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【Editor's note】In this issue, the table of contents of the journal, Vol. 10, No. 3 (October 2023) is published to facilitate readers' reference and citation, and to facilitate researchers to understand the policies and characteristics of the manuscripts accepted by the journal. Welcome everyone to actively participate in the construction of the English academic journal Asian Journal of Law and Society and build an interdisciplinary and cross-border knowledge community on this platform!

 

 

The Regulation of Informal Trade Credit (Ograyi) in Afghanistan

 

Nafay Choudhury

Affiliation: Institute for Global Law and Policy, Harvard Law School, Cambridge

 

 

Abstract: This article explores the creation, circulation, and regulation of informal trade credit or “Ograyi” in Afghanistan. The practice of ograyi allows businesses to access short-term credit, from either their suppliers or third parties, to acquire specified goods. This paper provides an account of the non-legal practices that regulate ograyi transactions. Ograyi vitally depends on the development of trust between parties. Clientelism helps to maintain stable relationships that can offset market unpredictability. Widespread market norms and practices establish the general behaviour of participants. Parties also renegotiate the terms of the contract if circumstances make it impossible for the creditor to repay the loan in the agreed timeframe. Furthermore, bank credit remains largely unavailable or unappealing to many businesses, and the legal system provides limited recourse in the case of contractual breach. Thus, the non-legal practices regulating ograyi serve as a substitute for legal coercion.

 

Keywords: informal trade credit; law; Afghanistan; trust; banking; economy

Demystifying the Proliferation of Online Peer-to-Peer Lending in Indonesia: Decoding Fintech as a Regulatory Challenge

 

David Tan

Affiliation: Assistant Professor, Faculty of Law, Batam International University, Batam; School of Law, Pelita Harapan University, Tangerang; and The Dickson Poon School of Law, King’s College London

 

 

Abstract: This paper purports to study the enormous proliferation of fintech online peer-to-peer (P2P) lending in Indonesia, along with their risks and the prevailing regulations of fintech online P2P lending. This article also suggests a varied spectrum of regulatory actions for regulating online P2P lending as an approach to increase consumer protection and stimulate the growth of Indonesia’s financial inclusion. It highlights the regulative risks and challenges of fintech online P2P lending in Indonesia and has discovered various spectra of regulatory responses that the Indonesian government can practise to regulate this potential industry. Solid recommendations were also given to regulators to better develop the present regulatory framework. This paper adds to the literature on the prevailing practice of online P2P lending by offering a legal outlook involving legal protection and the newly emerging fintech industry from an Indonesian context.

 

Keywords: peer-to-peer lending; P2P lending; crowdfunding; fintech; financial inclusion; financial regulation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Algorithmic Credit Scoring in Vietnam: A Legal Proposal for Maximizing Benefits and Minimizing Risks

 

Nicolas Lainez

Affiliation: Institut française de développement (Institut française), Centre for Social Science Studies in Africa, the Americas and Asia

Jodi Gardner

Affiliation: University of Auckland, Centre for Banking and Finance Law, National University of Singapore

 

Abstract: Artificial intelligence (AI) and big data are transforming the credit market around the world. Algorithmic credit scoring (ACS) is increasingly used to assess borrowers’ creditworthiness, using technology to glean non-traditional data from smartphones and analyze them through machine-learning algorithms. These processes promise efficiency, accuracy, and cost-effectiveness compared with traditional credit scoring. However, this technology raises public concerns about opacity, unfair discrimination, and threats to individual privacy and autonomy. Many countries in Southeast Asia are introducing ACS in consumer finance markets, although—even with the significant concerns raised—there is an ongoing and concerning lag in oversight and regulation of the process. Regulation is vital to delivering big data and AI promises in the financial services market, while ensuring fairness and public interest. This article utilizes Vietnam, where the lending industry deploys ACS but in a situation of legal limbo, as a case-study to analyze the consequences of this technology. Vietnam is one of the foremost Southeast Asian countries in which ACS usage is spreading rapidly, and this provides an excellent opportunity to review the regulation, or lack thereof, and determine the implications that this may have for other countries that are currently introducing ACS in consumer finance markets. The article concludes with a proposal to regulate ACS in Vietnam based on international regulation and guidelines on ACS, data privacy, and AI to enable a transparent, accessible, and fair process.

 

 

Keywords: algorithmic credit scoring, benefit, risk, regulation, Vietnam

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Wait-and-See or Whack-a-Mole: What Is the Best Way to Regulate Fintech in China?

 

Duoqi Xu

Affiliation: Fudan University  

C. John Taylor

Affiliation: University of New South Wales

Yuanda Ren

Affiliation: Fudan University  

 

 

Abstract: Chinese fintech, initially taking the form as “Internet finance,” is growing rapidly and poses great challenges to its financial regulatory authorities. Acclaimed as a new financial innovation, Internet finance was once accepted and even welcomed by the normally conservative Chinese financial regulators, who simultaneously adopted a wait-and-see strategy, to encourage such innovation and avoid overwhelming regulation. The benevolent regulation stance, however, bred rampant Ponzi schemes or fake financial innovation, resulting in tremendous monetary losses among lots of investors. To show a quick and active response, the central government popped into a whack-a-mole game, starting a four-year campaign of strict Internet finance regulation that has even cracked down on all the P2P lending platforms. This article analyzes the regulatory policy updates of Chinese Internet finance that is transforming to certain kinds of lawful fintech with difficulties, and that adaptive regulatory-organization restructure, regulatory-system optimization, and regulatory-model innovation would be more effective and constructive regulatory options.

 

Keywords: Internet finance; fintech; wait-and-see strategy; whack-a-mole game; fake financial innovation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Automating Intervention in Chinese Justice: Smart Courts and Supervision Reform

 

Straton Papagianneas

Affiliation: Shanghai American School, China, Institute of Regional Cultures, Faculty of Humanities, Leiden University

 

 

Abstract: This article examines how smart courts enhance the reform of judicial responsibility and the “trial supervision and management” mechanism. It holds that smart courts, while meant to provide better judicial services and improve access to justice, have the additional goal of enhancing the restructuring of accountability and power structures. It argues that automation and digitization help institutionalize and codify political supervision. Smart courts help resolve tension between the two opposing requirements of Chinese courts to maintain legal rationality and independent adjudication on the one hand, and the need for flexibility to allow intervention on the other. This article provides an account of the automation of “trial supervision and management” and explores the role of technology in enhancing political intervention in China’s legal system. This investigation draws on internal court reports and central and local judicial documents, supplemented with a review of Chinese empirical scholarship.

 

Keywords: smart courts, judicial responsibility reform, trial supervision and management, automation, China, justice

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Order of Power in China’s Courts

 

Ling Li

Affiliation: University of Vienna

 

 

Abstract: This article presents a theory of the order of power to explain the dynamics and interaction between the political and legal orders in China’s courts. This theory posits that the political order is embodied in the extensive administrative ranking system (ARS) of the People’s Republic of China and has a systematic impact on the legal order regardless of the subject matter. The ARS is a system that regulates power relations between various institutional and personal actors in all key power fields, including courts. According to this theory, power, as stratified by the ARS, relativizes law during the processes of legal implementation, application, and enforcement. This theory provides a coherent explanation of judicial behavioural patterns in different subject matters, such as the centralization of criminal investigations in some crimes but not others, the distribution of corruption in China’s courts, and the outcome patterns of administrative litigation. Whilst the conventional wisdom sees that the political and the legal orders in China’s courts are partitioned based on the subject matter, this theory asserts the opposite: the impact of the political order is systemic, comprehensive, and applicable to the entire legal field. This article fills a knowledge gap in Chinese law and politics, where the ARS has received little attention except for recent studies on administrative litigation. The article also identifies two overlooked but distinctive features of the ARS—its multidimensionality and interconnectivity—our understanding of which is disproportionately poor in relation to their significance.

 

Keywords: China’s courts, comparative constitutional law, Chinese legal system, law and politics, administrative rank, authoritarian regimes

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Neocolonial Digitality: Analyzing Digital Legal Databases Using Legal Pluralism

 

Salwa Tabassum Hoque

Affiliation:New York University

 

 

Abstract: A prevalent assumption is that digital legal databases generate an exhaustive and inclusive archive for academics and legal professionals to use for gathering information. Bridging theories and methods from digital media studies and legal anthropology, I challenge this assumption and demonstrate how digitizing law is a politicized process that is tied to legacies of colonialism and modern epistemic frameworks of law and justice. Employing the concept of legal pluralism, I conduct a comparative study of urban secular state courts and rural Islamic/customary non-state courts (shalish) in Bangladesh to show how the construction of digital legal databases distorts and erases alternate frameworks of law and women’s socio-legal experiences. I discuss two significant use of digital legal databases to highlight why it is important to study the gaps and prejudices: (1) they are central to generating new forms of archives—digital archives; (2) they provide the data sets to help train artificial intelligence and influence automated outputs. I develop the term “neocolonial digitality” to explain how power related to legacies of colonialism and other forms of discrimination are embedded in the digitizing process. This concept also holds space for the newer forms of hierarchies, exclusions, and power structures that digitality permits, focusing on the particular harms marginalized communities encounter in the Global South.

 

Keywords: digital database; legal pluralism; South Asia; AI Judge; Global South; Bangladesh

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Book Review:

The Transformative Evolution of Human Dignity in Asia’s Modern State-Building Projects - Human Dignity in Asia: Dialogue Between Law and Culture. Edited by Jimmy Chia-Shin Hsu. Cambridge: Cambridge University Press, 2022. 386 pp. US$140.00

Jimmy Chia-Shin Hsu

 

 

SCO and New Horizons for the Multi-Polar World - The Shanghai Cooperation Organization: Exploring New Horizons. By Sergey Marochkin and Yury Bezborodov (eds.), New York: Routledge, 2022. 262 pp. Hardcover $153.00

Sergey Marochkin & Yury Bezborodov

 

The Constitution and Religion - Buddhism and Comparative Constitutional Law. By Tom Ginsburg & Benjamin Schonthal. Cambridge, UK: Cambridge University Press, 2023. 300 pp. Hardcover $125.00

Tom Ginsburg & Benjamin Schonthal