This introduction to our special issue on ‘Constitutional Legitimacy and Amendments’ presents a framework for a more nuanced understanding of how constitutional change is contested, moving beyond the conventional notion of ‘unconstitutional’ constitutional amendments. We advocate for a clearer distinction between legality and legitimacy when analysing contestation over constitutional change, arguing that focusing exclusively on legality without addressing legitimacy risks oversimplifying constitutional debates and overlooking questions of broader political and social acceptance. We identify three grounds on which the legitimacy of a constitutional amendment may be challenged: lack of representativeness (an amendment is illegitimate if it is not representative of the will of the people); lack of justice (an amendment is illegitimate if it is unjust in a significant manner); and bad faith (an amendment is illegitimate if it is motivated by ulterior motives). We also outline three ways in which legality and legitimacy intersect: (1) legally valid amendments may still face challenges regarding their legitimacy; (2) formally illegal constitutional changes may still be perceived as legitimate; and (3) even amendments that are both legal and legitimate may still require legitimacy to be established through means other than procedural and substantive commitments to legality. By recognising that challenges to constitutional amendments often involve claims of both legality and legitimacy, our framework expands the analysis of constitutional amendments beyond claims based on constitutional identity or unamendability and contributes to a better understanding of how such amendments are contested.

This article argues that China's foreign investor complaints system constitutes ‘state-centric investment mediation’. The Rules on Handling Complaints of Foreign-Invested Enterprises, which entered into force on 1 October 2020, place a state agency in the position of facilitating negotiations between a foreign investor and the agency being complained against. The prospects for this complaints system depend on how the state-as-mediator dynamic is perceived by foreign investors. To this end, it will be argued that settlement agreements reached pursuant to this system may be enforceable under the Singapore Convention on Mediation in certain circumstances. Investors and government entities operating similar systems worldwide should be cognisant of the broad drafting terminology of the Singapore Convention. Moreover, it is proposed that further clarification of the procedural rules and the inclusion of China's foreign-related dispute resolution institutions may enhance investor confidence and encourage use of the complaints system.

This article examines India's journey towards a cross-border insolvency regime and its draft law on cross-border insolvency. The article analyses the areas of convergence and divergence between India's draft law and the UNCITRAL Model Law on Cross-Border Insolvency and identifies the factors behind the divergences. The article concludes that the implementation of a cross-border insolvency regime is crucial for India to ensure coordination in cross-border insolvency proceedings and thereby attract foreign investment. The analysis of the reasons behind the divergences suggests that four areas of divergence are particularly relevant: the structure of existing legal institutions; the reciprocity requirement; restrictions on the rights of access of foreign representatives; and the historical practice of the Indian courts to follow the principle of territorialism. The success of the Indian cross-border insolvency regime will very much depend on the ability of the adjudicating authorities to overcome territorialism and embrace the principle of modified universalism.

Contemporary scholarship on constitutional amendment and change unfolds against a backdrop of significant, and often troubling, new developments. Amendments today are increasingly unmoored from their traditional purpose – to adapt constitutions to new realities and to reflect emerging consensus – and instead often emerge as part of projects that put core constitutional functions and commitments under stress. As a result, scholarly focus has shifted from questions of the object, modality, or frequency of constitutional amendment to questions of its legitimacy. This article calls for a broadening of our analytic vocabulary to foster a more expansive and critical discourse on the subject. It begins by showing how the growing complexity of constitutional amendment practices challenges traditional theoretical frameworks, such as the ‘unconstitutional constitutional amendment’ doctrine and other standards of internal legitimacy. In response, the article introduces the notion of ‘external legitimacy standards’ and examines their various forms. Particular attention is given to an approach that ties the legitimacy of amendments to the provision of adequate justification. The article concludes by identifying two types of context in which recourse to the notion of external legitimacy standards may prove valuable, either independently or alongside standards of internal legitimacy.

This article compares constitutional amendments in China and Taiwan to explore the long shadow cast by the Chinese encounter with ‘modernity’ on their divergent constitutional roads. It observes that in China, preambular changes have been the characteristic of the amendments to the 1982 Constitution of the People's Republic of China, while the rule-conformity feature of Taiwan's multiple rounds of constitutional revision indicates that the preservation of the formal identity of the 1946 Constitution of the Republic of China is central to Taiwan's constitutional transformation. The article argues that the prominence of the preamble in China's constitutional amendments reflects the programmatic character of its socialist constitution, which is seen as an instrument for progress and emancipation through revolutionary forces. In contrast, Taiwan's rigorous observance of amendment rules underscores the pivotal role of legality in its constitutional development. Progress and continuity underlie the respective necessary legitimating conditions for constitutional amendment in China and Taiwan. Tracing the revolution-progress and the legality-continuity nexuses to the Chinese quest for liberation from Western imperialism, this article suggests that modernity guides both China and Taiwan in maintaining the legitimacy of their respective constitutions. China's path towards modernity tells a story of constitutional struggle in the prehistory of the Global South.

This article seeks to ascertain the difference between the agreements forbidden by law under section 24(a) and those intended to defeat the law under section 24(b) of the Malaysian Contracts Act 1950. Even though both subsections (a) and (b) cater to different types of illegality, the courts in Malaysia have often been applying them together without giving reasons why they do so. Their conjoined application prevails perhaps because there has been no convincing explanation of their differences, particularly when considered in the context of the common law doctrine of sham. This article attempts to fill that gap. The article suggests that 24(a) deals with the agreements that are expressly or impliedly forbidden by law, while 24(b) applies to sham contracts. This proposition is based on the analysis of the common law doctrine of sham and recent court decisions.

In English law, the trust's third-party and bankruptcy effects contribute significantly to its wide use in commercial transactions. In view of the trust's attractiveness in conducting commercial dealings, China has also introduced the trust model into its domestic legal system to enhance its financial infrastructure. However, given the extent to which Chinese law has been influenced by the Roman-Germanic tradition, China's replication of the trust's third-party and bankruptcy effects has encountered doctrinal obstacles. Drawing upon the experience of its Northeast Asian forerunners, China has established two mechanisms to achieve the third-party and bankruptcy effects: the regime of trust fund independence and the granting of the right of rescission to beneficiaries. These two mechanisms represent the adjustments made by Chinese legislators in the process of transplanting the trust model into the Chinese legal context. Adopting a comparative law perspective, this article examines these mechanisms in the Chinese law setting for two reasons: first, to explore the mechanisms’ constituent elements and their operation, as well as the roles of both mechanisms in the Chinese trust law system; and second, to furnish comparative law scholarship with broader insights into rule transplantation and reconciliation.

This article critically analyses the substantial inadequacies of the current Customer Due Diligence (CDD) framework in safeguarding marginalised communities from financial exclusion in Malaysia. It highlights that for vulnerable groups such as rural inhabitants, undocumented migrants, and refugees, the CDD, as currently framed and applied, only impedes access to formal financial services. While Malaysia's implementation of a risk-based approach in CDD policies complies with global standards of CDD, this article argues that these standards fall far short of effectively helping marginalised communities. In addition, there is evidence that banks are exhibiting over-cautious compliance behaviour, which resulted in banks hesitating to implement some of the CDD flexibilities introduced by the regulators. In order to address these problems and overcome the barriers, proposals for the development of new CDD strategies are analysed. These include reducing documentation requirements, widening the list of acceptable documents, and introducing entry-level accounts. The aim is to address banking access issues for marginalised communities without compromising the regulatory objectives of CDD. The article recommends that CDD regulations can better assist financial inclusion if they are tailored to the specific needs of the excluded communities by using a risk-based approach.

How did intellectual property (IP), a private right born out of European Enlightenment ideals, take root in Vietnam's socialist legal framework, and what influence does Vietnam's Soviet legacy still have on its IP law? The clandestine triumph of IP rights in Vietnam is remarkable, given the system's former propensity for collective ownership and limited private property rights. Vietnam's approach to IP rights has changed with economic liberalisation: while external pressure prompted the initial adoption of IP laws, national interest and global reputation enhancement are now driving the effort. At the height of communism in the 1980s and under Soviet domination, IP laws reflected socialist ideology and the characteristics of a command economy. Amid Vietnam's quest for technological advancement, the importance of patents has grown. However, public perceptions of the unreliability of the legal system to resolve IP disputes persist, pushing civil disputes towards the government rather than the judiciary. As Vietnam opened economically, its IP regime moved away from overt communism, but communist values are still implicitly incorporated in general principles. Today, adherence to free trade agreements, which require robust IP protection, is driving the modernisation of Vietnam's IP infrastructure.

Many legal rules and principles may govern constitutional amendment. Observance of these rules and principles is an elementary focus point for the study of constitutional change. But constitutions do not exist solely in a legal reality. They are a cornerstone of the body politic in which they are adopted. Studying constitutional amendments through the lens of their legitimacy requires more than merely assessing their legality. However, distinguishing legitimacy from legality raises the question of whether an illegal amendment can still be considered legitimate, and conversely, whether a legal amendment can still be deemed illegitimate. Through a case study of constitutional overhauls in Belgium in the post-war period, I explore how these two possibilities manifest in practice, demonstrating that at crucial occasions in a state's history, amendments deemed illegal may be legitimised, and technically legal amendments may face criticism regarding their legitimacy.

In many African countries with hegemonic-party or de facto one-party systems, political leaders have historically exploited ostensibly proper constitutional amendments to undermine constitutionalism, a practice raising questions about the legitimacy, or lack thereof, of such amendments. This article argues that amendment legitimacy is contingent on achieving ‘broad consensus’, a concept endorsed by the African Charter on Democracy, Elections and Governance. Traditional amendment procedures, such as supermajorities and referendums, while crucial, have proven to be imperfect proxies for ensuring such broad consensus. To more effectively safeguard the core constitutional rules of democratic governance, this article contends that political parties must be recognised as key sites of power division and checks and balances. Accordingly, constitutional amendment procedures should require some level of cross-party approval for key amendments, thus preventing individual political groups, regardless of their dominance, from unilaterally altering fundamental rules of the game. This approach would not only enhance the legitimacy of amendments but also serve as a safeguard against contemporary forms of democratic backsliding, where incumbents exploit formal processes to undermine democratic competition. While this process might make constitutional changes more difficult, it would apply only to a narrow set of fundamental aspects of constitutional democracy. Moreover, it does not necessarily conflict with popular self-governance (and its majoritarian expression), but instead calls for an inclusive re-imagining of majoritarianism.

In the past, Malaysian courts performing constitutional rights review played a merely clerical role, applying a test that was trivially easy for legislation to pass. Then a more rigorous proportionality test took root. However, the Federal Court in the 2020 case of Letitia Bosman whittled the test down again, and the courts once more played a minimal role in checking state action. The reasons for this cannot be explained merely by diversity in judicial philosophy or political contextual factors. Rather, the near-demise of proportionality (and, with it, robust constitutional review) was made possible by a lack of a clear sense of the doctrinal foundations of proportionality (and, indeed, of constitutional rights review generally), and the relative roles of the courts and the legislature therein. As a result, there is a risk that the courts’ important role in safeguarding constitutional rights has been minimised to near vanishing point. This article aims, through an analysis of the case law and its foundations, to explain how this came to be, and hence highlight important issues which Malaysian constitutional law must grapple with if meaningful rights review is to take place.

This article examines the relationship between legality and legitimacy in postcolonial constitution-making, focusing on Singapore's two stages of sovereignty transfer from colonial rule to independent statehood: its decolonisation from Britain in 1963, achieved through merger with Malaysia, and its separation from Malaysia in 1965. The article shows how different forms of legitimacy were established and sustained during these transitions. The first independence was characterised by legal continuity and political legitimacy, solidified through peaceful negotiations and the strategic use of a 1962 referendum that helped mitigate internal opposition. By contrast, the second independence in 1965 was a ‘legal revolution’, as neither the Malaysian Federal Constitution nor the State of Singapore Constitution 1963 provided for secession and the People's Action Party (PAP) government lacked an explicit public mandate to negotiate the secession. This break in legal continuity required new sources of (revolutionary) legitimacy, which the PAP government secured through subsequent electoral dominance, constitutional consolidation, and political manoeuvres. This article underscores the fact that legitimacy in making, amending, and consolidating constitutions is inherently transient and unstable, requiring continuous renewal through various political and legal mechanisms.

A persistent issue in the Indian criminal justice system has been the over-incarceration of pre-trial detainees, which is inextricably linked with the practices of trial courts in deciding on the detention and release of accused persons pending trial. The present statutory law and judicial discourse provides little guidance on the process for deciding bail matters. There has also not been much effort to empirically research decision-making in such matters and/or the impact of these decisions on the pre-trial detainee population in prisons. The present study is an attempt to plug this gap, analysing ‘regular’ bail orders of Sessions Courts of Delhi available from the eCourts system between 2017 and 2019 for the offences of theft and rape. The data reveals a failure to recognise the fundamentally preventive purpose of bail, as well as to develop individualised and specialised processes in compliance with this purpose. Such failure in guidance has resulted in judges importing factors from the trial process that remain unjustified outside of the punitive detention process, such as guilt. In conclusion, we argue that a fundamental reimagination of the approach to bail is required – one that is distinct from the trial process and focuses instead on the individualised assessment of risk.

In embracing corporate rescue, Malaysia introduced Judicial Management (JM) into its company law framework on 1 March 2018. The mechanism was modelled on Singapore's Judicial Management, which itself was based on the United Kingdom (UK) Administration Procedure. Despite its laudable objective of facilitating the rescue of financially distressed companies, the path to JM is paved with obstacles. This article identifies some of these obstacles and examines the issues that give rise to them. At the same time, the article proposes legislative reforms, drawing on comparative laws in Singapore and the UK. For the purposes of this article, three obstacles are examined: first, the power of a secured creditor or debenture holder to veto the JM application; second, the stringent and prohibitive burden imposed on an applicant company caused by the judicial interpretation, at times conflicting, of the provisions governing the application of a JM order; and third, the higher threshold imposed by legislative requirements on creditors’ meeting to approve the JM proposal. These obstacles are encountered at three stages of a JM application: first, at the initial stage of the application; second, in considering the merits of the JM; and third, when the creditors vote to approve the application.

The significance of food is beyond its gastronomic value. Food symbolises a community's enriched past and holds cultural expressions and traditional knowledge. The linkage of food with religious beliefs, geo-climatic factors, social standards, and various health benefits builds the reputation of the food, which is essentially attributable to its geographic origin. Following the ratification of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the contracting states that have enacted Geographical Indications (GI) legislation (particularly those in Asia) have come forward to protect foodstuffs as GI in order to safeguard their communities and their traditional knowledge associated with foodstuffs. Against this background, the present article attempts to compare foodstuff GIs in eight selected Asian countries with a sui generis system of GI protection as TRIPS compliance. The comparative analysis of the evolution and scope of foodstuff protection, pre-registration and post-registration impact, and quality maintenance provides important insights into convergence and divergence among the selected Asian countries. The study further identifies policy implications for the sustenance of GI.

Informal social sanctions such as ostracism are the primary means of controlling deviance in communities. Formal legal sanctions are a costly back-up. Yet outside of university laboratories, studies of ostracism barely exist. We examine legal cases brought by targets of ostracism in Japan, encompassing nearly all the non-trivial reported opinions. The cases do not involve villagers who actually offended their community. Instead, most plaintiffs are victims of opportunistic ostracism, where ostracism is used to extort property, hide community-wide malfeasance, or harass rivals. We explore carefully the non-random character of the disputes and provide a formal model in the annex. We conclude that typical plaintiffs in these lawsuits are not seeking to harness the government's coercive power. Instead, they bring suit for the informational role of courts, aiming to have the court publicly certify that they did not misbehave, contrary to what ostracism might be thought to imply. This analysis contributes to the growing body of legal scholarship on social norms and the role of the courts as informational intermediaries.