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Open Access Publications from the University of California

UCLA Pacific Basin Law Journal

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PBLJ focuses on a diverse range of legal and policy issues as they affect the rapidly developing economies of the Pacific Rim. Throughout its history, the journal has featured articles written by leading scholars and practitioners on topics including human rights law, constitutional law, comparative law, criminal law, international trade law, business and corporate law, and intellectual property law.

Volume 28, Issue 2, 2011

Front Matter


The Use of Economic Analysis in Court Judgments: A Comparison between the United States, Australia and New Zealand

As a theoretical paradigm, the use of economics has dominated legal analysis both in academia and the courts in the United States for the last three decades. This popularity, though, does not extend to most other jurisdictions. Judge Richard Posner, one of the pioneers of the law and economics movement, developed a model comparing the structures of the legal profession in the United States, the United Kingdom, and continental Europe to explain the lack of the use of law and economics in the latter two regions compared with the United States.

This paper compares the use of economic analysis in judicial decisions in the United States with the extent of such use in two other common law jurisdictions: Australia and New Zealand. Judge Posner's model is used to examine the structure of the legal professions in Australia and New Zealand to predict the extent to which law and economics is used by each jurisdiction's respective judiciary. It is observed that Australian courts do not use economic analysis to any great extent, with senior members of the judiciary adopting an explicitly negative view of the value of economic reasoning in resolving legal disputes. Even those judges who attempt to apply economic tools to justify their decisions tend to do so in a simplistic fashion that does not draw on the full advantages such an approach offers and does nothing to counteract the claims of the paradigm's critics. New Zealand's judiciary has demonstrated a more receptive attitude, with little if any hostility expressed openly (unlike Australia), with notable senior members of the judiciary openly advocating for the courts to make greater use of economic reasoning in resolving legal disputes. These findings are in line with the expectations formed under Judge Posner's model.

Further observations are made regarding the legal education systems in the United States, Australia and New Zealand, finding that law and economics is taught to a greater extent in line with the    use of economic reasoning in the respective court system. While it is difficult to draw conclusions as to any causal relationship, an explanation is suggested that judicial attitudes, especially in Australia and New Zealand, have a strong influence on the extent to which law and economics is taught in law schools. Australia's and New Zealand's systems of legal education are much more focused, by necessity, on fundamental legal knowledge useful for a career in law, a restriction that does not exist to the same extent in the United States. The popularity of law and economics courses in Australia and New Zealand reflects the judicial attitudes observed in this paper's main analysis.

Hong Kong's Policies Relating to Asylum-Seekers: Torture and the Principle of Non-Refoulment

In the years following the transfer of sovereignty from British to Chinese rule, the Hong Kong Special Administrative Region has consistently tried to maintain a reputation as a jurisdiction that enjoys an independent judiciary and the rule of law. However, over the past decade, a series of events in particular areas have challenged this perception. The status of refugees and how they are treated represents one such area. The status of asylum seekers has always been a matter of concern as Hong Kong has never been a signatory to the 1951 United Nations Convention Relating to the Status of Refugees. Additionally, recent court decisions regarding the question of non-refoulement and the absence of a government screening process for refugees make it increasingly difficult for observers to accept Hong Kong as a forward-looking, world-class city.

This article examines recent decisions that deal with Hong Kong's obligations under international law regarding avoiding the ejection of refugees to jurisdictions where they will likely face persecution or torture. In particular, this article focuses on C. and Others v. Director of Immigration, in which Hong Kong's Court of First Instance considered whether an obligation of non-refoulement exists, and whether Hong Kong's government has a duty to provide a screening process to determine the status of all refugee claimants. Also explored is an earlier decision by Hong Kong's Court of Final Appeal, Secretary for Security v. Prabakar, in which a screening procedure for torture claimants was established.

The Shareholder Derivative Action and Good Corporate Governance in China: Why the Excitement is Actually for Nothing

Despite high expectations that shareholder derivative actions would serve as an important tool for improving corporate governance in China, only one lawsuit has been brought against a publicly listed Chinese company since such actions were formally introduced in 2005. Among the various barriers to such suits, and perhaps the most difficult obstacle for plaintiffs to surmount, is holding the requisite minimum of 1 % of corporate shares. It is difficult to reduce the threshold figure to a more accessible level, in part because using the minimum shareholding requirement as a mechanism for screening out frivolous litigation is inherently flawed. Yet, attempting to screen frivolous litigation through a judicial determination on the merits of a suit rather than using a minimum shareholding requirement is unlikely to work properly in China. The judiciary is weak, unsophisticated, and riddled with corruption. When the judicial system is in such a condition, it is unrealistic to expect that a derivative action specifically, or indeed, the private enforcement of law in general, can play a significant role in corporate governance. This paper considers these points, and examines how to improve corporate governance in a country with a weak judiciary.

From Socialist Ethics to Legal Ethics: Legal Ethics, Professional Conduct, and the Chinese Legal Profession

When the first lawyers of the modern Chinese legal regime began work in 1980, the role they played in society was radically different from the role played by lawyers in China today, as were the professional requirements placed upon them. This paper examines the development of the legal profession and the conception of what it means to be a "lawyer" in China. Consideration is also extended to the increasing independence granted to the legal profession by the Chinese government as well as the controls and supervision still in place. The system of professional responsibility is presented through an analysis of the Lawyer's Law, which serves as the legislative basis of the Chinese legal profession, and the ethical and professional problems that present themselves in the day-to-day practice of Chinese lawyers. Finally, some modest suggestions for how to improve the situation are offered.