lecture 1: thursday 4 september - university of...

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- Not this path as it is from one’s perception- Origins, how is it fashioned and used – perceptive analyst- Law and practice

But what is law??

1) Formal - statues, rgulations/subordinate instruments- how officials interpret regulations- bureaucratic manuals

2) Informal- non-public law- UVic has right to create own regulations- Private statutory body – NYSE

Public vs PrivateJudicial

Law has many faces – legal culture

Looking for instruments, ideological context surrounding them

An inquiry into a foreign legal culture where we admit out shortcomings (looking at it with Alford eyes)

Rule of Law- Set of Western democratic legal norms that increasingly aid organisations,

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

- Very complex formula- Captures whole set of minimum cultural requirements for political and

legal systems- Different layers/greys

- Looking at bills – effectively and apolitically made

- Assumes elections, civil society present i.e. liberal governance culture – i.e. huge assumption

- Need to hold back ROL view (look at origins)

Page 19 Peter Fitzpatrick (Aust critic)- “All theory” – not how it really works, there are faults

Focus: ASEAN member states and China and HK

A lot of comparatice law is Euro-centric esp. W Europe and US- Saw law as rules (instrumentalist view)- Started looking at “legal families”1) Civil law2) Common law3) Socialist law- Economic and political developments have forced focus to Asia and its

laws

Australian Journal of Asian Law- Regional legal experience- Historical, social, cultural diversity – no “Asian” legal system

Thailand -> Germany, Switzerland, FrancevsSingapore/Malaysia -> British

Indonesia -> Dutch- A lot of customary law- Adat system customary law?- More like ‘first nations’ customary law- Social, community and legal rules accepted holistically by society- “village-based”- self-managed system- property sucession, ceremonies, marriage, language- infused so much into lives that it becomes part of who they are

- concerned with social order and stability- oral, not static – affected by religious factors (Islamic laws)- Can’t improve the system without considering - Formal- Adat practice- Religious law

Vietnam: “The law of the King stops at the village gate”Vietnam has village code-based legal systemHuong Uoc – social order and stabilityTried to codify adat – didn’t work (Dutch) Indonesia

Colonists have exploited village codes- Tired to codify them to establish stability and order (turned them into

coercive instruments)

Legal system is a “vessel”

Conclusion1) Look at legal reception and its variety in reference to SEA2) Legal systems develop, are constantly evolving- No such thing as a pure copycat transplant – too diffused – may “look the

same”3) Avoid the legal families trap

Comparative law doesn’t need compartments, requires profound understanding of local knowledge and global knowledge.

LECTURE 2: Tuesday 9 September

Recap of last class- Defining how we approach materials, what materials (Clark article), were

written at different times- Reflect substantial uncertianty about researching Asian law- Not much substantive legal writing of Asian legal practice- Sally Mary her discipline wasn’t law – “legal systems”- Gary Bell Singapore – Canadian trying to define attributes- Legal traditions, legal culture, legal systems

Legal Culture- A layered intermingled concept- Formal and informal law within its setting- History, institutions

Western comparative approach:

1) Legal families - “Familiar legal families”- socialist, civil, common and “residue”- Hindu, Muslim, village/customary law

2) Descriptive analysis- “Pick a country and write it up”- Neutered system of analysis

3 Conclusions

1) Avoid the legal families trap (Eurocentric and exclusionary)- Local knowledge and global doctrine is needed

2) Legal systems grow out of legal receptions - The law in a particular territory (formal/informal or state-centered or

‘private ordering’) that in fact the legal system is a collection of legal receptions – in a constant flux

3) For comparative law diversity, look to Asia- Not a system of residual law- Veronica Taylor: can’t say there is an Aisan legal culture/system

DEFINITION OF “LEGAL RECEPTION”‘Transmigration of law’ study

BC- 1853 passed the English Law Act

- What colonies do to bring in colonist’s law but keeps room for own development

- Sale of Goods and Bills of Exchange Acts were originally fully transplanted – has been amended

Transplantation- Watson’s article: rarely uniform or complete (adminitered and interpreted

differently)- Applied law is different from formal law e.g. Singapore - Law of defamation – freedom of speech law- Censorship through private law (often against government)

Migration- e.g. Roman law to Scotland – still evident- Has a mixed legal system – Roman and British- Scottish Court system totally different from UK

Transfer- Unthinking physical act (voluntary/involuntary?)

Transposition- 2/+ things changing place

Imposition- Involuntary reception of law

Emphasis in most comparative analysis is to look at state/formal law- State – generator of formal law- Person – relations, the other side of the equation

Grafting- Suggests conscious layering of legal principles- Infused and becomes one- Sometimes refection, infection, good health

- Means new life if successful- Grafted law by definition – locally suitable law that has come in part from

another’s experience- No domination – better result

Innoculation- Introducing cells/organisations into a culture- Preventing disease, helping survive

Engulfment- Negative e.g. Serbia, Iraq, Myanmar/Burma

Parallel Development- Many examples in commercial law

Satelisation- WTO models for admittance and compliance

Emulation- Imitate zealously- SA constitution – Canadian Charter “ROL state”

Salad Bowl- Vietnam – 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 exercises

deficient (can’t get a holistic sense of where law is going)

How do you examine a legal system which is in constant flux?- New laws affect previous laws made- When new laws made, need to look at old ones but it is hard to do this in

some countries- In many developing countries add:

“Any conflicting laws existing are now null and void” [null and void clause]- Have no choice if want to be the law in effect- Most drafters and law makers don’t care

1) Consequential Amendments- Other provisions in other Acts that are affected by new law (identified,

gives readers knowledge)

2) Interpretation Act- Affects all legislation framework can amend old legislation- A running capacity to continually develop

3) Revised Statutes Act- All consolidated and reprinted

Most countries don’t have the above three => can never catch up

ALSOLimited Parliamentary time to consider legislation- Often have to wait 6-12 months to pass amendments and in meantime old

law is in effect and constant confusion exists

Important consideration for AP region

- Many countries are in process of modernisation of their legal systems (e.g. China and Vietnam)

When we look at legal reception, keep practival considerations in mind

AUTHORS

1) Sally Engle Merry- LEGAL PLURALISM: 2 or more co-existing legal systems- Speaks to multitude of sources of law]

- Observations on colonised law are very Westernised“Living Law”- Refers to fact that there are legal rules, traditions and customs that affect

a lot of people all the time- Regulations: Might have more impact on a certain group than the Act itself

i.e. just as important as formal law

We tend to see law in state/citizen views- ROL norms: device for looking at the state/citizen relationship - Role of state, constitutional rights as well as duties for citizens

2) Gary F Bell- Singapore legal system- Wonderful legal laboratory- E.g. of post colony legal system transplant and migration (which has to

be reconsidered, rejected in some areas, adoption of Islamic law)- Trouble defining legal culture – system, traditions- A lot of international influence – ASEAN, independence- In flux – cultural roots are deep – based on race and ethnicity- Colonists law has been reconfigured in country’s interests

- Grand theory is badly disguised effor to use our current values to judge other countries- Not a plea for relativists approach- Need ot understand previous legal experience

Alford looked at Cohen and Victor Lee- Said that even though carry out comparative analysis need to be mindful

of reliable sources- E.g. 60’s China – interviewed refugees in HK- Ansley – Chinese Court is not a Court


Alford: read carefully in context- A constitution is a continuing document- Don’t take descriptive approach- “Ideological formula” for a state (changed often) – developing countries- Dualism approach in many countries- versus ‘Rights documents’ versus ‘rights and duties documents’

Hong Kong putting forward new law in interests of national security vs citizens rights (freedom of speech)

Recap and conclusion

1) Legal systems have pluralistic sources- Territorially based system that governs relations between state vs persons

and persons vs persons- “Rules” = norms of conduct, behaviour, regulation - i.e. normative framework for public/private and private/private relationships- “Multiple legal receptions” – implied transplants, involuntary/voluntary etc

2) Vessel has levels- Formal/informal- Customary law, village law- Totality of these legal receptions is something called living law – think

more holistically (go beneath the surface)

3) When we look at another legal system need to look at evaluation character

“values prism”

Emphasised by Alford and Co.- Clive Ansley: his way of showing his prism – “not a court”

4) Mea Culpa point- Acknowledge our shortcomings of “sources”- Always deficient in our research for reasons such as language barriers,

time restrictions- “Formal” what is actual practice- What is “law”

5) Any comparativist must look at foreign systems with respect, fairness and rigour

- See page 37 Alford

6) This can rarely be done. Why?

1) Purely descriptive analysis is easier and it sells2) Few of us have the training/language skills in foreign cultures that it calls for3) The sources beyond formal published law are often elusive (Clark)4) Our “prism” is very seductive (hard to shake off)- Separation of powers not in Canada- Canada has “judicial independence”- When people discuss “governance”

- “Contracts are contracts” sanctity of contracts underpins our market system - but often handled differently (only a framework)

- “Due process” has no exception- English term comes from a different beginning

- National laws must be implemented and administered uniformly5) ROL norms:- Have become master inventory of good governance law- Law and development movement- Not a single government outside the developed world who doesn’t say

they aren’t a ROL state- vs Rule By Law (RBL) – we are law-based, have constitution that

regulates government take offence at comparison with ROL norms6) In some areas of legal change- Formal law- Analysis has been assisted by 3 phenomena leading to similar or

identical series of laws in countries1) Convergence – same on surface but increasingly common (words,

coverage method of regulation2) Harmonisation – terms (not necessarily identical) e.g. WTO3) Unification – e.g. International SoGA conventions and treaties

Trade, Commerce, FDI, Communications, IPSources:ICC – TreatiesWTO – ODA (Official Development Assistance)

While all these influences have taken place, difference between formal law and living law needs to be kept in mind.

Process of Legal Receptions

2 viewpoints:

1) The seller- Who is selling or providing the legal change (the champion)- Law reformers

2) The buyer- The recipient of legal change

Law and Development

The venue for buying and selling of change has predominantly been in SEA- Coming out of WWII, colonisation, getting caught up in Cold War (post

1945)

“LAW AND DEVELOPMENT”- Overview on page 56- Important legal change sales – caused by failure to appreciate difference

between common and civil law (Constitution is declaratory not operational unless are subject to separate legislation – Vietnam & Cambodia)

1) Law & Development I: Law & Development Studies – American Librarian- Would you call law and development a “movement”?- i.e. phrase, comes and goes, ‘missionary’- Said it was a US-driven movement sellers to buyers- Financed by corporations such as Ford, US Aid, Rockerfeller- Does law complement or follow development?

2) Law & Development II: Washington Consensus- Constitution of the movement- International Financial Institutes – IMF, World Bank- Says essential for development of democratic, openly governed,

accountable state without which there will be adequate social and economic development

- Economists stood up and said economic development should be tackled first legal development should follow

- “Economic roadmap”

By beginning of 90’s clear things weren’t working- After Cold War collapsed, cound had gone into L&D II- Economists didn’t have the answers- Buyers were transitional economies:1) Central Aisa and Eastern Europe previously part of Soviet Union2) (a) Non-communist heavily regulated country e.g. Indonesia

(b) Post-community regime: e.g. N Korea, Brunei, Philippines

SEA = diverse region- Singapore not a buyer- Indonesia- Buying power rose quickly

- 1998-2000 = major changes to the point that almost couldn’t absorb any more change

e.g. IMF – in order to have credit, had to make large changes

Washington Consensus says LAW is essential to development(supports contracts, increased investor security, requires accountable development)

3) Law & Development III: Legal Liberalism- 8 points why it didn’t work

1. Driven too much by sellers (mostly the US)2. Inability to transplant and put into effect well enough3. Often ill-suited: the wrong thing – not enough time spent to prepare for the

change and modify it to suit the environment

What is the different about L&D II?- Not as naïve as it used to be- Despite origins of WC (implies America) the legal change recipes have

very diverse originse.g. Swedes, Canadians, France, Danes, Aussies as sellers no uniform benchmark- Advising from different vantage points e.g. values and role of govt

- Buyers are increasingly sophisticated has been an increase in legal education

SELLERS

IFI’sODA e.g. CIDA – Legal Advice & Education

AUSAID “Technical Assistance”USAID – UNDP

NGO’s – Local level (funded by ODA’s)

Language of L&D II- What values should we bring to assessment- Reference to Confucian influence

HYBRID- Addition to ‘legal reception’- L&D II has accelerated creation of hybrid LS’s- i.e. Legal pluralism- Makes analysis even more difficult


Western Countries’ Legal Systems- Logical, formal and rational- Legal criteria and methods legal principles

China- Magistrates- Own interpretation and judgment of customary norms

Weber: “Arbitrary or irrational kadi justice”

Mattei’s Tirpartite Taxonomy

3 types of legal systems, based on primary source:

1) law2) politics3) religious tradition and philosophical

1) RULE OF PROCESSIONAL LAW / ROL2) RULE OF POLITICAL LAW3) TRADITIONAL LAW- “Oriental view of the law”- eg. China, Mongolia, Japan

All of equal standing

BUT Chinese Imperial system influence by Legalism and Confucianism not transcendental

QUESTIONS FOR CLASS DISCUSSION

1) Why does it matter how we ‘classify the world’s legal systems’?- Trying to understand the different ‘species’- Bring to mind what values we have when we look at legal systems- “The prism”- It still continues today- Need reference points to explain to people so they can better understand- Come from different backgrounds – inherent human nature to look at it

and compare from the legal system we know- China was classified under ‘Oriental’ or ‘other’- Method of legitimacy in his mind

Purpose of classification- Descriptive- Assessment

Sticks to formalistic law rather than from experiential learnings of the legal systems.

2) In very summary terms, why does China seem to pose such a challenging test case of “legal systems” classification?

- Believes that culture and traditionalist ‘box’ is not correct- Confucianism did not stand/fit with law- Has such a rich history and aspects that don’t’ come under any one

grouping- What viewpoint are they coming from?- Western is most likely comparative- Law historically was not resorted to in China magistrate performed all

functions, more concerned with social stability

“Bad to good …?”Primitive to modernIrrational to rationalTraditional to professional

Use the same lunguistic register to help them understand but not to measure

SINGAPORE- Article 152: Care for Malay’s culture- Education, welfare benefits

Lesson: Is there a typology?

- Suggesting that doing China a disservice- Self-fulfilling prophecy – no ROL- Although they may be getting there slowly- Shouldn’t keep boxing them into ‘traditional’ system

5) According to the author, we are witnessing at this time a “convergence in legal systems or at least greater consensus as to the merits of ROL”. What does he mean?

- Normative structure- Territorial: serves functions in each different country – structured this way,

depends who is in control- Economics: playing the game – Global overlay e.g. Treaties, WTO, IMF

- Converges at a point where we need to e.g. sharing space


Is Confucianism a “Legal Reception” factor?

- Way in which systems worked and administered and way people relate to the legal system -> Confucianism many feel common factor that affected

- Jiang ze Min – need of “rule of virtue” in China- Confucianism term- Similar expression have been used in speaking a lot Asian values and

citizen’s responsibilities to the states. Many feel rights and duties balance interest in Confucian philosophy

Pye: Closest model of Confucianism implanted in Vietnam but differeing interpretation of Confucianism

Looking at suggestion that Confucian values are inherent (both explicitly and implicitly) in architecture of LS in China and East Asia.

1) France and Italy from 1803 Napoleanic code- From language – 2 sets of obligations- Art 205 and 203 of Frence Civil Code- Appears that children (203) have 8-900 cases in Cts successfully sued their

parents for maintenance- Under 2nd --- parents and grandparents have also successfully sued children- Statement by Malaysian Finance Minister that Spre is a legalist state cf

Confucian state as if it was truly a Confucian state there would be no need to legislate the Confucian value of fillial party.

- Differences between Legalist and Confucian philosophy:- Relationships identified btw family and friends and treatment of these

relationships in code

From French Civil Code 1803, seems to be Confucian value but once you see “contract” probably not creation from an Asian LS.

Once you accept essential duty of fillial party and family as the cell of the family, can see in some way Confucian value influence.

- In China, fillial piery only restricted to parents - In law (constitution) but also set of social norms and if you breach these,

there may be legal censures as well as social condemnation- Law on one side and rest to it the set of cultural, social norms.- Some will say one law in China, theory on one side and practice on the other

Confucian Philosophy- Stable social and politival order in which humans could flourish, meant to be

highly practical and applied- Huge implications for morality and public good- Main concern of “what is the question of good governance”- Only mention of subjects, not citizens.- Took it as automatic that society divided into those fit to rule and those fit to

be ruled- Forms of egalitarianism absent- People must fulfil obligations appropriate to their social roles- Paternalistic attitude to the commoners and they are to be treated with

consideration and concern- Ruler has to deal uprightly with the people, this will inspire respect and

obedience, it will be earned. If rulers are good, no need for law to settle dispute since law of good always in accord with what is right

- Rulers and system had no place for stakeholders, no place for citizen groups, civil society, no partisan - moral authority of a good man is always absolute even if common people cannot understand the reason.

Definition of Confucianism- Is it a religion? - Some commentators style it today as a civil religion – no church, ministers- It is a way of conduct – it is an ideal society

Common for E Asian leaders to cherry-pick Confucian values, statements or condect to explain or defend systems of govt. In statements spoken about, usually have ref to family, shift, deference, statement of duty, little emphasis on rights – not a rights-based philosophy, work ethic, duty

1996 Malaysia PM declared that Asians are universal vlaues, European values are European calues1998 – shared values in Spore

All boils down to what Confucian means – Confucian influences in JapanDr Vai in 2 ½ years she’s been there no mention of Confucianism in Japan

How Confucianism can co-exist with other allegiences- From a Japanese perspective, they are the modern state – a civil law state

but can see Confucian values such as in Japan- Penal code, punishment for murder of fater much greater than of a stranger- Strong, prevalent idea of group responsibility in Japan – but yet, there also

co-exists presumption of innocence etc.

Many transitional states are adept at taking models and grafting them with their own history, their own application etc.

Law as seen in China – necessary to protect the state, the emperor, to achieve stability and order. Later on, see merging of legalist view and confucianism. Grafting confucianism into legalist school.

2) Necessary only to provide a back-up to maintain law and order

So true picture of moral duties and leadership which people would lazily term customary law

Qing code – vertical terms whereas Roman law saw law as horizontal, secular, provided secutiry for contract, for commerce but Qing code did not see it as the way Roman law did

Magistrate’s job was to maintain peace and stability first and foremost (not to adjudicate)Confucians viewed law as a necessary evil cos by right should not need law while legalists saw law as a positive tool in good governance.

Confucianism is not uniform even in ancient China, confucianism varied as the dynasties passed and now have neo-confucianism and leaders presently also use confucianism according to their objectives etc so that results in variations of confucianism.

“moderately well-off society” compare with “to get rich is glorius”

LECTURE 6: Friday 19 September

VIETNAM INTRODUCTION

Development

Free us from colonisationWe love our Soviet friendsThe American WarMarxist Leninism

Governing philosophy is now: Ho Chi Minh Thought- Collection of moral statements (much like Confucious)- Governance, fairness, equality, loyalty, patriotism- The “glue” that has ben contrived in schools, media- Provides check and balance in management of society

“Of the people, by the people, for the people” – 1945 Constitution

Were going to use Vietnamese to fight Japanese, but French were there- French had set up Vichy government in the area and installed officials who

accomodated the Japanese (who were allies of Germany)

Ho Chi Minh did get into Hanoi and read his Constitution governed the North for a short period

South: More commercially exploitable- Government movement was strong

Lord Mount Batten helped French keep control of Saigon (quelled local unrest)

US France China

Indicative of their resiliance and courage

Saigon = “Dallas of Vietnam”: corporatised, economy

Villages and States – GOVERNANCE- 80% of Vietnamese live in Villages- Vietnam had a Mandarin principle that exceeded that of China

slavish commitment to the embodiment, bearing of what Mandarins should look like to the extent that they were too separate from the people they governed

- Result: Uprisings and political, social instability

- Too much concerned with their importance- Warlords were prevalent village self-governance- Village codes became very comprehensive and developed

Doi moi: Economic renovation – the good aspects have always been there

Always “Vietnamese” variations- Tracking change in China Vietnam’s change often came 5 years later

The copy of the “Ching code” was almost identical but did not eventualte to be the same in application

- Single party wanting power affirmation- Now have a strong legalist approach- Politically law is an instrument of direction, stability and development- “Law can do anything” approach

VIETNAM TODAY- Family importance still prevalent more mobility- Women have more power

Previous classes:- Merchants were distained (concerned with money) – mainly the Chinese- Artisans- Peasants- Scholars

Family was an economic unit- Law affirmed protection of these units/lineage under stong male leadership- But due to mortality rates, elder women had to often take leadership- Law did not facilitate the fact that women had to take over – many people had

to ignore the law- Eg. Vietnamese women were able to inherit land from their parents (when

there was no son)

Family and Gender – 1992 ConstitutionNb. 4th Constitution since 1945

- New constitutions are not uncommon in socialist states- Reflect party policy- Ideological statement that legitimises changes to social, political order, foreign

policy

1986: Foreign investment commenced but not recognised until 1992 (when market was fully opened)- State enterprises could only engage in foreign activities

Chapter 5: Fundamental Rights and Duties of the Citizen

Umbilical cord which joins:1) State2) Family3) Society

- Goals should be the same - Holistic society- Parental leadership

State management

- Guidance and Supervisioncf

- Dictation and Coercion

Traditional Vietnam followed deep Confucian principles from:- Emperor, mandarins- Village communities best left alone as long as they didn’t ‘rock the boat’- Still paid “tribute” well into the 1950’s “Peace bond” even after China had left- Spices and other valuables to Peking- “kow towing” and submission before the Emperor act of obedience

- Vietnamese threw out people e.g. China went North

Traditional Vietnam allegedly survived on family-based principles - “Fiduciary communities”, self-sufficient, suspicious of authority, lack of

national unity and identity- Villages saw themselves as themselves – at most regionally/provincially- Family = CELL OF SOCIETY- Household Registration = rights

Q: Law reform based on foreign legal advice effect?

LECTURE 7: Monday 22 September

GLOBAL DOCTRINE & LOCAL KNOWLEDGE LAW IN SEA- Andrew Harding

What is the object of analysing another country?- Value-free or value-laden zone?- Prejudice- You won’t find law here – law works differently

Comparative Law Views

1) Cannot transplant law- There is no such thing as a legal transplant

2) Legal transplants are what start legal systems, they are the very essence of law (Watson)

- It is where global doctrine comes in- Civil law, common law, Islamic law has spread throughout the world

Jurisprudence didn’t helf in the slightest- “Blackstone’s Tower”

Legal Anthropologist – derivation of title- Global doctrine- Local knowledgee.g. Indonesia, Thailand

“Evolution of law and political theory in Indonesia”- Washington University Prof Dan Lef?- Law and legal traditions, politics and sociology of law- Fate of Dutch legal system and adat- Islamic Courts- Law and legal traditions looked at in terms of class- Marxist elements- Who is putting things forward and why

Question of application- Critical towards comparative law approach

Mathir triangle – updating the ‘legal family’

TRADITION: Religion & custom

LEGAL PROFESSION POLITICS: What the state imposesLegal families are useful in a very limited way

- Doesn’t even tell you the important aspects or differences- Even the change doesn’t help as some countries have all aspects of L, T & P

Diversity of SE Asia- Legal pluralism is not dealt with- Society is different – what is common is the pluralism of each society

Should find out how the LS works with the pluralism present – not what is wrong with it

e.g. Malaysia- Malay custom, adat- Indigenous communities all totally different- Chinese immigrant communities- Indian Hindu law- 178 ethinic groups- Orang Asli 19 different sub-groups but lumped together as one group

Malaysian Court using Australian and Canadian precedent to develop their laws when it seems there aren’t many similarities

Because there is so much pluralism, everyone is respected and accomodated. It would be dangerous to try and put them all in one box governance

Socialist law in Vietnam Revolutionary rol in Indonesia nationalism (to resolve Dutch law, adat

customary law and Islamic law conflicts all had bad points) Economic development and integration (IMF requirements)

Positive and Optimistic Outlook- Have adopted Westernised framework (common or civil law) BUT content is

very pluralistic- Recognises existence of the other kinds of law e.g. Malaysia and Indonesian

Courts recognise certain aspects of village customary law- Legal pluralism is embraced within the Western legal system – which is quite

a feat- An achievement to have developed the LS they have arrived at

Page 45“ROL itself is a competing value-system rather than a basic condition…calls a ‘working misunderstanding”

In Western LS it is so fundamental that it is almost always assumed it is a given. In SEA context, the prevailing view is not always that the ROL should always apply.

Thai’s have their own way of making things work – it may be illegal but not entirely illegitimate

“Law must always be applied, certain etc” may not always be self-evident in the SEA context

Other value systems such as religion, informal markets, realities of economic development sometimes need to take priority

“Working misunderstanding”- ‘Order looks so much like chaos’- LS’s actually do work!- The groups don’t actually have a very good understanding of the other

group’s law (is acutally about)- Cultural tolerance goes hand in had with polarisation tolerate needs and

requirements but not necessarily understanding what is behind it

Indonesia- Customary law is acknowledged maybe not to the extent of being the primary

law system- Used in dispute resolution, personal law, Court’s considerations

Adat is coming back – original autonomy drive officials at local level given more power and accountability- People have wanted adat to come back- Based on values, harmony, collective rights and interestes – encouraged

advanced models of democracy- BUT difficulty in applying adat in modern, commercialised cities


INSIGHTS INTO THE MODERN CHINESE LEGAL SYSTEM

Meaghan Sunderland’s Appeal article

ALFORD- Be careful about being careful- Outsider’s view still valid as bring different perspective – part and parcel of

academic exercise- Cautious legal scholar – skewed perspective

SUNDERLAND- Appeal process- Use of capital punishment- Use of mitigating sentencing- Sentencing of corrupt officials

Imperial/modern comparison good, not comparing with Western LS

Words suggesting a skewed view- Modernisation- ROL naturally we ‘aspire’ to – less capital punishment- Moving towards internationally acceptable norms – positive steps

Does China actually want to change?- Pressure from international community to change- Stifle criticism- Self-moticated – acceptance into the WTO

Strike hard campaign anti-corruption- Continued through 97 and 98- Some argue present time

Ansley views that there are actually more capital punishments carried out now- “Immediate” execution – more or less certain- Execution after window period – usually meant wouldn’t be executed

Death sentence with 2 year suspension

Group responsibility not carried over to the same extent- Punishments on family members- Not so much a problem- Li case is an exception – are certain manifestations of it but lesser

occurences- Local magistrate not always “local” prevent corruption

Lai Changxing case: CLIVE ANSLEY

Principle legal issues:- David Matis is Lai’s counsel- Decision is perverse- 2 expert witnesses to which the Board did not refer to at all in their reasons- Bulk of documentary evidence should have been disallowed because of the

conditions the statements were given- Read like Stalinist confessions- Given after hours of interrogation by police- Nothing has been cross-examined- Counsel not present for these people

Page 164: Cohen- Similarity to Euro not Anglo-American- Setting up for lack of acquittals

Comes from different perspective but speaks at length of lack of fairness in a number of cases- Deficiencies in the process etc- Honesty of judges, whether Courts are trying to be fair? not fair to say he

didn’t- Exclusion physical evidence can be admitted but statements should be

excluded at trial

Canadian based view: comparison of Chinese legal system – person could be deported and executed different prism

Judicial Committee- How to judge it from what viewpoint?- Judged it from its own standards- If they tried to follow the law (statutes)- Governments efforts to enforce ROL

- The law is not followed JC is a prime example of it- Cohen talks about JC problem that those who hear case are not present

BUT JC created as judges were not officially trained – was a check- JC is nowadays used more often, gives recommendations- What is shown is FRAUD – assumes the judges are the ones making the

judgment while in fact decisions are made out back- JC 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 the reasoning)


INSIGHTS INTO THE MODERN CHINESE LEGAL SYSTEM

1) Meaghan Sunderland’s Appeal Article [CB 175-188]

Alford [CB 31-37]- Be careful about being careful- Outsider’s view still valid as brings different perspective – part and parcel of

academic exercise- Cautions legal scholar – skewed perspective

Sunderland- Appeal process- Use of capital punishment- Use of mitigating sentencing- Sentencing of corrupt officials

Imperial/modern comparison good, not comparing with Western legal system

However, words suggesting a skewed view:- modernisation- ROL naturally we ‘aspire’ to less capital punishment- Moving towards internationally acceptable norms positive steps

Q: Does China actually want to change?- Pressure from international community to change- To stifle criticism- Maybe self-motivated acceptance into WTO, economic incentives

Strike-hard campaign Anti-corruption- Continued through 1997-98, some argue to present time

Ansley views that there are actually more capital punishments carried out now- “immediate” execution more or less certain- execution after window period usually meant wouldn’t be executed

Death sentence with 2 year suspension

Group responsibility not carried over to the same extent- Punishments on family members- Not so much a problem- Li case is an exception are certain manifestations of it but lesser

occurances

Local magistrate not always ‘local’ prevent corruption

Guest speaker: Clive Ansley – Lai Changxing Case

Principle legal issues:- David matis is Lai’s counsel- Decision is persevere- 2 expert witnesses to which the Board did not refer to at all in their reasons- Bulk of documentary evidence should have been disallowed because of the

conditions the statements were given- Read like Stalinist confessions- Given after hours of interrogation by police- Nothing has been cross-examined- Counsel not present for these people

Cohen [pg 164]- Similarity to European criminal process not the Anglo-American one- Setting up for lack of acquittals – more competent Chinese defence lawyers

Comes from different perspective but speaks at length of lack of fairness in a number of cases- Deficiencies in the process etc.- Honesty of judges, whether Courts are trying to be fair? not fair to say he

didn’t- Exclusion: Physical evidence can be admitted but statements should be

excluded at trial

Canadian-based view: Comparison of Chinese LS person could be deported and executed (different prism)

Judicial Committee- How to judge it from what view point?- Judged it from its own standards- If they tried to follow the law (statutes)- Governments efforts to enforce ROL

- The law is not followed JC is a prime example of it- Cohen talks about JC problem that those who hear case are not present

BUT JC created as judges were not officially trained – was a check- JC is nowadays used more often – gives recommendations

What is shown is a fraud – assumes the judges are the ones making the judgment, while in fact decisions are made out back.- JC never signs any of the judgments- Will be written and signed by the trial judges- Told the decision and have to come up with reasoning

LECTURE 10: Friday 26 September

LECTURE 11: Tuesday 14 October

CAMBODIAN INSIGHTS- Guest speaker: Gordon Longmuir

Progress of governance post-UNTAC- Post 1993 “coalition” fell in 1996/7- After 1998 = new coalition – hasn’t really fulfilled objectives to achieve

democratic constitutional country- ROL – judiciary problems- Discredits trying to achieve international respect and standing- Highest HIV AIDS per capita in Asia- APEC membership has aided – joined the WTO- Worries for international investors- 80% of Cambodians still live in the countryside- Monarchy may not survive once Queen dies- CCP Han Sen may reign with authoritative power- Perceived as ‘party of stability’- Very little democratic tradition

UNTAC period- There for a year and a half- Rushed the process until 1993 election- 20 000 people, $2 billion- 30 years of war – presence was unsettling but without them free democratic

election wouldn’t have happened- Surprised Royalists won- Disarmament of Khymer Rouge didn’t happen but wasn’t UN’s fault

factions within the army

Cambodians are primarily Buddhists- Moral breakdown as urbanisation occurs- Indonesians, Thai and Filipinos

1998 elections- CCP won majority but not 2/3 majority- Protestors and demonstrations- Recent elections: peaceful debates

Establishment of the Tribunal- Final agreement signed this year- Final legal obstacle is for National Assembly to pass and ratify the agreement- Agreement states it has to be in accordance with Cambodian law- Cambodians were firm in requesting majority of judges be Cambodian- $19m voluntary fundin plan- may cause delays (like Sierra Leone) - 3 year estimate

- Section 12: Cambodian law otherwise international law- Co-prosecutors and investigating judges from international legal community- Agreement doesn’t deal with former pardons (not sure if it will be a bar to

prosecutions)

- Amnesty International & HR Watch, Cambodian International- S – UNGA should approve it will never be perfect- A – urges it doesn’t meet international HR standards

1) Cambodia’s Judiciary- 70’s killed or escaped- 80’s Vietnamese rule: little education or training

2) Legitimacy- Tribunal dominated by Cambodian judges?- Satisfaction and participation

3) ROL- “Lawless state”- which international law will apply?

4) Statute Amendment- super majority formula- When will it actually be used – acquittals

5) Only leaders and those most responsible will be tried- Political compromise- Local leaders had orders discretion and interpretation

(Domestic leaders)

Good site: Youk Chhang Documentation Centre

10 judged – why 3 years?How far down do you go?

Requirement more for stability cf democracy?- Set up the foundations of institutions that will later bring democracy

1991 peace talks- Khymer Rouge involvement- Han Sen didn’t want their participation


- Vietnam unlike many developing coys has always been a nation- Not an artificial creation of a colonial power- This has meant they have had a lot of experience with centralised

administrative systems (pre-dating the French times)- Vietnam is the product of many years of civil strife and conflict- Vietnamese society has revolved around 3 sub-systems

1) Neo-Confucian state- Mandate of Heaven (Emperor and mandarines)- Seen as static, anti-growth- Peaceful existance sought- Feudal period was one of constant social upheaval- Has made Vietnamese v suspicious of administrations, adept at getting

around national law and policy (have not historically trusted the centre)2) Home Village- Always seen as a protection from the demands of the state- French invaded the village through taxes etc- Largely self-governing3) Family or Kin Group- Stongly entrenched, but more in north than south

At height of the empire there were only 40,000 French, 30 million Vietnamese, 320,000 other “foreigners” (mainly Chinese) – let in increasing numbers into the South. Seen as colonisers as middlemen (traders etc.).i.e. 8 times the number of Chinese than French – but still small number of foreigners.

JD

During the French colonial period in Vietnam, France apparently established a “parallel legal system”. Why was this doen and how did this “dualism” work in practice?

1. Economic- Competition with GB to expand it’s boundaries- Wanting to assimilate rather than take over and exploit the country

2. French Colonial Traditions- Try to change as little as possible the institutions of the country- Alliance with natives was important for them

3. Difference between French and Vietnamese legal systems- Fundamental differences in culture and law- French civil code is a Cartesian creation – strict and logical method of

interpretation and compliance with provision

- Judges in civil system aren’t bound by precedent therefore must be a strict interpretation

- Going with the Vietnamese “virtuous man” approach would have been too hard

Treaty of Napoleon ordered the colonisation of Vietnam

Dualism2 sorts of courts as there were 2 administrations- French – Cochin, Tochin and Annam- 5 courts, each with own jurisdiction

- Feudal Court – Tochin and Annam- Didn’t apply French judicial system- Competence was rationae personae

Tonkin---------Annam Hue – until 1984 Tributary ‘state’ of China---------Cochin China

Why the French separated the legal system- Tried to keep 2 systems of administration- Didn’t want to separate themselves from the native population- In the end they did – there was too much control over feudal courts, French

judges tried to apply old Vietnamese laws but not successful, application of French laws

France’s main goal was to start up an Asian empire (ie commercial objectives)- Confucian system was not feasible for this objective- No rights, uncertain – not good for carrying out business

“Clash of the codes”- French civil law system versus the existing Vietnamese code (which was

interpreted locally but was derived from Chinese precedent)

French approach to governance nearly destroyed village governance which was extremely disruptive and hurtful. Ironically, the attraction of the French legal system surfaced in the late 1980s and we ask ourselves why. Why was the pinnacle of the new Socialist Vietnam said to be their code which was largely from their French roots. The only conceivable answer was that they saw in the French code a method of legal government and state management. The civil code opened the door to that method of reform.

Carl

Vietnamese Communism – “intrinsically nationalistic”

How did the application of this “apaptationist ideology” materially change the principal features of the legal system established by the French?

Features of the French Legal System

1. Social stratification- “civilising” mission- exacerbated by different legal systems, taxes

2. French Interference- Leaders who should have been there were standing down- “tools” of the French

3. Land tenure- Fully exploit agriculture- Estates larger, went to French and odd Vietnamese collaborator

4. Taxes- Had to hand over yield- Freestanding or head tax on males- Village leaders had to collect them which further undermined their popularity

(was it an objective to undermine the village governance)

- Nutrition of the people by second world war was sub-standard- Polarity of the people

Communism

Doctrinaire – followed closely the continental communismAdaptionist – although sought to preserve Leninst and Marxist concept, ensured warm reception by taking into account local culture (espouse the spirit but “radical ruptures” was not really what was needed or would work)

This is what Keyes was meaning in that it was “intrinsically nationalistic”

Idea that communism existed in Vietnam for a long time and Ho Chi Minh just actualised this.

Thinking through what has been covered today

- Look at governance system today

- There is an amazing parallel towards view of village and central governance- Most of the local villagers today complain about multiple taxes, source of

substantial grievance (i.e. similar to the French system)- Land takeovers and creation of large farms – today they are the second

largest form of grievance- Adaptationist response – prevailing ideology is not called Marxist Leninism –

talk about Ho Chi Minh thought – patriotic principles - Has meaning for us as we will deal with definitions of socialist legality which is

has to be marred with HCM thought etc.- Strong Moral Personal leadership is often tied to the Asian legal systems

LECTURE 13: Thursday 23 October

HONG KONG and THE BASIC LAW: Reversion of HK to Chinese Rule

Forced merger of 2 legal systems: “One country, two systems”

Precursor for model for Taiwan

ROL again an issue

HK Island and Kowloon – main areas – New Territories = 90%

1841 British flag raised1860 Beijing occupied by British (acquire Stonecutters Island & Kowloon) and

French 1865 HK and Shanghai Bank founded1898 HK New Territories “leased” from China under 2nd Convention of Peking1911 Revolution abolishes Manchu dynasty1950 2 million ½ Shanghai moved to HK

Korean War1980 5.2 million1982 Talks with Britain 1984 Agreement1985 First elected members to Legislative Council1989 Tiananmen Square1990 Bill of Rights1991 Governor Chris Patten

Standing Committee of NPC- the executive department of govt of China- same in Vietnam, other socialist states- only meets twice a year- de facto consitutional Court of China but doesn’t operate like one

Legally Basic Law is Chinese law which delegates to HK

Q: Who has the final say?- How do you define the authority of the HK Courts?

LECTURE 15: Thursday 30 October

THE FACES OF SOCIALIST LEGALITY

Categories of Constitutions

1) The Interpretation Constitutions - Based on const/judicial review- Long lasting- Depends on recurring interpretations of it’s meaning

2) The Laws Enactment School - The words or rights that are conveyed by the const don’t take any life until

they become part of a separate laws - Organic normative laws: from law makers, affect population and are formative

(foundation upon which rights are built on)- Nobody around to interpret the constitutionality of the new law (no ultra vires

approach to judicial review) ie judges don’t have authority to review the constitution

3) Federal vs Unitary State Model- Reflect a unitary state vs federal state- Allocation of authority - Where is residual authority?

Would think Vietnam is a federal model (mention of “province” etc) but it is a unitary model.- More like province municipality - Unified state management- Democratic centralism: Leninist Marxist principles of management, very elitist

Separation of powers- Separate law makers, executive and judges- Not the same as division of powers- Vietnamese follow the division of powers approach- President of Supreme People’s Procuracy is a member of the National

Assembly- Hold office for the term of the national assembly and then have to be

reappointed- Judiciary is an arm of the state – is not seen in independent terms- Struggling now with how do they download sufficient independence upon

judges so that they can decide cases on clear principles as between litigious parties without detracting too much from what they think is a justified amount of control over the judiciary (to maintain political and social stability. In particular concern - for commercial cases.

One of the major distinguishing feature of constitutions is if they are:

1) State centred- State seen as giver of rights, provider to the popn- Vietnam

2) State limiting- Liberal Western constitutions- Concerned with state-citizen relationships but serves as a restraint on state

power and protector of individual rights

Want to hold onto state centred but in economics sphere Vietnam want to recognise private ppty, private sector, family economy, foreign investors made some adjustments Art 21: complete turnaround – now can take part in commercial activity unless

prohibited (reverse onus)

What is Socialist Legality?

3 fundamental priciples:1) People is owners2) Party is leader3) Government is managers

- Socialist legality follows doctrine of historical determinism- Theoretically goal is advanced socialism- Mixed economy subject to state management

What is the purpose of law in SL systems?- To create a state super structure that reflects the will of the working class- Usually by leadership, now by creating a law-based state

DILEMMA: Party remains above the law but says it is bound by the law1) Has it’s own constitution that are not national laws2) Party maintains near monoploy on policy formulation3) Vietnam has non-justiciable model – no method of reigning in ultra vires

conduct or legislation. Only authority that can look at conflict of laws or over reach is the ___ Committee

i.e. Hard to ride 2 headed horse

Has what commentators call “excessive localism”- Local cadres interpret laws differently, so is hard to achieve predictability- No accurate methods for policing it

Historically 3 SL principles:

1) Law emanates from the state: “law is not above the state” – extreme form of legal positivism. No space for customary rules or natural rights

2) SL invested both party and state with perogative powers that allowed them to substitute policy for law (Case in the 70s & 80)s.

3) Law was seen as facilitating state power not restricting or limiting it. Party policy was supreme over law (Heavenly mandate)

In mid-80’s Vietnamese recognised they had to do something to maintain control. Invented idea of “law-based state”.- Supremecy of law in the constitution- State power defined now by law- Anything would be ok b/c it was law (legitimise their actions through legal

prescription)

By 1991 new defn of SL: State-Legal Rights

4 features:1) SLR will now feature stable, authoritative and compulsory law2) Equality before the law (based on what the law said)3) Law would be used to constrain and supervise govt administration and

enforcement of laws (reign in exercise of discretionary auth)4) Separate party and state functions: party look after statement and devt of

“socio-economic”/”big picture” objectives and state/govt look after implementation of party policy. Huge tensions b/c is not a coherent legal ideology – does reflect a search of new thinking and categorisation but glaze over problems of Ho Chi Minh thought and there are problems in application (e.g. amending of constitution)

Don’t usually amend constitutions, make a new one- Wanted to shut down debate- Questionning role of party in the constitution

Kristi Carin

Why do we have constitutions bumper stickers:- To set out the rights and duties of state and individual- To formalise the relationship between state and citizens- Rights writ large- Power roadmap- Dividing legal interests between state and society- Special principles on shelf that can’t be touched very easily- Framework for constraining state power and providing citizen’s rights

Art 21 & 22 is where it went wrong “oops”

Greatest failing of one-party state when it comes to law-making is that it makes it hard to get consensus – follow Chinese way going “economic” route- Religion: authority given to govt to control

Dongwook

Rule by the dead man’s teaching e.g. Vatican|v

Communist Countries|v

Absolute Monarchy

How is Communist regime different?- Power to party as it protects and promotes the learnings from the “dead men”- Have to look after and be responsible for the people

LECTURE 16: Tuesday 4 November


RULE OF LAW PARADIGMS & GOOD GOVERNANCE BENCHMARKS

“Rendition On Line”- Canadian Syrian deported to Syria (country of birth)- Fundamental HR breached

Canada- 1867 Act implies ROL in its Preamble- 1982 Constitution – ROL explicitly mentioned in Preamble- 1959 Supreme Court case

Relies on vagueness cf clarity

3 ELEMENTS

1) “Equality before the law”- What do we mean by law? statutes, legislation, common law- Who are the actors?

2) System of positive laws- Published, accessible

3) Government action is grounded in law- Tobacco Health Recovery Act [BC] – Issue 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 (ROL)

Buzz word of 21st Comparative Law- How we judge a particular legal system- ROL is a competing LS in certain countries and may not be accepted

Direction- Process based phenomenon- Economies vs Law

Thick Thin continuum

Andrew Harding: “Local knowledge & Global doctrine”= real law = ROL

- There is no single definition: Reception of principle VS implementation and interpretation

LECTURE 18: Thursday 13 November

- Highly localised, village-based – on expected rules of behaviour and conduct- Law of the King never got to village

Area of legal relations in Vietnam which seems to turn some of this upside down- Suggestion that arises out of materials is central govt trying to contruct pro

forma, a set of rules that reaches down to the village level- Hamlets, villages and other small entities- 80,000 of them in Vietnam- Organisation of housing units is very carefully organised and institutional

arrangements are replicated at every level (people’s committees, departments of justice)

JOINT CIRCULAR- Circular put out by Ministries of Justice and Culture- Attempt to systematise and regularise the way local customs are turned into

law- Had problems before dealing with local bodies- Looking for uniformity

3 main sections:

1) Goals of rural conventions- new ethical norms, encouraging healthy lifestyle, protection of state secrets

(supporting state power and authority) etc

2) Procedure for compiling etc- A lot of state “guidance

Does it have the effect of recognising prevailing customary norms or creating new norms?

- Create new norms- State is saying they want to recognise own local customs but at the same

time, after the filtering process it is very much directed by the state- Participation but not total autonomy- New norms clothed in the legitimacy of the old state norms

How do they relate to exising law?

- Has to comply with existing law – be “fine customs and habits”

- Must be a strong political rationale to bring this law about- How does it dare to take a political initiative?- What are they trying to get out of this?- Don’t think it was the MOJ that took this initiative- Knew of limitations of this exercise e.g. lack of institutional capability to

follow the process outlined- Initiative probably came from above

Many problems: Misuse of land rights, exacting of unauthorised taxes

Purpose of Rural Conventions- Capture local unrest, regulate and download different set of expectations on

local officials- No one wants to be known as the author – it is a collective exercise- Minimises opportunity for dissent – as it keeps going up there is checking,

conforming etc

Large amounts of discretion at the local and regional level- This is compromised with the procedures involved with the Rural Convention- Conformity at the extent of “unity” of state and freedom to develop in

their own ways regionally

Too often these customs and habits are perversions – too much money spent on marriages, elders not taken care of – feeling of permanent unrest at the village level – losing historical self-control. Want to strengthen them through support and guidance. But still requires top level approval – in this time the reality of the village may have already changed.

Attempt to change local norms Huong Uoc- These norms held together the villages of Vietnam- French tried to intervene and failed- Allegedly fell into state of disrepair during war- Have gone back to these norms and trying to standardise and revive them in

an attempt to bring more social stability into local communities

Neo-legalist approach- Law law law law, positive rules that everyone understands and sanctions for

non-compliance= regulation of society better for a common purpose

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

Q: Is there something called asian values when it comes to rights


Review of last week:

Micro-managing of local laws – Rural Conventions

- In some LS much in the manner of former colonial regimes, central auths download legal prescriptions to local level

- Either direct transplant or downloading formulas to provide the mandatory f/w for village laws

- Harking back to fine traditions- Per: skeptical - how “fine and traditional” are they?- Aim to maintain stability in the villages- Described as an effort to provide guidance in est of “self-mgmt” systems- Another example 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, check conformity and that they are actually used in a uniform and conforming manner

- Troubling aspect of many LS – reflects naïve 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 “good”

- Tied to this unfortunate belief about what “law” is about- Distinguishing between form of law and actual implementation- Rural Conventions: Huge disparity between formality and reality- Recurring effect is to breed complete public cynicism- Low-ranking official at district level: one of 25 directives that would have been

received in the last year regarding how you are to run and organise your community – responsible and supervised – constant requirements such as deadlines, meetings, submissions

- Questionable downstream effect of much law reform, however well-intentioned it was at the top end

Law seen as a “control” instrument- Supervision of officials’ actions- Accountability to uncontrolled and damaging intervention- Displays total lack of trust from central govt in the local officials- Effect is to erode the relationship

LAW MAKING IN VIETNAM & CHINA

- China, Thailand: Law making institutions have now achieved legitimacy and prominency that was unheard of in previous times

- Traditionally coys like Singapore and Malaysia

Multiplicity of legislation

Doi moi - 85/86/87 – introduction of 1st foreign investment law- From this point on, Vietnam became a law-making machine- Previously was a decree-making entity – involved a lot of discretion on part of

ministers and officials, very state-based (little private sector influence)

National Assembly- 5 year terms- Most do not serve again (no constituency based incumbency)- 498 deputies- Meet twice a year for 4-6 weeks- ¼ of deputies are full-time- ¾ only come for the meetings (not really involved in sustained review

development of law) i.e. considerable on-site “power” left with the ¼ who serve full-time

- Sessions are jam-packed- VFF determines who can become a candidate (while most allowed to be

candidates are not party members, 95% of elected members are part of the party)

- No pretence that there is any opposition party

Parliamentary Supremecy

Art 83- The NA is the highest representative organ- Only body with legislative and executive power- The membership of the Cabinet must come before Assembly for approval –

NA can remove ministers, including the PM- Decides national, foreign and domestic policies- Exercise control over all activities of the state- Decide national budget- Decide issues of war and peace

This does not mean there is separation of powers- Chairs of SPC and SPP are part of the NA- NA-Govt-Courts relationship

Standing CommitteeThis isn’t achieved in the 2 weeks they meet – it is done through the Standing Committee- Real control in a small body, dressing up consultation and reviews around it

(mass organisation involvement etc)

- Has 9 committees e.g. Social and women’s affairs, budget and finance, legislation

- Membership of SC maybe the same for 5 year terms – element of continuity that is not found in the body itself

- Determine legislative agenda and are law makers themselves- Resp for ordinances – most significance after laws- Have the same signifiance as laws- Pick it over laws as it is passed a lot faster (efficient) and can avoid messy

Parliamentary debates- See a pattern in choice – often when it is a complicated issue- So is this a “tiger” then – what is the purpose of the NA? Members of NA

increasingly do ask questions – however Q’s they ask are veted in advance by chairman or VC of the Standing Committee

- More openess – televised, at times divisions and dissents

Formulation of Legislative Agenda- Will know titles of laws and ordinances on the agenda at least a year away (if

not 2)- But this only the tip of the iceberg – only laws and ordinances

Party Role- Some topics always has to come throught the party first- Role of supervision and vigilance that does not diminish- Like a funnel

Choice of instrument- Many more kinds of sub-ordinate instruments

- “Decree” used to be what it was all about – now they come after L’s & O’s- Requires auth from a law or ordinance- Large number of them

- Laws are skeletal - Law making is really an allocation of power between ministers

Other instruments- Circulars: hugely important, w/o a circular and official will accomplish nothing

– implementation- Decisions, directives, resolutions- Analyst of this LS needs to look at big picture and look at ALL legislative

instruments

Debates- Constitutional discourses- If sign intl treaty means giving away sovereignty – but can’t concede this

under their Const therefore shouldn’t allow laws that do this

Passage, promulgation- Bringing into effect

Cong Bao- Published officially- “Law on Laws” – Law on promulgation…- Other purpose is that it asserts national control over all provincial law making

Constitutionality: “Integrity and Certainty”- All instruments make up national legislative base- However only constitute 1/3 of the legislative base in Vietnam- 2/3 comes out of Provincial Peoples Councils – local level legislation

= “Other legislation”- Resp of SC assisted by MoJ is to ensure the “other legislation” complies with

the 1/3 at the top, ensuring “integrity and certainty” of legislation – not achieved as there is no capacity to do this

- Assets control so there is some awareness of what is coming out of lower level legislation and some national validity

- Avoidance of internal conflict- Central govt control – NA try to meet and mediate for withdrawal of local level

legislation

All of this is only 15 years old- No other real comparable experience in other countries

John Gillespie’s – Constitutionalism & Vietnam’s Socialist Democracy

Definition of “Constitutionalism”

PART A: 3 ways Vietnam’s socialist democracy falls short of consitutionalism

1) Electoral legitimacy is difficult to substantiate in NA elections

- Party political discourse- Only ‘politically dependable’ candidates are allowed to be electoral

candidates- Rules governing voter interaction with NA delegates are vague

Some evidence of improved electoral legitimacy

2) Constitution provides for few ground rules or “secondary codes” for converting political, moral and economic arguments into legal language used by lawmakers

- How are political issues transformed into legal arguments?

3) Party mediates every stage of lawmaking to ensure that lawmakers follow central party policy in codifying social norms

PART B: How is Vietnam’s falling short of constitutionalism displayed in the controversy surrounding the 2002 amendments of the 1992 Constitution?

Article 4 of the 1992 Constitution- Importance placed on ‘party leadership’- Sacrosinct

Debate on amendment was shut down- Some suggested that Art 4 should be left but require the establishment of a

constitutional court

Gillespie & Lien – Public participation in Lawmaking

1) Gillespie is more negative, can only have input if join VCCI or UAIC

2) Lien more positive, more detail and possibilities of public participation:

VBF has definite influence- For nationalistic economic reasons (they want foreign investors)- Important legal vehicle- Agreement with US and request to join the WTO

Media- A bit more skeptical about their influence- Not very significance – is put there to increase participation, but in reality they

are put there by the govt

Inter-bureaucratic- Mere extension of the government?

Informal Lobbying- Not nec about making laws that benefit the govt, futhering your own interests

Complementary arguments but real difference comes in their conclusions (optimistic vs skeptical outlook)

Lien - Vietnamese lawyer- Focus on commercial aspect and lobbying

Economic law side – increasing symmetry But when it comes to other areas, extremely stratified

2nd interest group was “wound up” – interest group was proved to be a “bother” to government – leadership was replaced and registration was disallowed

Bottom LinePP in lawmaking is separated between economic areas and other areas


Control and supervision aspects of the Vietnamese Legal System

- Tight top-down control- Redefining socialist legality

Mother of all legal watchdogs- Why do we have it?- How does it fit into the constitutional structure?

Born out of Roman history

Officials with these titles in numerious jurisdictions- Latest were in Vietnam and China

Soviet experience- Peter the Great- Reborn under Lenin

Constitutional status

Standing Committee has right to judicial enquiries

Disputes were only of 2 kinds:1) Personal/Family2) Economic

Could only occur through social enterprises- Ministries would negotiate with each other- Set up an arbitration system – but was quite insular- Decisions may or may not have been public

Role for the courts was very circumscribe

During doi moi – office of procurator general remained visible and strong

- Where does it come from- Why is it needed- What advice would you give

Employers of SPP wear blue shirts – symbolism- Known to every member of the public- Everyone knows who they are – chilling effect – perceptions of the Procuracy

As legal watchdogs they fit in at a number of points – big picture, and then execution of judicial process

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

Assertive words used throughout

Forces onorous duties on the officials – they are part of the system- Enforcement for people AND the enforcers

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

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

Legal administration has it’s own responsibilities- Therefore they must find things that they are doing wrong- Goes round and round and round

If you have a foreign investor what do you advise them?- Local administration involves licenses, the ability to do things- Things have improved, but still absurd – 53 steps to ride a bicycle in Saigon!- People have learnt to work this system, adept at dealing with the LAYERED

LEGAL ADMINISTRATION

Vietnam is a wash of agencies that are inspecting, controlling to ensure their actions are lawful. Party and People’s Committees have their own inspection organs at each level. Mass orgs have their own inspection organs also. But the Procuracy created by the 1962 Constitution is the primary legal watchdog of the administration.

CONSTITUTIONAL INFRASTRUCTURE

Parallel structues- Control and inspection permeates at each level

1) Supreme law making body is the National Assembly- Membership and operations are less supreme than the Constitution would

suggest- Only body that can make and amend the constitution- Supervises and controls the government – Ministers must come before them

and defend budget, activities etc

Article 4- Represents a HUGE exception to the language that governs the NA- Parks the party outside the constitution – subject to const and law BUT very

few references to NA in the constitution

- Party also has it’s own body of legislation – completely parallel bodies to the government

- In effect it is “another state”- Mass or social organisations

Infects every other part of the legal administrative structure- But to a lesser effect now – less interference, can’t be micromanaged at every

level

2) Ministry of Justice- Ranked on basis of power – comes in at #4- Influence within the government is high

3) Supreme People’s Court- Didn’t exist for awhile- Head is member of the National Assembly, term of 5 years- Acts as the highest adminstrative court in the land- Supervises all lower courts- Acts as appeal court

4) Supreme People’s Procuracy- Supervisor and controller of all legal affairs (of all legal entities)- Head is member of the NA as well- Role of legal watchdog

How are these bodies all supposed to work together?

61 Provinces- Each has a People’s Provincial Council- Have elections and provincial legislators

- The equiv of the govt is the Provincial People’s Committee- Real power lies with them (they are the executive)- Along with the Council have substantial powers of law making- Decentralisation problems – are these laws correspond to national laws- The Dept for Court Judgement Execution has to ensure this happens

- Each has a Department of Justice- Dual management model: means that the head of the DoJ is responsible

to 2 bodies – the PP Committee and the MoJ (reporting requirements, needs of national legislation = MoJ)

- Problem of localism! – cases with the DoJ defending judgements that invovle companies that are owned by the PP Committee

- Each have Procuracy which is watching enforcement, making of judgements (all legal affairs)- Orders of the court- Enforcement of the judgements

- Provincial People’s Courts

600 Districts- Have replica bodies – courts, procurator offices etc

People don’t know whose case is whose- Below the national level things are not picked up much- At the District level things are often ignored- Frothing at the local levels

Bureaucratic socialism?!- Below the districts are 80,000 hamlets, each of which has its own

infrastructure – have VFF, officials- This is what affects 85% of the population- This is where all the unrest if coming from- Unwarranted taxes, taking land, interfering with daily life- Top has yet to come up with how they are to deal with these issues at the

lower level

And you have the Party is involved at every stage

Also have the Fatherland Front invovled apart from the Party

THIS IS THE SALAD BOWL!

Population is about 80m- Large amount of the popn works in the public service

Porter: Every organisation has it’s own supervision and control – prepare reports as to whether it meets targets etc. More than an AG role.

Judgement and Enforcements

- Failure to keep up with legal reform – comes down to the courts- No “neat answers” to this issue- Judges appointment procedure and salaries- Corruption

1) Why is execution of judgements so difficult?

- Lack of judicial independence- Bringing actions against SOEs- Incorporation of moral code - Inexperienced judicial officials

2) Why is it so important?

- Moving towards market economy- Member of WTO, increased transparency and stability required

3) Role of the PP?

- Procuracies have a large influence

PROCESS – Layered system through different agencies

1) Might get a debt collection agency - About 80% don’t pass this point

2) Goes to Court- Enforcement is funded by state – enforcing state’s laws- Judgment is made and order

3) DCJE- This office is responsible for enforcing the judgment- SPP is watching the order of the Ct to ensure it is integral and also the

actions of the DCJE at local level

4) Petition to the Procuracy can be made- System is so corrupt that the DCJE is able to be influenced – maximise delay,

shuffle papers - Judgment debtor can take protest to the PP (takes 3 months)- PP can ask them to issue a new judgment (takes another 6 months)- End back at the Court

Many unexecuted judgments- Govt has tried to put in boetter people in the DCJE- Drafting of new legislation

Essence of interconnection between 3 state institutions - Similar to HK-China case – so much commercial cases between the countries- Don’t want the same system as they know enforcement won’t work effectively


FDI LAW & PRACTICE #1

Unlike most foreign analysts Linnan probes beneath the surface and looks at 3 different points of view

Institutional Capacity- The ability to implement law reform- Flags raised with rule of conventions- Analysis of thin to thick ROL- What is often missing is the institutions to actually implement the law reform –

but design or oversight- The Procuracy – strict compliance and procedure legal integrity,

enforcement of civil judgment- Requirement of WTO legal audit must file memo of law – how LS works

and why it satisfies the standards required by the WTO - CJE issues raised:- access to courts, - impartial judiciary, - execution or enforcement of court orders

Between the MoJ and Procuracy there is much bureaucratic shuffle – each trying to protect itself, blaming each other- Result is that creditors will not use the court system easily in order to obtain

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

Foreign Direct Investors- Set up business or invest in existing business- How do they look at the situation in different countries?- Have analysts – legal risk analysis carried out before carrying out business- Local partner may be able to oust you from the business

Governments- Try to mitigate the risk- Bilateral Investment Treaties (BITs)

Bilateral Trade Agreement (described WTO+)- Attempts to set out the protection provided - Basic rule is national treatment- No expropriation without compensation- Other rules setting up principles of arbitration- How particular different investments are to be handled (manu vs services)

- US has BITs with every country in SEA

ASEAN – Some coys in SEA formed a regional market within which they could more

easily trade with each other as well as setting up an investment area (China taking a disporportionate amount of investment)

– Moved very slowly on the FTA– Investment area has some common rules for foreign investors – ASEAN now has signed in principle to create an FTA with China in the next

few years– Also working with India– Creating INVESTMENT AREAS

FOREIGN INVESTMENT LAWS- Leading force in legislative change has always been foreign investment- Have to be highly competitive in striking balance between national interests

and attractiveness to foreign investors- 1984: Decision made to enter the doi moi era- 1986: Law drafted by the Party- 1987: The Law- Seeing that China started its “doi moi” in 1979 – using foreign investors

capital, knowledge to open its economy BUT always in combination with state enterprise

- Deng Xiao Ping’s ability to capture state enterprise’s interest and make them realise foreign investment would aid their own development

- Foreign investor economies take root in preferred ‘investment zones’- Chinese “Special enterprise zones” - Introduced in 2 provinces in 1979 and expanded gradually- Special concessions made, land provided

Gradualism, dual track to legal change- Key approaches that lead to success of opening up of the Chinese market

and FDI in China - along with strong government support from existing institutions

Did the political logic of reform match up to the sufficiency of legal reform- Peremboom: Legal system is not working as it should- FDI is approaching $1b per week- So how is economic development not hindered by this “legal system which is

not working”?- There are problems, corruption etc.

Land law is so socially sensitive- Neither the Chinese or Vietnamese did anything with land law until 7/8 years

into the system (or marriage law, domestic contract law)- A lot of legal change to FDI related law – commercial arbitration, IP,

competition law: tried to perfect a greater certainty to area of investment - Deregulation of state enterprises – market-set prices

- Private economy and SOE – in between sits the FDI economy- Need to balance interests of these economies – national interests

(employment realities etc)- Family economy – family businesses - these are the job providers- Investors get greedy as they try to impove the legal certainty of investment

risk – went from BITs and BLTAs to:

MITs (Multilateral Investment Treaties) MIA- Attempt lead by OECD of Paris to bring in standard worldwide investment

protection treaty- Failed- Supported by Canada, US, Western Europe, Japan & S Korea- Rest of developing world said no – enough protection exists – no standard set

of protection rules that can fit all the countries

Canada’s history - Long history - Capital importing coy – bonds, equity investment- Remained concerned about:1) Sensitive industries: communications, broadcasting, banking, publishing,

airlines, health & education – policy wise they are senstitive to national welfare an identity

2) FIRA – Foreign Investment Review Agency- Was the regulator of FI- For FDI above a certain figure the investor had the onus of establishing

that their investment would carry significant benefits for Canada (reverse onus)

3) Crown Corporations (SOEs)- ICBC, BC Ferries, BC Rail, CBC, health auths etc

4) Investment Canada- Reverse mandate: to increase FDI in Canada

- More goes out than goes in (net exporters of equity investment)

What is happening in the region?

Vietnam- 30% of job growth tied to FDI- 40% of exports growth- up to 2000 the majority of investors were Asians (Taiwan, HK, Spore, Japan)

b/c in terms of what could be produced in Vietnam at the time, more educated – not as good relations with US

- US has now signed the BTA- Staggering – 100m pairs of shoes are produced a month- Textiles exports to US have gone up 300% in 5 years- Shipment of fisheries has gone up 1000% in N America

- Turning into an export powerhouse where it has comparative advantage – most due to FDI

- Joke in Vietnam: defn of Vietnam of a millionaire is a person who started out being a billionaire

- Investment results in both China and Vietnam has been disappointing- More disappointed than happy investors- The attractiveness of the domestic Chinese market – want to get market

access

MANULIFE INDONESIA CASE

- 15-17 year time span- interplay of at least 3 legal systems- what can we learn from this case

1) FDI perspective- Trying to set aside the sale- Manulife experiencing problems at home- Bankrupt: could have declared a dividend but didn’t and also didn’t pay out

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

2) Domestic Business Community - Manulife was willing to take the risks, deserved what they got- There were actually factions within the community- Dharmala seen as being on the fringe of community, previous history

3) Government- Indonesian govt thought it was functionning ok- Canadian appeals were counterproductive – undermine legitimacy and

development towards ROL

Alford eyes- Careful in where we start our examination of a foreign LS- Salad bowl analogy – using idealised version of certain things to make

judgments

Linnan’s approach- Takes more micro approach – looks at different group’s perspectives- “Inside out” approach – combines perspectives to reach a broader one- Invites us to come to a conclusion from our own legal culture- Major point of diversion from Alford’s approach is where he starts his analysis

– internal perspectives

Q: If advising Nortel about investment in Indonesia, what effect would Linnan’s piece have on your legal risk memo to them?

Supposing that Manulife realised that Dharmala was a dicey business, what risk-minimising steps did they take?- Bringing in minor partner – increased likelihood that investment will be treated

fairly by the host government- Investment financing Corporation = equity arm of the World Bank would bring

sanctions on Indonesia - Between them had 60% which in most cases would give sufficient leverage to

stall any bankruptcy proceedings- Discovery that Indo and Chinese business community is highly fragmented –

grudges still held etc.

Better intelligence on local business community- Formal and informal- Informal enforcement measures in the culture- Didn’t look after debts – lacked mutual business support within the community

marginalised- Insolvency seems to follow their standing in the local business community

Treatment of majority shareholders- Fraudulent device – said they’d already been sold to “mystery companies”

In the late 80’s the Dharmala group was one of the largest business empires in Indonesia

Where Linnan went deeper than Alford, is that he went into every interest group that had an interest and examined their perspectives deeply. Had no intent to put the blame on any party.

What else could Manulife have done?- Corrupt courts – 60% investment gone- Assets withering- 40% in Western Samoa, HK…- Only option left was to appeal to Canadian govt

Focusses on underlying culture behind Indonesian business community- The system won’t necessarily enforce promises- Even if party deserves help, the informal system is more powerful than the

formal

The outsider has to better understand what can be expected of a LS

- Foreign investors are best advised group, who find out how their investment will be treated

Linnan says risk analysis can only go so far – the community itself may have its own expectations of how the LS will work. It has other functions (to share loss, to punish disrespectful, marginalise the uncooperative companies in the business community – even if they have foreign partners)

Need to look at formal, informal systems, different players, price of reliance (promises of exisiting government, parties) – what are the fall back plans?

Greatest risk was that they had bad partner – partner who was not supported in community, government was aware of this and let it happen – usually intervene in bankruptcy proceedings, but not in this case.

Approval/disapproval system

Not saying it is wrong – Linnan offering perspectives on how the system actually works

If don’t understand workings of the LS – can’t make adequate risk analysis: insider perception is best approach


FDI LAW & PRACTICE #2: CHINA’S CASE

Summary of last week’s class

Linnan: things are not always as they seem to be

- Looked at case to reiterate the question of risk and assessment of risk and the appreciation for formal and informal remedies that has to be considered if looking at a LS

- Don’t do it so you back off your own value judgments, but realise that these will affect your conclusions, but shouldn’t affect the things you see

- Investors look for a prominent Indonesian partner (usually Chinese) who operated conglomerates (which started small and then developed and made strong connections with the government – state contracts and support)

- Manulife took World Bank as a partner as life insurance (WB backed investor)- Knew it would take time to find a local market niche- Went into a system understanding the dominant business interest in Jakarta

didn’t depend on the LS for their legal status etc. – it was there but more in form than in substance – would never have considered using the Indonesian court system to press a claim

- Would adopt local workings – avoid courts, illusory – no guarantee of getting a result

- Manulife operated in what was really an “extra-legal environment” that was the only rational and adverse way to operate – determined choice of partner, way they did business, the way they pressed their claims

- In 1997/98 Indonesia put into trusteeship under WB – committed itself to hundreds of law reforms for protection

- Such as: corruptcy court, regulatory industries- Formal laws are very firm, but simply not implemented well- Institutional incapacity again, no support from local business community- Few companies were put into bankruptcy, the exception seemed to be the

Dharmala group – either balantly avoided it by avoiding judges or reciprocating between themselves (paying others debts – trading of debts)

- After 1997, given law reforms and WB – views from “outside” were very strong – “spotlight” on Indonesia

- Substantial markets in Indonesia- Blatancy of Dharmala’s conduct that came to the attention of the international

business community - HK and Spore courts were used – open court proceedings – evidence of what

Dharmala was doing- Linnan showing ust that the same set of facts within the same LS are viewed

differentlY and if you are to understand them, you should at least be able to identify them

- Alford says as long you are clear about your own values, and have researched history thoroughly, you have duty to make a conclusion as to the state of that LS

- If providing risk analysis, can exercise value judgments – but make sure you understand parties stance, interests and motives

- Linnan developed these perspectives- Alford – understand full meaning of “law”- Linnan used “formal” and informal” to distinguish substantive legislation and

the informal LS which was often highly practiced

CHINA

Susan Shirk: Concept of “Creeping marketisation”- How Deng Xiao Ping developed rolling reforms, collaborate with foreign co’s- Have to deal with the devoltion of authority to local interests- To the point now where seeking membership to WTO – 850 changes to law

A lot of investors are now multinationals e.g. Toshiba- Export from there

BERRY’S PRESENTATION

Potter and Perenboom articles

- Need to look at full contextual framework of the “guiding principles”- “Law on the page and law on the pavement” analysis- China moving from authoritarian socialist economy market economy has a

dual system – state control vs opening up- Broad survey in terms of development process since 1978- Historical background in footnotes- Don’t go in to boost local economies, do it to further national goals- Encouraging export industries, indigenous industries- Potter’s analysis highlights the conflicting entities and competing interests- Based on regulatory system: government is in control- 2 perspectives: Japan and East Asian’s NIC (newly industrialised countries)- Show importance of state as critical catalyst for developments- Problems in this: corporatist allies, implication is there is potential for

corruption- Does it actually contribute to underdevelopment?- Subordination of local to national interests?

But investors will keep saying there is money in China, general trend is good, opportunity of profit is great – tempting to go and jump in as well - look at what the project is going to be, where investment will take place- SEE TABLE

The trifecta of legislation

Any contract that is undertaken must comply with rules and regs (not just national, but industry and location specific ones)

- If don’t comply, can’t get approved by the state, can’t invest in China- Look at contract, impact on local and national interests, how negotiations took

place

Potter: potential that it imposes too great a restriction on investors

Civil law – only lip service- Only further entrenches control of government

Powers of review are very limited

Overall conclusion: State has fundamental control

Tax incentives – but have to submit report – state is given a lot of financial information about the company

PROBLEMS:

Localism- Local and state interests – increase in autonomy as a result of 80’s reform

increased the power of local interests and economic regions- Reduction in central control- Local ties and business relationships (informal structures) have larger impact

in reality – similar to Manulife- Can’t rely so readily on any national rules of regs- Local govts can better align themselves with capital – corporatist allies etc.- Shift in priorities – local interests and benefits to community are subverted to

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

Uncertain nature of foreign policies in relation to ROL

Perenboom looks at whether ROL is necessary for investment growth

1) Fewer problems than perceived- Does constitute significant risk

2) Investors are not rational

3)

- Looks at capitalism, corporatism etc.- Karen Jones “Rule of Relationships”- Chinese capitalism: relationships, informal mechanisms, confucian principles- Complementary – but a few hiccups- Some informal mechanisms are dependant on formal structures e.g.

mediation and arbitration

Weaknesses:- Players are a one off- Pollution

Clientalism & Corporatism

- Horizonalism clientalism: relationships between regulators and regulated- State relationship – strength of state and autonomy of interest groups- Statist Corporatism, falling more on side of authoritarian- Serve to undermine ROL - Cannot develop further without ROL and if it could, then would be at stake of

justice etc.- May want more assurance than ROR can give

4) Growth rates could have been higher- Could have invested more, pulled back on best technology

Perenboom states reduction in 90’s might have reflected investors’ better knowledge

Guidelines themselves are particularly vague- lack of transparency- ambiguous terms and guidelines and conflict with WTO – 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- “guidelines” – intepretive document for information of foreign investors- what does it mean to the licensors?

- “Trade and service” pg 523- tax exemptions that conflict with WTO- offers broad structure for interpreting what is permitted

FI law is based on system of gateways- state authority giving permission to enter- Common in Indonesia

Tension between local development and national goal of achieving ROL- Spotlight on this area of administartion- Through prism of the investor

ROL comes up in foreign investment all the time

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

Next week:Compare the Vietnamese scene, address any concerns and questions related to the exam

LECTURE 23: Tuesday 2 December

FDI LAW & PRACTICE #3

Vietnam’s experience largely the same as China

3 traditional economic units:1) SOEs2) Foreign enterprises3) Private domestic enterprises

From 2000 to 1990 state employees had dropped- Woefully unproductive- Tried to create 9 mega corporations- By end of 2000 – owed US$14b in debt, 20% were low performing loans- Yet still get 50% of bank money- Govt does this b/c ministries and enterprises are still very much visible part of

the community – provide jobs, will and cannot cut jobs too quickly b/c of civil unrest (like what happened in China)

i.e. production and employment decreasing, but loans increasing

Corruption- Facilitation fees are common practice in many countries

Equitization of SOEs- slowly 15% - shares made available to workers (although majority of shares still held by

state)

Main impetus for change in FDI environment:

1) ASEAN- Joined in 1995, FTA (weak, doesn’t cover many things – lead by Spore and

Thailand)- Vietnam is one of the slow members but still lowering tarrif rates etc.

2) Signing of BTA with the US- Replicated with Japan- Much stronger than MTA in terms of compliance and compliance deadlines- Has changed make-up of FDI coming into Vietnam (Spore, Taiwan and US)

Private Domestic Enterprises- 100,000 have been incorporated in the past 14 months- Reverse onus – for govt to show minimum level is not reached- Modelled largely on NZ legislation

Distrust in private sector- To do business in Vietnam, often have to get licences- Vesting 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 taxes

Foreign Investment- Hoping foreign investment will stem the tide of - Try to keep employers in villages, out of city- Foreign aid to provide for social safety net – training for state workers who are

made redundant

Conclusion: Very cautious, pragmatic administration- Practive legal gradualism, moving in steps that can’t always be predicted- Changing framework – foreigners then foreign investers then farmers- Profit from instability- Can’t lose face - National 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 working in the private sector- Often foreign trained – don’t go back to work in state entities

LEGISLATIVE FRAMEWORK

- Most changed f/w in any area of law- Race for investment dollars – 1987 “doi moi”- 1992 const was the first to legitimise foreign investment law- Look at Page 524- Reference to 1996 Law and Decree 10 that followed

1996 Law & Decree- 68 Articles (not very long) but this is because the Decree made up for it- Decree came out as a draft – greater legal reassurance to investors

Forms of investment

1) Joint Venture – Art 1.7- Traditionally the favoured and initially only mode of investment- Foreign investor was required to find a partner – often nominated by Ministry

of Investment or Hanoi or People’s Committee in one of the provinces- Over 90% of the number of JV enterprises are with co’s owned by Provincial

People’s Committee

- Important as it “saved” the state enterprise sector (would be performing dismally themselves and lifeline provided by JVs)

- End up with sub-market monopolies- Ensure they have market – will train labour force, will take care of exports,

IPR’s, money, export requirements in exchange- Anti-trust/competition laws implemented to eliminate the sub-market

monopolies (trade agreements require this)

JV’s have problems:

Joint management- Important decisions (hiring of execs, compensation, dividend policy etc) have

to pass through a Board - EFOC’s emerged as ways to get around (bought out Vietnamese partner, or

established own co’s and got licence)- Provincial People’s Committee SOEs – 70%- Govt knew couldn’t get doi moi in front door or back door unless had coop of

Provinces- Lead by city provinces – very possessive administrations- POE’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 FE’s without

giving more discretion to the local level- Fiction of unified state management – ideological principle: democratic

centralism (it is not a federal system, simply extentions of govt – but are not in reality)

2) EFOC - Art 1.8

3) BCC - Art 1.9- page 543- Contract saying you will be a partner - More flexible? Not in reality

4) BOT = Build Operate Transfer

5) BTO = Build Transfer Operate

6) BTC = Build Transfer Cooperate

Last 3: Get infrastructure built by someone else and eventually take over ownership

FI is set up on a grid licensing model- Discusses which is favoured, where, if there is a connection to export

performance- Foreign investor has to look at latest version of sector investment licenses to

figure out whether their expertise fits these industry and location preferences and export linkage

Clear by looking at law: Ministry of Planning & Investment is the main body- Other ministrial bodies- 59 other provincial- 5 other i.e. 64 jurisdictions + Hanoi

Institutional Capacity again is the issue- As in Potter’s concerns in China- Highly centralised system- Difficulty for FI’s is that IC is really everything – if can’t get some aspects of

transparency and clarity in treatment of investment – are likely to go somewhere else

- Vietnam is struggling to get non-Asian investment into the coy

RECURRING ISSUES

1) The Centre-Province Conflict- Proctor and Gamble “soap opera” case: Authors of news piece pointed out

there had been 2 previous cases of conflict - Were regulated by Prov PC’s – have been much more flexible in dealing with

them than Hanoi, which is borne out by this case

2) Land Use Rights- Handy to have Vietnamese partner to get LUR- Clarity of right is open to debate – no land registry system- Trouble showing their LUR is found in law- Company seeks to mortgage land – lender can’t register mortgage against - Company goes into bankruptcy – try to rescue their investment by forming

another co and seek to take LUR out of bankrupt co – but foreigners prevented from owning land can’t do it

- Land often has people living on it – compensation delays up to 5 years

3) Management Disputes

4) Labour Laws- Government unions – often not interested in workers rights- Costs are low? Remarkably unproductive and extra charges – so in the end

could be just as expensive as more advanced co’s like Msia

5) Inspections- Look at page 543- Many depts of govt that live on right to inspect business (tax auths, market

licensing auths, LUR auths) – have a habit of picking on FOE’s- Have passed laws in new decree saying inspection have to be for legitimate

reasons- Happen usually before Tet (Vietnamese NY)

For some of these reasons, 100% FOE has increasing become the norm for new investment and buyout of local partners- Well over half of FDI comes in this area- Reasons: - failure of JVs (too bureaucratic, hard to administer)- have run out of local partners- can get LUR and labour more cheaply itself (it has the money, IPRs,

export markets) Ford has built assembly plant, Toyota has increased size, Manulife is now in the insurance industry

Close to 5000 enterprises that have foreign capital and investment- Registered capital = US$45b- Invested capital = $20- Singapore still at the top – but not always owned by Spore, act as link- US = #4- Taiwan, HK, Msia in top 5- EU, Australia in top 10

Increasingly foreigners are allowed to own their enterprises, often working with Prov PCs, still have other issues to deal with

Comparing China and Vietnam - same as Perenboom and Potter- SOEs to JVs to FOEs- Signing of trade and investments- Social stability of concern – keeping workers away from cities (whereas China

has given up on controlling internal migration)

- Familiarity grows, SOE strength slips – have more FOEs and less JV partnerships

- Have longer term outlook - Expoit domestic market first, but primarily have the goal of exporting

EXAM- 9-11:30am RM 157- 4 Q’s (2 will be given choice and answer 3 and 4)- 80% of grade- Look at papers- Connect a couple of classes notes

Previous exams

1) Address Marxist norms- idealising leaders- control- centralised state

2) Address Neo-Confucian- Pye and others have discussed

3) Is this binding of theories accurate? - Yes there are highly - control, subservience, respect for auth, high models of governance

4) Joint circulars- buy-in- suffer from very difficult implementation which is the prospect for JCs

Referring to authors and examples

Q: “ROL has ended up creating dual states”- increases power of state rather than decrease- economic side: licensing - judgment answer – try and dredge up as many examples as possible

2000 – Mass organisations – anti-cult org – VFF

Influence of Confucian principles

Governance and ROL

Think in terms of themes- ROL, Constitutionalism, Alfords eyes and legal literalism- Asian LS are not of one kind- China, Vietnam, Indonesia, HK

- Think a bit about Hong Kong – Right of Abode, Freedom of expression – difficult issues about integration – interpretation of perimeters of those systems are in Beijing – legal uncertainty

BookendsAlford – look to the history, make our own value judgments cautiouslyPeremboom – continuum of legal experimentation (thin to thick), can make value judgments

Summaries:

LEGAL TRANSPLANTSAlan WatsonPage 1

Comparative law as an academic discipline

[2] More than one discipline is included within the term Comparative Law:- Descriptive comparative law, Comparative History of Law & Comparative Legislation

[3] If concentrate on comparability of problem, and secondarily comparability of law starting point will always be sociology rather than law

[4] Comparative law if it is to ban intellectual discipline in its own right is:- something other than the study of one foreign system (with glance’s at ones own), - an overall look at the world’s systems or comparason of individual rules or branches of law as

between 2 or more systems- Study of the relationship, above all historical relationship, between LS’s or between

rules of more than one system [5]

Discoverable only by study or history but more than that – Comparative Law is about the nature of law and especially about the nature of legal development

Look first to historical relationship where have the systems been derived from

[5] Then to “inner relationship” – spiritual and psychical relationship, similarity between peoples, their development sheds light on major legal mattters

The Virtues of Comparative law

[6] Prime virtue of CL is the understanding it can give of the nature of law and especially of legal development- Isolate factors which have led to a real innovation in a particular society- Whether a legal rule which is transported to another system is likely to exist unchanged in its

new setting- Discern more clearly the conditions which favour legal development and which hamper devt- Insight into facts that shape the creation of legal rules- How far it is reasonable to borrow from other systems, what systems, whether to modify

RULE OF LAW AND GOOD GOVERNANCE BOOKENDS

- 1867 Act creating Canada implies ROL in preamble- 1982 Con Act recognize ROL and supremacy of God- ROL is fundamental postulate of constitutional structure- Status in Canadian jurisprudence rests on its vagueness rather than its clarity of def’n

3 elements that come from cases1. Equality before the law (laws, statutes) MUST ask self who the actors are2. Existence of a system of POSITIVE laws instruments of Parliament or leg, are published,

accessible, and no secrets as to meaning or application subject to JR3. Gov’t action is grounded in law find legitimacy of gov’t action w/I four corners of law

Tobacco Health Recovery Act case - NDP and Liberal gov’ts working on third version of legislation, previous two been declared

unconstitutional by BC gov’t- Whether the gov’t can define cause of action for itself to claim against tobacco manufacturers

to recover the costs of health care that have been estimated to have occurred in dealing w/ cigarette smoking patients - copied by three other provinces

- Arguments that whether attempts by govt to DEFINE new cause of action (do away w/ other more regular evidentiary req’ts) is so offensive that undermines underlying principle of ROL, legitimacy of law

So far only looked at precise defns of constitutionality or ROL BUT type of consitution could have impact on defn of ROL

Comparative Law- ROL is the buzzword of comparative law- can’t read anything about law in practice w/o encountering discourse on ROL

Measuring stick by which commentators from every legal family now judges particular legal system?

Academic Movement- About continuum of views - Legal system is always moving, developing, is never static

Clark views ROL as process-based phenomenon- talks more about law- more legal process analyst, and what happening over time- The ROL represents a complex set of assumptions, insitutions, values, and

motivations that evolve the through a process of interaction that are specific to different contexts

Fogelklou looks at it from end prism- fixed idea of what it constitutes and then fills in gaps = has his own measuring sticks- talks more about economy- into law and dev’t- The ROL has emerged as a concept coherent enough to be reducible to abstract

principles that are generally applicable

THIN ROL ----------------------------------------------- THICK ROL- gruel school - chowder school- emphasis on procedural req’ts - emphasis on substantive norms

- civil society is not so regulated and is essence of working democracy

Is this a useful way to think about legal systems, can it still allow for Alford eyes?- Is it useful way of thinking through other people’s legal systems

All require institutional context- Courts, Parliaments, civil society (collections of population split up according to various

interests, may be registered or not)- In Western democratic civil society in pluralistic way represents everyone else who are not

gov’t, courts, legislature- In VN have tried to redefine population by interests and give designated groups a monopoly

of representation- In VN, VFF is meant to capture civil society = given constitutional status

Since it regulates other groups THEN other groups have subordinate constitutional status = System of STATE CORPORATISM

Harding - Sees in his scholarship of SE Asia = lively legal systems that are fast developing- Does not believe that one formula applies to all with regards to assumptions and dev’t of legal

systems- Perhaps in certain SE Asia legal systems, ROL is a competing value system which has not

been fully accepted, and may never be- “Local knowledge (aka real law) and global doctrine (aka ROL)”- Global doctrine making inroads in non-democratic regimes causing more transparency, more

participation and involvement, and courts- SE Asia is struggling for the ROL- Need more legal research on concept of legality expressed through conceptual richness of

ROL

POINT: there is NO single definition- Can see where foreign model received verbatim BUT there is no parallel in implementation in

jurisdiction A as compared to jurisdiction B- To understand living law have to match legal reception and local interpretation and

implementation = key areas of legal scholarship

Pereenboom- Randal Peerenboom those two in case materials

“Let 100 Flowers Bloom….” 23 Michigan Journal of International Law 471 - ROL conceived outside of liberal democratic model

VietnamArt 4 from VN Constitution: Communist Party, helps wc, acting on Marx-Leninist doctrine etc.

Does this article make it Vietnam ROL state??

Go back to criteria that each of authors set out to evaluate this:- Fogelklou principles would say that VN is NOT ROL state- Clark would see tensions b/t trappings of ROL and actual practice of ROL principles- Problem of one party state and how this affects interaction of institutions under Fogelklou

criteria

- Puts institutions inside law BUT Communist party is still force leading state = tension b/t ideas b/c what happens if conflict of interest b/t ROL and party interest

- No sense of how that would work out, and which interests would take precedence- Clark and Fogelklou both would feel that this wouldn’t fit w/ ROL- HR protections Fogelklou outlines are absent in Article 4 with regards to life, liberty, safety

and property- Party acts as advocate of rights, but in West HR more grounded in idea of protection from

state in its abuses of power = fundamental differencesAccording to Clark’s key features, VN might fall short- Clark didn’t really say could set up evaluation in this way but did for this presentation- Art 4 does talk about Constitution as overriding feature but tension b/t one party state

and ROL and constraining ROL is there and problematic- He requires independent judiciary and this isn’t there in VN

Part II- comment of Harding that ROL is competing value system- whether Fogelklou rests upon single def’n of ROL phenom- she feels his rendition was specific to particular culture i.e. Western CIVILIAN model- sees ROL as existing as apart from political cultures it’s embedded BUT this is too reductionist- too based on liberal democratic foundation- Clark’s conceptions of ROL was more process-oriented, related to history, culture and institutional arrangements that evolve over time- good contextual idea but doesn’t give much to grab onto in thinking about this issue- that articles at opposite end of spectrum BUT what is in the middle- Harding suggestion- Fogelklou w/ life, liberty as fundamental criteria BUT this is more Western and not shared in all value systems around the world- have specific ideas of equality and how it is best achieved- conceptions might not accord well w/ what VNese conception would be

Part III- alternative def’n of ROL and how Clark would judge it- requires contextual def’n of ROL that must change and Clark would agree- incorrectness about static def’n of ROL that has constant meaning- Clark might have problem w/ last two precepts of def’n b/c in sense they still presume a democratic framework- if norm is communist norm, would that legitimate the power- agree w/ first premise but would have trouble w/ other parts- many states conceive of selves as ROL states w/o following this particular model

- Western modes of interpretation and tension w/ other understandings of ROL- here though is writ large b/c in context of globalization and dev’t- big issues and problems and contentious

Chart- draw out two larger issuesi) attempts to define ROL and how use as benchmarkii) how ROL is competing system

ROL Benchmarks- Fogelklou is very culturally conceived/worded- Perenboom w/ diff approach by delineating ROL along lines of THICK and THIN- thin → formal or instrumental aspects, laws be general public, prospective, capable of being followed and enforced, clear and consistent, stable and enforced, exist regardless of whether political system is democratic or non-democratic, socialist or capitalist

- thick → elements of thin PLUS elements of political morality, particular economic arrangements (capitalism, central planning), forms of gov’t (democratic, one party) and conceptions of HR

- only talks about China in this piece, writes about alien asian legal systems- seems to conclude that not inevitable end to which this will march forward- seems to be of view that model can be appropriated in diff ways and could lead to diff things, lots of values can be retained in thin framework- careful to say that don’t need to head toward thick conception

Neilson → he is becoming big commentator, and forcing a rethinking of methodology- thick and thin picked up elsewhere- earlier attacked Mattei and other comparative law scholars for their lack of practicality and inability to understand what law looked like on ground AND for misstatement of what legal systems capable of changing into over periods of time- contributes idea of MOMENTUM and there is VALUES CONTINUUM where you can allocate legal systems- his view of ROL system is rather forgiving one → what has happened in insanely short period of time- Albert Chen at Univ of HK → his view as well

- that legal people in China have to grope around b/c of nature of system, find handholds on which to attach badges of thick ROL- that will only come incrementally through court decisions, through specific laws that constrain official discretion, adoption of laws req’d by WTO

- Perenboom says NOT just about looking at formal law, but also how it is implemented b/c China is highly localized so many, many little legal systems

- Neilson meeting w/ people resp. for civil enforcement of judgments- court bailiffs from BC, private businessman, licenced to enforce civil judgments of BC courts- for VN this is totally foreign b/c enforcement is gov’t duty, and judgments are final and must be paid (even if in prison)- judgment-creditor pays for system and whether judgment is paid or not depends- Perenboom would say should look at this as law reform and recog that moving forward

Alicen → NOT so much thin to thick esp. if see thick as associated w/ liberal democratic traditions BUT likely think it’s possible to have thicker approach- get inside Chinese conscious and ask is it legal in way we think of it, what ROL of means to us versus what it means to Chinese- parallel institutions but don’t mean the same to pepole

Neilson → law and bylaw?? = both state-managed law

Reichstatt → she says it means ROL as it stands in society in HOLLAND- does Merel think it’s synonymous w/ THICK ROL? YES- in Dutch jurisprudence it’s there as official guideline for state action- is it historic or something that will evolve over time? Right now it’s quite fixed, but has in fact evolved over time

Neilson → SINGAPORE on good days is b/t thick and thin- that have very formal law but really is quite thin about substantive- very much has THIN, w/ heavy emphasis on procedure- on commercial and economic law side it’s more thick than thin- weakness w/r/t thickness- communitarian ROL → collective interests over indiv interests, rights don’t have such an important place in society

- don’t emphasize differences, want racial harmony and appearance that there are no particular differences w/r/t rights- unity over diversity

- potential racial and ethnic strife is very high and don’t want that

- is thick and thin reflected in curriculum of law school i.e. scholarship, pronouncements by school- comes out very obviously when study public law = comes out obviously, mention that ROL is quite think w/r/t constitutional- don’t see it reflected in curriculum exactly

Fogelklou and Clark- not competing arguments but start from diff starting points- see Fogelklou talks about condition precedent of market economy while Clark doesn’t even mention it- Fogelklou writes from law and dev’t perspective = Washington consensus = stable democratically produced law implemented by gov’t w/ strong civil society is END RESULT of ROL system- need those institutional, process, and moral leadership elements and if don’t have it then THICK legal system is lacking- has working model and comes from Reichstat and look for badges or criteria by which measure maturity of legal system- clear end goal is institutional, process and contextual elements that look for

- Clark completely ignores any legal Asian history, and focuses on US/Westminster and then looks at TODAY’s Asia- first part is very good assessment of Western version of rolling ball constitutional history = must have come from Greeks, Romans, American Revolution, French Revolution- part 2 is whether ROL exists in SE Asia

Neilson → working w/ Cambodia Parliament w/ no constitutional history, that fractured on political lines and violence is still frequent event- working w/ staff of Parliament THEN legislators in National Assembly and Senate- how get them thinking on same page about LEGISLATIVE ROL → how best exercise legislative responsibilities? Even knowing that exec will make most bills and implement- BUT all he can work w/ are the Parliament- how construct generic process, list of procedures whereby could become more effective lawmakers NOT partymakers- idea that there are standards of legislative review that reflect discharge of their legislative responsibilities- can ask questions of EVERY bill and EVERY minister

= develop ROL norms for lawmakers as elementary effort to provide framework for them for when actually receive bills- Committee responsible for reviewing Bill and raising questions, filing report back w/ National Assembly itself- as project, best inculcate legislators w/ idea of ROADMAP for legislative review b/c practical, culturally specific (nothing said in any document that didn’t have foundation in their Constitution)- Con in Cambodia is remarkably liberal document but how applied and exercised is very diff question- took the approach and criteria from Fogelklou → develop guidelines flowing from criteria

KEY POINTS:1) Alicen’s chart is very useful summary of two perspectives on ROL2) Perenboom and comments on thick and thin are third column

“ROL is more like a regulating ideal. It imposes an ethic of public justification on the exercise of state power”- one view of ROL paradigms

FOGELKLOU

6 PRINCIPLES

1) Supremacy of law (legality)2) SOP3) Protection of life, liberty, safety and ppty of persons4) Legal certainty5) Equality before the law6) Effectiveness of ROL principles

CLARK

Formal criteria approach

1) Promulgated to the public, and are not secret2) Generally prospective not retrospective3) Not impossible to comply with4) Clear, coherent with each other and stable5) Lawmaking is duided by the law6) Persons who make and administer laws are accountable, and actually do administer the law

consistently in accordance with the law7) A judiciary independent of government interference in individual cases8) Independnent legal profession9) Access to courts10) Application of the principles of natural justice (parties given fair hearing, no bias)11) Impartial and honest law enforcement

Procedural requirement: Due process- Parties before a court are entitled to be treated in accordance with the rules in existence at

the time the case is heard

Problem with this approach disregard for SUBSTANTIVE elements- The substance of the laws could be unjust and discriminatory but still meet the criteria

e.g. Nazi Germany

Democracy- ROL used as synonym for democratic government- Qualifications – can still be breach of human rights, abuse of power- Modern systems are not simply based upon the law, but there are other arrangements,

particularly political institutions and practices that vie for place of central principles in the system – eg. Where there is a WC conflict between ROL and parliamentary sovereignty

- Legal orders are embedded in political systems

Ideological Role- Developments sometimes merely an attempt by political leadership to bring populace and

subordinates into line (instrument of control) or to eliminate arbitrariness and uncertainty- Tends to also create demands on behaviour of ruling class

Western Assumptions1) Political leaders make mistakes2) Expected to rule in interests of public good, should be held accountable- BUT problem lies where view themselves as essential to the nation – have same interests- Different views of power – division of power vs weakening govt power3) Public officials are aware of legal limits on their power and will accept it4) Legitimacy comes from obeying the law and in democratic systems:- Having attained power by free and fair elections- State recognises relatively autonomous civil society consisting of voluntary orgs which the

state does not directly control and in operations of which it does not interfere

East Asia: RULE BY LAW- Rule according to known rules rather than arbitrary dictates- Instrumentalist view: rules seen as a more rational and more efficient means of guiding or

steering the society- Conflicts with one party rule – party esp leadership often above law

Assumptions of EA view of the world1) Society is not reallly plural – society is a corporate whole, emphasis on unity not diversity2) Political leadership should prescribe a ruling ideology and this principle should govern the

legal order3) Stress on collective responsibilities rather than on assertion of individual rights – political

leadership acts as guardian of collective responsibilities and duty to prescribe them in interests of nation

4) Criticism of political leadership is criticism of the nation and its overriding interests – threat to social order

5) Law and its institutions are a weapon to control society

East Asia Practice- Reference to WC being highest form of law not sufficient- Needs institutional supports to implement ROL- Issue: whether they exist and whether they are actually deployed in an effective manner

(often depends on political and institutional arrangements)- Accountability mechanisms – are citizens really listened to?

JOINT CIRCULARS

Dr. Per Bergling, Umea University

Neilson

- def’ns of customary law and legal receptions- in many Asian legal systems or juris → LAW (widely defined) was highly localized and village based, based on expected rules of behavior and conduct that were accepted in small community- TODAY: area of legal relations in VN that turns some of this topsy turvy b/c of suggestion from materials → central gov’t is now trying to construct a set of legal conduct rules reaching down to smallest hamlets

- hamlet, or village in VN, there are about 80 000- pop shrinking a bit b/c of urbanization- greater proportion of VN’s population still reside in villages, communes (collections of smaller entities)- hamlets to villages to communes to districts to provinces- fatherland committee, people’s council, people’s committee = will be reproduced at every level- at provincial (minister of justice), or national level (admin justice)

TODAY: why is there something called Rural Conventions, Joint Circular- what meant to achieve, what envisage, what does it tell us about attitude toward law taken up by VNese ldrship and other people trained in the country

Scott’s Presentation

Joint Circular #3 – 2000- from Ministry of Justice, Ministry of Culture and Information, and Central Committee of VFF- attempt to systemize and regularize the way local customs and traditions are turned into law- had problems before w/ dealing w/ local state agencies trying to deal w/ local laws of small communities- the circular was designed to tell people how things would be done from then on, done same way for everyone

- org’d in three main sectionsa) first section lays out goals of any of these rural conventionsi.e. work out measures to protect state, property, public property and property of citizens, set out fine customs, abolish superstitutions, healthy and inexpensive rituals, eliminate costly eating and drinking, new ethical norms for family and community, mutual love and solidarity in community, fight against social evils- also protection of state secrets → much in goals that supports state power and state authority- if going to allow traditional customs to be turned into rural conventions = have to live up to goals

b) proper procedure for compiling, adopting, and implementing rural conventions

i) first initiated, head of hamlet, head secretary of party committee get together and agree on what will happen, and who is in groups that will compile the rules and make rural convention

ii) compilediii) drafting process → this is where GOALS come iniv) the draft is reviewed by admin agency, party committee, ldrship of social and political

org’n, and maybe each family if timev) amendments madevi) draft completed

i) compilation group sends the draft to conference → people at this conference are reps of hamlet or village and vote on whether acceptable rule/convention- adopted by show of hands or ballot

ii) - presidents of VFF Committee look at the convention and make sure it conforms to laws and also “fine customs and habits” = acceptable habits

iii) then goes to President of District People’s Committee for approval, has signatures, but if it’s not approved in 30 days, then Ministries intervene and help the grassroots make something more acceptable to the state

iv) IF approved, then implemented

i) approved convention set back to village chiefs, put it up, promulgate new Rural Convention

ii) Implementation directed by VFF reps and People’s District Committeeiii) Report to higher up to see if any problems and if there are then it repeats the whole

cycle again

POINT: grassroots up through filters, then comes back to grassroots as finished law- BUT problem is GUIDING, the number of filters that are going on- maybe not local autonomy and self-gov’t that going on more in Canada w/ self-gov’t- still a lot of state guidance

PURPOSE: standardize way traditional laws are brought in

Q:- recog norms or create new norms??A: he thinks it is creating new norms- feels as if state is coming to small communities and saying want to recog the customs b/c don’t want to impose on you- but in end the state IS imposing its own version BUT b/c using grass roots to implement it (elder comes in and says participated, voted, and now have this) = creation of legitimacy- new norms clothed in legit of older traditions- if don’t comply w/ law, then Justice section strikes out right away

- have to be consistent w/ VNese law- Pres of PC at District level is advised by Justice group and that’s how convention eventually put out- in Circular → don’t overtly say that local customs turfed if don’t conform to socialist ideology, BUT how much anomaly will the little people be allowed to have- how much room can ideology really have to stretch

Neilson- look at preamble, giving you a bit of history about how got to this point- history is one of problematic implementation of previous efforts- after year, still had many shortcomings b/c not uniform and homogeneous, number of rules violate the law, compilation and “implementation are not really democratic” and ratification of conventions not done by right people and still no UNITY- want more predictability and unity

- to get joint circular, have to get 3 gov’t agencies = rare

Per → must be strong political rationale for pursuing initiative like this one- must allow various regions in VN a certain degree of latitude to regulate own terms- BUT also VNese regime where want conformity, more ROL streamlined- hard to see how these two currents could be combined

- struggling to implement ROL or Rule by law- have clear hierarchy of norms (in 1992 Con), as well as promulgation of legal docs- how can they devolve legislative powers to grassroots which attempts to do to some sense w/ these rural conventions??- how does it dare to take a political initiative??

Scott → rumblings in village, and don’t want it get out of control and challenge state legitimacy- if see problem of people feeling most connected to village, and village has indigenous power = have to think about way to CONTROL that, settle that down and pacify it- way to do it is to go into village and change the culture inside of village from bottom up = change the way the people on bottom think- inculcate these goals so that people naturally support the state’s goals = make it seem natural that ideas coming out of village instead of top down- want to make it seem consistent w/ what has come before

- socialist state wants to have degree of unity and hard for them to allow decentralization of power- here in Canada, trying to devolve power to Ab, and this challenges power of state b/c if local becomes more powerful, you do weaken the power of overarching of state

Per → (Interpretation of Scott) VNese regime tries to provide new sources of legitimization for existing sources of political rhetoric- reasons have rules/policies is not b/c HCM, or emanate from Hanoi, but actually rooted in interpretation that goes back 1000s of years- BUT presentation said that they want to create new norms at same time??

Scott → new in that talking about respect for ROL- VN attempting to move into greater global economy while maintaining some of its traditions, recog private property- change system under which people have been living w/o eroding way in which people feel connected to those traditions- Communist states in general = point of equality, communal living, lack of hierarchy

- common tool was to brainwash, make it automatic that people would think it was always way they thought i.e. always thought were equal and just held back by class system

- TODAY: VN new things to accept such as global economy- bringing new ideas into goals and then using those goals to subtly change through grassroots = bringing them in through back door- easier transition instead of having old and new traditions clashing- get them to think that natural to be thinking this way, not that way always thought but rather that it’s natural to think this way

Darren → socialist revolution being led by peasants in China, and is this a manifestation of this, similar ideal existing in VN- could this justify this kind of law-making?

Neilson → core of society is family, what HCM did in 45-46 was to attach self to peasantry,- very little industry in place at time

- if this is attempt to formalize and standardize “fine customs and traditions” then hugely detailed and heavy handed way to regulate village conduct- more detailed than some people’s constitutions!!- it’s to tell them roadmap of way to take

Q: what does it say about faith of leadership in the law? How important do they view the law as state policy?

- extremely rare to get this many ministries together and would have to be cleared by the highest level of the party- what were they hoping to get out of it? disaster or firm and positive view of ROL at the lowest level

Per → he doesn’t think it is product they are proud of- probably not come from Ministry of Justice - know what will work and what won’t, that hard to do this in institutional capacity, and that hamlets etc. CAN’T do this in way that needs to be done- probably came from above as reaction to political dev’t down below

Dongwook → may not have anything to do w/ political motivation- maybe it’s economic endeavour (De Soto Book “The Mystery of Capital”)- he says what is wrong w/ developing countries is that have enormous amount of assets and property yet poor- don’t have capitalistic way of handling properties, easy transfer, mortgage- mobilize capital out of asset- in poor and developing countries, takes a long time to buy land, 100s of steps

- came up w/ procedure- look at bottom level, look at rules existing there THEN create more sophisticated instrument to help that out

Dongwook → first thing countries often do is set Land law- asset they have w/r/t capital and land- de Soto saying that if rule is not uniform throughout country, then business only in small pockets and mobilization doesn’t happen

Neilson → how does this relate to Rural Conventions that make no mention of economics??- not really reflected in rules and intent of Conventions- they have ignored the land use question (appropriately says Neilson)

- Thunder from Highlands → misuse of land rights, arbitrary expropriation of land by corrupt officials, unauthorized local taxes by cadres and officials- this is magnified in rural areas where reach of central state less obvious and media is less evidenct- BUT some suggestion that reason for Rural Conventions is to capture local unrest, re-regulate it, and download diff set of expectations on local officials- just keep bringing in more and more filters and more people!! = requiring buy-in, you have to sign on as multiple officials- you’d rather be in majority of people who are signing on, approving, vetting this emerging instrument, although no one wants to be known as promoter, collector- minimizes chance for dissent or exception b/c keeps going up layers and steps where checking and conforming

- they don’t think have even got Rural Convention out of this by now- Min of Justice well aware of limitation of these exercises- political unrest may have led to fast tracking of this political instrument

Per → two currents, one toward streamlining things, enhancing capacity of central gov’t- VNese gov’t confronted by many problems but self-confidence is not it, they think if they had tools to implement policies VN would work well- want everyone to do same thing everywhereBUT 2nd current is that people say only thing that allowed VN to stay together as one unified nation despite pluralism is the ROOM for discretion at local and regional levels has been considerable

- provinces and regions in country have been allowed to develop at diff speeds and diff directions

= TIGHTROPE b/c if they pursue this in strong way, then compromise idea that parts of country could develop in diff ways at diff speeds

Q: rigged trap for itself by pursuing this initiative by expressing conformity at expense of something greater, national unity and existence of state??

Scott → yet they KNOW they are correct in their policies and want to implement them- he says if this is done subtly, allowing for views to percolate slowly and infiltrate the farmer’s fields- idea of becoming naturalized w/ peasants over time, subtle = maybe won’t seem so heavy handed from the top- would make them feel that still are developing in very diff speeds and locally, as their elders etc. were involved in this process

BUT very complex for hamlets to be instituted- always possibility of local unrest- MAYBE it was designed for foreign eyes, and more to show people that they are not imposing their views on everyone else- trying to get their views out into community in other ways = maybe blinding them to danger inherent in trying to change the village and way rules are handled- maybe better to leave things alone

Neilson → layered duties, threats of sanctions- do make references to grassroots, village elders (obviously not the other officials identified)- reiteration that one of true purposes of Rural Convention is to develop and preserve “fine customs and habits”- villages historically have had self-contained and detailed list of customs and habits that developed and applied to themselves i.e. weddings, funerals, good citizenship, whole question of social norms that keep village together- they would change and grow over time- they had codes that written down

- view of writers of Circular is that too often these customs and habits have taken form of perversion, i.e. too much money on wedding, elders not being honoured in way used to- excessive unrest or disorganization at village level and losing threads of continuity and historical self-control- should reinvent and reinstruct villages where bring in others, known in community, BUT all have some gov’t/party affiliation- work together to construct something that has to be approved at highest level

- how does downloading the responsibility to have self-management FIT w/ idea that still need total approval at highest level- irony is that by time gets to top, needs to be redrafted

- limitations of approach understood by lawyers in gov’t- other reasons to standardize approach to be taken and extend across all parts of VN

- this attempt to recodify village, customary norms through state initiative seen through Huong Uoc → new and frenetic interest by state legal researchers to do lots of work on what were historically collections of village customary norms- French intervene in norms where necessary by injecting taxation and rules, and new elders = this rejected by village- then country at war, then controlling attitude towards population- gone back to rural norms and how connect to rural conventions is unclear

- trying to standardize and revive customary norms in attempt to bring more stability into local communities

= search for SOCIAL STABILITY

- neo-legalist = law, law, law, need lots of positive rules, everyone should understand, and there are sanctions for non-compliance - leads to better regulation of society for common purpose (nationhood and socialist stability)- nothing to do w/ pluralism, diff political parties- VN heading toward version of market economy, and villages always been source of revolution and unrest SO focus is on downloading new ROL, new rules

- partly to seek out corruption of cadres- partly to ensure uniformity

- have to use same institutions (party and state officials) that cause unrest, to implement new systemized approach to reconstruction of legal norms at village level- this search of outreach and standardization will probably be totally misplaced- highly improbable that can implement Joint Circular

- has history of overreaching, as every law and decree has incredibly short working times- have 7 days to comment on law BUT NEVER HAPPENS!- this breeds more cynicism b/c all these duties constructed can’t be done in the time available

BIG POINT: Rural Conventions used to close circle of when looked at sources of law and customary law and how legal systems built up by receptions- here have legal system which is being downloaded indigenously, domestically from w/i- attempt to create detailed legal norms at lowest pop level in country- colonizers were very good at that originally i.e. Dutch in Indonesia, French in VN- VN are busy doing it to themselves (Dongwook)

- he feels misplaced, cannot be implemented- still excessive statement about state control- disappointing document from his point of view- won’t do too much for people’s view of law

- also idea of Asian values, and whether this exists when it comes to RIGHTS- Rural Conventions = recent statement about way in which one state has tried to deal w/ values, rights and expectations amongst village populations

Scott → French etc. kept local law separate from their laws- have people in cities that more educated in global, political, ROL- go back to villages where still live simply in old style of life, and make them conform to this other system- local system has kept stability in local village for 1000s of years, built up over time and changed = good b/c of stability- BUT can be irrational too and certainly don’t necessarily reflect party line- if city people come back and erode local belief systems- go into Ab societies in Canada, and erode traditions there = lose what holds those communities together and possibly have them implode, disintegrate

Per → open to recog that many of these “fine” traditions not so fine- some of these customs should be done away with- puzzling, surprising that VNese regime dares to bring matters to head as they do in this Circular- have many things going on at micro level that could safely allow to go on forever w/o disturbing = would make governing easier b/c not intervening so much- BUT here they are trying to intervene

- VN goes to lengths to avoid confrontation but here are asking if custom/rule is in conformity w/ criminal law- some comfort in fact that don’t have institutional capacity to do it- many provinces and capitals can’t be reached for months of year b/c of roads flooded- these don’t have idea of what role the national gov’t is prescribing for them

Summary

Has always been unrest in local level, major source of revolt – “thunder from highlands”

Despite urbanisation, vast majority still remains at village and hamlet levels – potential threat to central party – threats legitimacy of law (ROL)

Art 4 purports that has ROL (albeit thin version) – Joint Circulars seen as a way to systematise and regularise the way local customs are turned into law

Trade off:- Leaving discretion at local level- Uniformity of laws

Political initiative (VCP not the MOJ)- Quell social unrest – aim for social stability fundamental premise for economic

development- Supporting state power while paying lip service to local autonomy and control

- By the time it is “guided” up through the filters, it creates new norms that are in accordance with state goals

- Concept of “buy-in” and citizen’s input into the formation of laws legitimacy

Obviously not working – will affect public perception of the law affects ROL

Attempt to codify and incorporate Asian values into law - Societal rights (at village level)- For the good of the collective, nationhood and socialist stability neo-legalist

LAWMAKING IN VIETNAM AND CHINA

Elections/Membership Terms of Office“Parliamentary Supremacy”“Separation of Powers”

Formulation of Legislative AgendaParty RuleChoice of InstrumentIntra-Government Settling of Bills

SittingsCommittees“Debates”Passage/Promulgation Cong Bao

N.A. “Supervision”“Subordinate” legislationConstitutional “Integrity and Certainty

GillespieBui Lien

Lawmaking in VN and China

- understand how laws are made in China and VN - role of mass org’n in authoritarian legal systems- org’n of civil society by according monopolitistic groups rights = how they govern and implement- theory and practice of state corporatism

- thin to thick ROL- 4 types w/ Pereenboom and chart- this has increasingly been accepted as useful tool for looking at the badges of legality are evident for various kinds of legal systems- micro managing of Conventions

- former colonial regimes- central authoriies download local prescriptions to smallest level of governance- either by direct transplant OR by downloading formulas to provide mandatory framework for local generation of village laws

- recurring THEME of harking back to FINE TRADITIONS and HISTORY that attach selves to original village customary rules- as Per Bergling = unclear how fine and traditional these rules were

- sexist, discriminatory, applied in authoritarian manner- BUT point of them was maintaining a very firm form of social stability

- described as effort to provide guidance in dev’t of self-management systems for village gov’t- another e.g. of persistent failure to understand institutional capacity- isn’t capacity w/I VNese social, political or legal institutions to be able to develop host of village codes, constantly review them, see that they conform to req’d formula and that they are actually used in uniform and conforming mannerNB: troubling aspect of many legal systems

- reflects naïve belief in power of law- legalist approach → law becomes series of rules that must be enforced w/o insight or character

- end result is meant to be social conformity for their good- law reform in many legal systems is tied to this belief in what law is all about

- what is law?- distinguish FORM of law (whatever origins) and ACTUAL IMPLEMENTATION on ground- distinction b/t formality and actuality is huge w/ rural conventions- massive silence since first initial splash of the circular = recurring theme- breeds public CYNICISM about law and law reform- if think of self as non-corrupt, honest official even, still have 25 directives in a year about how you should organize your community and that you will be vetted and supervised

- name must go on every document- your day calendar would have constant deadlines, meetings

- much of law is seen as control instrument- in search of village stability, in search for supervision of officials, actions, the line often crossed from one of accountability to unending control, supervision and intervention- highly corrosive effect = show complete lack of trust by central authorities- micro management comes from this lack of trust

TODAY: go to national level- lawmaking institutions now have legitimacy and prominence that would have been unheard of 10 years ago (China, VN, Thailand)- in China recent legislation that changes the authority of National Assembly

Neilson article → multiplicity of legislation- China was in 1979 that entered into foreign markets- also doi moi → first Foreign Investment Law in 1985-6 and in force 1987- most amended law in VN- from then became legal factory- had been executive decree legal system = from state party and gov’t council = law

- many were not published- maximizes discretion in both gov’t and party officials

- also had very little private industry

- then FIL and get explosion of legislation- problem is that hard to set up, control, and manage a system when start from nothing

Elections/Membership/Terms of Office- National Assembly has 5 year terms- there are 498 deputies- most of them will not serve again, do NOT build up constituency history- don’t have advantages of incumbency (odds in favour that will be re-elected)- they meet twice a year, usually for 4-6 weeks each- one quarter of deputies are full-time (used to be less than that)- other ¾ come to Hanoi for the sessions and have other jobs and they are not really involved in dev’t and review of legislation in any kind of sustained way- this means that considerable onsite power is held in that ¼ who live in Hanoi

- in two sessions have to do lots of work to get the legislative agenda through- lot of session is protocol based w/ lots of ceremony- when look at materials that have, management of legislation takes on importance

- VFF runs election system and determines who can become candidate- about 20% of candidates NOW are NOT members of party, but 95% of elected member are

Parliamentary Sovereignty

- parliamentary sovereignty is something that is very relevant in Constitution- odd given all said before- Article 83 → assembly is highest representative organ of people and highest organ of state party- Assembly is only organ w/ constitutional and legislative power = so seems like our system

- BUT do NOT have separation of powers- not separated b/t National Assembly, gov’t and courts

- Supreme People’s Court (SPC) and Supreme People’s Procuracy (SPP) = all the same people and all interrelated- ministers often members of Court, Assembly

- Assembly does have in theory the rights of supervision and control- membership of Cabinet must come to Assembly for approval- in theory could remove members or Pres of SPC for malfeasance

- NA decides foreign policies, make and amend laws and Constitution, supreme control over all activities of the state- decide national budget, may elect or remove from office the president, the vice-pres, president of court etc.- decide issues of war and peace

Separation of Powers- HOW DO THIS? only there 2 times/year- do through Executive, the Standing Committee- communist methods of concentrating power and authority in small body - have SC surrounded by other members of NA

- there are 9 Committees i.e. Social and Women’s Affairs, Budget and Finance, Legislation- chair person of each of 9 committees + 2 other people form the standing Committee

- can meet for up to 15 days every month- they determine the legislative agenda- they are people who allocate deputies to various commissions, and are ones that live in Hanoi- membership of members of Standing Committee might be same for several terms (continuity that is not found in body itself)

Formulation of Legislative Agenda- are lawmakers themselves- responsible for ordinances which after laws are next most significant BUT tend to be more of them b/c i) faster, more efficientii) avoid in-house debates

- not secret but part of pattern of dealing with sensitive topics- Members of National Assembly increasingly do ask questions however the questions they are going to ask are vetted in advance by Chairman or Vice-Chairman of National Assembly (less than 10% of members regularly participate in debates)- BUT today more coverage, more media

- one good thing is that you normally know 2 years in advance what is coming = legislative agenda- will know the titles of laws and most ordinances that will be on agenda in a year= PLANNING SOCIETY

Party Role- law department of Party is very much involved in all consultations as to what is going to go on the legislative agenda- have early warning system

- certain policy topics that have to be vetted through party itself i.e. role and prominence of state enterprises- funnel

** Q: what is role of president (gov’t or party) and does Standing Committee people elected or appointed?- party’s role through National Assembly

Choice of Instrument- shelf space for regulation will be longer than for statutes- in VN there are many more kinds of subordinate instruments

- the work horse is the DECREE → laws, public or not public in past BUT now they come after laws, and ordinances = exec instrument that requires authority from law or ordinance- same in VN as in Canada w/ Regs → laws in VN are skeletal, very consensus driven and see way resolved disputes in the decree- law making is really about the settling of power

- gazette is Cong Bao- up to 8 times/mo that put out in both English and VNese

- CIRCULAR → important b/c w/o this an official will do nothing, will be no implementation- DIRECTIVES, DECISIONS, RESOLUTIONS as well

- must begin from premise that have to get big picture- go down list of legislative instruments and get whole picture

Debates- perfunctory, highly organized- sometimes can be surprising- Gillespie discusses what calls constitutional discourse

- VN Deputies are missing elements of this i.e. got caught up in idea that when sign treaty, caught up in terms, and derogate from state authority, give up some power/sovereignty when recog international laws- couldn’t conceive of this under terms of constitution

- how ratify convention that takes away that supremacy? = can’t talk about legal framework in this way

Passage/Promulgation - in case of laws, what goes in is supposed to come 4-6 weeks later = not change much- promulgation = formal passage and publication, bringing into effect a bill- then published by rule in Cong Bao

NB: common feature of all legislative systems and regularized under “Laws on Laws” (he says started in this room in 1994)- Law and Promulgation of Stat Instruments = roadmap of how law is to be prepared, drafted, vetted, and promulgatedBUT other purpose is that reasserts national control over all provincial law making- any instruments passed by Prov People’s Councils or Committees must conform to constitution and not be in conflict w/ national legislation

- national legislation = decrees, laws etc. and ministers, Standing Committee, and how laws passedBUT only 1/3 of legal base of legislation in country like VN, China, Indonesia- other 2/3 comes out of Provincial People Councils and Committees which are Executive of other 70 provinces (including 4 cities, Hanoi, HCM City)

- SC assisted by Min of Justice has to ensure that all this prov stuff integrates and causes no uncertainty with 1/3 at topBUT they don’t do this!! talking about 1000s and 1000s of rules that most often not even published- and they don’t meet that often either BUT all of their stuff is the other legislation

- UNITARY system, looks federal though legally not BUT is DECENTRALIZED b/c prov and cities law makers of own- have own loyalties, power bases- rel’ship b/t the center and them is fractious

Constitutionality “Integrity and Certainty”- “Law on Laws” = attempt to reassert control to make sure some consensus coming out of 2/3 group AND that doesn’t offend national legislation- integrity = make sure no internal conflict- SC is supposed to vet all legislation produced at prov level BUT only get high water marks and then can ask NA to annul it

- have to deal w/ Saigon and HCM City the most

- all of this is 15 years old- what has changed in these 15 years in VN and in other countries is amazing

Miranda

Gillespie- constitutionalism → one where legislators make effective laws b/c elected by or represent adult franchise in fair elections- need this for credibility and legitimacy in public- that has to be limited and have to observe these limitations

- VN socialist democracy is not like liberal notions of gov’t

- moving toward more rep style of gov’t making- more FT delegates- more time to communicate BUT are located in Hanoi which is far from constituents- media scrutiny of NA debates and now have television coverage

why not constitutionalism?1)- electoral legitimacy - mediated communication b/t NA delegates and public = lacks constitutionalism2)- that lack social codes and secondary codes to turn legal controversy and debate into legislation and legal arguments

- debates are lacking in formal or constitutional language- can’t convert normative ideas into legislative change

3) party mediates all levels of lawmaking

Neilson on case study

- his problem was that addressed Article 4 specifically- odd b/c year before the academics and historians and politicians were advocating similar change or discussion of Article 4

- some suggested Constitutional court w/ authority over public law and party law- BUT this was shot down as not even being appropriate for discussion

Miranda → that NA wants to have lots of control over entire process all the time = centralize- this affects democracy and electoral legitimacy strongly

Neilson → lots of debate over jurisdiction of delegates- amendment in recent law transferring setting of tax rates to Standing Committee not NA- logistically was reasonable suggestion b/c can’t have tax system where waiting for rates to be amended at next session of NA = too regulatory, too admin- delegates though ANGRY and stymied debates at House for weeks and didn’t want right to be given up- sometimes they see SC as attacking their remaining juris

Miranda → as part of move to constitutionalism is the beginning of petitionsNeilson → Art. 74, citizens have right to file petition and grievances (based on Soviet system)- this is another highly regularized approach- people want to give them to local members of Parliament but delegates not happy b/c they perceive this as state problem not partliamentary one- petitions and grievances are one form of safety valve BUT not carefully managed as 12 000 unresolved at any given time- resist attempts to download them to communes and districts

Alexis

- more complementary b/c Lien goes into other possibilities of opportunity for public participation

Gillespie → that businesses have to join these associations that don’t even protect them, they just reiterate what gov’t wants to hear- this is only way public participation is allowed according to him

Lien → talks about Vietnamese Business Forum- more potential to push for things that citizens can’t- do care about foreign involvement and investment and want to encourage this

- talks about media BUT don’t play huge role b/c in place at sufferance of gov’t- inte-bureaucratic → mostly think ineffective

- drafting agencies req’d to check w/ diff agencies that might have nothing to do w/ subject area so don’t have to deal w/ criticism= doesn’t get opinion of people

- informal lobbying → similar to American gov’t, everyone’s concerned about own business, not so much about lawmaking, benefiting public BUT rather get to know lawmakers so that they find in your favour if something DOES come up

- Gillespie → leads one to believe that public participation is not wanted or sought by VNese gov’t- Lien → public participation is becoming more common, that continue to happen and that will make things better

Neilson- Gillespie is from Australian- Lien is VNese lawyer w/ English degree

- works for US firm- knows about business law and lobbying- VBF is principle investment group for foreign investors

- most amended law in VN is FIL b/c needed to get foreign investment- conflated w/ joining WTo

- consultation as we know it is not that much here- more consultation in economic area- more important foreign element is, the more consultation that occurs

- when it comes to legislation, subordinate leg → VN business committee increasingly interacts with bureaucrats and politicans

- international lobby groups w/ more influence over national gov’t- the national local lobby groups have

POINT: very little goes on in w/ ordinary lawmaking- rules circumscribed and very clear what is both on and off the table- true for NA where certain issues not to be addressed

Lien → two interest groups- 2nd interest group couldn’t get recog at first- if do get recog and cause trouble in gov’t then make attempts at putting in own officials

POINT: public participation can be split b/t economic lawmaking and other forms of lawmaking- controlled and barely reflected in NA- more common in foreign and economic investment

SUMMARY

Constitutionalism is where legislators make effective laws because they have been elected in a fair and just way i.e. a broad adult franchise or are accountable to this group of people

Democratic liberal discourse suggests that without “electoral legitimacy” codification of social norms, in the form of legilsation would be lacking popular consent and validity.

Vietnam is based on a system of socialist democracy.

Gillespie suggests VN falls short of constitutionalism:

1) Electoral legitimacy- VFF defines who is politically dependable, 90% of NA members are also party members- There is a move towards greater electoral legitimacy i.e. representative style of lawmaking

- Number of FT delegates has gone up from 20% BUT are situated in Hanoi, far away from their constituents

- Candidates can now self-nominate- Party encourages communication with constituents and voters HOWEVER this is filtered

and there is a backlog of 12,000 petitions- Media scrutiny of plenary debates HOWEVER filtering of media also

2) Constitution provides few ground rules or “secondary code” for converting political, moral and econ arguments into legal language used by lawmakers

3) Party mediates every stage of lawmaking to ensure that lawmakers follow central party policy in codifying social norms

- 3 filters to focus decision-making (pg 443)

Controversy surrounding the 2002 Amendments- Suggestions that Art 4 left alone BUT establish a constitutional court - NA Chairman said not for discussion - against party leadership as set out by Marxist-Leninist

ideology

Public Participation

Gillespie is more negative- VN doi moi policy has revitalised groups and associations – creeping pluralism- To get around this, have government bodies (mass organisations under the VFF) that control

public participation – give citizens a forum to participate in lawmaking discourse with the government – 2 way street, but really a one way street

- Must be authorised – “Licensing culture” - Chamber of Commerce – but is 30% funded by party

- Businesses don’t trust them to fairly represent their views- More interested in inculcating party and state policies than advocating member interests

- UAIC influence grew, but VP was replaced by party cadre, reverted back to Leninist mass org- Media role, Silent communication

Lien was more positive- Main point was distinction between economic and other areas- Nationalist interest to listen to foreign investors

FOREIGN DIRECT INVESTMENT

Link to procuracy and enforcement of court judgments- Will not want to enter a country where legal system doesn’t enforce formal or informal

agreements- Preferable that there is formal law which Asian countries have tried tried to incorporate in

legislation and institutions e.g. DCJE and Procuracy- However problems with institutional incapacity and raises issues of rule in practice vs rule in

law – therefore foreign investors need a more comprehensive understanding of how the legal system operates – both informal and informal law

Alford- Careful in examining our starting point and framework- Should have a broader approach that incorporates the historical and developmental aspects

of the formal and informal law- Be cautious in the conclusions we draw using our system as the normative measure- Our outside perspective is unique – may form judgments - Use flexible framework because we need to expect that there are inherent differences- Need for a principle of thick description- Look at possible alternative “tomatoes” and compare to our tomatoes

Linnan- What approach should be taken when analysing the risk of entering a foreign market- More helpful than Alford approach for foreign investors (Manulife example)- What to expect of the legal system – both formal and informal- More micro outlook by taking objective value-laden analysis of perspectives of the interested

parties (doesn’t seek to lie blame with any party)- i.e. an “inside-out” approach- Adds to the Alford approach expect starts his analysis from a different starting point- Meditates on the perspectives to analyse the broader legal system- Emphasises that the power of informal law should not be underestimated even if risks are

mitigated to an extent

Foreign investor - Lack of functionning ROL- Hypocrisy was that they were using their own “informal procedures” requesting the the

executive intervene- Case is illustrative of the failure of a newly developing state to protect its foreign investors

from corrupt practices, evidencing the weak status of the ROL

Domestic Business Community- Made your bed, lie in it- Dharmala was well known in domestic industry as being marginal member of community- Went in knowing of the risks, therefore can’t complain that it has materialised- Mitigated risks – WB partner, joint venture with local company, pull with Canadian

government

Government- Can make us intervene because this inself would be a contrary to the ROL- Were using formal system to sanction Dharmala- Acknowledge that judiciary is not functionning as it should be executive intervention would

undermine the legitimacy and development of the state’s movement towards the ROL

CHINA

Took “Creeping Marketisation” approach (Susan Shirk)- Gradualism- Dual role: State control along with opening of market- Moving from authoritarian socialist econmy to a free and open market economy- In line with SOCIALST LEGALITY as they are doing so to further own national goals rather

than to boost local economies (although convinced local cooperation by making them realise they would benefit they would get from allowing foreign investors in)

- However irony was that legislation has left broad discretionary power with the local authorities, leading to localisation. This has weakened the power held in the central state

Potter

- Foreign investors still need to be sensitive to the underlying ideology that state control of FI is necessary to achieve national development goals

- Legislation places control in state (trifeca of legislation)- Foreign Economic Contract Law – must comply with laws and policies of PRC- General Principles of Civil Law – “attempts to soften” laws of GPCL- Administrative Litigation Law – provides for judicial review of of administrative agencies

but doesn’t apply to discretionary decisions - Despite legislative developments, there still exists major obstacles in the management of

foreign capital

Obstacles:

1) Policy Indeterminancy – discretion, no body of judicial review (no procuracy w GS powers)2) Inconsistent Regulatory Performance – Room for bureaucratic interference and levying of

arbitrary fees (localism)3) Inattention to Infrastucture4) Localism, corruption and decline of central state – strengthened the influence of local and

familial ties between procinvves and SEZs – corruption moving away from democratic centralism

5) Implication of local automomy, Local Corporatisation – local interests and benefits to communities are subverted to the commercial interests of foreign investors (abuses of power in pursuit of local commercial interests)

Peerenboom

Looks at why China has been able to sustain economic growth in light of the apparent lack of the ROL

Four possible hypothesis1, Fewer problems with lack of ROL then intially percieved- Dismisses this as whilst there have been significant improvement ie improvements to k law ,

these improvements do not outweigh other factors such as lack of predictability2, Investors may not make rational decisions- despite some irrational decisions the majority of investors do make rational choices and

irrational ones generally occure to a lack of abiliity to attain relaible information.3, Rule of law and enforceable property rights may not be as imprtant to foreign incestment and economic growth as intitally thought- relationship system is complementary to the Rule of Law - clientalisim and corprotisim are other factors behine Chinas economic growth

-vertical clientalisim is relationship between superior and subordinates ie regulated and reguators (reason for China’s economic growth- State led development)

-rule of relationships is horizontal ie equal parties - There has been statist corportisim emphasising the vertical realtionship which has ultimately

served to undermine the Rule of Law by subverting legal rules to internal and commercial interests

VIETNAM

- Mirrors Chinese experience

3 economic units:- SOE’s – unproductive, largely in debt, employ large portion of popn- FE’s- Private Domestic Enterprises

Creeping Marketisation - gradual approach used even more so as potential for instability is Greater

Doi moi reforms- Realised this couldn’t be achieved without provincial support lead from local level Govt

in a bind – can’t increase number or diversity of source of FE’s without giving more discretion to the provincial bodies

- JV Partners are nominated by MoI or PPCommittee- Often the partners are owned by the PPCommittee (to save state enterprise sector)- Governed by provincial laws which are in conflict with national laws

i.e. Example of the fiction of unified state management Movement away from democratic centralism – while the national laws place power in central government, authority is delegated to lcoal authorities – provincial governments are not “simply extentions of central government’ in reality.

Recurring issues

1) Centre-Province conflict- Refer Potter (localism)

2) Land Use Rights- Foreigners can’t own land therefore useful to have local partner- No land registry system- Land often has people living on it – creates delays

3) Joint management issues- Having locals on Board means that mgmt decisions can be hard to pass

4) Labour laws- Costs aren’t as low as they would seem – unproductive and extra costs often imposed

5) Inspections- Local cadres pick on FOEs as they see them as a threat to their powers- New decree says they have to be for legitimate reasons

For these reasons, REFOEs have become more popular than JV’s

lecture 1: thursday 4 september - university of...

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