Litigation Practice Research Articles

Justification of the Administrative Public Interest Litigation System for Personal Information Protection

There is controversy over whether the public interest litigation clause in Article 70 of the Personal Information Protection Law includes administrative public interest litigation. However, in practice, the administrative public interest litigation mechanism focused on personal information protection has already been explored in the practice of prosecutorial public interest litigation. From a theoretical perspective, administrative public interest litigation for personal information protection has its institutional value, reflected in preventive value, equitable value, and compensatory value. From a normative perspective, the administrative public interest litigation system can be connected with the elements of the Personal Information Protection Law in terms of subject qualifications, application areas, initiation, and procedures. Article 70 of the Personal Information Protection Law reserves institutional space for the operation of the administrative public interest litigation mechanism, which can include the administrative public interest litigation system. From a practical perspective, it is necessary to demonstrate the practical necessity of administrative public interest litigation for personal information protection by organizing existing practices. The advantages of administrative public interest litigation can be significantly utilized in prosecutorial public interest litigation involving personal information protection, which helps to achieve the public interest governance goals of personal information protection.

Judicialisation for environmental public interest protection in China: the faces of court in different forms of environmental litigation

In response to China’s notorious enforcement gap, the judiciary has assumed a more prominent role in environmental governance through a process called judicialisation, or the expansion of judicial scope and power. Specifically, the development of environmental public interest litigation (EPIL), the growing number of environmental cases, and the establishment of specialised environmental courts have emboldened the courts to deeply participate in environmental governance. An outstanding question is what role environmental courts have played in enhancing environmental enforcement and protecting environmental public interest in such prominent environmental judicialisation. After examining related judicial interpretations and litigation practices, this article finds that environmental courts act differently in different types of environmental litigation. They are active, supportive and even ‘innovative’ in holding polluters accountable in civil EPIL. In administrative EPIL, however, the courts are less proactive and generally defer to the procuratorate’s claim in confirming administrative illegality or requiring the responsible government or agency to perform their duties. In private environmental litigation, judges either disregard what has been stated in legislation and adopt their own strategies favouring the polluter-defendants or are extremely restrained in reviewing the decisions of administrative-defendants. Given the fact that environmental public interest and private interests are highly entangled, the court’s deviation from legislation in private litigation fails to effectively deter polluters and achieve synergistic protection of environmental public interest.

The master key to international law: systemic integration in climate change cases

This article is the first scholarly examination of the function of systemic integration in the climate change context. The article assesses the role that the notion of ‘systemic integration’ is playing in making climate change justiciable internationally, and traces the path along which it brought the principle to become a key notion in climate litigation. It explores the fundamental question of how pre-existing legal norms (to the Paris Agreement) have been used to address questions about climate change. Systemic integration is a principle of treaty interpretation enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treaties, which requires consideration of other rules of international law in the course of interpreting a treaty. Often operating ‘as an unarticulated major premise in the construction of treaties’, its function is nevertheless ‘analogous to that of a master-key in a large building’ (McLachlan 2005). The underlying premise is that international law is, in essence, a system. This article looks into how the principle is currently operating in practice in climate litigation and, in doing so, it draws some reflections on the wider significance of the principle for international law more generally. The article explores the systemic integration arguments considered in the Torres Strait Islanders case, the first international case on climate change to be adjudicated on its merits, which set in motion a wave of international climate cases, and considers the function of systemic integration in the pending advisory opinions before international courts.

Dilemma and Solution: On the Prosecution Subject of Civil Public Interest Litigation for Personal Information Protection

Combined with the judicial practice of personal information protection civil public interest litigation and the provisions of Article 70 of the Personal Information Protection Law, there is a great controversy between the theoretical and practical circles on the subject of such litigation. Although the existing provisions define the subject of prosecution as three categories: the people’s procuratorate, the consumer organization stipulated by law and the organization determined by the national network and information department, the problems of unclear scope of the subject, unclear scope of functions and unclear order of prosecution have not been solved. In order to improve the effectiveness of the protection of personal information rights and interests, we should clarify the scope of the functions of each prosecution subject, straighten out the order of prosecution, confirm the status of the procuratorial organ as a supplementary prosecution subject, expand the scope of “consumer organizations stipulated by law,” and clarify the conditions of “organizations determined by the national network information department.”

On the Improvement of the Rules on the Obligation of Interpretation by Judges in Online Litigation

As a new way of litigation, the practice of online litigation has attracted great attention, especially online civil litigation, which has also become a hot issue in the field of civil litigation. The online judge’s obligation to interpret not only inherits the content of the existing obligation of traditional offline litigation, but also expands the scope of the obligation of interpretation, and the expansion of the online judge’s obligation to interpret adapts to the requirements of online litigation following the principles of fairness and efficiency, convenience and benefit. However, the existing rules on online litigation are relatively general in their provisions on the obligation of interpretation by online judges, and judges usually enjoy a certain degree of discretion in the exercise of the obligation to interpret in online litigation, which makes there are some problems that need to be solved urgently in the performance of judges’ obligation to interpret in online litigation.

Understanding Public Perceptions of Chinese Law and the Legal System: Legal Experiences Matter

Abstract: Over the past decade, Chinese law has undergone a considerable number of major reforms, ranging from the high-profile constitutional amendments to the implementation of multiple online platforms, which have significantly altered legal practice and the judicial process. While scholarly debate remains split over whether China is turning away from law or is becoming more legalistic, there is little empirical understanding of how Chinese law and the legal system are perceived by those most affected by it, namely the Chinese citizens. This article fills the critical gap by leveraging an original public opinion survey of more than 5,000 Chinese adults to examine their views on issues such as the importance of law and the status of legal development in relation to economic growth. The findings suggest that Chinese citizens with actual experience of the legal system—whether from study, practice or personal involvement in litigation—hold vastly different views on many of these issues from those without such experience. The findings also suggest that important policy initiatives introduced by the Chinese leadership and the judiciary, such as the emphasis on constructing a socialist rule of law and the potential introduction of some system of case law, may enjoy popular support.

Developments, Opportunities, and Complexities in Global South Climate Litigation: Introduction to the Special Collection

Abstract This introduction presents a special collection of the Journal of Human Rights Practice, ‘Developments, Opportunities and Complexities in Global South Climate Litigation’. It conceptualizes and problematizes ‘climate litigation’ and the ‘Global South’, and brings together perspectives from a diverse range of scholars and practitioners from the Global South to advance knowledge on how climate litigation in the region has developed in recent years. The number of cases discussed, and the depth of analyses illustrate that the region is contributing to the pursuit of climate justice through litigation. The collection showcases a rich body of scholarship on climate litigation from African, Latin American, and Asian perspectives. In the face of political, cultural, and other barriers to knowledge production, contributions demonstrate nuanced, contextual engagement with climate litigation in the Global South. Therefore, this collection challenges the narrative that cases dealing with climate change and its human rights and justice implications are few and far between in the Global South. It emphasizes their relevance for the global discourse on climate litigation.

Legal Definition and Litigation Practice Research on Civil Liability of E-Commerce Platforms

Legal Definition and Litigation Practice Research on Civil Liability of E-Commerce Platforms

The purpose of administrative proceedings: protection against violations by public authorities or ensuring the correct application of law by them

The pertinence of the matter of correct understanding of the purpose of administrative proceedings in Ukraine is caused by the fact that the trends in the development of the practice of interpretation and application of the Ukrainian legislation on administrative litigation, as well as the shifts in scientific studies of the principles and rules of administrative proceedings, indicate that there are fundamental discrepancies in the understanding of the purpose of administrative proceedings among the scientific community and administrative courts, which lead to the distortion of the outcomes of the functioning of the administrative justice system in the practical dimension. The purpose of the article is to determine the purpose of administrative proceedings in the light of its nature and social purpose. The dialectical method of scientific research was used, making it possible to consider the purpose of administrative proceedings in view of its continuous development in the theory and practice of administrative litigation in its unity and contradictions. The author as well resorted to normative-dogmatic method, serving as a tool for understanding the purpose of administrative proceedings in accordance with its legislative definition. As a result of the study it was determined that the point of view, according to which the activity of administrative courts should be directed not only towards the protection of the rights and legitimate interests of natural and legal persons in the public law domain from violations by public authorities, but also towards the judicial review of proper satisfaction of the public interest in the activities of public authorities with regard to the performance of the public powers entrusted to them, by establishing the comprehensive truth within the framework of the case and by ensuring lawfulness in disputed legal relations through the correct definition of the rights and obligations of their participants. Moreover, the author maintains that by collecting information and documents to determine those decision, action or inaction of the public authority, which should have been made (committed) outside the context of protecting the rights and legitimate interests of the relevant private individuals, the administrative court takes over the governmental executive functions of the public authorities, protecting the relevant public interest and becoming part of the executive branch of power. It was, furthermore, noted that even an administrative lawsuit filed by a public authority against natural or legal person is not deemed to be a way to protect the rights and interests of the respective public authority, as the administrative justice has a different task.

미국의 시민소송 제도를 통해 본 원고적격 문제

Although government agencies are primarily responsible for legal enforcement in a society, it is not appropriate to assign government agencies 100% responsibility for this role and leave private individuals with no role to play. The United States has a so-called ‘Citizen Suits’ in many environmental statutes from the perspective that it is efficient to share role of law enforcement with private citizens. According to citizen suits, anyone who has redressible ‘injury-in-fact’ caused by the defendant’s actions can file a claim for injunctions and/or civil penalties against the violator of the statutes.
 Expanding standing in this way is linked to the issue of separation of powers in the Constitution, as it raises questions about whether the court could adjudicate all such lawsuits or whether they are problems that must be resolved in political process of democracy.
 Although it is unlikely that the citizen suits will be legislated in the Korean context, it is necessary to consider whether standing is too narrow in the current Korean civil and administrative litigation practice and whether this should be further expanded.

Unpaid Debts to London Booksellers: John Harrison the Elder’s Lawsuit against Two Chapmen in 1585

Abstract This article presents a transcript of a recently discovered booklist from a 1585 lawsuit at the Court of Common Pleas. This list describes a large book sale made on 3 May 1584 to two chapmen named John Herne and Thomas Jackson. It throws light on the Elizabethan book trade and the litigation practices of London booksellers, and it contains rare evidence on the trade prices of early modern books. It also records the earliest known purchase of Edmund Spenser’s celebrated Shepheardes calender (first published in 1579).

The ‘Arbitralization’ of Courts: The Role of International Commercial Arbitration in the Establishment and the Procedural Design of International Commercial Courts

Abstract International commercial arbitration is the most preferred dispute resolution method in cross-border commercial disputes. It has been, however, claimed that arbitration has lost its flexibility by becoming increasingly formal and by incorporating litigation practices. In academic literature, this trend has been termed the ‘judicialization’ of international commercial arbitration. This article argues that while arbitration is becoming progressively judicialized, international commercial courts evidence an opposite, less studied trend; namely, the ‘arbitralization’ of courts. Through a comparative analysis of different international commercial courts, the article explores how the competition with arbitration has prompted the establishment of these courts, and how arbitration has served as the inspiration for some of their most innovative features. The article concludes that while the incorporation of arbitration features could improve court proceedings, some of international commercial courts’ arbitration features undermine procedural justice and the role of courts as public institutions and therefore hit the limits of arbitralization.

State-Sponsored Activism: How China’s Law Reforms Impact NGOs’ Legal Practice

This study examines legal opportunity in China after the recent “law-based governance” reforms, including those that have professionalized the judiciary, established NGOs’ public interest standing, and expanded legal aid coverage. Based on in-depth interviews, it finds that despite the generally tightening political control over the social sector, the reforms have helped some law-related NGOs expand their litigation practice, social and legislative influence, and domestic funding sources. At the same time, these changes have had considerable cooptation effects by aligning these NGOs’ interests with the state’s and channeling their activities into state-sanctioned institutional processes. The findings suggest that states can effectively utilize a dualist strategy that combines restrictive and supportive approaches to public participation in the legal process. It thus sheds light on the progression of legality within various political and institutional contexts.

Alternative Dispute Resolution and the Civil Courts

In 1996, Lord Woolf described a vision for civil English and Welsh justice, culminating in his culture-changing reforms (the Woolf Reforms) and the Civil Procedure Rules of April 1999. These impose a continuing duty on litigants to consider alternative dispute resolution (ADR) in preference to litigation, even after it has commenced, and on the courts, to encourage ADR. These duties are a central method for the delivery of justice. They required a radical new way of thinking about disputes from litigants, their advisors and the courts.
 This article focuses on Lord Woolf’s vision and his Reforms, and their impact on the approach to ADR taken by the courts since 1999. It seeks to identify how that approach informs a concept of justice within the practice of modern litigation. The approach, supported by relevant case law, presents a broader and arguably more sophisticated view of justice that involves party autonomy, dialogue, settlement, creativity, flexibility of outcome, compromise, satisfaction and saving costs, as well as the more conventional approach to determining rights at trial after due process. 
 Keywords: ADR; mediation; justice; civil justice; court reforms; overriding objective; Halsey.

‘Turning the Rights Lens Inwards’: The Case for Child Rights-Consistent Strategic Litigation Practice

Abstract The last three decades have seen an explosion of academic, advocacy and policy-maker interest in both the theory and the practice of children’s rights. There is a growing global body of strategic litigation focused on the advancement of those rights through positive legal and/or social change. In this context, child rights have primarily played an ‘outward-facing’ role: used as a schema that should constrain or mandate the actions of external decision-makers that are the targets of litigation. However, children’s rights have not generally been used as a framework by which to assess, and as necessary, critique strategic litigation practice—i.e. as a lens to be turned inwards by litigators to consider the extent to which their practice is consistent with child rights standards. This article considers the case for child rights strategic litigation (CRSL) practice that is child rights-consistent. In doing so, it identifies CRSL-relevant rights under the UN Convention on the Rights of the Child and outlines how such rights arise in the litigation process. It ultimately posits that child rights can serve as a clear, multi-faceted framework that enables litigators to strengthen their existing practice in a legitimate, unified and coherent way.

Does the UK Home Office Care about the Rule of Law?

Abstract The instrumentalisation of law for the purposes of creating a ‘hostile environment’ and deterring ‘unwanted migration’ is particularly visible in the UK. The new Nationality and Borders Act 2022 contains proposals on asylum which show a rejection of international law norms and conventions, without having had the political courage to put that rejection squarely to the public. That is not new. Right from the emergence of asylum as a political issue in the 1980’s, the lukewarm official ‘welcome’ never quite hid the stance of disbelief which underlay the UK’s legal and procedural responses. A parallel process, beginning even earlier but accelerating from 2010 onwards, has taken place in UK domestic immigration law. New legislation, Immigration Rules, policies, application procedures and litigation practices show diminishing respect for rule of law principles. This article uses simple and hopefully uncontroversial definitions of international law norms and accepted common law rule of law principles against which to analyse and critique key aspects of UK immigration control. It concludes that UK policies and practice have over time displayed an increasing hostility to those norms and principles, resorting to ignorant and even brazen indifference to facts, evidence, and analysis, and widening the gap between domestic and international law in important respects.

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Geoffrey Chaucer in Context. The Oxford Handbook of ChaucerThe Oxford Handbook of Chaucer

The Concurrence of Anti‐Racism and Anti‐Casteism

AbstractThe article considers three interlocking ways in which we can understand the concurrence of anti‐racism and anti‐casteism in the Indian diaspora. First, at the level of experience—of UK activists and campaigners—it has been found that the concurrence of anti‐racism and anti‐casteism is not conclusively determined at this level. Second, by a juxtaposition of the conceptual apparatus of ‘caste’ and ‘race’ the article considers the fault lines—illuminating or obfuscating—that appear in conceptualising anti‐casteism as a form of anti‐racism. Here, the sociality of caste is found to be important, the operation of racialisation underpinning anti‐racist practice. Finally, by considering the legal apparatus available in a given jurisdiction (UK), the article evaluates the feasibility of measures that might facilitate the actualising of anti‐casteism as a form of anti‐racism through the practice of litigation to allow a pragmatic capturing of the experience of casteism as a form of racism.

Working Paper 38: Cryptocurrencies in Asia and beyond: law, regulation and enforcement

The crypto industry has exploded in recent years, and authorities in different countries have been reacting in very different ways. Some have banned cryptocurrencies, while others are embracing them to varying degrees. Some are working hard to align their anti-money laundering regulations with FATF standards, while others are turning a blind eye. A few countries have confiscated huge quantities of crypto assets linked to crime and money laundering. Others are at square one in terms of enforcement, risking becoming a hub for crypto crime and money laundering and posing a serious vulnerability in the world’s financial system.
 This Working Paper draws on a detailed analysis of how selected countries are addressing legal, regulatory and enforcement issues around cryptocurrencies and other virtual assets. The analysis is focused on Asia, but set in the context of global trends in crypto law, regulation and enforcement. It explores critical questions that will shape policies around virtual assets at the corporate, national and international levels:
 
 What is working in terms of crypto regulation and enforcement?
 What are the implications of different policy choices on crypto assets – for the industry, for the countries themselves and for global financial integrity as a whole?
 What would the crypto wave possibly bring next?
 
 The Paper also highlights broader developments needed to bring light and clarity to laws, policies and practices around the crypto industry, such as collaboration between both market players and governments.
 Jurisdictions touched upon in this Working Paper alphabetically include Bhutan, Central African Republic, El Salvador, Hong Kong SAR, India, Indonesia, Japan, Kazakhstan, Malaysia, Myanmar, Russia, Singapore, South Korea, the Philippines, the People’s Republic of China, Thailand, Ukraine and Vietnam.
 A list of key terms and abbreviations have been prepared in the Annex to this Working Paper for the readers’ easy reference.
 About this Working Paper
 This Working Paper is a collaboration between Dorothy Siron, Co-Managing Partner, Zhong Lun Law Firm LLP and Federico Paesano, Senior Financial Investigation Specialist, Basel Institute on Governance.
 Dorothy Siron provided the bulk of the analysis and discussion, while Federico Paesano provided a selection of case studies and was co-author of the seven recommendations contained in section 4. The collaboration was facilitated by the International Academy of Financial Crime Litigators, an independent, non-partisan global centre that shapes and advances financial crime litigation practices for the future.

A research review on applications of judicial cases in china

In the practice of litigation, a phenomenon began to appear in the last decade: both parties began to cite a large number of published cases, and judges and prosecutors should consider the complementary role of these cases to the statute law when handling cases. "The same case and the same sentence" and "utilitarian purpose" were the most obvious promotion reasons. Scholars generally believe that the guiding precedent system is only a summary of judicial experience, and it is a temporary measure in judicial reform that helps to enhance judicial credibility. Professor Gu Peidong's interpretation is quite different,and interpreted this phenomenon as a sprout of precedent system with Chinese characteristics. He comprehensively summarized the impact of case citation on judicial practice through the research on the current situation and reasons of spontaneous use of cases, the actual utility of case use, and the functional positioning of cases with different attributes, and prospected the future prospect of China's case system. There may be different ways to interpret the same phenomenon, but Professor Gu Peidong's research really deserves more consideration.