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John Gillespie

Monash University, Business Law and Taxation, Faculty Member

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John has been a visiting research professor at the Faculty of Law, National University of Singapore and University of Hong Kong, and visiting research fellow at the Research School of Asian and Pacific Studies at ANU and the Asian Law Centre at Melbourne University. He has consulted widely to international donors such as the World Bank, UNDP, IFC, Danida and AusAid on legal development projects in East Asia. He has also worked on committees advising the Federal Attorney General and AusAid on legal cooperation and development in East Asia.

His research and teaching interests include Asian comparative law, law and development theory and regulatory theory. He is currently working on a research project exploring what is socialist about socialist law in East Asia with scholars from the Universities of Hong Kong and Melbourne. He has been the lead investigator on an five ARC Discovery projects.

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Universiteit Utrecht

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UNL - New University of Lisbon

University of the Basque Country, Euskal Herriko Unibertsitatea

Luis Arroyo Jiménez

University of Castilla-La Mancha

Thongchai Winichakul ธงชัย วินิจจะกูล

University of Wisconsin-Madison

The University of Queensland, Australia

University of Genova

Ecole Pratique des Hautes Etudes

UFBA - Federal University of Bahia

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Papers by John Gillespie

An historical overview of Vietnamese land law and dispute resolution

Resolving Land Disputes in East Asia

1 Taking the interpretation of legal transfers seriously : the challenge for law and development

The legal transfer has a long history; from the Roman Empire to European colonialism, legal syste... more The legal transfer has a long history; from the Roman Empire to European colonialism, legal systems around the world have developed through legal transfers. Recently, European harmonisation projects and the reform of ‘developing’ legal systems in Asia, Eastern Europe, Africa and Latin America all presuppose the transferability of laws and legal institutions. They assume the capacity to transfer existing legal frameworks and institutions into new locations to effect legal reform. This book contributes to the understanding of law and development by challenging this assumption and proposing a shift in analysis to a greater focus on the social demand for reform. The main protagonists in the reform of developing legal systems around the globe are transnational donors, and legal transfers are their tools of trade. For example, reforms to courts and commercial codes, together with the development of property systems, draw heavily

2 Developing a Decentred Analysis of Legal Transfers

Examining Practice, Interrogating Theory: Comparative Legal Studies in Asia, 2008

Asian Socialism and Legal Change : The dynamics of Vietnamese and Chinese Reform

The diversity and dynamism of legal change Contents Tables vi Figures vi Abbreviations vi Contrib... more The diversity and dynamism of legal change Contents Tables vi Figures vi Abbreviations vi Contributors viii Preface-Malcolm Smith xi Acknowledgments xiii THE DIVERSITY AND DYNAMISM OF LEGAL CHANGE IN SOCIALIST CHINA AND VIETNAM 1 The diversity and dynamism of legal change in socialist China and Vietnam 1 John Gillespie and Pip Nicholson 2 Of 'socialism' and 'socialist' legal transformations in China and Vietnam 21 Michael Dowdle 3 Changing concepts of socialist law in Vietnam 45 John Gillespie 4 Confucianism and the conception of the law in Vietnam 76 Pham Duy Nghia

The regulatory geography of market competition in Asia (and beyond): a preliminary mapping

by Michael Dowdle and John Gillespie

Towards a Regulatory Geography of Global Competition Law, 2013

East Asian Socialism and East Asian Legality: A Response to Ewan Smith

Asian Journal of Comparative Law, 2019

Ewan Smith has written a thoughtful and nuanced review of Socialist Law in Socialist East Asia th... more Ewan Smith has written a thoughtful and nuanced review of Socialist Law in Socialist East Asia that effectively highlights the main difficulties in researching and analyzing socialist law in East Asia. He has a keen understanding of socialist law and supports the objective of the book, which is to place ‘socialism back in the foreground of our analysis of law in East Asia’. He discusses the problems the authors faced in disentangling socialist law from socialist state institutions. In addition, he reflects on what ‘socialist’ law might resemble if it were disaggregated from Marxist-Leninist thought. Smith also points out that law is not socialist just because self-declared socialist states say it is socialist. Or as he eloquently puts it: ‘The party’s account of socialist law is a treacherous guide to its true nature and true objectives’. Our first point is a simple clarification. The book confined socialist East Asia to China and Vietnam, not because the Democratic Republic of Korea and Laos were considered non-socialist states, but rather, as the Introduction explains, because there is a scarcity of legal research materials dealing with these countries (ch ). On a more substantive note, Smith encourages a ‘value-led’ approach to socialist law that applies the categories of liberalism to socialist law. As he comments, the ideas in the book should be given the ‘same treatment meted out to Republicanism, parliamentary democracy, or strong-form constitutional review’. The book, however, explicitly seeks to shift the ‘analytical focus away from liberal legalism’ (p ). In fact, one of the central arguments in the book is that this kind of value-led comparative approach has tended to obscure the ongoing justifications, practices, and resilience of socialist law (chs  & ). The book therefore proceeds on the understanding that the necessary first step is to uncover, understand, and identify the basis of socialist law. Only in this way can we begin to understand the ongoing resilience of socialist legality. The book seeks to uncover this resilience by looking to both its practice and justifications from an internal perspective. It seeks to gain this internal viewpoint by examining these institutions historically, comparatively (particularly with other proclaimed socialist models), and conceptually. The ambition is to take these legal practices, institutions, and ideas as they stand in Vietnam and

The Diversity and Dynamism of Legal Change in Socialist China and Vietnam

Asian Socialism and Legal Change, 2005

The Diversity and Dynamism of Legal Change in Socialist China and Vietnam

Asian Socialism and Legal Change, 2005

[07PacRimLPolyJ555] Land Law Subsystems? Urban Vietnam as a Case Study

Throughout Vietnam's long history, the central elite and peripheral farming communities have ... more Throughout Vietnam's long history, the central elite and peripheral farming communities have been legally and culturally divided. This dichotomy was never as complete as the famous injunction that "the emperor's writ stops at the village gate" infers. Initially, during the period of French colonisation and more recently since the introduction of doi moi (renovation) economic reforms, central authorities have attempted to unify land management with universal normative law. This experiment has stimulated widespread non-compliance with land laws in urban centres; in some areas compliance is a fringe phenomenon. In this divided legal geography, pockets of non-compliance give the appearance of autonomy from state legality-suggesting the existence of plural land law sub-systems. But an analysis of case studies concerning land use right applications, squatting, court decisions and compulsory acquisition reveals complex relationships between land occupiers and the state. A...

[07PacRimLPolyJ555] Land Law Subsystems? Urban Vietnam as a Case Study

Throughout Vietnam's long history, the central elite and peripheral farming communities have ... more Throughout Vietnam's long history, the central elite and peripheral farming communities have been legally and culturally divided. This dichotomy was never as complete as the famous injunction that "the emperor's writ stops at the village gate" infers. Initially, during the period of French colonisation and more recently since the introduction of doi moi (renovation) economic reforms, central authorities have attempted to unify land management with universal normative law. This experiment has stimulated widespread non-compliance with land laws in urban centres; in some areas compliance is a fringe phenomenon. In this divided legal geography, pockets of non-compliance give the appearance of autonomy from state legality-suggesting the existence of plural land law sub-systems. But an analysis of case studies concerning land use right applications, squatting, court decisions and compulsory acquisition reveals complex relationships between land occupiers and the state. A...

Socialist Law in Socialist East Asia

Since China's reform and opening up started in 1978 and Vietnam's Doi moi reforms were in... more Since China's reform and opening up started in 1978 and Vietnam's Doi moi reforms were initiated in 1986, these two East Asian economies have adopted capitalistic models of development while retaining and reforming their socialist legal systems along the way. Tracking the trajectory of socialist laws and their legacy, this book offers a unique comparison of law and institutional designs in China and Vietnam.

From “Weak” to “Strong” Sustainability: Protesting for Environmental Justice in Vietnam

Journal of Vietnamese Studies, 2019

Rapid industrialization has come at a high cost to the natural environment in Vietnam. Frustrated... more Rapid industrialization has come at a high cost to the natural environment in Vietnam. Frustrated with regulatory inaction, Vietnamese citizens from many social backgrounds have taken direct action to protect their country’s natural environment. Most studies about environmental disputes in Vietnam have focused on large-scale conflicts, leaving smaller-scale rural disputes comparatively under researched. Drawing on in-depth interviews, this article explores how knowledge about environmental activism can transform the claims made in small-scale disputes. It examines why these disputes can sometimes succeed in mitigating environmental harm when complaints through administrative and judicial avenues fail.

Socialist Law in Socialist East Asia

Since China's reform and opening up started in 1978 and Vietnam's Doi moi reforms were in... more Since China's reform and opening up started in 1978 and Vietnam's Doi moi reforms were initiated in 1986, these two East Asian economies have adopted capitalistic models of development while retaining and reforming their socialist legal systems along the way. Tracking the trajectory of socialist laws and their legacy, this book offers a unique comparison of law and institutional designs in China and Vietnam.

Public Discourse and Constitutional Change: A Comparison of Vietnam and Indonesia

Asian Journal of Comparative Law, 2016

in this Special Issue is that public discourse is shaping the reform agenda. Some commentators ar... more in this Special Issue is that public discourse is shaping the reform agenda. Some commentators argue that public discourse is animating a transition from a Soviet-influenced authoritarian constitution to a more liberal incarnation that legally defines the interface between state and society. Others are less certain about the impact of liberal constitutional discourse, and argue instead that Confucianism and East Asian illiberalism are equally important discursive influences. Although differing in their normative emphasis, these accounts share a common view that public commentary is propelling the party-state toward some kind of constitutionally limited government. This transformation involves a shift from a constitution that coordinates state agencies, announces state ideology, and controls and elicits cooperation from subordinates, to one that also establishes legal limits to party and state power. Despite unprecedented public discussion during the lead-up to the 2013 Constitution, commentators agree that reforms have been modest. Public calls for amendments that would have made the party and state legally accountable to the constitution were rejected. For example, the party leadership emphatically opposed constitutional oversight of the party, the separation of powers, a constitutional review council, legally enforceable guarantees of civil rights, and private land ownership. Nevertheless, many commentators remain optimistic that eventually the constitution will legally constrain party and state power. This faith in the capacity of public discourse to fundamentally change the conceptual underpinnings of the constitution raises fundamental questions. How does public discourse change deeply held constitutional preferences in authoritarian political spaces? What kinds of public discourse are the most persuasive in shaping law-making? This article draws on neo-Habermasian scholarship 1 to analyze the interaction between public discourse and constitutional change. It then contrasts constitutional discourse in Vietnam with public discourse that fundamentally changed the Indonesian Constitution after the fall of President Soeharto in 1998. It argues that key

Towards a Discursive Analysis of Legal Transfers Into Developing East Asia

2. The "country and western" comparative law tradition derives its name from its preoccupation wi... more

Resolving Land Disputes in East Asia: Exploring the Limits of Law

SSRN Electronic Journal, 2014

Introduction Land disputes are increasing in East Asia as economic and demographic growth intensi... more Introduction Land disputes are increasing in East Asia as economic and demographic growth intensifies the demand for farmland and urban spaces. Nowhere is this more evident than in China and Vietnam. Reforms that brought Socialist Asia into the globalized economy and returned private property have also sparked intense competition between farmers and residents with outsiders, such as private developers and government agencies. In China and Vietnam, industrial parks, transport infrastructure and new residential developments are encroaching on farmland, sparking increasingly violent clashes with farmers. China alone experienced more than 500 daily land disputes and protests in 2011, 1 with the Wukan village insurrection, discussed in Chapter 6 in this book, making newspaper headlines around the world. From a legal perspective, the proliferation of land disputes is puzzling, because it is occurring at the same time as governments in China and Vietnam are clarifying property rights and improving formal dispute resolution institutions, such as the courts. Rather than promoting uniformity, order, and predictability, the authors in this book reveal that law reforms have produced mixed results. Land claims and property rights often conflict,

Exploring the Role of Legitimacy and Identity in Framing Responses to Global Legal Reforms in Socialist Transforming Asia

A bourgeoning literature about socialist transforming Asia (China and Vietnam) shows that economi... more A bourgeoning literature about socialist transforming Asia (China and Vietnam) shows that economic development is possible without fully functioning legal systems based on laws and institutions derived from North America and Europe. What is less clear is whether over time the regulatory systems in these countries will evolve toward more economically efficient globalized forms of Western governance, as some commentators suggest, or follow a more complex pattern of convergence and divergence. This article advances the debate by investigating the factors that motivate actors in these countries to look beyond domestic regulatory systems and embrace global regulatory regimes. I argue from empirical research the need to decenter the analysis of legal globalization to take into account the myriad local actors, state, non-state and hybrid that interact with global regulatory regimes. I conclude that conventional explanations for the formation of regulatory preferences that are based on cost-benefit calculations tell only part of the story. Perceptions of legitimacy and identity also profoundly influence regulatory preferences and steer domestic responses to global regulatory regimes.

Resolving Land Disputes in East Asia: Exploring the Limits of Law

SSRN Electronic Journal, 2014

Introduction Land disputes are increasing in East Asia as economic and demographic growth intensi... more Introduction Land disputes are increasing in East Asia as economic and demographic growth intensifies the demand for farmland and urban spaces. Nowhere is this more evident than in China and Vietnam. Reforms that brought Socialist Asia into the globalized economy and returned private property have also sparked intense competition between farmers and residents with outsiders, such as private developers and government agencies. In China and Vietnam, industrial parks, transport infrastructure and new residential developments are encroaching on farmland, sparking increasingly violent clashes with farmers. China alone experienced more than 500 daily land disputes and protests in 2011, 1 with the Wukan village insurrection, discussed in Chapter 6 in this book, making newspaper headlines around the world. From a legal perspective, the proliferation of land disputes is puzzling, because it is occurring at the same time as governments in China and Vietnam are clarifying property rights and improving formal dispute resolution institutions, such as the courts. Rather than promoting uniformity, order, and predictability, the authors in this book reveal that law reforms have produced mixed results. Land claims and property rights often conflict,

Human Rights as a Larger Loyalty: The Evolution of Religious Freedom in Vietnam

of Human Rights ("UDHR") and its progeny should "harmoniously combine" with domestic political, c... more of Human Rights ("UDHR") and its progeny should "harmoniously combine" with domestic political, cultural, and religious traditions. They claim that "no country has the right to impose any political, economic, or cultural model on others." 9 Underlying these ritualistic responses is a sense of outrage that foreigners should judge Vietnam so egregiously. 10 This debate takes place against the background of vigorous disagreement about religious freedom in the United Nations. 11 Hearings on the 2012 Annual Report of the U.N. Special Rapporteur on freedom of religion or belief revealed fault lines among member states over issues such as religious conversion, including the right to change religion and to proselytize about changing or leaving a religion. 12 States with official religions were especially opposed to permitting citizens to leave statesponsored belief systems. 13 At the other end of the spectrum, many western countries, including the United States, argued that "freedom of religion or belief includes the right to reject all religions and protects the rights of atheists." 14 Western human rights advocates also criticized the use of blasphemy laws to stifle religious discussion and practices. 15 Differences in the rhetoric deployed by the United States and Vietnam reveal fundamentally different understandings of religious freedom. The U.S. State Department invokes universal human rights and compliance with /tt_baochi/pbnfn/ns130805202859, archived at ; see also Bộ Ngoại giao Việt Nam,

Regulation in Asia

Page 1. Page 2. Regulation in Asia Unlike much analysis about regulation in Asia which focuses on... more

An historical overview of Vietnamese land law and dispute resolution

Resolving Land Disputes in East Asia

1 Taking the interpretation of legal transfers seriously : the challenge for law and development

The legal transfer has a long history; from the Roman Empire to European colonialism, legal syste... more The legal transfer has a long history; from the Roman Empire to European colonialism, legal systems around the world have developed through legal transfers. Recently, European harmonisation projects and the reform of ‘developing’ legal systems in Asia, Eastern Europe, Africa and Latin America all presuppose the transferability of laws and legal institutions. They assume the capacity to transfer existing legal frameworks and institutions into new locations to effect legal reform. This book contributes to the understanding of law and development by challenging this assumption and proposing a shift in analysis to a greater focus on the social demand for reform. The main protagonists in the reform of developing legal systems around the globe are transnational donors, and legal transfers are their tools of trade. For example, reforms to courts and commercial codes, together with the development of property systems, draw heavily

2 Developing a Decentred Analysis of Legal Transfers

Examining Practice, Interrogating Theory: Comparative Legal Studies in Asia, 2008

Asian Socialism and Legal Change : The dynamics of Vietnamese and Chinese Reform

The diversity and dynamism of legal change Contents Tables vi Figures vi Abbreviations vi Contrib... more The diversity and dynamism of legal change Contents Tables vi Figures vi Abbreviations vi Contributors viii Preface-Malcolm Smith xi Acknowledgments xiii THE DIVERSITY AND DYNAMISM OF LEGAL CHANGE IN SOCIALIST CHINA AND VIETNAM 1 The diversity and dynamism of legal change in socialist China and Vietnam 1 John Gillespie and Pip Nicholson 2 Of 'socialism' and 'socialist' legal transformations in China and Vietnam 21 Michael Dowdle 3 Changing concepts of socialist law in Vietnam 45 John Gillespie 4 Confucianism and the conception of the law in Vietnam 76 Pham Duy Nghia

The regulatory geography of market competition in Asia (and beyond): a preliminary mapping

by Michael Dowdle and John Gillespie

Towards a Regulatory Geography of Global Competition Law, 2013

East Asian Socialism and East Asian Legality: A Response to Ewan Smith

Asian Journal of Comparative Law, 2019

Ewan Smith has written a thoughtful and nuanced review of Socialist Law in Socialist East Asia th... more Ewan Smith has written a thoughtful and nuanced review of Socialist Law in Socialist East Asia that effectively highlights the main difficulties in researching and analyzing socialist law in East Asia. He has a keen understanding of socialist law and supports the objective of the book, which is to place ‘socialism back in the foreground of our analysis of law in East Asia’. He discusses the problems the authors faced in disentangling socialist law from socialist state institutions. In addition, he reflects on what ‘socialist’ law might resemble if it were disaggregated from Marxist-Leninist thought. Smith also points out that law is not socialist just because self-declared socialist states say it is socialist. Or as he eloquently puts it: ‘The party’s account of socialist law is a treacherous guide to its true nature and true objectives’. Our first point is a simple clarification. The book confined socialist East Asia to China and Vietnam, not because the Democratic Republic of Korea and Laos were considered non-socialist states, but rather, as the Introduction explains, because there is a scarcity of legal research materials dealing with these countries (ch ). On a more substantive note, Smith encourages a ‘value-led’ approach to socialist law that applies the categories of liberalism to socialist law. As he comments, the ideas in the book should be given the ‘same treatment meted out to Republicanism, parliamentary democracy, or strong-form constitutional review’. The book, however, explicitly seeks to shift the ‘analytical focus away from liberal legalism’ (p ). In fact, one of the central arguments in the book is that this kind of value-led comparative approach has tended to obscure the ongoing justifications, practices, and resilience of socialist law (chs  & ). The book therefore proceeds on the understanding that the necessary first step is to uncover, understand, and identify the basis of socialist law. Only in this way can we begin to understand the ongoing resilience of socialist legality. The book seeks to uncover this resilience by looking to both its practice and justifications from an internal perspective. It seeks to gain this internal viewpoint by examining these institutions historically, comparatively (particularly with other proclaimed socialist models), and conceptually. The ambition is to take these legal practices, institutions, and ideas as they stand in Vietnam and

The Diversity and Dynamism of Legal Change in Socialist China and Vietnam

Asian Socialism and Legal Change, 2005

The Diversity and Dynamism of Legal Change in Socialist China and Vietnam

Asian Socialism and Legal Change, 2005

[07PacRimLPolyJ555] Land Law Subsystems? Urban Vietnam as a Case Study

Throughout Vietnam's long history, the central elite and peripheral farming communities have ... more Throughout Vietnam's long history, the central elite and peripheral farming communities have been legally and culturally divided. This dichotomy was never as complete as the famous injunction that "the emperor's writ stops at the village gate" infers. Initially, during the period of French colonisation and more recently since the introduction of doi moi (renovation) economic reforms, central authorities have attempted to unify land management with universal normative law. This experiment has stimulated widespread non-compliance with land laws in urban centres; in some areas compliance is a fringe phenomenon. In this divided legal geography, pockets of non-compliance give the appearance of autonomy from state legality-suggesting the existence of plural land law sub-systems. But an analysis of case studies concerning land use right applications, squatting, court decisions and compulsory acquisition reveals complex relationships between land occupiers and the state. A...

[07PacRimLPolyJ555] Land Law Subsystems? Urban Vietnam as a Case Study

Throughout Vietnam's long history, the central elite and peripheral farming communities have ... more Throughout Vietnam's long history, the central elite and peripheral farming communities have been legally and culturally divided. This dichotomy was never as complete as the famous injunction that "the emperor's writ stops at the village gate" infers. Initially, during the period of French colonisation and more recently since the introduction of doi moi (renovation) economic reforms, central authorities have attempted to unify land management with universal normative law. This experiment has stimulated widespread non-compliance with land laws in urban centres; in some areas compliance is a fringe phenomenon. In this divided legal geography, pockets of non-compliance give the appearance of autonomy from state legality-suggesting the existence of plural land law sub-systems. But an analysis of case studies concerning land use right applications, squatting, court decisions and compulsory acquisition reveals complex relationships between land occupiers and the state. A...

Socialist Law in Socialist East Asia

Since China's reform and opening up started in 1978 and Vietnam's Doi moi reforms were in... more Since China's reform and opening up started in 1978 and Vietnam's Doi moi reforms were initiated in 1986, these two East Asian economies have adopted capitalistic models of development while retaining and reforming their socialist legal systems along the way. Tracking the trajectory of socialist laws and their legacy, this book offers a unique comparison of law and institutional designs in China and Vietnam.

From “Weak” to “Strong” Sustainability: Protesting for Environmental Justice in Vietnam

Journal of Vietnamese Studies, 2019

Rapid industrialization has come at a high cost to the natural environment in Vietnam. Frustrated... more Rapid industrialization has come at a high cost to the natural environment in Vietnam. Frustrated with regulatory inaction, Vietnamese citizens from many social backgrounds have taken direct action to protect their country’s natural environment. Most studies about environmental disputes in Vietnam have focused on large-scale conflicts, leaving smaller-scale rural disputes comparatively under researched. Drawing on in-depth interviews, this article explores how knowledge about environmental activism can transform the claims made in small-scale disputes. It examines why these disputes can sometimes succeed in mitigating environmental harm when complaints through administrative and judicial avenues fail.

Socialist Law in Socialist East Asia

Since China's reform and opening up started in 1978 and Vietnam's Doi moi reforms were in... more Since China's reform and opening up started in 1978 and Vietnam's Doi moi reforms were initiated in 1986, these two East Asian economies have adopted capitalistic models of development while retaining and reforming their socialist legal systems along the way. Tracking the trajectory of socialist laws and their legacy, this book offers a unique comparison of law and institutional designs in China and Vietnam.

Public Discourse and Constitutional Change: A Comparison of Vietnam and Indonesia

Asian Journal of Comparative Law, 2016

in this Special Issue is that public discourse is shaping the reform agenda. Some commentators ar... more in this Special Issue is that public discourse is shaping the reform agenda. Some commentators argue that public discourse is animating a transition from a Soviet-influenced authoritarian constitution to a more liberal incarnation that legally defines the interface between state and society. Others are less certain about the impact of liberal constitutional discourse, and argue instead that Confucianism and East Asian illiberalism are equally important discursive influences. Although differing in their normative emphasis, these accounts share a common view that public commentary is propelling the party-state toward some kind of constitutionally limited government. This transformation involves a shift from a constitution that coordinates state agencies, announces state ideology, and controls and elicits cooperation from subordinates, to one that also establishes legal limits to party and state power. Despite unprecedented public discussion during the lead-up to the 2013 Constitution, commentators agree that reforms have been modest. Public calls for amendments that would have made the party and state legally accountable to the constitution were rejected. For example, the party leadership emphatically opposed constitutional oversight of the party, the separation of powers, a constitutional review council, legally enforceable guarantees of civil rights, and private land ownership. Nevertheless, many commentators remain optimistic that eventually the constitution will legally constrain party and state power. This faith in the capacity of public discourse to fundamentally change the conceptual underpinnings of the constitution raises fundamental questions. How does public discourse change deeply held constitutional preferences in authoritarian political spaces? What kinds of public discourse are the most persuasive in shaping law-making? This article draws on neo-Habermasian scholarship 1 to analyze the interaction between public discourse and constitutional change. It then contrasts constitutional discourse in Vietnam with public discourse that fundamentally changed the Indonesian Constitution after the fall of President Soeharto in 1998. It argues that key

Towards a Discursive Analysis of Legal Transfers Into Developing East Asia

2. The "country and western" comparative law tradition derives its name from its preoccupation wi... more

Resolving Land Disputes in East Asia: Exploring the Limits of Law

SSRN Electronic Journal, 2014

Introduction Land disputes are increasing in East Asia as economic and demographic growth intensi... more Introduction Land disputes are increasing in East Asia as economic and demographic growth intensifies the demand for farmland and urban spaces. Nowhere is this more evident than in China and Vietnam. Reforms that brought Socialist Asia into the globalized economy and returned private property have also sparked intense competition between farmers and residents with outsiders, such as private developers and government agencies. In China and Vietnam, industrial parks, transport infrastructure and new residential developments are encroaching on farmland, sparking increasingly violent clashes with farmers. China alone experienced more than 500 daily land disputes and protests in 2011, 1 with the Wukan village insurrection, discussed in Chapter 6 in this book, making newspaper headlines around the world. From a legal perspective, the proliferation of land disputes is puzzling, because it is occurring at the same time as governments in China and Vietnam are clarifying property rights and improving formal dispute resolution institutions, such as the courts. Rather than promoting uniformity, order, and predictability, the authors in this book reveal that law reforms have produced mixed results. Land claims and property rights often conflict,

Exploring the Role of Legitimacy and Identity in Framing Responses to Global Legal Reforms in Socialist Transforming Asia

A bourgeoning literature about socialist transforming Asia (China and Vietnam) shows that economi... more A bourgeoning literature about socialist transforming Asia (China and Vietnam) shows that economic development is possible without fully functioning legal systems based on laws and institutions derived from North America and Europe. What is less clear is whether over time the regulatory systems in these countries will evolve toward more economically efficient globalized forms of Western governance, as some commentators suggest, or follow a more complex pattern of convergence and divergence. This article advances the debate by investigating the factors that motivate actors in these countries to look beyond domestic regulatory systems and embrace global regulatory regimes. I argue from empirical research the need to decenter the analysis of legal globalization to take into account the myriad local actors, state, non-state and hybrid that interact with global regulatory regimes. I conclude that conventional explanations for the formation of regulatory preferences that are based on cost-benefit calculations tell only part of the story. Perceptions of legitimacy and identity also profoundly influence regulatory preferences and steer domestic responses to global regulatory regimes.

Resolving Land Disputes in East Asia: Exploring the Limits of Law

SSRN Electronic Journal, 2014

Introduction Land disputes are increasing in East Asia as economic and demographic growth intensi... more Introduction Land disputes are increasing in East Asia as economic and demographic growth intensifies the demand for farmland and urban spaces. Nowhere is this more evident than in China and Vietnam. Reforms that brought Socialist Asia into the globalized economy and returned private property have also sparked intense competition between farmers and residents with outsiders, such as private developers and government agencies. In China and Vietnam, industrial parks, transport infrastructure and new residential developments are encroaching on farmland, sparking increasingly violent clashes with farmers. China alone experienced more than 500 daily land disputes and protests in 2011, 1 with the Wukan village insurrection, discussed in Chapter 6 in this book, making newspaper headlines around the world. From a legal perspective, the proliferation of land disputes is puzzling, because it is occurring at the same time as governments in China and Vietnam are clarifying property rights and improving formal dispute resolution institutions, such as the courts. Rather than promoting uniformity, order, and predictability, the authors in this book reveal that law reforms have produced mixed results. Land claims and property rights often conflict,

Human Rights as a Larger Loyalty: The Evolution of Religious Freedom in Vietnam

of Human Rights ("UDHR") and its progeny should "harmoniously combine" with domestic political, c... more of Human Rights ("UDHR") and its progeny should "harmoniously combine" with domestic political, cultural, and religious traditions. They claim that "no country has the right to impose any political, economic, or cultural model on others." 9 Underlying these ritualistic responses is a sense of outrage that foreigners should judge Vietnam so egregiously. 10 This debate takes place against the background of vigorous disagreement about religious freedom in the United Nations. 11 Hearings on the 2012 Annual Report of the U.N. Special Rapporteur on freedom of religion or belief revealed fault lines among member states over issues such as religious conversion, including the right to change religion and to proselytize about changing or leaving a religion. 12 States with official religions were especially opposed to permitting citizens to leave statesponsored belief systems. 13 At the other end of the spectrum, many western countries, including the United States, argued that "freedom of religion or belief includes the right to reject all religions and protects the rights of atheists." 14 Western human rights advocates also criticized the use of blasphemy laws to stifle religious discussion and practices. 15 Differences in the rhetoric deployed by the United States and Vietnam reveal fundamentally different understandings of religious freedom. The U.S. State Department invokes universal human rights and compliance with /tt_baochi/pbnfn/ns130805202859, archived at ; see also Bộ Ngoại giao Việt Nam,

Regulation in Asia

Page 1. Page 2. Regulation in Asia Unlike much analysis about regulation in Asia which focuses on... more