In 1890, when Brandeis and Warren wrote The Right to Privacy, Japan did not have a word for privacy. Today, it is closely guarded in Japan: the European Data Protection Board has found privacy protections in Japan “equivalent” to those in the EU. This research explores the evolution of privacy law in Japan, focusing on data breach and the legal rights and obligations associated with it. The writing is broken up into two parts: This article discusses private enforcement of privacy norms, as it is the courts that first established and continue to define privacy rights in Japan. A separate article will address the public law regulation of privacy, including discussion of Japan’s Act on the Protection of Personal Information and its regulatory enforcement. Examining the civil litigation that has defined privacy norms in Japan, one finds three distinct periods: early judicial decisions that create privacy rights by weaving together pre-existing legal doctrines in new ways; a period of expansion where courts recognize a legal injury for disclosure of even basic personal information; and a recent Supreme Court decision that expressly recognizes a remedy for the mental distress that arises from a data breach, even without proof of financial harm. In comparison to the public law cases, one also finds a public law-private law divide. While some Japanese courts in data breach litigation suggest individuals possess a “right to control” their own personal information; in cases involving the central government, one finds no more than a right to the “reasonable handling” of that information. A cross-jurisdiction comparison suggests Japan seeks middle ground. Japanese courts define privacy rights more broadly than in the U.S., but not to the extent found in jurisdictions governed by the GDPR. In doing so, Japanese courts use tort law to balance interests: to compensate plaintiffs; to incentivize defendants’ compliance with industry standards and government regulations; and to reward defendants who implement post-incident remedial measures. The result is a set of legal norms that clearly recognize privacy rights, but also limit damages. These legal norms, in turn, have produced stable market norms that now allow parties to settle most data breach claims. Privacy is no longer a foreign concept in Japan.

The national constitutions of Japan and the United States describe which domestic branches conclude “treaties” and how they do it. In both countries, the legislative branch plays a critical role in the treaty-making process, checking and controlling the executive branch. However, both nations enter international agreements without following the procedures explicitly provided in their national constitutions. Such agreements are called “executive agreements.” In both Japan and the United States, the practice of entering executive agreements has been recognized since the adoption of the current constitutions, and the number of such agreements—in lieu of treaties—is rising. Despite contrasting government and legal systems, the two countries share similarities with regard to executive agreements and the domestic legal force of international agreements. This Article compares the practices of entering executive agreements and shows some differences and similarities by analyzing the drafting history of the constitutions, the history of executive agreements, their types, and their domestic legal force.

Since its emergence in 1975, the English freezing injunction has grown to have a robust and global extraterritorial reach, but its exercise in extreme cases is jurisdictionally unsound. The “real connecting link” between assets and forum required for the grant of a worldwide freezing order in aid of foreign proceedings has become significantly looser, notably with an element of fraud acting as catalyst. This jurisdictional link is further weakened by the receding of reciprocity imperatives between the United Kingdom and member states of the European Union following Brexit. In its place is the enforcement principle, enabling a high degree of tenuousness in the jurisdictional link, most vividly seen in the recent issuances of freezing orders of cryptocurrency assets against defendants worldwide and unknown. Common sense and pragmatism offer a catch-all explanation—fraudulent defendants must not be allowed to get away. But this comes at the cost of clear jurisdictional justification. In contrast, U.S. courts have shown a much more consistent and reasonable jurisdiction in its provisional measures while weathering heavy criticisms for lacking similar pre-judgment measures. The resulting evaluation of policy justifications drawn on national considerations, the first of its kind on freezing injunction jurisdiction, suggests that English courts will maintain the current extraterritorial reach of freezing injunction due to its limited impact on comity.

Jury trials are a necessary part of American and Australian jurisprudence. However, critics question whether both jurisdictions should consider eliminating or reforming jury trials. High-profile jury cases in Australia and the United States elicit criticism regarding the ongoing relevance of the institution. Jury trials function differently in both countries and hold different levels of public trust in the institution. Despite the criticisms of jury trials, neither country has engaged in serious conversations to abolition this ancient institution. This article discusses the trials of Lindy Chamberlain and Cardinal George Pell, placing the use of criminal jury trial in their ancient English historical perspective demonstrating the evolutionary nature of criminal jury trials. Despite the recognized importance of citizen participation in the criminal justice system, there have been constant changes to the jury trial as Anglo-American societies try to mitigate unjust results in criminal jury trials. Some injustices seem to flow from media involvement for or against the accused. Judges may make an active effort to protect juries and by proxy defendants. Jury trials are the preferred Anglo-American means of deciding criminal cases since jurors are viewed as a democratic representation of society. However, does that mean the decisions of jury trials should be treated as inviolable? Due to issues of mistrial by actions of the jury, appeals against their verdicts have been allowed in Australia since 1912; however, appellate judges have been reluctant to upset jury verdicts. This article addresses whether jury practice should be reformed to reduce verdicts that convict the innocent and how the jury process should be reformed. This article’s primary recommendation is that jury panels receive additional education before they begin criminal trials.

As debates on potential societal harm from artificial intelligence (AI) culminate in legislation and international norms, a global divide is emerging in both AI regulatory frameworks and international governance structures. In terms of local regulatory frameworks, the European Union (E.U.), Canada, and Brazil follow a “horizontal” or “lateral” approach that postulates the homogeneity of AI, seeks to identify common causes of harm, and demands uniform human interventions. In contrast, the United States (U.S.), the United Kingdom (U.K.), Israel, and Switzerland (and potentially China) have pursued a “context-specific” or “modular” approach, tailoring regulations to the specific use cases of AI systems. In terms of international governance structures, the United Nations is exploring a centralized AI governance framework to be overseen by a superlative body comparable to the International Atomic Energy Agency. However, the U.K. is spearheading, and the U.S. and several other countries have endorsed, a decentralized governance model, where AI safety institutes in each jurisdiction conduct evaluations of the safety of high-performance general-purpose models pursuant to interoperable standards. This paper argues for a context-specific approach alongside decentralized governance, to effectively address evolving risks in diverse mission-critical domains, while avoiding social costs associated with one- size-fits-all approaches. However, to enhance the systematicity and interoperability of international norms and accelerate global harmonization, this paper proposes an alternative contextual, coherent, and commensurable (3C) framework. To ensure contextuality, the framework (i) bifurcates the AI life cycle into two phases: learning and deployment for specific tasks, instead of defining foundation or general-purpose models; and (ii) categorizes these tasks based on their application and interaction with humans as follows: autonomous, discriminative (allocative, punitive, and cognitive), and generative AI. To ensure coherency, each category is assigned specific regulatory objectives replacing 2010s vintage “AI ethics.” To ensure commensurability, the framework promotes the adoption of international standards for measuring and mitigating risks.

A lack of information about potential borrowers is a major obstacle to access to financing from the traditional financial sector. To prevent fraud, increase access to finance, and support balanced sustainable development, countries aroun6d the world have moved over the past several decades to develop credit information reporting requirements and systems to improve the coverage and quality of credit information. Until recently, such requirements mainly covered banks. However, with the process of digital transformation in China and around the world, a range of new credit providers have emerged, in the context of financial technology (FinTech, TechFin, and BigTech). Application of advanced data and analytics technologies provides major opportunities for market participants–both traditional and otherwise–as well as for credit information agencies. By utilizing advanced technologies, these participants and credit reporting agencies can collect massive amounts of information from various online and other activities (‘Big Data’), which contributes to the analysis of borrowing behavior and improves the accuracy of creditworthiness assessments. Thereby, enhancing availability of finance and supporting growth and development while also moderating prudential, behavioral and conduct related concerns are at the heart of financial regulation.

Aligning with the international trend, China has developed a regulatory regime for credit information reporting and business over the past decades. However, this development has not come without its problems, even in the context of traditional banking and credit. With the rapid growth and development of FinTech, TechFin, and BigTech lenders, opportunities to leverage credit information and data, and challenges around its regulation have emerged. For example, due to fragmented sources of borrower information and the involvement of several actors, difficulties arise in clarifying the business scope of credit reporting and customer protection. Moreover, inadequate incentives for credit information and data sharing pose a challenge for regulators in promoting competition and innovation in the credit market.

Drawing upon the experiences of other jurisdictions, including the United States, United Kingdom, European Union, Singapore, and Hong Kong, this paper argues that China should establish a sophisticated licensing regime and set out differentiated requirements for credit reporting agencies in line with the scope and nature of their business, thus addressing potential for regulatory arbitrage. Further, this paper argues that China should formulate specific rules governing the provision of customer information to credit reporting agencies and resolving disputes arising from accuracy and completeness of credit data. An effective information and data sharing scheme should be enacted to help lenders make appropriate credit decisions and facilitate access to financing. The lessons from China’s experience hold key insights for other jurisdictions as they move from credit information to credit data regulation in their financial systems.

This article purports to discuss the impact of international investment law on domestic governance and the rule of law of a nation state. Using China as a case study, this article argues that the role of international investment law in advancing domestic rule of law has long been overstated. The prevailing narrative is premised on some deeply flawed assumptions of the nature and function of international investment law as well as how international investment law may affect domestic legal change. These assumptions include, inter alia: (1) international investment norms possess the rule of law ideals; (2) improving good governance and the rule of law is part of the mandate of international investment law; (3) powerful investor-state dispute settlement is effective in guarding the rule of law; and (4) the state is readily receptive to all direct and indirect influences of economic globalization. A close examination of the limits of international investment law in this article explains why its role in promoting the rule of law in China is rather limited, contrary to what was widely expected in the Western world.

This article discusses the role of black-letter law in labor protection in China in cases where employers dismiss employees on the grounds of serious breaches of internal regulations. This article presents an empirical analysis of the judicial practice of two of China’s economically developed cities, Suzhou and Wuxi. Suzhou employers have to give employees the opportunity to be heard prior to dismissal, while Wuxi does not provide that opportunity. First, this article introduces the Chinese labor legislation system, the dismissal system, and the two cities’ local labor regulations. Second, the article will analyze and discuss 140 cases from Suzhou and 234 employment cases from Wuxi. Third, this article concludes that giving employees the opportunity to be heard is essential for protecting their rights, as evidenced by the higher success rates (i.e. the combination of full win and partial win rates) for employees in Suzhou compared to those in Wuxi. The analysis highlights the significance of black-letter law in ensuring labour protection in China. Finally, this article calls for national legislation to provide more explicit and detailed guidance on dismissals, or in the alternative, to mandate local authorities to enact clear labor protection rules appropriate to local circumstances.

This article, theoretically and empirically, articulates the rising role of criminal law as a regulatory tool of China’s digital platform economy. This unique Chinese model of digital platform governance is described as “regulation through sanctions.” Through a comprehensive survey of a wide range of digital platforms— e.g., financial fundraising platforms, e-commerce, taxi-hailing, and video-sharing platforms—and criminal cases involving such platforms, I reveal the logic of regulation through sanctions: It shifts state regulatory burden and accountability, redistributes risks and responsibility, and enhances political legitimacy. Compared to the direct regulatory model adopted by European countries and indirect, self-regulatory model employed in the U.S., China’s hybridity of platform governance saw the merge between direct intervention and indirect control through threats and sanctions. The centrality of criminal law as a regulatory device in the governance of platform-derived risks has been achieved through the imposition of three types of positive duties: the duty to review, the duty to manage, and the duty to protect. This legal and regulatory ecology exerts pressure on digital platforms but also allows its power to extend upward to serve public management functions as well as downward to modify individual behavior.