Band 3, Heft 1

This paper, using Hong Kong as a test case, challenges one conventional theory and confirms another one in law and finance study: (i) legal families in relation to stock market development; (ii) transplant effect of foreign laws. Economists, most notably La Porta and colleagues, allege that common law systems can offer superior investor protection and thereby facilitate the rise of financial markets. Undeniably, the legal system of Hong Kong, which was inherited from England, belongs to the common law family and is widely considered as one of Hong Kong’s advantages. Nonetheless, the high concentration of family ownership among Hong Kong companies implies that its system is not entirely Anglo-Saxon. Moreover, legal scholars, most notably Pistor and colleagues, claim that the import of laws from a developed system (legal transplantation) will have little impact unless there is such a demand in the first place. Interestingly, for Hong Kong, the transformation of a small fishing village in the mid-nineteenth century to a financial service-oriented economy nowadays is an illustration of the existence of demand in corporate and financial laws. By absorbing the nutrients from English legal traditions, American style of intense public enforcement and the flexibility of Chinese family businesses, Hong Kong has successfully established itself as one of the most crucial financial centers in the world.

In this paper we investigate empirically the determinants of judicial behavior at the Philippine Supreme Court in the period 1986-2010. Our results show some alignment between individual Justices and the interests of the presidential appointers, although it varies across presidential terms. We discuss these empirical results in the context of the Philippine’s unstable democracy and the implications for the comparative literature on judicial behavior.

The sanctity of private property is an essential requirement for economic prosperity of an economy. However, in some countries, the ruler who is supposed to ensure the supremacy of private property is sometimes seen expropriating private property. In this circumstance, judicial independence is vastly required to restrict grabbers from attenuating property rights. Because court plays an important role not only in interpreting the law but also bears the responsibility to ensure the rule of law. This paper first, looks for the judicial independence in South Korea through the lens of constitutional review. In relation to property rights, constitutional reviews were required if any clause in the existing laws goes subversive to private property. The paper then analyzes some widely cited cases relevant to property rights issue before and after the establishment of the Constitutional Court in Korea. The analysis shows that in the pre-democratic era the court’s activities were frequently intervened by the government and hence the court did not possess sufficient power to uphold the spirit of private property. However, in the post-democratic regime, the court has been bestowed with adequate discretion and therefore, property rights are better protected.

The Capability Approach envisages a human-centred idea of development instead of an income-based idea of development. Economic development is only one of the components in human capability development. Economic development by itself cannot ensure capability promotion amongst individuals, specially in developing countries like India where majority of the population suffers from various kinds of capability deprivation. What is required under such circumstances is enabling the population to make use of economic development by enhancing their capabilities. The judicial system is an important institution in this regard. However, judicial interpretation in India is not helping the cause of capability promotion amongst the population. The judiciary is blinded by the rhetoric of economic development. Judicial interpretations show that the judiciary believes economic development by itself is sufficient enough condition in the development of the country and its people. This article, by choosing the example of labour law, shows that the judiciary is acting under a mistaken belief of development in interpreting labour jurisprudence in India. If human development is the goal of the labour laws, the judiciary needs to focus on providing social and institutional conditions for the promotion of capabilities rather than eroding such conditions in the name of economic development.

Ten years after the Japanese Supreme Court established a duty of care for employers to guard employee health, incidents of death by overwork remain critically high. This Note argues that the Dentsū standard of near-strict employer liability does not create sufficient incentives to prevent karoshi. Applying Steven Shavell’s insight that a victim who knows his injurer will be liable for damages will not be incentivized by the law to prevent the harm, the Note explains why neither employees nor the employers responded to Dentsū. It concludes that Dentsū is correctly understood as cause of action in tort for survivors of karoshi victims, not a vehicle to change the Japanese workplace.

Using a game-theoretic model of criminal procedure, we investigate relative merits and demerits of discretionary and mandatory prosecution. The game illustrates a prosecutor's dilemma associated with his two tasks: evidence production and case screening. Discretionary prosecution makes use of incriminating evidence to dispose of weak cases, but discretionary prosecution may suffer the moral-hazard problem in evidence production more seriously than mandatory prosecution. Our welfare analyses suggest that mandatory prosecution outperforms discretionary prosecution when evidence transmission from the prosecutor to the judge is accurate and/or when the cost of litigation incurred by the prosecutor is large.

Data crosses national borders routinely. And any regulation on data privacy by an individual national authority could easily have ramifications beyond its jurisdictional boundary. This article lays out some of the relevant issues and provides an argument for international coordination and harmonization. As technology advances, various techniques are being employed and will continue to be employed to gather information on users. At the same time, with the information thus gathered, companies engage in highly sophisticated data analytics. In response to these developments, several national and regional authorities have put forward major reform proposals and discussions are under way. The current framework of addressing data privacy issues at a country level or at a regional level, however, has a risk of splintering the overall regulatory and enforcement regime at the global level. This article examines economic incentives of individual authorities and illustrates that, without international harmonization, there is a systematic risk that global welfare would be reduced due to individual authorities’ sub-optimal regulations. The article then discusses possible options for international coordination and harmonization.