This chapter has two parts. The first part investigates how the Party controls courts. It finds that the Party maximizes its political control over judicial affairs by normalizing its political prerogative in judicial decision-making. The normalization process takes two steps. First, all judges within a court are embedded in a chain of command—from Party leaders to court leaders, divisional heads, and frontline judges—tasked with processing and translating political directives into partial judicial outcomes that serve Party-state interests when needed. The legality of these demands or their immunity from legal scrutiny is derived from the Party’s political prerogative. This practice is then replicated across all courts and among all judges nationwide. The second part of this chapter analyzes reported cases of judicial corruption to identify what has caused the spread of judicial corruption. It concludes that the root cause is the very normalization of the Party’s political prerogative. Because this prerogative is inherently arbitrary and vulnerable to abuse, its institutionalization creates systemic opportunities for corruption across the political-legal apparatus. As a result, what begins as political control ultimately facilitates the pervasive spread of judicial corruption.

This chapter seeks to explain the recurrence of judicial corruption despite waves of reforms. To that end, I track major reforms launched by the Supreme People’s Court (SPC) over past decades and find a pattern: Most of them revolved on redistribution of judicial decision-making power. Instead of confronting the issue of institutionalized judicial partiality caused by normalized political prerogative, these reforms were designed to divide, centralize, decentralize, and recentralize judicial decision-making power. Since these measures are not geared to eliminate judicial partiality, they work best in redistributing rather than uprooting corruption. Recent reforms made efforts to set boundaries for the exercise of political prerogatives by banning “improper” interference while retaining “proper” interference. The reform may lift the costs of corruption, thereby reducing but not eliminating it, because the power that is most prone to corruption is the one that is entitled to “proper” interference. In the last section, I use a recent SPC scandal to expose the limits of the current judicial reforms and to illustrate the reach and the entrenchment of the prerogative-based judicial interference power.

In this chapter, I provide a more textured picture of corruption in China’s courts. First, I find that the scale of judicial corruption in China is larger than was reported by the SPC. Second, I unpack judicial corruption with a four-filter scheme, separating prevalent conducts from the less prevalent and then provide a statistical description of the more prevalent types of misconduct, using a self-compiled dataset. I find that the predominant type of judicial corruption is the abuse of judicial discretion for self-enrichment. This type of corruption is ubiquitous in China’s courts, regardless of the type of the court where a judge serves, the type of the case concerned, and the stage of a litigation process where corruption takes place. My findings render some popular explanations of judicial corruption in China incomplete, which prompts further investigation of judicial decision-making in these courts in the next chapter.

Despite being nearly universally recognised as a virtue, judicial independence has been challenged in almost all parts of the world. Some commentators even consider it to be so open to differing interpretations as to be a useless concept, that should be unpacked to its smaller components to be studied meaningfully. We are less cynical about the idea. According to our theory, judicial independence exists where powerful actors are unable or unwilling to inappropriately interfere with the workings of the judiciary. Judicial independence is thus a relational concept and always results from the interplay between the capacity and willingness of powerful actors to inappropriately interfere with the judiciary, and the capacity and willingness of judicial actors and their allies to withstand such actions. We distinguish three levels of judicial independence: de jure institutional independence, de facto institutional independence, and decisional independence. Courts are thus independent when powerful actors do not consistently impose their preferences in disputes they have a stake in, either by capturing the courts through formal changes of laws governing the judiciary, through rigging these laws in their favour, or by skewing judicial decision-making. By contrast, a dependent judiciary is the one that is captured, rigged, or skewed.

This chapter examines the current situation concerning the codification, recognition, and implementation of corporate responsibility both in and outside the IIA regime, focusing on environmental and human rights responsibilities. It first discusses certain challenges in regulating and pursuing the responsibility of TNCs’ conduct in domestic legal orders. It proceeds to note a general lack of international mechanisms for holding TNCs responsible for their conduct, through the examination of: (a) the paucity of international law that provides binding obligations of juridical persons as well as a lack of enforcement mechanisms; (b) the attempts towards establishing binding international human rights obligations for corporations; and (c) the development of ‘soft-law’ instruments to advance the concept of corporate responsibility. The chapter then examines the recognition of investor responsibility in the text of IIAs and model IIAs by referencing a dataset of 1,000 randomly selected IIAs and model IIAs to confirm that incorporating the concept of investor responsibility into IIAs remains an exceptional practice.

This chapter investigates judicial corruption by illuminating the contrast between the high expectations generated by the construction of strong courts via ambitious reform efforts, and the reality of pervasive corruption within those same judicial institutions, especially where political power is concentrated. It examines the case of Ecuador, where a Constitutional Court with very broad formal powers granted by the 2008 Constitution was at one point in its history the site of corrupt exchanges between judges, lawyers and politicians. Crucially, such exchanges thrived when political power was concentrated: politicians demanded favourable decisions on specific issues and in exchange offered credible protection for judges seeking to engage in corrupt dealings with high-flying private litigants.

This Chapter will show that this structured model of proportionality does not exist in the Indonesian constitutional realm, even though the term proportionality has been formally used by the Constitutional Court since 2010.While there is a textual basis under the Indonesian Constitution for constitutional rights to be balanced with other important interests – Article 28J (2) of the 1945 Constitution – the Indonesian Constitutional Court has used Article 28J (2) instead as an interpretative tool to limit or ignore the bill of rights. The Court’s jurisprudence to date suggests that the Court considers Article 28J (2) as a “trump card” to override constitutional rights. This Chapter further argues that the principle of proportionality has never flourished in Indonesian soil because of the lack of intellectual leadership in the Constitutional Court. The majority of the Constitutional Court Justices are not well versed with the notion of proportionality, and the Indonesian legal academia has also failed to generate a robust discussion on the principle of proportionality.