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This in-depth comparative examination of the derivative action in Asia provides a framework for analysing its function, history and practical application and examines in detail how derivative actions law works in practice in seven important Asian jurisdictions (China, Hong Kong, India, Japan, Korea, Taiwan and Singapore). These case studies allow an evaluation of a number of the leading Western comparative corporate law and governance theories which have come to define the field over the last decade. By debunking some of these critically important theories, this book lays the foundation for an accurate understanding of the derivative action in Asia and a re-examination of the regulation of the derivative action around the world.
The rise of China and India, two economic superpowers (if not quite yet military superpowers), almost simultaneously is perhaps unprecedented in history and this presents both opportunities and challenges. While the likelihood of actual military conflict has been somewhat limited by norms against the use of force since the Second World War, proxies for actual military conflict are often found as the trade skirmishes fought between the US, Japan and the EU have illustrated.
However, China and India have ostensibly chosen to pursue development strategies based on cooperation rather than competition. China has assured the Asian region that it will stay on the path of peaceful development and it is actively engaging other nations to work towards win-win partnerships. In particular, China has, along with Japan and South Korea, been working with ASEAN in the ASEAN+3 process. India has also embraced a policy that encourages regional cooperation. At the first East Asia Summit (EAS) held in Kuala Lumpur on 14 December 2005, the Indian Prime Minister, Manmohan Singh, outlined his vision of an emerging Asian Economic Community (AEC) as including ASEAN, India and China. He also envisioned a Pan Asian Free Trade Agreement which, together with many other free trade agreements (FTAs) being negotiated in the region, would form the building blocks of the eventual AEC. ASEAN is already in the process of negotiating FTAs with both China and India and has already concluded Framework Agreements (FAs) for these FTAs.
The ASEAN Charter was signed on 20 November 2007 at the 13th ASEAN Summit in Singapore and it entered into force on 15 December 2008 on the 30th day after all ten ASEAN member states submitted instruments of ratification to the ASEAN Secretary-General. While the Charter does take the important step of conferring legal personality on ASEAN, it does not completely resolve all the concerns regarding the implementation of the Charter itself.
The implementation problems may arise from three main areas. First, a lack of political will at the state level to implement the treaty. Second, at the domestic level, if the domestic laws are either not in conformity with the treaty or are silent with regard to treaty norms or obligations, the domestic courts applying those laws may not enforce the obligations of the treaty. Finally, there may be administrative structural problems preventing the obligations of the treaty from being applied at the ground level. It is beyond the scope of this chapter to deal with the latter as that will require surveys and interviews at the ground level of each of the ten ASEAN member states for each specific obligation. Instead, it will focus on the former two problems.
In this regard, the terminology used by Brown Weiss and Jacobson regarding strategies for encouraging state compliance with environmental law may be helpful. Using a matrix of “intention” and “capacity”, they suggest that a policy toolkit of sanctions, incentives, and “sunshine” can be part of a strategy to strengthen state compliance. Their empirical study showed that where intention and capacity of states to comply were strong, sunshine was the most appropriate tool. Merely highlighting the problem was sufficient as the states usually were able to quickly resolve the issue. However, where capacity was weaker, incentives were necessary to increase the capacity.
Preferential trading exchanges have been a very common phenomenon in today's world. FTAs and RTAs are growing so fast that many academics are arguing that they are creating obstacles towards WTO's multilateral trade liberalization. Although seven nations in the South Asian region have recently executed an FTA, the progress of regional cooperation in this region is rather dismal. The purpose of this paper is to analyze SAFTA and discuss the prospect of more meaningful cooperation within the SAARC.
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