Abstract: Both the South Korean and Thai governments encouraged consumer credit card usage to boost consumer spending and reinvigorate the national economy following the 1997-98 Asian financial crisis. Today, almost a decade following the crisis, the authors provide a comparative analysis of how policymakers in both South Korea and Thailand have attempted to regulate the rapid upsurge in consumer credit card debt in their respective economies. This Article also notes some of the benefits and risks of the approaches taken by the South Korean and Thai governments, using as focal points the South Korean government's Individual Debtor Rehabilitation Act, a personal debt relief program introduced by the Thai Ministry of Finance in 2005, and a series of Bank of Thailand credit card regulations.

Tipping the Scale to Bring a Balanced Approach: Evidence Disclosure in Chinese International Arbitration

Bryant Yuan Fu Yang & Diane Chen Dai

Abstract: Due to the ever-increasing trade between China and the rest of the world, commercial disputes have risen dramatically. Many foreign companies choose to resolve these disputes through arbitration to circumvent the Chinese courts and to retain more autonomy and control. Arbitration itself can also be a problem because rules and laws differ, depending on the jurisdiction and the institution involved. Under China's civil law tradition, arbitrators are restricted in their ability to force parties to disclose evidence that may be detrimental to their case. Additionally, arbitrators have no authority to obtain evidence from uncooperative third parties. This Article seeks to provide some guidance for parties engaged in arbitration proceedings in China.

Comment: Geographical Indications in China: Why Protect GIs with Both Trademark Law and AOC-Type Legislation?

Bradley M. Bashaw

Abstract: Geographical indications identify the place of origin of a good and signify a distinctive quality, reputation, or other characteristic of the good that is essentially attributable to that geographic source. Besides serving as source-identifiers and guarantees of quality, they are valuable business interests. Consequently, World Trade Organization members are required to afford them protection under the Agreement on Trade Related Aspects of Intellectual Property Rights. Signatories are free to choose the legal means by which they comply with TRIPS. While a few states rely solely on unfair competition law to meet their obligations, most primarily rely on either trademark law or GI-specific laws often modeled on the appellation of controlled origin ("AOC") system first developed by France. The People's Republic of China utilizes both trademark law and GI-specific legislation.

China would benefit from abandoning its AOC-type system of GI protection. Protecting GIs with both of the world's primary protection systems generates uncertainty and conflict; the hierarchy of rights granted by the two systems is unclear. China's AOC-type system of GI protection does not confer benefits beyond those provided by its trademark-based system of protection. China's trademark-based system is not perfect, but it satisfies China's international GI-protection obligations, better reflects the motivations behind China's recent amendments to its intellectual property laws, and better serves China's current economic and legal goals.

Comment: Reconciliation in the Wake of Tragedy: Cambodia's Extraordinary Chambers Undermines the Cambodian Constitution

Tessa V. Capeloto

Abstract: Between 1975 and 1979, the Khmer Rouge regime was responsible for approximately 1.7 million deaths caused by deportation, starvation, murder, and torture. In 2001, Cambodia established the Extraordinary Chambers, an internationalized domestic tribunal, or "hybrid court," to prosecute the perpetrators most responsible for these atrocities. As the Cambodian government's primary legal response to the Khmer Rouge, the tribunal conflicts with the requirements of Article 52 of the Cambodian Constitution, an article that requires a policy of national reconciliation to ensure national unity. Cultural conceptions of national reconciliation coupled with the legislative history and purpose of the constitution strongly suggest that this provision disallows the Cambodian government from pursuing laws and policies that undermine truth or national healing. However, because of the Extraordinary Chambers' questionable impartiality, limited public involvement, and constrained personal jurisdiction, this tribunal undermines the very truth and healing that are essential to national reconciliation. Cambodia should therefore look to other mechanisms of transitional justice to supplement its tribunal. Given the political and economic infeasibility of a "truth and reconciliation commission," Cambodia should establish informal mechanisms of transitional justice to supplement its tribunal and further national reconciliation.

Comment: Common Ground in the Sky: Extending the 1967 Outer Space Treaty to Reconcile U.S. and Chinese Security Interests

Alex B. Englehart

Abstract: A storm is brewing 100 kilometers above the Pacific Rim. The early 21st century finds the People's Republic of China in the throes of astronomical economic growth, national development, and military expansion. The United States, meanwhile, is staunchly determined to develop an effective missile defense system and to extend its military capabilities in space as it pursues its global war on terrorism. China sees U.S. military space activities as a threat and, along with Russia, has pushed hard in recent years for a ban on all space weapons. So far, the United States has been unwilling to negotiate on the subject, claiming that the 1967 Outer Space Treaty-which bans weapons of mass destruction in space, but not other weapons-is sufficient. Pursuing space weapons without coming to an understanding with the Chinese does not serve U.S. national security interests. There is a better way.

Article IV of the 1967 Outer Space Treaty should be extended in a targeted manner that will alleviate the worst of China's worries-space-based kinetic kill vehicles and lasers, and ground-based anti-satellite weapons-while at the same time leaving the United States plenty of room to pursue its other military and strategic interests in space. By following the examples set by UNCLOS III and the ABM and SALT treaties, China, Russia, and the United States can amend Article IV in a way that will be acceptable to all sides.

Comment: Toward a Legislative Solution to the Growing HIV/AIDS Epidemic in Russia: A Case for Expanded Health Privacy

Carrie C. Gage

Abstract: The Russian Federation faces one of the fastest growing rates of Human Immunodeficiency Virus ("HIV") infection in the world. In 1995, Russia adopted comprehensive legislation addressing HIV and the disease caused by this virus, Acquired Immune Deficiency Syndrome ("AIDS"). The legislation prohibited discrimination based on HIV infection and provided access to medical care for people living with HIV/AIDS. Having recognized that Injecting Drug Users involved in sex work will likely act as a bridge to the general population, the Russian government has recently taken greater steps to curb transmission. Russia has moved to decriminalize the distribution of hypodermic needles for prevention of infectious diseases and has committed to increasing HIV/AIDS funding. Given the Russian government's recent dedication of additional funding to combat HIV/AIDS, this Comment seeks to identify potential barriers to HIV/AIDS prevention in existing Russian law. In both testing and treatment, inadequate protection of private health information may discourage individuals from learning their HIV status and seeking treatment. As such, an effective legislative solution to Russia's growing epidemic must include greater protections for health privacy. Comprehensive health privacy legislation in the United States may provide a framework for enhancing existing health privacy protections for individuals living with HIV/AIDS in Russia. Despite differences between the legal systems of Russia and the United States, Russian law, like American law addressing health privacy, should clarify the statutory right to health privacy, the remedies tied to the violation of that right, and the path to legal redress for the right's infringement.

Comment: Vietnam's Decree on Microfinance: A Flawed Attempt to Create an Enabling Legal Environment for Microfinance

Elin M. King

Abstract: Despite its increasing as a development tool microfinance still faces significant barriers in reaching the poorest of the poor. Microfinance programs often respond well to short-term needs but are not designed to handle the long-term struggles faced by lending institutions. To resolve these problems, many in the microfinance field have begun to tout the concept of creating "enabling" legal and regulatory frameworks. Such an enabling environment would ideally eliminate unreasonable barriers to entry into the field, encourage innovation, and reinforce industry best practices. An enabling regulatory scheme could also increase legal certainty, encourage more investors to enter the field and allow microfinance institutions ("MFIs") to raise money by accessing world financial markets.

In an effort to create such an enabling environment, Vietnam passed a Microfinance Decree in 2004, creating a separate regulatory scheme for microfinance institutions. Prior to the passage of the Microfinance Decree, the legal status of microfinance institutions in Vietnam was very ambiguous. Although the Microfinance Decree creates a more predictable and stable environment, it does not achieve many of the goals of an "enabling" environment, and it threatens the viability of many of the MFIs already operating in Vietnam. The new framework makes strides by clarifying the legal status of MFIs and allowing them to become deposit-taking institutions under limited circumstances. The new law also contains provisions aimed at increasing professionalism and encouraging long-term planning. Unfortunately, the Microfinance Decree also contains provisions that may discourage commercial and foreign investment in microfinance and create unnecessary burdens for small MFIs. In order for Vietnam to truly enable the growth of microfinance it should enact new provisions to protect small MFIs, encourage new players to enter the microfinance field, and continue to develop the regulations underpinning the Microfinance Decree.

Comment: The Human Rights Costs of China's Arms Sales to Sudan-A Violation of International Law on Two Fronts

Stephanie L. Kotecki

Abstract: As an emerging world power, China has a crucial need for oil to meet its growing fuel consumption. It has invested heavily in Sudan, a country with extensive and productive oil reserves. However, this partnership has an ugly side. Sudanese militia groups, as well as government troops, have been committing gross human rights violations against residents of the Darfur region. Meanwhile, Chinese arms manufacturers have continued to export weapons and military equipment to Sudan, with the full knowledge of the Chinese government. Many of the weapons used to raid villages in Darfur were manufactured in China.International norms have evolved to regulate the global arms trade. State usage of these norms and the general belief in their force both support the argument that these norms now qualify as customary international law. These potentially enforceable norms require that arms-trading nations implement and enforce strict export regulations on licenses for arms shipments, in order to keep those shipments from going to unstable destinations where there is a high risk that they will be used to perpetuate conflict or commit human rights abuses. China's arms trade to Sudan violates this standard and is arguably a violation of international law. China is also violating international law by aiding and assisting the government of Sudan in the commission of crimes against humanity. Sudan is committing human rights abuses against civilians in Darfur, which is an internationally wrongful act, and China is complicit by indiscriminately providing the arms that are used in the attacks. China should make the necessary changes to its arms export practices and regulations to align them with international law, and should immediately halt further arms shipments to Sudan.

Comment: Women's Land Rights in Rural China: Transforming Existing Laws into a Source of Property Rights

H. Ray Liaw

Abstract: In the aftermath of legal reforms designed to secure land tenure for farmers, women in rural China lost rights to land at marriage, divorce, and widowhood. Despite a central legal framework that facially protects women's property interests, ambiguity in the property and marriage laws have allowed village leaders to reassert traditional social norms and deny constitutional equal rights guarantees for women. Recent attempts to ameliorate landlessness for women, specifically in the Rural Contract Law and the Property Law, offer little promise of providing a significant solution for rural women. New proposals to mitigate rural women's loss of land rights must be framed in the cultural context of how social relations affect land rights. Legal reforms in rural China should focus on strengthening women's property rights within marriage, as well as securing external rights to property. Women's land tenure would be better protected under a more clearly defined community property regime that recognizes rural land contracts issued both prior to and during marriage as jointly possessed. Such measures would give women access to a legal platform at divorce or widowhood, when they are most likely to experience landlessness.

Comment: Litigating Labor Rights Across a Demilitarized Zone: The South Korean Constitutional Court as a Forum to Address Labor Violations in North Korea's Kaesong Special Economic Zone

Lavanga V. Wijekoon

Abstract: South Korea heralds North Korea's Kaesong Special Economic Zone as a shining example of inter-Korean cooperation. South Korean corporations at Kaesong combine South Korean expertise with North Korean labor. However, Kaesong operations violate the North Korean workers' labor rights.This Comment explores the legal mechanisms available in South Korea to hold violative South Korean Kaesong corporations accountable. The South Korean Constitutional Court should entertain a constitutional petition from the North Korean workers. Such petition will compel the South Korean government to recognize the North Korean workers' rights under the South Korean Constitution and hold violative South Korean corporations at Kaesong accountable through stricter regulations and sanctions.

Practical and procedural obstacles hinder Kaesong workers from pursuing relief in the South Korean Constitutional Court. First, the North Korean government bars the workers from leaving North Korea. Second, the South Korean Constitutional Court bars third parties in South Korea from filing a petition on behalf of the workers. Third, the court has no clear jurisdiction over constitutional claims brought by North Korean workers in North Korea. Fourth, the court bars suit under pseudonyms, leaving potential petitioners vulnerable to retaliatory employment action.

Given these impediments, the Constitutional Court and the South Korean legislature should look to international developments in procedural law that facilitate transnational rights litigation. The court and legislature should adopt new court procedures that permit foreign petitioners physically absent in the jurisdiction to file in the Constitutional Court. Further, the South Korean government and South Korean shareholders of Kaesong corporations should take measures outside the courts to hold the corporations accountable.

Volume 17, Number 2

The Representative Power of the Shareholders’ General Meeting Under Chinese Law

Charles Zhen Qu

Under China’s company law regime, the power to represent the company resides not in the board of directors but in an individual person called a legal representative (fading daibiaoren) who is a senior officer of the company. The mechanism of legal representative, however, is often rendered ineffective as it is inherently susceptible to abuse. The mechanism becomes dysfunctional when the legal representative is unavailable. The legal representative’s unavailability, especially when the board of directors is also ineffective, raises the question of whether the general meeting has the power to control corporate actions. To answer this question, this Article considers the legal nature of the legal representative’s role, examines the allocation of the company’s decision-making and representative powers, and reviews a small corpus of recent cases which have been or could have been decided on the basis of the general meeting’s power of representation. This Article argues that the legal representative should be regarded as an agent rather than as an organ of the company, and a company’s general meeting should be able to exercise the company’s decision-making and representative power when both the board of directors and the legal representative are ineffective, given the nature of the legal representative’s role and the power allocation under the company law regime in China.

The Territory Federal Jurisdiction Forgot: The Question of Greater Federal Jurisdiction in American Samoa

Michael W. Weaver

The United States Territory of American Samoa is over 7000 miles from Washington, D.C., and that distance might explain the United States’ limited interest in the territory. The lack of interest has allowed American Samoa to maintain its unique cultural foundations. However, it has also kept American Samoa detached from the federal governmental structure, including the judicial system. In fact, a federal district court does not exist in American Samoa, nor has the territory been incorporated into a federal judicial district. A lack of a federal presence has not been a major issue until recently. In the last few years, the U.S. government has begun to prosecute American Samoan residents for violations of federal law. Without a federal jurisdictional presence, these prosecutions have taken place off-island impacting the constitutional rights of American Samoa residents. These renditions have increased calls for the creation of a federal district court in American Samoa. While a greater federal presence would be helpful, the creation of a district court is unnecessary. A better solution would be to increase the current jurisdiction of the local territorial judiciary to incorporate greater federal jurisdiction.

Granting Permanent Resident Aliens the Right to Vote in Local Government: The New Komeitō Continues to Promote Alien Suffrage in Japan

Miles E. Hawks

Throughout the world, the dominant suffrage model has been voting rights based on citizenship. However, the trend of globalization, the increase of cross-border migration, and the advent of supranational institutions such as the European Union have prompted many countries to reconsider the relationship between nationality and voting rights. This has resulted in a growing trend, beginning in Europe and spreading most recently to South Korea, of adopting a notion of suffrage based on residency and community rather than citizenship. Japan is currently considering legislation, known as the “Local Suffrage Bill,” which would allow permanent resident aliens (“PRAs”) to vote in local elections. The Constitution of Japan grants the right to vote solely to Japanese nationals. However, Japan has an ever-increasing PRA population and a growing interest in alien suffrage. While there is opposition to the movement, the Japanese Supreme Court has held that granting suffrage to PRAs on a subnational level is constitutional. In 2004, the New Komeitō, a member of Japan’s ruling coalition, resubmitted its 2000 Local Suffrage Bill to the Diet. Passage of the bill would allow Japan’s PRAs to more fully participate in Japanese society and would have an impact beyond simply following the global trend in alien suffrage. With Japan facing a looming social security crisis that necessitates a sustainable influx of foreign laborers, an alien suffrage bill could encourage long-term migration and help ensure Japan’s continued economic success.

Comment: Picking Up on What’s Going Underground: Australia Should Exempt Carbon Capture and Geo-Sequestration from Part IIIA of the Trade Practices Act

Adam M. Andrews

Australia has identified carbon capture and geo-sequestration (“CCS”) as a partial solution to the problem of global warming. CCS involves capturing carbon dioxide from large point-source emitters, such as power plants, and injecting it deep below ground level for disposal. Australia has not yet enacted CCS-specific regulations. As it stands now, Australia’s third-party access law, Part IIIA of the Trade Practices Act, creates regulatory uncertainty for CCS infrastructure projects and will deter investment in the industry. This regulatory uncertainty results from the ambiguous criteria used to determine whether a piece of infrastructure is appropriate for third-party access.

Legislators could address the ambiguity of Part IIIA by creating an industry specific third-party access regime for CCS. However, doing so would be difficult without foreknowledge of how the industry will develop, would generate significant compliance costs, and would also likely deter investment. In the near term, CCS should be exempted from Part IIIA altogether to encourage private companies to invest in CCS. Exemption would provide investors with the expectation that they can recoup the costs of their investments without submitting to mandatory access requirements.

Comment: Counterfeit Pharmaceuticals in China: Could Changes Bring Stronger Protection for Intellectual Property Rights and Human Health?

Dina M. Bronshtein

Although China seeks to improve its image as a legitimate participant in the global intellectual property (“IP”) market, Chinese companies continue to produce more than thirty percent of the counterfeit drugs circulating in the world today. The counterfeit pharmaceutical industry profits from efficient and cost-effective production systems by producing counterfeits at an exceedingly low cost. This poses a serious problem because the production and sale of counterfeit drugs leads to negative economic and social health-related effects. China’s existing penalties for counterfeit pharmaceutical production are considered a mere cost of doing business in China, rather than a deterrent from engaging in counterfeiting. China’s national government has taken several steps to fight against IP infringement, but despite this effort, the growing power and autonomy of local governments has complicated and exacerbated the problem.

In order to become a legitimate and reputable force in the international economy, China must take greater steps to limit the production and sale of counterfeit pharmaceuticals. First, China must amend its laws to include penalties that will effectively deter actors from entering the counterfeit market. Second, China must allocate a significant amount of resources to the judicial system to ensure that adjudication is effective and efficient. Third, China must fight localized corruption at its source to increase enforcement of IP rights. Specifically, an agency should be created to target local corruption and to disestablish the counterfeit pharmaceutical market. This agency should have investigative and auditing power and should work to educate both the public and the business community on the problems posed by counterfeit pharmaceuticals and the means used to counter them.

Comment: Australia’s Northern Territory National Emergency Response Act: Addressing Indigenous and Non-Indigenous Inequities at the Expense of International Human Rights?

Jenna Gruenstein

In 2007, Australia passed the Northern Territory National Emergency Response Act (“NT Emergency Response Act”), ostensibly reacting to a recent report detailing exceedingly high levels of sexual abuse of Aboriginal children. This Comment argues that the NT Emergency Response Act likely violates Australia’s obligations under the United Nations’ (“U.N.”) International Convention on the Elimination of All Forms of Racial Discrimination (“Racial Discrimination Convention”). The NT Emergency Response Act provides an opportunity for the Racial Discrimination Convention’s enforcement body, the Committee on the Elimination of Racial Discrimination (“CERD”), to extend its application of the specialized guidelines for indigenous peoples beyond the land title and land use matters. The entire NT Emergency Response Act likely violates CERD’s indigenous policies, as it was passed without the meaningful participation or informed consent of indigenous peoples affected by the Act. Specifically, the land title portions of the NT Emergency Response Act violate Australia’s obligations under the Racial Discrimination Convention because they do not allow for indigenous peoples to use or control their own communal land.

CERD should expand its previous use of General Recommendation Number XXIII on Indigenous Peoples (“General Recommendation”), a 1997 CERD document that lists the specific responsibilities States parties have towards indigenous peoples. CERD should use the General Recommendation to analyze the non-land title provisions of the NT Emergency Response Act through a model that combines the informed consent provisions of the General Recommendation with the traditional nondiscrimination norm of the Racial Discrimination Convention. Combining the informed consent and nondiscrimination modes of analysis enables CERD to better address the unique and sensitive issues related to indigenous rights; by so doing, CERD will likely find that many of the non-land title provisions of the NT Emergency Response Act violate the Racial Discrimination Convention.

Comment: Making Good on the Promise of International Law: The Convention on the Rights of Persons with Disabilities and Inclusive Education in China and India

Vanessa Torres Hernandez

The Convention on the Rights of Persons with Disabilities conceptualizes disability as a human rights issue and requires state parties to provide an inclusive education to all children with disabilities. However, China and India, the two most populous signatory countries, do not currently provide inclusive education—described by the Convention as nondiscriminatory access to general education, reasonable accommodation of disability, and individualized supports designed to fulfill the potential of individual children with disabilities. Though both India and China have laws that encourage the education of children with disabilities, neither country’s laws mandate inclusive education and neither country currently provides universal education to children with disabilities. Furthermore, both countries lack the funding and teaching force to enforce existing laws or provide inclusive education. Assuming that India and China intend to comply with the Convention, the United Nations must use the Convention to persuade China and India to also change domestic laws and facilitate the involvement of non-governmental organizations that can help increase and effectively use fiscal and human resources necessary to provide inclusive education to all students with disabilities.