0oes China actually want to change- 'ressure from international community to change-

)tifle criticism- )elf-moticated acceptance into the W "

)tri+e hard campaign anti-corruption- Continued through 4M and 4- )ome argue present time

Ansley views that there are actually more capital punishments carried out now- 7Bmmediate8 e,ecution more or less certain- E,ecution after window period usually meant wouldn!t be e,ecuted

0eath sentence with < year suspension?roup responsibility not carried over to the same e,tent- 'unishments on family members- ot so much a problem- Li case is an e,ception are certain manifestations of it but lesser

occurences- Local magistrate not always 7local8 prevent corruption


26/101

Lai Cha&+ i&+ case: CL%6E (-SLE@

'rinciple legal issues9- 0avid @atis is Lai!s counsel- 0ecision is perverse-

< e,pert witnesses to which the oard did not refer to at all in their reasons- ul+ of documentary evidence should have been disallowed because of theconditions the statements were given- 2ead li+e )talinist confessions- ?iven after hours of interrogation by police- othing has been cross-e,amined- Counsel not present for these people

'age 3KN9 Cohen- )imilarity to Euro not Anglo-American- )etting up for lac+ of ac uittals

Comes from different perspective but spea+s at length of lac+ of fairness in anumber of cases- 0eficiencies in the process etc- :onesty of judges# whether Courts are trying to be fair not fair to say he

didn!t- E,clusion physical evidence can be admitted but statements should be

e,cluded at trial

Canadian based view9 comparison of Chinese legal system person could bedeported and e,ecuted different prism

)udicial C#mmittee- :ow to judge it from what viewpoint- *udged it from its own standards

- Bf they tried to follow the law .statutes/- ?overnments efforts to enforce 2"L

- he law is not followed *C is a prime e,ample of it- Cohen tal+s about *C problem that those who hear case are not present

% *C created as judges were not officially trained was a chec+- *C is nowadays used more often# gives recommendations- What is shown is 52A%0 assumes the judges are the ones ma+ing the

judgment while in fact decisions are made out bac+- *C never signs any of the judgments will be written and signed by the trial

judges only .they are told the decision and have to come up with thereasoning/


27/101

LECTURE *: Thursday $9 September

%-S%03TS %-T. T3E 2.DER- C3%-ESE LE0(L S@STE2

3/ Meaghan Sunderlands Appeal Article HC 3MF-3 I

(l'#rd KCB ,1J,H- e careful about being careful- "utsider!s view still valid as brings different perspective part and parcel of

academic e,ercise- Cautions legal scholar s+ewed perspective

Su&derla&d- Appeal process- %se of capital punishment- %se of mitigating sentencing- )entencing of corrupt officials

Bmperial$modern comparison good# not comparing with Western legal system

:owever# words suggesting a s+ewed view9- modernisation- 2"L naturally we Daspire! to less capital punishment- @oving towards internationally acceptable norms positive steps

: D#es Chi&a actually wa&t t# cha&+e- 'ressure from international community to change-

o stifle criticism- @aybe self-motivated acceptance into W "# economic incentives

)tri+e-hard campaign Anti-corruption- Continued through 344M-4 # some argue to present time

Ansley views that there are actually more capital punishments carried out now- 7immediate8 e,ecution more or less certain- e,ecution after window period usually meant wouldn!t be e,ecuted

0eath sentence with < year suspension

?roup responsibility not carried over to the same e,tent- 'unishments on family members

- ot so much a problem- Li case is an e,ception are certain manifestations of it but lesser

occurances

Local magistrate not always Dlocal! prevent corruption


28/101

0uest spea8er: Clive (&sley ? Lai Cha&+ i&+ Case

'rinciple legal issues9- 0avid matis is Lai!s counsel-

0ecision is persevere- < e,pert witnesses to which the oard did not refer to at all in their reasons- ul+ of documentary evidence should have been disallowed because of the

conditions the statements were given- 2ead li+e )talinist confessions- ?iven after hours of interrogation by police- othing has been cross-e,amined- Counsel not present for these people

C#he& Kp+ 1;4- )imilarity to European criminal process not the Anglo-American one-

)etting up for lac+ of ac uittals more competent Chinese defence lawyersComes from different perspective but spea+s at length of lac+ of fairness in anumber of cases- 0eficiencies in the process etc1- :onesty of judges# whether Courts are trying to be fair not fair to say he

didn!t- E,clusion9 'hysical evidence can be admitted but statements should be

e,cluded at trial

Canadian-based view9 Comparison of Chinese L) person could be deported

and e,ecuted .different prism/)udicial C#mmittee- :ow to judge it from what view point- *udged it from its own standards

- Bf they tried to follow the law .statutes/- ?overnments efforts to enforce 2"L

- he law is not followed *C is a prime e,ample of it- Cohen tal+s about *C problem that those who hear case are not present

% *C created as judges were not officially trained was a chec+- *C is nowadays used more often gives recommendations

What is shown is a fraud assumes the judges are the ones ma+ing the judgment# while in fact decisions are made out bac+1

- *C never signs any of the judgments- Will be written and signed by the trial judges- old the decision and have to come up with reasoning


29/101

LECTURE 1M: "riday $; September


30/101

LECTURE 11: Tuesday 14 .ct#ber

C(2B.D%(- %-S%03TS- 0uest spea8er: 0#rd#& L#&+muir

Pr#+ress #' +#ver&a&ce p#stJU-T(C- 'ost 344= 7coalition8 fell in 344K$M- After 344 J new coalition hasn!t really fulfilled objectives to achieve

democratic constitutional country- 2"L judiciary problems- 0iscredits trying to achieve international respect and standing- :ighest :B& AB0) per capita in Asia- A'EC membership has aided joined the W "- Worries for international investors- S of Cambodians still live in the countryside- @onarchy may not survive once Rueen dies-

CC' :an )en may reign with authoritative power - 'erceived as Dparty of stability!- &ery little democratic tradition

U-T(C peri#d- here for a year and a half - 2ushed the process until 344= election- < people# T< billion- = years of war presence was unsettling but without them free democratic

election wouldn!t have happened- )urprised 2oyalists won-

0isarmament of ;hymer 2ouge didn!t happen but wasn!t % !s fault factions within the army

Cambodians are primarily uddhists- @oral brea+down as urbanisation occurs- Bndonesians# hai and 5ilipinos

1** electi#&s- CC' won majority but not


31/101

- )ection 3


32/101

LECTURE 1$: Tuesday $1 .ct#ber

- &ietnam unli+e many developing coys has always been a nation- ot an artificial creation of a colonial power - his has meant they have had a lot of e,perience with centralised

administrative systems .pre-dating the 5rench times/- &ietnam is the product of many years of civil strife and conflict- &ietnamese society has revolved around = sub-systems

3/ eo-Confucian state- @andate of :eaven .Emperor and mandarines/- )een as static# anti-growth- 'eaceful e,istance sought- 5eudal period was one of constant social upheaval- :as made &ietnamese v suspicious of administrations# adept at getting

around national law and policy .have not historically trusted the centre/


33/101

- *udges in civil system aren!t bound by precedent therefore must be a strictinterpretation

- ?oing with the &ietnamese 7virtuous man8 approach would have been toohard

reaty of apoleon ordered the colonisation of &ietnamDualism< sorts of courts as there were < administrations- 5rench Cochin# ochin and Annam

- F courts# each with own jurisdiction- 5eudal Court ochin and Annam

- 0idn!t apply 5rench judicial system- Competence was rationae personae

on+in

--------- Annam :ue until 34 N ributary Dstate! of China---------CochinChina

Why the 5rench separated the legal system- ried to +eep < systems of administration- 0idn!t want to separate themselves from the native population- Bn the end they did there was too much control over feudal courts# 5rench

judges tried to apply old &ietnamese laws but not successful# application of5rench laws

5rance!s main goal was to start up an Asian empire .ie commercial objectives/- Confucian system was not feasible for this objective- o rights# uncertain not good for carrying out business

Clash of the codes - 5rench civil law system versus the e,isting &ietnamese code .which was

interpreted locally but was derived from Chinese precedent/

5rench approach to governance nearly destroyed village governance which wase,tremely disruptive and hurtful1 Bronically# the attraction of the 5rench legalsystem surfaced in the late 34 s and we as+ ourselves why1 Why was thepinnacle of the new )ocialist &ietnam said to be their code which was largelyfrom their 5rench roots1 he only conceivable answer was that they saw in the5rench code a method of legal government and state management1 he civilcode opened the door to that method of reform1


34/101

Carl

6iet&amese C#mmu&ism ? /i&tri&sically &ati#&alistic

3#w did the applicati#& #' this /apaptati#&ist ide#l#+y materially cha&+e

the pri&cipal 'eatures #' the le+al system established by the "re&ch

5eatures of the 5rench Legal )ystem

31 )ocial stratification- 7civilising8 mission- e,acerbated by different legal systems# ta,es


35/101

- here is an ama6ing parallel towards view of village and central governance- @ost of the local villagers today complain about multiple ta,es# source of

substantial grievance .i1e1 similar to the 5rench system/- Land ta+eovers and creation of large farms today they are the second

largest form of grievance-

Adaptationist response prevailing ideology is not called @ar,ist Leninism tal+ about :o Chi @inh thought patriotic principles- :as meaning for us as we will deal with definitions of socialist legality which is

has to be marred with :C@ thought etc1- )trong @oral 'ersonal leadership is often tied to the Asian legal systems


36/101

LECTURE 1,: Thursday $, .ct#ber

3.-0 I.-0 a&d T3E B(S%C L(7: Reversi#& #' 3I t# Chi&ese Rule

5orced merger of < legal systems9 7"ne country# two systems8

'recursor for model for aiwan

2"L again an issue

:; Bsland and ;owloon main areas ew erritories J 4 S

3 N3 ritish flag raised3 K eijing occupied by ritish .ac uire )tonecutters Bsland O ;owloon/ and

5rench3 KF :; and )hanghai an+ founded3 4 :; ew erritories 7leased8 from China under < nd Convention of 'e+ing3433 2evolution abolishes @anchu dynasty34F < million Q )hanghai moved to :;

;orean War 34 F1< million34 < al+s with ritain 34 N Agreement34 F 5irst elected members to Legislative Council34 4 iananmen ) uare344 ill of 2ights3443 ?overnor Chris 'atten

Sta&di&+ C#mmittee #' -PC- the e,ecutive department of govt of China- same in &ietnam# other socialist states- only meets twice a year - de facto consitutional Court of China but doesn!t operate li+e one

Legally asic Law is Chinese law which delegates to :;

: 7h# has the 'i&al say- :ow do you define the authority of the :; Courts


37/101


38/101

LECTURE 14: Tuesday $ .ct#ber


39/101

LECTURE 19: Thursday ,M .ct#ber

T3E "(CES ." S.C%(L%ST LE0(L%T@

Cate+#ries #' C#&stituti#&s

3/ he Bnterpretation Constitutions- ased on const$judicial review- Long lasting- 0epends on recurring interpretations of it!s meaning


40/101

"ne of the major distinguishing feature of constitutions is if they are9

3/ )tate centred- )tate seen as giver of rights# provider to the popn- &ietnam


41/101

:istorically = )L principles9

3/ Law emanates from the state9 7law is not above the state8 e,treme form oflegal positivism1 o space for customary rules or natural rights


42/101

?reatest failing of one-party state when it comes to law-ma+ing is that it ma+es ithard to get consensus follow Chinese way going 7economic8 route- 2eligion9 authority given to govt to control

D#&+w##8

2ule by the dead man!s teaching e1g1 &aticanVv

Communist CountriesVv

Absolute @onarchy

:ow is Communist regime different-

'ower to party as it protects and promotes the learnings from the 7dead men8- :ave to loo+ after and be responsible for the people


43/101

LECTURE 1;: Tuesday 4 -#vember


44/101

LECTURE 1H: Tuesday ; -#vember

RULE ." L(7 P(R(D%02S > 0..D 0.6ER-(-CE BE-C32(RIS

/Re&diti#& .& Li&e- Canadian )yrian deported to )yria .country of birth/- 5undamental :2 breached

Ca&ada- 3 KM Act implies 2"L in its 'reamble- 34 < Constitution 2"L e,plicitly mentioned in 'reamble- 34F4 )upreme Court case

2elies on vagueness cf clarity

, ELE2E-TS

1! /E5uality be'#re the law- What do we mean by law statutes# legislation# common law- Who are the actors

$! System #' p#sitive laws- 'ublished# accessible

,! 0#ver&me&t acti#& is +r#u&ded i& law- obacco :ealth 2ecovery Act H CI Bssue is whether government can come

up with a claim of action for itself to bring against tobacco companies- Whether it attempts to define a new cause of action is so offensive that it

undermines the legitimacy of law .2"L/

BuFF w#rd #' $1 st C#mparative Law- :ow we judge a particular legal system- 2"L is a competing L) in certain countries and may not be accepted

Directi#&- 'rocess based phenomenon- Economies vs Law

Thic8 Thi& c#&ti&uum

(&drew 3ardi&+: /L#cal 8wled+e > 0l#bal d#ctri&eG real law G R.L

- here is no single definition9 2eception of principle &) implementation andinterpretation


45/101


46/101

LECTURE 1 : Thursday 1, -#vember

- :ighly localised# village-based on e,pected rules of behaviour and conduct- Law of the ;ing never got to village

Area of legal relations in &ietnam which seems to turn some of this upside down- )uggestion that arises out of materials is central govt trying to contruct proforma# a set of rules that reaches down to the village level

- :amlets# villages and other small entities- # of them in &ietnam- "rganisation of housing units is very carefully organised and institutional

arrangements are replicated at every level .people!s committees#departments of justice/

).%-T C%RCUL(R- Circular put out by @inistries of *ustice and Culture-

Attempt to systematise and regularise the way local customs are turned intolaw- :ad problems before dealing with local bodies- Loo+ing for uniformity

= main sections9

3/ ?oals of rural conventions- new ethical norms# encouraging healthy lifestyle# protection of state secrets

.supporting state power and authority/ etc


47/101

- @ust be a strong political rationale to bring this law about- :ow does it dare to ta+e a political initiative- What are they trying to get out of this- 0on!t thin+ it was the @"* that too+ this initiative

- ;new of limitations of this e,ercise e1g1 lac8 #' i&stituti#&al capability t#

'#ll#w the pr#cess #utli&ed- Bnitiative probably came from above

@any problems9 @isuse of land rights# e,acting of unauthorised ta,es

'urpose of 2ural Conventions- Capture local unrest# regulate and download different set of e,pectations on

local officials- o one wants to be +nown as the author it is a collective e,ercise- @inimises opportunity for dissent as it +eeps going up there is chec+ing#

conforming etc

Large amounts of discretion at the local and regional level- his is compromised with the procedures involved with the 2ural Convention- C#&'#rmity at the e te&t #' /u&ity #' state a&d 'reed#m t# devel#p i&

their #w& ways re+i#&ally

oo often these customs and habits are perversions too much money spent onmarriages# elders not ta+en care of feeling of permanent unrest at the villagelevel losing historical self-control1 Want to strengthen them through supportand guidance1 ut still re uires top level approval in this time the reality of the

village may have already changed1 Attempt to change local normsHuong Uoc - hese norms held together the villages of &ietnam- 5rench tried to intervene and failed- Allegedly fell into state of disrepair during war - :ave gone bac+ to these norms and trying to standardise and revive them in

an attempt to bring more social stability into local communities

-e#Jle+alist appr#ach-

Law law law law# positive rules that everyone understands and sanctions fornon-complianceJ regulation of society better for a common purpose

Legal systems in effect which is being downloaded domestically from within in anattempt to create and codify local norms

R9 Bs there something called asian values when it comes to rights


48/101

LECTURE 1*: Tuesday 1 -#vember

2eview of last wee+9

2icr#Jma&a+i&+ #' l#cal laws ? Rural C#&ve&ti#&s

- Bn some L) much in the manner of former colonial regimes# central authsdownload legal prescriptions to local level

- Either direct transplant or downloading formulas to provide the mandatory f$wfor village laws

- :ar+ing bac+ to fine traditions- 'er9 s+eptical - how 7fine and traditional8 are they- Aim to maintain stability in the villages- 0escribed as an effort to provide guidance in est of 7self-mgmt8 systems- Another e,ample of a persistent failure to understand institutional capacity

there simply is no capacity to pull this off and develop this host of village

codes# review them# chec+ conformity and that they are actually used in auniform and conforming manner - roubling aspect of many L) reflects naPve and at times far-fetched belief in

the power of law legalist positivist approach- Law becomes a series of rules that are applied uniformly and heavily by

people who are well-instructed and capable for their 7good8- ied to this unfortunate belief about what 7law8 is about- 0istinguishing between form of law and actual implementation- 2ural Conventions9 :uge disparity between formality and reality- 2ecurring effect is to breed complete public cynicism- Low-ran+ing official at district level9 one of C3%-(

- China# hailand9 Law ma+ing institutions have now achieved legitimacy andprominency that was unheard of in previous times

- raditionally coys li+e )ingapore and @alaysia


49/101

@ultiplicity of legislation

D#i m#i - F$ K$ M introduction of 3st foreign investment law- 5rom this point on# &ietnam became a law-ma+ing machine- 'reviously was a decree-ma+ing entity involved a lot of discretion on part of

ministers and officials# very state-based .little private sector influence/

-ati#&al (ssembly- F year terms- @ost do not serve again .no constituency based incumbency/- N4 deputies- @eet twice a year for N-K wee+s- of deputies are full-time- X only come for the meetings .not really involved in sustained review

development of law/ i1e1 considerable on-site 7power8 left with the whoserve full-time

- )essions are jam-pac+ed- &55 determines who can become a candidate .while most allowed to be

candidates are not party members# 4FS of elected members are part of theparty/

- o pretence that there is any opposition party

Parliame&tary Supremecy

Art =- he A is the highest representative organ- "nly body with legislative and e,ecutive power - he membership of the Cabinet must come before Assembly for approval

A can remove ministers# including the '@- 0ecides national# foreign and domestic policies- E,ercise control over all activities of the state- 0ecide national budget- 0ecide issues of war and peace

his does not mean there is separati#& #' p#wers- Chairs of )'C and )'' are part of the A- A-?ovt-Courts relationship

Sta&di&+ C#mmitteehis isn!t achieved in the < wee+s they meet it is done through the )tanding

Committee- 2eal control in a small body# dressing up consultation and reviews around it

.mass organisation involvement etc/


50/101

- :as 4 committees e1g1 )ocial and women!s affairs# budget and finance#legislation

- @embership of )C maybe the same for F year terms element of continuitythat is not found in the body itself

- 0etermine legislative agenda and are law ma+ers themselves- 2esp for ordinances most significance after laws- :ave the same signifiance as laws- 'ic+ it over laws as it is passed a lot faster .efficient/ and can avoid messy

'arliamentary debates- )ee a pattern in choice often when it is a complicated issue- )o is this a 7tiger8 then what is the purpose of the A @embers of A

increasingly do as+ uestions however R!s they as+ are veted inadvance by chairman or &C of the )tanding Committee

- @ore openess televised# at times divisions and dissents

5ormulation of Legislative Agenda- Will +now titles of laws and ordinances on the agenda at least a year away .if

not


51/101


52/101

- :ow are political issues transformed into legal arguments

,! Party mediates every sta+e #' lawma8i&+ t# e&sure that lawma8ers'#ll#w ce&tral party p#licy i& c#di'yi&+ s#cial rms

'A2 9 :ow is &ietnam!s falling short of constitutionalism displayed in thecontroversy surrounding the < < amendments of the 344< Constitution

Article N of the 344< Constitution- Bmportance placed on Dparty leadership!- )acrosinct

0ebate on amendment was shut down- )ome suggested that Art N should be left but re uire the establishment of a

constitutional court

0illespie > Lie& ? Public participati#& i& Lawma8i&+

3/ ?illespie is more negative# can only have input if join &CCB or %ABC


53/101


54/101

LECTURE $M: Thursday $M -#vember

C#&tr#l a&d supervisi#& aspects #' the 6iet&amese Le+al System

- ight top-down control-

2edefining socialist legality@other of all legal watchdogs- Why do we have it- :ow does it fit into the constitutional structure

orn out of 2oman history

"fficials with these titles in numerious jurisdictions- Latest were in &ietnam and China

)oviet e,perience- 'eter the ?reat- 2eborn under Lenin

Constitutional status

)tanding Committee has right to judicial en uiries

0isputes were only of < +inds93/ 'ersonal$5amily


55/101

As legal watchdogs they fit in at a number of points big picture# and thene,ecution of judicial process

'ositivist approach law is orders collection of orders as to rights and duties of the public to be strictly observed

Assertive words used throughout

5orces onorous duties on the officials they are part of the system- Enforcement for people A 0 the enforcers

Constant series of duties and counter-duties- End up with layered system of legal administration- @ost cadres# officials# prosecutors# judges are very reluctant to do anything

themselves for which they themselves are visibly accountable- 0ecisions end up being group decisions

Legal administration has it!s own responsibilities- herefore they must find things that they are doing wrong- ?oes round and round and round

Bf you have a foreign investor what do you advise them- Local administration involves licenses# the ability to do things- hings have improved# but still absurd F= steps to ride a bicycle in )aigonZ- 'eople have learnt to wor+ this system# adept at dealing with the LA(E2E0

LE?AL A0@B B) 2A B"

&ietnam is a wash of agencies that are inspecting# controlling to ensure theiractions are lawful1 'arty and 'eople!s Committees have their own inspectionorgans at each level1 @ass orgs have their own inspection organs also1 ut the'rocuracy created by the 34K< Constitution is the primary legal watchdog of theadministration1

C" ) B % B" AL B 52A) 2%C %2E

'arallel structues- Control and inspection permeates at each level

1! )upreme law ma+ing body is the -ati#&al (ssembly- @embership and operations are less supreme than the Constitution would

suggest- "nly body that can ma+e and amend the constitution- )upervises and controls the government @inisters must come before them

and defend budget# activities etc


56/101

Article N- 2epresents a :%?E e,ception to the language that governs the A- 'ar+s the party outside the constitution subject to const and law % very

few references to A in the constitution

-

'arty also has it!s own body of legislation completely parallel bodies to thegovernment- Bn effect it is 7another state8- @ass or social organisations

Bnfects every other part of the legal administrative structure- ut to a lesser effect now less interference# can!t be micromanaged at every

level

$! 2i&istry #' )ustice- 2an+ed on basis of power comes in at [N-

Bnfluence within the government is high,! Supreme Pe#pleAs C#urt- 0idn!t e,ist for awhile- :ead is member of the ational Assembly# term of F years- Acts as the highest adminstrative court in the land- )upervises all lower courts- Acts as appeal court

4! Supreme Pe#pleAs Pr#curacy- )upervisor and controller of all legal affairs .of all legal entities/-

:ead is member of the A as well- 2ole of legal watchdog

:ow are these bodies all supposed to wor+ together

;1 Pr#vi&ces- Each has a 'eople!s 'rovincial Council

- :ave elections and provincial legislators- he e uiv of the govt is the 'rovincial 'eople!s Committee

-

2eal power lies with them .they are the e,ecutive/- Along with the Council have substantial powers of law ma+ing- 0ecentralisation problems are these laws correspond to national laws- he 0ept for Court *udgement E,ecution has to ensure this happens

- Each has a 0epartment of *ustice- 0ual management model9 means that the head of the 0o* is responsible

to < bodies the '' Committee and the @o* .reporting re uirements#needs of national legislation J @o*/


57/101

- 'roblem of localismZ cases with the 0o* defending judgements thatinvovle companies that are owned by the '' Committee

- Each have 'rocuracy which is watching enforcement# ma+ing of judgements.all legal affairs/- "rders of the court-

Enforcement of the judgements- 'rovincial 'eople!s Courts

;MM Districts- :ave replica bodies courts# procurator offices etc

'eople don!t +now whose case is whose- elow the national level things are not pic+ed up much- At the 0istrict level things are often ignored- 5rothing at the local levels

ureaucratic socialism Z- elow the districts are # hamlets# each of which has its own

infrastructure have &55# officials- his is what affects FS of the population- his is where all the unrest if coming from- %nwarranted ta,es# ta+ing land# interfering with daily life- op has yet to come up with how they are to deal with these issues at the

lower level

And you have the 'arty is involved at every stage

Also have the 5atherland 5ront invovled apart from the 'arty:B) B) :E )ALA0 "WLZ

'opulation is about m- Large amount of the popn wor+s in the public service

'orter9 Every organisation has it!s own supervision and control prepare reportsas to whether it meets targets etc1 @ore than an A? role1

)ud+eme&t a&d E&'#rceme&ts- 5ailure to +eep up with legal reform comes down to the courts- o 7neat answers8 to this issue- *udges appointment procedure and salaries- Corruption


58/101

3/ Why is e,ecution of judgements so difficult

- Lac+ of judicial independence- ringing actions against )"Es- Bncorporation of moral code-

Bne,perienced judicial officials


59/101

LECTURE $1: Tuesday $9 -#vember

"D% L(7 > PR(CT%CE N1

%nli+e most foreign analysts Linnan probes beneath the surface and loo+s at =

different points of view%&stituti#&al Capacity- he ability to implement law reform- 5lags raised with rule of conventions- Analysis of thin to thic+ 2"L- What is often missing is the institutions to actually implement the law reform

but design or oversight- he 'rocuracy strict compliance and procedure legal integrity#

enforcement of civil judgment- 2e uirement of W " legal audit must file memo of law how L) wor+s

and why it satisfies the standards re uired by the W " - C*E issues raised9

- access to courts#- impartial judiciary#- e,ecution or enforcement of court orders

etween the @o* and 'rocuracy there is much bureaucratic shuffle each tryingto protect itself# blaming each other - 2esult is that creditors will not use the court system easily in order to obtain

judgment- Bn our society# if end up in court# must have made a bad decision anyway

"#rei+& Direct %&vest#rs- )et up business or invest in e,isting business- :ow do they loo+ at the situation in different countries- :ave analysts legal ris+ analysis carried out before carrying out business- Local partner may be able to oust you from the business

0#ver&me&ts- ry to mitigate the ris+- ilateral Bnvestment reaties . B s/

ilateral rade Agreement .described W "G/- Attempts to set out the protection provided- asic rule is national treatment- o e,propriation without compensation- "ther rules setting up principles of arbitration- :ow particular different investments are to be handled .manu vs services/

- %) has B s with every country in )EA


60/101

(SE(- )ome coys in )EA formed a regional mar+et within which they could more

easily trade with each other as well as setting up an investment area .Chinata+ing a disporportionate amount of investment/

@oved very slowly on the 5 A

Bnvestment area has some common rules for foreign investors A)EA now has signed in principle to create an 5 A with China in the ne,tfew years

Also wor+ing with Bndia Creating B &E) @E A2EA)

".RE%0- %-6EST2E-T L(7S- Leading force in legislative change has always been foreign investment- :ave to be highly competitive in stri+ing balance between national interests

and attractiveness to foreign investors- 34 N9 0ecision made to enter the doi moi era-

34 K9 Law drafted by the 'arty- 34 M9 he Law- )eeing that China started its 7doi moi8 in 34M4 using foreign investors

capital# +nowledge to open its economy % always in combination with stateenterprise

- 0eng \iao 'ing!s ability to capture state enterprise!s interest and ma+e themrealise foreign investment would aid their own development

- 5oreign investor economies ta+e root in preferred Dinvestment 6ones!- Chinese 7)pecial enterprise 6ones8- Bntroduced in < provinces in 34M4 and e,panded gradually- )pecial concessions made# land provided

0radualism dual trac8 t# le+al cha&+e- ;ey approaches that lead to success of opening up of the Chinese mar+et

and 50B in China- along with strong government support from e,isting institutions

0id the political logic of reform match up to the sufficiency of legal reform- 'eremboom9 Legal system is not wor+ing as it should- 50B is approaching T3b per wee+- )o how is economic development not hindered by this 7legal system which is

not wor+ing8-

here are problems# corruption etc1Land law is so socially sensitive- either the Chinese or &ietnamese did anything with land law until M$ years

into the system .or marriage law# domestic contract law/- A lot of legal change to 50B related law commercial arbitration# B'#

competition law9 tried to perfect a greater certainty to area of investment- 0eregulation of state enterprises mar+et-set prices


61/101

- 'rivate economy and )"E in between sits the 50B economy- eed to balance interests of these economies national interests

.employment realities etc/- 5amily economy family businesses - these are the job providers- Bnvestors get greedy as they try to impove the legal certainty of investment

ris+ went from B s and L As to92%Ts =2ultilateral %&vestme&t Treaties! 2%(- Attempt lead by "EC0 of 'aris to bring in standard worldwide investment

protection treaty- 5ailed- )upported by Canada# %)# Western Europe# *apan O ) ;orea- 2est of developing world said no enough protection e,ists no standard set

of protection rules that can fit all the countries

Ca&adaAs hist#ry-

Long history- Capital importing coy bonds# e uity investment- 2emained concerned about93/ )ensitive industries9 communications# broadcasting# ban+ing# publishing#

airlines# health O education policy wise they are senstitive to nationalwelfare an identity


62/101

- urning into an e,port powerhouse where it has comparative advantage most due to 50B

- *o+e in &ietnam9 defn of &ietnam of a millionaire is a person who started outbeing a billionaire

- Bnvestment results in both China and &ietnam has been disappointing-

@ore disappointed than happy investors- he attractiveness of the domestic Chinese mar+et want to get mar+etaccess

2(-UL%"E %-D.-ES%( C(SE

- 3F-3M year time span- interplay of at least = legal systems- what can we learn from this case

1! "D% perspective- rying to set aside the sale- @anulife e,periencing problems at home- an+rupt9 could have declared a dividend but didn!t and also didn!t pay out

claims they said they were fraudulent declared insolvent- Bllustrates failure of state protecting foreign investors

$! D#mestic Busi&ess C#mmu&ity- @anulife was willing to ta+e the ris+s# deserved what they got- here were actually factions within the community- 0harmala seen as being on the fringe of community# previous history

,! 0#ver&me&t- Bndonesian govt thought it was functionning o+- Canadian appeals were counterproductive undermine legitimacy and

development towards 2"L

(l'#rd eyes- Careful in where we start our e,amination of a foreign L)- )alad bowl analogy using idealised version of certain things to ma+e

judgments

Li&&a&As appr#ach- a+es more micro approach loo+s at different group!s perspectives- 7Bnside out8 approach combines perspectives to reach a broader one- Bnvites us to come to a conclusion from our own legal culture- @ajor point of diversion from Alford!s approach is where he starts his analysis

internal perspectives


63/101

: %' advisi&+ -#rtel ab#ut i&vestme&t i& %&d#&esia what e''ect w#uldLi&&a&As piece have #& y#ur le+al ris8 mem# t# them

)upposing that @anulife realised that 0harmala was a dicey business# what ris+-minimising steps did they ta+e-

ringing in minor partner increased li+elihood that investment will be treatedfairly by the host government- Bnvestment financing Corporation J e uity arm of the World an+ would bring

sanctions on Bndonesia- etween them had K S which in most cases would give sufficient leverage to

stall any ban+ruptcy proceedings- 0iscovery that Bndo and Chinese business community is highly fragmented

grudges still held etc1

etter intelligence on local business community- 5ormal and informal-

Bnformal enforcement measures in the culture- 0idn!t loo+ after debts lac+ed mutual business support within the communitymarginalised

- Bnsolvency seems to follow their standing in the local business community

reatment of majority shareholders- 5raudulent device said they!d already been sold to 7mystery companies8

Bn the late !s the 0harmala group was one of the largest business empires inBndonesia

Where Linnan went deeper than Alford# is that he went into every interest groupthat had an interest and e,amined their perspectives deeply1 :ad no intent to putthe blame on any party1

What else could @anulife have done- Corrupt courts K S investment gone- Assets withering- N S in Western )amoa# :;Y- "nly option left was to appeal to Canadian govt

5ocusses on underlying culture behind Bndonesian business community- he system won!t necessarily enforce promises- Even if party deserves help# the informal system is more powerful than the

formal

he outsider has to better understand what ca& be e pected #' a LS


64/101

- 5oreign investors are best advised group# who find out how their investmentwill be treated

Linnan says ris+ analysis can only go so far the community itself may have itsown e,pectations of how the L) will wor+1 Bt has other functions .to share loss# to

punish disrespectful# marginalise the uncooperative companies in the businesscommunity even if they have foreign partners/

eed to loo+ at formal# informal systems# different players# price of reliance.promises of e,isiting government# parties/ what are the fall bac+ plans

?reatest ris+ was that they had bad partner partner who was not supported incommunity# government was aware of this and let it happen usually intervene inban+ruptcy proceedings# but not in this case1

Approval$disapproval system

ot saying it is wrong Linnan offering perspectives on how the system actuallywor+s

Bf don!t understand wor+ings of the L) can!t ma+e ade uate ris+ analysis9insider perception is best approach


65/101

LECTURE $$: Thursday $H -#vember

"D% L(7 > PR(CT%CE N$: C3%-(AS C(SE

Summary #' last wee8As class

Linnan9 things are not always as they seem to be

- Loo+ed at case to reiterate the uestion of ris+ and assessment of ris+ andthe appreciation for formal and informal remedies that has to be considered ifloo+ing at a L)

- 0on!t do it so you bac+ off your own value judgments# but realise that thesewill affect your conclusions# but shouldn!t affect the things you see

- Bnvestors loo+ for a prominent Bndonesian partner .usually Chinese/ whooperated conglomerates .which started small and then developed and madestrong connections with the government state contracts and support/

-

@anulife too+ World an+ as a partner as life insurance .W bac+ed investor/- ;new it would ta+e time to find a local mar+et niche- Went into a system understanding the dominant business interest in *a+arta

didn!t depend on the L) for their legal status etc1 it was there but more inform than in substance would never have considered using the Bndonesiancourt system to press a claim

- Would adopt local wor+ings avoid courts# illusory no guarantee of gettinga result

- @anulife operated in what was really an 7e,tra-legal environment8 that wasthe only rational and adverse way to operate determined choice of partner#way they did business# the way they pressed their claims

-

Bn 344M$4 Bndonesia put into trusteeship under W committed itself tohundreds of law reforms for protection- )uch as9 corruptcy court# regulatory industries- 5ormal laws are very firm# but simply not implemented well- Bnstitutional incapacity again# no support from local business community- 5ew companies were put into ban+ruptcy# the e,ception seemed to be the

0harmala group either balantly avoided it by avoiding judges orreciprocating between themselves .paying others debts trading of debts/

- After 344M# given law reforms and W views from 7outside8 were verystrong 7spotlight8 on Bndonesia

- )ubstantial mar+ets in Bndonesia-

latancy of 0harmala!s conduct that came to the attention of the internationalbusiness community- :; and )pore courts were used open court proceedings evidence of what

0harmala was doing- Linnan showing ust that the same set of facts within the same L) are viewed

differentl( and if you are to understand them# you should at least be able toidentify them


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- Alford says as long you are clear about your own values# and haveresearched history thoroughly# you have duty to ma+e a conclusion as to thestate of that L)

- Bf providing ris+ analysis# can e,ercise value judgments but ma+e sure youunderstand parties stance# interests and motives

-

Linnan developed these perspectives- Alford understand full meaning of 7law8- Linnan used 7formal8 and informal8 to distinguish substantive legislation and

the informal L) which was often highly practiced

C3%-(

Susa& Shir8: C#&cept #' /Creepi&+ mar8etisati#&- :ow 0eng \iao 'ing developed rolling reforms# collaborate with foreign co!s- :ave to deal with the devoltion of authority to local interests-

o the point now where see+ing membership to W " F changes to law A lot of investors are now multinationals e1g1 oshiba

- E,port from there

BERR@AS PRESE-T(T%.-

P#tter a&d Pere&b##m articles

- eed to loo+ at full conte,tual framewor+ of the 7guiding principles8- 7Law on the page and law on the pavement8 analysis- China moving from authoritarian socialist economy mar+et economy has adual system state control vs opening up- road survey in terms of development process since 34M- :istorical bac+ground in footnotes- 0on!t go in to boost local economies# do it to further national goals- Encouraging e,port industries# indigenous industries- 'otter!s analysis highlights the conflicting entities and competing interests- ased on regulatory system9 government is in control- < perspectives9 *apan and East Asian!s BC .newly industrialised countries/- )how importance of state as critical catalyst for developments- 'roblems in this9 corporatist allies# implication is there is potential for

corruption- 0oes it actually contribute to underdevelopment- )ubordination of local to national interests

ut investors will +eep saying there is money in China# general trend is good#opportunity of profit is great tempting to go and jump in as well- loo+ at what the project is going to be# where investment will ta+e place- )EE A LE


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The tri'ecta #' le+islati#&

Any contract that is underta+en must comply with rules and regs .not justnational# but industry and location specific ones/

- Bf don!t comply# can!t get approved by the state# can!t invest in China- Loo+ at contract# impact on local and national interests# how negotiations too+

place

'otter9 potential that it imposes too great a restriction on investors

Civil law only lip service- "nly further entrenches control of government

'owers of review are very limited

"verall conclusion9 )tate has fundamental control

a, incentives but have to submit report state is given a lot of financialinformation about the company

PR.BLE2S:

L#calism- Local and state interests increase in autonomy as a result of !s reform

increased the power of local interests and economic regions-

2eduction in central control- Local ties and business relationships .informal structures/ have larger impactin reality similar to @anulife

- Can!t rely so readily on any national rules of regs- Local govts can better align themselves with capital corporatist allies etc1- )hift in priorities local interests and benefits to community are subverted to

commercial interests of investors- ?overnment has little ability to ensure local entities abide by national regs

%ncertain nature of foreign policies in relation to 2"L

Pere&b##m l##8s at whether R.L is &ecessary '#r i&vestme&t +r#wth

1! "ewer pr#blems tha& perceived- 0oes constitute significant ris+

$! %&vest#rs are t rati#&al

,!


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- Loo+s at capitalism# corporatism etc1- ;aren *ones 72ule of 2elationships8- Chinese capitalism9 relationships# informal mechanisms# confucian principles- Complementary but a few hiccups- )ome informal mechanisms are dependant on formal structures e1g1

mediation and arbitrationWea+nesses9- 'layers are a one off - 'ollution

Clientalism O Corporatism

- :ori6onalism clientalism9 relationships between regulators and regulated- )tate relationship strength of state and autonomy of interest groups- )tatist Corporatism# falling more on side of authoritarian-

)erve to undermine 2"L- Cannot develop further without 2"L and if it could# then would be at sta+e of

justice etc1- @ay want more assurance than 2"2 can give

4! 0r#wth rates c#uld have bee& hi+her - Could have invested more# pulled bac+ on best technology

'erenboom states reduction in 4 !s might have reflected investors! better+nowledge

0uideli&es themselves are particularly va+ue- lac+ of transparency- ambiguous terms and guidelines and conflict with W " want to maintain

control of the system- Licensing system downloaded to local authorities# and are allegedly loosening

areas of business for areas that are encouraged- 7guidelines8 intepretive document for information of foreign investors

- what does it mean to the licensors- 7 rade and service8 pg F


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2"L comes up in foreign investment all the time

0omestic industry states they want similar treatment- seeing fusion of domestic and foreign rules

e,t wee+9Compare the &ietnamese scene# address any concerns and uestions related tothe e,am


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LECTURE $,: Tuesday $ December

"D% L(7 > PR(CT%CE N,

&ietnam!s e,perience largely the same as China

, traditi#&al ec#mic u&its:3/ )"Es


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Distrust i& private sect#r - o do business in &ietnam# often have to get licences- &esting of authority in local auth!s is high- Cadres are very distrustful of the private sector becoming visibly more

important losing control- Accuses them of not paying ta,es "#rei+& %&vestme&t- :oping foreign investment will stem the tide of- ry to +eep employers in villages# out of city- 5oreign aid to provide for social safety net training for state wor+ers who are

made redundant

C#&clusi#&: 6ery cauti#us pra+matic admi&istrati#&- 'ractive legal gradualism# moving in steps that can!t always be predicted- Changing framewor+ foreigners then foreign investers then farmers- 'rofit from instability- Can!t lose face- ational treatment is being reinforced by the trade agreements they have

entered will be trying to enter more agreements

Perversitites- Children of leading party officials are often wor+ing in the private sector - "ften foreign trained don!t go bac+ to wor+ in state entities

LE0%SL(T%6E "R(2E7.RI

- @ost changed f$w in any area of law- 2ace for investment dollars 34 M 7doi moi8- 344< const was the first to legitimise foreign investment law- Loo+ at 'age F


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- Bmportant as it 7saved8 the state enterprise sector .would be performingdismally themselves and lifeline provided by *&s/

- End up with sub-mar+et monopolies- Ensure they have mar+et will train labour force# will ta+e care of e,ports#

B'2!s# money# e,port re uirements in e,change-

Anti-trust$competition laws implemented to eliminate the sub-mar+etmonopolies .trade agreements re uire this/

*&!s have problems9

)#i&t ma&a+eme&t- Bmportant decisions .hiring of e,ecs# compensation# dividend policy etc/ have

to pass through a oard- E5"C!s emerged as ways to get around .bought out &ietnamese partner# or

established own co!s and got licence/- 'rovincial 'eople!s Committee )"Es M S-

?ovt +new couldn!t get doi moi in front door or bac+ door unless had coop of'rovinces- Lead by city provinces very possessive administrations- '"E!s are dominant partners and under provincial legis and regn that these

co!s are predominantly managed not often uniformly managed- Always in bind can!t increase number or diversity of source of 5E!s without

giving more discretion to the local level- "icti#& #' u&i'ied state ma&a+eme&t ? ide#l#+ical pri&ciple: dem#cratic

ce&tralism =it is t a 'ederal system simply e te&ti#&s #' +#vt ? but aret i& reality!

$! E".C J (rt 1

33-AsiaPacific Fall03 Neilson Teresa

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