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"Centralization in Decentralized Finance: Systemic Risk in the Crypto Ecosystem and Crypto’s Future as a Regulated Industry"
Douglas W Arner, Tanvi Ratna, Sijuade Animashaun, Jatin Bedi, Naveen Mishra
Law and Contemporary Problems, Volume 87, Number 2 (2025), pp. 185 - 210
Published online: April 2025
Introduction: A paradigm shift is manifesting in the global crypto ecosystem. Akin to traditional financial systems, crypto markets have developed networks of complex interrelationships between infrastructures, intermediaries and market participants. As an example, the events of the so-called “Crypto Winter” of 2022-2023, which began in early 2022 with the crash of sister tokens USDTerra and Luna and resulted in a series of cascading failures and collapses including that of the major crypto conglomerate FTX, underscore the significant potential that interconnection, interdependencies, concentration and contagion have in the evolving ecosystem. Compared to traditional finance, which is underpinned by a wide range of regulatory and supervisory interventions of central banks and other international and domestic regulatory bodies, the crypto ecosystem has until recently remained largely unregulated. This however is changing rapidly in major economies around the world and is expected to change as well in the United States, as crypto increasingly becomes a regulated industry.
The crypto ecosystem is typically described as and characterized by decentralization and disintermediation. We have seen a range of situations however where the system does not operate in this way......
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Abstract: In a sequel of two articles, we comprehensively examine China’s evolving AI regulation, focusing on the interplay between fragmented laws, technical standards, and sectoral governance frameworks. This reflects the tension between central regulatory control and sector-specific governance in aligning rapid technological advancement with coherent legislative oversight. The two papers, read together, argue that a phased legislative strategy emphasizing flexibility, cross-sectoral consistency, and proactive engagement with emerging technologies is essential for China to sustain global competitiveness while ensuring ethical and safe AI development. By integrating local piloting, sectoral adaptation, and incremental national standardisation, it advocates for balancing regulatory oversight with technological innovation. Ultimately, the findings reflect China’s efforts to craft a resilient legal framework that mitigates AI risks while fostering sustained and responsible innovation and iterating its industrial policies. The first part cover fragmented laws and technical standards, and the second part will address sectoral governance, emerging proposals, and analysis.
"The Global Scope of Competitive Legalities in the Early 19th-Century South China Sea: The Topaz Incident"
Jedidiah Kroncke and Haimo Li
European Journal of International Law, Volume 35, Issue 4, November 2024, pp. 929–958
Published online: February 2025
Description: This book is a one-stop reference to Hong Kong private international law.
It provides clear expositions on questions of jurisdiction, choice of law, recognition and enforcement, transnational arbitration, and inter-regional and international harmonisation of Hong Kong conflict of laws. It covers a range of areas, including the law of obligations at common law and in equity, the law of real and personal property, intellectual property law, family law, company law, insolvency and bankruptcy law, competition law, and admiralty law. It includes discussions of cross-border dispute resolution, jurisdiction and choice of law clauses.
The book focuses on the practical issues, emphasising the rapidly developing local jurisprudence of recent years. It also offers theoretical insights and suggestions for law reform when appropriate. Moreover, it systematically analyses conflict of laws issues arising out of inter-regional cases between Hong Kong on the one hand and Mainland China, Taiwan, and Macao on the other.
The book will be indispensable to judges, practitioners, scholars, and students in Hong Kong, Greater China, Asia, and worldwide.
A book launch will be held by the Asian Institute of International Financial Law (AIIFL) at HKU Law on Tuesday 29 April 2025. Details and registration are available here.
The oral rounds of the 2024 Herbert Smith Freehills Competition Law Moot were held at King’s College London on 14-15 June 2024. The HKU Team consisted of Chan King Hei (BBA (Law) & LLB 3), Connor Gregory (LLM (CFL)), Lee Zee Faith (LLB 4), and Wong Ching Ho (PCLL). Based on EU competition law, the moot problem raised several issues concerning potentially abusive practices under Article 102 of the TFEU, the scope of the single economic entity doctrine under Article 101 TFEU, and the applicable standard of proof in EU competition law proceedings.
After surviving the preliminary rounds and two elimination rounds, the HKU Team advanced to the final round against Utrecht University from the Netherlands. There, the Team defended its case against a series of challenging questions from the judging panel, chaired by The Right Hon Lady Rose of Colmworth, Justice of the UK Supreme Court. The HKU Team ultimately emerged as the Champion, marking the fourth time HKU has won the competition since its inauguration in 2015.
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| The HKU Team with the judges of the final round. (Left to right): Ronan Flanagan (judge), Connor Gregory, Chan King Hei, Lee Zee Faith, Wong Ching Ho, The Right Hon Lady Rose of Colmworth (judge), Professor Alison Jones (judge), William Kovacic (judge), Stephen Wisking (judge) |
In addition, the Team took home 3 individual awards in recognition of their advocacy skills, including Best Advocate for Connor Gregory and honourable mentions for Lee Zee Faith and Wong Ching Ho. The team’s written pleadings were also ranked 2nd out of 49 participating teams.
The Team would like to express their sincerest gratitude to Professor Thomas Cheng, Professor Kelvin Kwok, and Ms Allison Wong for their support and guidance. The Team would also like to thank the practice moot judges, Mr Byron Chiu, Mr Peter Dong, Mr Alex Yeung, Ms Clara Wong, Mr Martin Lau, and Mr Zixin Jiang, for their kind assistance and constructive feedback.
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| (Left to right): Professor Thomas Cheng, Chan King Hei, Connor Gregory, Lee Zee Faith, Wong Ching Ho, Ms Allison Wong |
Introduction: This chapter deals with the means of interface between the judiciary and National Human Rights Institutions (“nhris”) to ensure effective remedies to the victims of business-related human rights abuses. While nhris are considered as one of the state-based non-judicial grievance mechanisms for redressing the human rights abuses by business enterprises, lack of enforcement of their recommendations questions the overall effectiveness of the mechanism. This chapter thus looks into the fundamental relationship, including the interconnection and interaction, between the judiciary and nhris to ensure the enforceability of the nhris’ recommendations to have an actual outcome for the victims.
In the first section, the chapter provides the general background as to how nhris have been incorporated within the business and human rights regime and what are their expected roles within the regime. For the matter, the United Nations Guiding Principles, 2011 (“ungps”) is the primary instrument considered for the study. The second section deals with the concept and ways of interface between the judiciary and nhris. It explores the possible avenues to ensure the enforceability of the nhris’ recommendations. The third section considers the National Human Rights Commission of Thailand (“nhrct”) and National Human Rights Commission of Nepal (“nhrcn”) as case studies. The associated laws that provide grounds for the interface between these two state institutions are identified and analyzed. The chapter also explores the possibilities of interface for cases that have extra-territorial implications. While doing so, the possible challenges associated with them and recommendations are also discussed.
Articles
Law and Justice
Kemal Bokhary...581
Legal Bilingualism in Medieval Europe and Hong Kong
Carlye Chu...589
Administrative Detention and Unreasonable Applicants: What Can Hong Kong Administrative Law Offer
Edward Lui...601
“Culture Matters”: Expedited Arbitration and Arb-Med in Macau
Hugo Luz dos Santos and Leong Cheng Hang...615
Judicial Copying in Hong Kong
Anfield Tam...639
Illegality Allegations in International Investment Arbitration
Xu Qian and Shiyang Li...657
Crimes in Virtual Spaces? A Case Study of the Metaverse Sexual Assault Incident
Zhicheng Wang and Xiaoyu Yang...681
Book Reviews
Hualing Fu and Michael Hor (eds), The National Security Law of Hong Kong: Restoration and Transformation
Stuart Hargreaves...699
Anne Carter, Proportionality and Facts in Constitutional Adjudication
Cora Chan...711
Abstract: Law and justice, to a lawyer who has spent a working lifetime in court, dwell in the judicial administration of justice according to law, which is a joint effort of bench, profession and academy. Justice is to be delivered with ease, certainty and dispatch. Litigation is apt to cause litigants anxiety, distress and annoyance, making demands on their time, effort and finances. We must try to ease that. Compromise can restore harmony. Fighting to the bitter end perpetuates enmity. As for certainty, unclear laws are useless. Dispatch avoids denying justice by delaying it. As to the order of priority between them, finality is good but justice is better. The earliest forms of procedure ousted anarchy, but the procedure even of the fairly recent past had many defects. Those defects sometimes caused injustice. Nowadays, rules of procedure are understood to serve, not clog, justice. Looking at old decisions, we sometimes see situations in which modem procedure would produce fairer results. The letter of the law is the law’s body while its sense ad reason is its soul. Constitutional cases are to be decided with fidelity to the constitution’s letter and spirit, and to accord with the highest ideals of the people at their best. For every wrong there is a legal remedy. But it need not be a common law remedy. Fundamental principles must be certain in essence, but flexibly applied as circumstances require. Access to the courts is an arterial right, being the avenue for seeking judicial justice. Public interest litigation should be funded so that people are not prevented from bringing public interest cases for lack of funds, or deterred from bringing them by fear of being ruined by an adverse order as to costs. People will exercise their right of access to the courts if they are aware of that right, and have faith in the law and the courts. Let us be proactive in pursuing justice, and scholarly in discourse. Much remains to be done.
Abstract: The Hardial Singh principles (derived from R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704) are a well-established feature of Hong Kong administrative law, in the context of administrative detention. In Johnson Benjamin v Director of Immigration [2024] 1 HKLRD 582, the Court of Appeal discussed how these principles were to be applied — when the applicant had conducted himself unreasonably, and had thereby contributed to his own prolonged detention. This investigation of the Hardial Singh principles will be divided into two parts. First, concerning Benjamin itself: it will be suggested that the Court of Appeal’s analysis deserves significant attention for considering how the Hardial Singh principles will be applied in future cases, and may contain some interpretive ambiguities in this regard. Second, this article will then extend beyond Benjamin — and reflect more generally on the broader merits of the Hardial Singh principles. It will be contended that it may be opportune for the place of the Hardial Singh principles within Hong Kong administrative law to be reconsidered - and some arguments on either side of this possibility will be examined.
Abstract: Judicial copying is the practice where a judge directly imports text from counsel’s submissions or other sources as part of his judgment. It is said to have a detrimental impact on the administration of justice as it creates an impression of bias, especially when the judge incorporates extensive excerpts from one party’s submissions without original, independent analysis. This piece critically reviews the recent Court of Appeal (CA) decision in Wong To Yick Wood Lock Ointment Ltd v Singapore Medicine Co [2023] 3 HKLRD 311 to analyse its contributions with reference to comparative experiences, as well as raising a couple of problems that were left unanswered.
Introduction: In Proportionality and Facts in Constitutional Adjudication, Anne Carter examines how and why facts matter in the globally embraced multi-stage proportionality analysis that assesses whether a rights limitation pursues a legitimate aim and is rationally connected to the aim (“the suitability stage”), whether it is no more than necessary for achieving the aim (“the necessity stage”), and whether the harm to the right and benefit achieved by the limitation are fairly balanced (“the balancing stage”). Chapter 2, the first substantive chapter of the book, explains what questions of fact each stage of the proportionality test hinges on and how they relate to one another. Chapter 3 then goes on to categorise questions of fact, distinguishing the different kinds of factual issues that arise at the various stages. Next, Chapter 4 examines how the courts in Canada, Germany and South Africa treat questions of fact in constitutional adjudication, including whether they recognise such questions and how they find facts. Chapters 5 and 6 focus on Australian law. Chapter 5 examines the place of proportionality in Australian constitutional law, while Chapter 6 looks at how the Australian courts have treated questions of fact in proportionality analysis. The final substantive chapter, Chapter 7, fleshes out the procedural implications of taking facts seriously in proportionality analysis, highlighting unresolved questions in Australian law pertaining to the standard and burden of proof, the taking of judicial notice, and judicial deference. As well as suggesting directions for development, the chapter also examines the implications of facts changing over time for the issue of precedent.
"The Art of Complicity"
Scott Veitch
Law & Literature
Published online: March 2025
Abstract: This article considers the relation between art and complicity in wrongdoing. To do so, it offers a series of reflections on the theme of ‘Apollo and Daphne’, a story told in Ovid’s Metamorphoses and given sculptural form in the seventeenth century by Gianlorenzo Bernini. By understanding Bernini’s creation within the political, legal, and religious conflicts of its time, it analyses how artworks resonate in their ambient culture and beyond. Finally, it addresses the relationships amongst art, artist, and audiences and the risk of complicity in wrongdoing they share.
Abstract: This article examines the legitimacy of international and hybrid criminal tribunals that try atrocities crimes in post-conflict situations. It addresses legitimacy from political, normative, economic, and sociological perspectives. Political legitimacy focuses on the creation of authority. Normative legitimacy emphasizes the criteria for justifications, considering justice, independence, fairness, legality, and effectiveness as metrics. Economic legitimacy explores the cost, i.e., time and money, to address cases, as delayed or expensive justice suffers. Sociological legitimacy reflects the acceptance of the institution by the public, focusing on audiences’ perceptions of legitimacy. Multi-layered audiences make determinations about an institution’s legitimacy based on their cognitions, which may relate to their culture, identity, and knowledge. Eventually, the least legitimacy requirement asks for (1) a proper authority of creation, (2) well-defined justice the court pursues, (3) process with fairness, (4) independent, unbiased, and competent adjudicators, and (5) a certain degree of public trust especially among the affected populations.
"The Preference Accorded to General Principles Under Article 7(2) CISG"
Kai Tik Au Yeung (LLB Graduate 2022 and PCLL Graduate 2023)
Asian Journal of International Law
Published online: March 2025
Abstract: This essay contends that restorative justice and criminal justice are not entirely incompatible, and that their compatibility at various stages of criminal justice in the Anglo-American legal system hinges upon the extent to which either the rights of the accused or the public interest are compromised at each stage. We argue that these paradigms are incompatible at the trial stage, compatible in the post-trial phase, and conditionally compatible in the pre-trial stage. This essay is divided into three sections. First, we describe the divergence between restorative and criminal justice, highlighting the incompatibility of restorative justice during the trial stage, as it contravenes the principle of defendant protection. Second, we analyse the pre-trial stage, arguing that restorative justice measures should be applied conditionally to balance the rights of the accused with those of the victim. Finally, we posit that restorative justice can be compatible with criminal justice, but cannot wholly replace criminal justice sanctions in the post-trial phase, in order to safeguard the public interest.
Abstract: This article explores the evolution and application of online dispute resolution (ODR) within China’s e-commerce landscape, focusing on the self-regulatory mechanisms employed by Alibaba’s Taobao platform. It provides an overview of China’s ODR development, analyses Taobao’s crowdsourced jury system as a case study, and examines the platform’s rulemaking and dispute resolution procedures. The analysis highlights Taobao’s ability to resolve disputes efficiently while addressing important challenges, such as transparency, data privacy and legal accountability. The study emphasizes Taobao’s role in shaping China’s e-commerce governance, underlining the need for balance between innovation and consumer trust in a rapidly expanding digital marketplace.
