Chapter 6 examines scenarios in which courts use arguments from failure to override otherwise existing reasons for judicial deference. It illustrates the close connection in judicial practice between legal innovation and arguments from failure. It shows how the framework set out in the previous chapter provides guidance here too, albeit with some adjustments, given that – unlike in the case of structural reform litigation – failure here serves as an argument that a rights violation has taken place at all, rather than justifying a specific response to one. The chapter points to some resources for grappling with this difficulty. It concludes with a brief case study of the role of failure arguments in important climate change judgments in Pakistan, the Netherlands and Germany.

As in China, many of India’s remedied wrongful convictions involved police-induced false confessions. They likely reveal only a small “tip of the iceberg,” given the many missing remedied wrongful convictions found in other jurisdictions. Indian appellate courts are not reluctant to overturn convictions in part because of the absence of jury trials. India’s record of remedied wrongful convictions supports the abolition of the death penalty, with no exception for terrorism cases. Criminal laws enacted by the Modi government at the end of 2023 have increased the risk of wrongful convictions by, for example, increasing police custody, forensic investigations and restricting executive clemency. The 2023 laws did not implement the 2018 Law Commission recommendations to provide compensation for both the wrongfully detained and the wrongfully convicted, even though three-quarters of prisoners in India are awaiting trial.. Finally, possible futures for innocence projects and innocence movements in India are explored, with attention to the need to be sensitive to local conditions.

This book concludes by analysing a contemporary digital text, Wikipedia’s article on authorship, based on the prior insights into literary production gleaned from Kant’s 1785 essay. I clarify the fundamental challenge issued by Wikipedia’s multitudinous authorship to copyright’s proprietary model by turning to some of its digital paratexts. The dispute tags, hyperlinks, footnotes and revision history of Wikipedia’s article on authorship are read as indices of the digital machinery that constituted it and keeps it open to revision. I further discuss the ethical dimension of Wikipedia’s production by situating the digital encyclopaedia alongside, and against, some of its print predecessors in Roman antiquity and the European Enlightenment. This analysis of Wikipedia closes with an invitation for the writing of a media history of the encyclopaedia, one that could account for its ethics and communicative function in the digital present.

The contemporary expansion of alternative dispute resolution (ADR) in Asia has been unparalleled in the world. While London and other traditional forums remain a vital jurisdiction for Asian parties, those constructing ADR regimes in Asian jurisdictions increasingly turn to their neighbors – other Asian jurisdictions. This chapter analyzes the interactions between the prominent ADR hubs in Asia and their neighboring jurisdictions. Topics include the race between Singapore and Hong Kong for the crown, Singapore’s impact on Vietnam, and the implications of Singaporean promotion of mediation on the practice of ADR in Asia. The chapter argues that ADR centers, viewed from the perspective of legal transplantation, provide successful models for secondary markets, although such transplantation is far from seamless. This chapter suggests that Singapore and Hong Kong, as established hubs, will remain influential and play a critical role in shaping ADR legal developments in Asia, although competition may result in disparate effects.

The introduction sets out arguments from failure as a distinct idea and concept of public law. It shows how such arguments serve to justify institutional interventions that go beyond standard legal norms on the basis of the failure of other institutions. We encounter such arguments in a wide range of legal systems, both in national and international contexts, and in new and fragile as well as in established democracies. The introduction further contextualizes arguments from failure as both a response to crises and a catalyst for institutional innovation, highlighting the tensions between democratic integrity, legal accountability and the need for flexibility. It frames the book’s central argument – that while failure-based interventions can enhance governance, they also risk undermining core democratic principles and the rule of law if applied indiscriminately.

The progressive digitalization of industries and services has direct effects on the organization of labor. Telework is foremost a consequence of the general increased use of information technology in our professional and private lives. The organizational changes of labor due to digitalization however challenge the functionality and effectiveness of labor law. The employer’s comprehensible concerns, that teleworkers might pursue private interests at home, serve in practice as a justification for implementation of closed meshed monitoring measures. Hence, we face a significant paradox: even though teleworkers enjoy a putative higher degree of autonomy because they are not present at premise and therefore not subject to the employers’ physical authority, they are exposed to a higher degree of dependency rooted in digital control measures. Data protection acquires increasing importance for workers. Labor protection in many cases cannot be separated from data protection. This chapter argues that this evolution is not sufficiently mirrored by the law, and then analyses in its first part the existing shortcomings and loopholes exemplified by the problem of digital surveillance of telework. In its second part the chapter seeks to identify possible legal mechanisms to create or even foster interaction between labor and data protection law.

The Internet has become a new domain for conflicts between the Republic of China (Taiwan) and the People’s Republic of China (China) with their complicated history. China’s cyber warfare against Taiwan is diverse and comprehensive. To defend Taiwan’s democracy, it has embraced a top-down approach in shaping its cybersecurity policy. Specifically, Congress amended the National Security Law to extend Taiwan’s territory to the Internet. This mirrors the notion of “Internet Sovereignty,” a principle endorsed by China’s Internet governance regime, diverging from the principle of a free and open Internet.  Taiwan’s endurance of China’s attacks captures the two metaphorical views of the Internet, steering the course of normative development within the realm of Internet governance. Much of the foundational engineering of the Internet is embedded in the “cyberspace” metaphor, specifically evident in the United States (US). This has driven early discussions in the United Nations (UN) on developing cyber norms, which entails voluntary expectations of responsible state behavior. Simultaneously, China has been consistently advocating for the metaphor of “Internet Sovereignty” and has constructed its narrative through the Shanghai Cooperation Organization (SCO), its Cybersecurity Act and the Digital Silk Road (DSR). Countries are encouraged to maintain control of information flows in a given territorial realm. To uphold Taiwan’s democratic system, this research argues that Taiwan should embrace the metaphorical view of the Internet as “commons,” transcending conceptions of “cyberspace” or “sovereignty.” This research further classifies the Internet commons from three dimensions: “cable commons,” “communications commons,” and “content commons.” Each commons presents its unique set of challenges. The tragedy of each commons, like cable interception, cyberattacks, and the dissemination of disinformation, introduces scenarios akin to cases of overexploitation. These situations give rise to the collective action problem reminiscent of classic social dilemmas – a “tragedy of the commons.” Developed by Nobel Laureate Elinor Ostrom, polycentric governance offers a solution for the tragedy of the commons by facilitating coordination among diverse actors. It fosters norm development by adeptly tackling collective action problems through coordinating and harmonizing diverse decision making centers in the Internet. This offers a strategic advantage for Taiwan to safeguard its democratic system from the bottom-up in the various Internet commons.

The material practices of responsibility through visual art are demonstrated in this chapter, focusing on Anselm Kiefer and Gerhard Richter. As a mode of taking responsibility for restitution through practice, I analyse the way two of their art works resist or collaborate with their processes of creation and places of viewing. Interleaving my research interludes to Munich into the text, I contend that beholding an Anselm Kiefer sculpture (Sternenfall) in MONA in Tasmania in Australia opens up the artwork to a reassessment of what it might mean to take responsibility for restitution in Australia. I argue that beholding a copy of a Gerhard Richter painting (Birkenau) in the Reichstag in Berlin means taking responsibility for restitution is staged on the threshold to the German Parliament.