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Open Access Publications from the University of California

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PBLJ is the second oldest law journal at UCLA and focuses on a diverse range of legal and policy issues in the Pacific Rim, looking to both the Asia-Pacific and the Americas. In the past, PBLJ has featured articles on topics as varied as intellectual property regimes, climate change and migration in the Pacific, corporate governance, and affordable housing policy in China.

Volume 37, Issue 1, 2020

Issue cover

Articles

Corporate Social Responsibility, Casino Capitalism, and the Constitution of Macau

Macau’s competitive foreign investment environment places it at the crossroads of global conceptions and articulations of corporate social responsibility (CSR). With tremendous financial resources at its disposal, including revenues six times those of Las Vegas, the Macau Government has a rare opportunity to position itself as a global leader in CSR practice. Nonetheless, systemic challenges such as low levels of public education and political development, the influence of mafia gangs, and high levels of human trafficking, problem gambling, and drug use persist. Although Macau’s situs as a Special Administrative Region of the People’s Republic of China ensures that CSR here will take its own form, these issues could be better addressed with open acknowledgement of the problems and improved channeling of local resources. Utilizing Matten and Moon’s methodology, this Article provides an overview of Macau’s CSR repertoires at this important point in local history: on the eve of the expiration of the first concessions granted to foreign operators as well as twenty years into Macau’s practice of semi-autonomous government under Chinese administration. This snapshot records how local CSR norms have developed historically, observes a cultural divide in the local conceptualization of CSR objectives between local and foreign operators, and makes a case for the normative basis for enhancement contained within the Macau Basic Law that should underlie directions for the future.

Black Magic, Sex Rituals, and the Law: A Case Study of Sexual Assault by Religious Fraud in Thailand

This Article critically examines the criminalization of religious fraudulent sex as sexual assault (i.e., rape and indecent acts) in Thailand and makes descriptive and normative contributions to the fields of comparative criminal law and constitutional law. With respect to criminal law, we find that Thai courts utilize a creative doctrinal maneuver (i.e., a victim’s naivety is a form of ‘inability to resist’) to convict alleged fraudsters with statutory provisions that do not readily criminalize fraudulent sex. We argue that while the doctrinal maneuver does desirably extend the otherwise limited scope of Thai sexual offense provisions, the emphasis on the cognitive deficiencies of the defrauded victim reflects a paternalistic victim-blaming that is problematic. With respect to constitutional law, we find that Thai courts are both comfortable in directly adjudicating religious claims, and intrinsically skeptical of any supernatural or religious claims involving sex as part of a ritual. We argue that while the assessment method of the Thai courts does not accord with principles of religious liberty espoused in the United States and Europe, it is an inevitable outcome of the prevailing constitutional ordering and societal understanding of religious freedom in Thailand.

Securitizing Innovation to Protect Trade Secrets Between “the East” and “the West”: A Neo-Schumpeterian Public Legal Reading

The first target of today’s global commercial and military espionage, trade secrets, are the only form of intellectual property protection to be based on the necessity of nondisclosure and secrecy rather than on the paradigm of publicity and exploitability, with the obvious consequence that where confidentiality ends, no trade secret factually exists anymore.  As such, current judicial remedies to trade secret thefts simply miss the point, treating trade secrets as rights which can be restored, rather than as assets that once stolen, are lost forever.  Moreover, trade secrets often represent the “backbone” of a country’s development: an invaluable strategic advantage for entire industrial systems, innovation environments, and national economies.  Whereas a trade secret theft occurring within domestic borders transfers exploitability rather than causing damage to the economic ecosystem of the country concerned, international trade secret thefts may jeopardize states’ economy and public security alike.  For these reasons, the only way to protect trade secrets by law is through ensuring that their secrecy is reasonably safe by means of compulsory cybersecurity and cyber-hygiene standards to be complied with by their owners.  When it comes to this specific form of IP, the only protection is afforded with prevention: injunctions and compensations can work as remedies for other IP rights’ misappropriations and misexploitations, but do nothing to restore the peculiarity of a trade secret which is, indeed, its secrecy.  Not only should companies be compelled to adopt and implement reasonable sector-specific IT security measures and procedures, but licensing agreements including know-how should feature a specific cybersecurity clause to be carefully negotiated.  The new cybersecurity regimes of world powers like China seem to capture this problem, and to (involuntarily?) provide useful tools for addressing it beyond the schemes of intellectual property or tort (confidentiality) laws.  Regrettably, other countries in the Pacific region appear to keep the belief that trade secret thefts are a private affair of the breached companies, which should seek redress via traditional judicial channels.  This is to be deemed an outdated, misleading, shortsighted and ineffective approach.

Difficulties With Drug Conspiracies in Singapore: Can You Conspire to Traffic Drugs to Yourself?

If Person A delivers drugs to Person B at the latter’s request, Person A is liable for drug trafficking—a serious offense in many jurisdictions.  However, the liability of Person B for drug trafficking is unclear as much may depend on Person B’s intention with the drugs.  The Singaporean Courts recently had to grapple with this issue in Liew Zheng Yang v. Public Prosecutor and Ali bin Mohamad Bahashwan v. Public Prosecutor and other appeals.  Prior to these two cases, the position in Singapore was clear—Person B should be liable for drug trafficking as an accessory to Person A, in line with Singapore’s strong stance against drug offenses.  However, since these cases, the Singaporean Courts have taken a contrary position and held that Person B may not be liable if the drugs were for his/her own consumption.

This Article examines the law with respect to this drug conspiracy offense in Singapore, looking at its history, the primary legislation and similar cases.  It also scrutinizes the judicial reasoning in the two cases above and considers whether this can be reconciled with the Courts’ prior position on the issue.  In this analysis, the Article also investigates the position taken in other comparable common law jurisdictions—including the UK, Australia, Canada and the United States—and concludes that the Singaporean Courts’ reasoning in the aforementioned two cases may not be tenable and warrant a reexamination.

Change of Regulatory Scheme: China’s New Foreign Investment Law and Reshaped Legal Landscape

Protection of foreign investment has long been an issue facing China.  The newly adopted Foreign Investment Law (FIL) and Implementation Regulations not only unify the foreign investment regulations but also reformulate the regulatory regime that governs foreign investment in the country.  In response to the mounting criticism of the practices in China that damage the interests of foreign investors, including, among others, forced technology transfer and commercial theft, the FIL is purposed to build a better environment so that foreign investment will be more effectively protected.

The FIL changes the main themes of China’s regulation of foreign investment and puts new market access rules and measures in place on the foreign investment horizon.  The FIL Implementation Regulations intend to fill the gaps left in the FIL.  Still, many questions remain unanswered.  Both the broadness and vagueness of the FIL require further clarification and specific measures in different aspects.  The Supreme People’s Court is expected to issue judicial interpretations on various practical matters.

The FIL is charged with the mission to even the playing field by providing fair treatment to foreign investors in the country, but the challenges encountering foreign businesses seeking establishment in China remain.  The clear rules of implementation aside, an effective enforcement mechanism is essential to the achievement of the intended goals of the FIL.