Thursday, October 20, 2016

Kelvin Kwok on the Standard of Proof in Competition Proceedings (LQR)

"The standard of proof in civil competition proceedings"
Kelvin Kwok
Law Quarterly Review
October 2016, Issue 132, pp 541-547
Abstract: Discusses the relevant Hong Kong decisions (of the Court of First Instance recently in Television Broadcasts Ltd v Communications Authority [2016] 2 HKLRD 41; of the Court of Final Appeal in Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170) and UK decisions (of the Competition Appeal Tribunal in Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading [2002] CAT 1; JJB Sports plc v Office of Fair Trading [2004] CAT 17; of the House of Lords in Re H (Minors) [1996] AC 563; Re D [2008] 1 WLR 1499; Re B (Children) (Care Proceedings: Standard of Proof) [2009] 1 AC 11) on the issue of the appropriate standard of proof in civil competition law proceedings. Argues that the application of the civil standard of proof on the balance of probabilities in civil competition law proceedings classified as “criminal” for human rights purposes can be supported by two relevant factors: (i) the workability of the standards in light of the technical nature of the evidence involved; and (ii) the severity of the potential penalty.  Click here to download the paper.

Albert Chen Discusses Government's Court Challenge to Re-taking of Oath by Youngspiration LegCo Members (RTHK Backchat)

Today's RTHK Radio 3's morning programme, Backchat, discussed the latest controversy concerning the two elected Youngspiration members who failed to take the oath of office in the Legislative Council (LegCo) on 12 October 2016.   Professor Albert Chen, Cheng Lan Yue Professor of Constitutional Law, joined the panel and explained the government's position.  He noted that section 21 of the Oaths and Declarations Ordinance (Cap 11) deems a person, who declines or neglects to take an oath duly requested and required, to be disqualified from entering upon his office.  He also said that in addition to bringing a judicial review, the government was also proceeding by section 73 of the Legislative Council Ordinance (Cap 542) which allows any elector or the Secretary for Justice to apply to the High Court against any person who acts or purports to be a LegCo members on the ground that they are disqualified from acting as such.  If proven that the person acted as a LegCo member (or claimed to be entitled to so act) while disqualified from acting in that office, the court may make a declaration to that effect, grant an injunction restraining the person, and order the person to pay such sum not exceeding $5000 for each occasion he so acted while disqualified.  Click here to listen to the discussion.

Wednesday, October 19, 2016

Arner, Barberis & Buckley's "FinTech, RegTech and the Reconceptualisation of Financial Regulation"

"FinTech, RegTech and the Reconceptualization of Financial Regulation"
Douglas Arner, Janos Barberis (PhD candidate), and Ross Buckley
October 2016, SSRN
Northwestern Journal of International Law & Business (forthcoming)
Abstract: The regulatory changes and technological developments following the 2008 Global Financial Crisis are fundamentally changing the nature of financial markets, services and institutions. At the juncture of these two phenomena lies regulatory technology or ‘RegTech’ – the use of technology, particularly information technology, in the context of regulatory monitoring, reporting and compliance. 
     For policymakers and regulators, the challenge of regulating rapidly transforming financial systems requires increasing the use of and reliance on RegTech. Whilst the principal regulatory objectives (e.g. financial stability, prudential safety and soundness, consumer protection and market integrity, and market competition and development) remain, their means of application are increasingly becoming inadequate. RegTech developments are leading towards a paradigm shift necessitating the reconceptualization of financial regulation. 
     RegTech to date has been focused on the digitization of manual reporting and compliance processes, for example in the context of know-your-customer requirements. This offers tremendous cost savings to the financial services industry and regulators. However, the potential of RegTech is far greater – it has the potential to enable a close to real-time and proportionate regulatory regime that identifies and addresses risk while also facilitating far more efficient regulatory compliance. 
     We argue that the transformative nature of technology will only be captured by a new approach that sits at the nexus between data, digital identity and regulation. We seek to expose the inadequacy and lack of ambition of simply digitizing analogue processes in a digital financial world. The development of financial technology (‘FinTech’), the rapid developments in emerging markets, and the recent pro-active stance of regulators in developing regulatory sandboxes, all represent a unique combination of events, which could facilitate the transition from one regulatory model to another. This paper sets the foundation for a practical understanding of RegTech and proposes sequenced reforms that could benefit regulators, industry and entrepreneurs alike in the financial sector and other industries.  Click here to download the full paper.  The paper was cited recently in Andrew Cornell, "Robocops on the regulatory beat", ANZ BlueNotes, 12 October 2016.  The paper is the fifth most downloaded paper in the SSRN Legal Scholarship Network in the past 60 days.  Arner and Barberis will be presenting the paper at a seminar organised by the Asian Institutional of International Financial Law on 10 November 2016 at 12:15pm, 11/F, Cheng Yu Tung Tower, HKU, Pokfulam Road, Hong Kong.

Buckley and Arner's "From Crisis to Crisis" Now Available in Chinese

Ross Buckley and Douglas Arner's influential 2011 work, From Crisis to Crisis: The Global Financial System and Regulatory Failure (Wolters Kluwer) has now been translated into Chinese.  The 360-page book was translated by Dr Gao Xiang of the College of Comparative Law at the China University of Political Science and Law (CUPL) and published by CUPL Press.  In Dan Ciuriak's 2014 review of the book in Canadian Business Law Journal, the book is described as follows:
"The authors approach their subject from the humane and sensible perspective that financial markets serve important purposes besides the enrichment of financial institutions and their traders. In this regard, they place well-founded charges that the modern system has failed badly, creating havoc for the productive system, while enriching (at least some of) the wreakers of that havoc.  The study of economics started out grounded in moral philosophy and economists should welcome this invasion of their turf, if only for the pointed reminder."

Tuesday, October 18, 2016

Launch of the Legal English in Hong Kong Website

Learning ‘legal English’, the specialized language that students encounter in law school, is particularly challenging. Law students must learn to use English forms and structures in such a way as to meet the expectations of members of the legal academic community, consistent with the conventions of the legal discipline. Learning legal English is therefore a process which involves elements of both legal expertise and language expertise. As a result, both lawyers and language teachers have something to contribute in order to support this learning process. This interdisciplinary project combines the expertise of lawyers and language teachers/applied linguists to develop a digital multimedia resource for legal English based on an analysis of the language needs of Hong Kong law students. This resource will target the most common tasks and genres for law students, e.g. essays, legal problem questions, memoranda, dissertations, oral mooting, and provide input in two forms: 1) edited video interviews with legal experts providing advice on legal writing and legal argument; 2) task-based activities created by applied linguists providing language-focused extensions on experts’ observations.
      The aims of the project are three-fold:
  1. To provide an in-depth analysis of the English language needs of Hong Kong law students; 
  2. To develop video-based teaching materials to target these needs, including expert videos, language-focused activities and resources; 
  3. To promote the use of these language-focused materials by law professors in legal skills and content courses.
The team members are Christoph Hafner, John Burke, Katherine Lynch, Anne Scully-Hill and Rajesh Sharma.  For a sample of one of the instructional video for students, see below.  The new website can be accessed here.

Dan Matthews Speaking at the University of Helsinki on Sovereignty in the Age of the Anthropocene

Dr Dan Matthews will be speaking at the University of Helsinki on 19 October 2016 on "The Sense of Sovereignty in the Age of the Anthropocene". The Political Constitutional Theory (PolCon) website describes the seminar as follows:
"The ‘Anthropocene’ names a new climatic regime in which human activity has begun to shape the Earth’s geological, ecological and atmospheric constitution. If the sixteenth century was marked by the West’s ‘discovery’ of new areas of the globe, along with distinct modes of its inhabitation, climatologists have today discovered a new relation that the human has to the earth and its atmosphere. The fact that humans have become a geological force is attributable to the impact of ‘modernity’, the result of industrialisation, technological progress and an enormous expansion of the human population. The political exigencies that this new age of discovery provokes are well known, precipitous and unsettling. This paper will offer some preliminary thoughts on how the changing reality to which the ‘Anthropocene’ signals challenges dominant modes of political and legal thinking. In particular, the paper will suggest that ‘sovereignty’ a concept deeply embedded with the history of modernity and still, in so many ways, constituting the contemporary world, deserves renewed, critical attention. A concept born as the last ‘age of discovery’ got into its stride, can sovereignty still constitute the limit of our legal and political horizons in the age of the Anthropocene?"
For more details, click here.

Monday, October 17, 2016

Rule of Law Education (ROLE) Project Awarded HKU Faculty Knowledge Exchange Award 2016

We are pleased to announce that the HKU Faculty Knowledge Exchange Award 2016 of the Faculty of Law has been awarded to the Rule of Law Education Project (ROLE).   Launched in April 2012, the project has trained numerous Liberal Studies teachers, secondary school students and social workers and published useful materials on the rule of law.  ROLE has helped to spread knowledge of the rule of law to the public at large. Congratulations to Benny Tai, Johannes Chan, Karen Kong and Isabella Liu.  To learn more about ROLE and watch HKU law students educate secondary school students on the rule of law, watch the video below (in Cantonese).  The ROLE website can be accessed here.

Sunday, October 16, 2016

HKU Law Lectures for Practitioners 2016 (28 Oct 2016)

Faculty of Law, University of Hong Kong, 
on behalf of Hong Kong Law Journal Ltd
28 October 2016 (Friday) 
11/F Academic Conference Room
Cheng Yu Tung Tower, Centennial Campus
University of Hong Kong

Morning Session (9:30 am - 12:45 pm)
9:00-9:30 am 

9:30-10:30 am 
"Litigation and the Competition Commission" 
Lester Lee of the Competition Commission 

10:30-11:30 am 
"Privacy and Media Intrusion" 
Allan Chiang (former Privacy Commissioner for Personal Data) 

11:30-11:45 am 
Coffee Break 

11:45-12:45 pm 
"Periodical Payment Orders in Personal Injuries for Future Pecuniary Loss" 
Norman Hui of The University of Hong Kong 

12:45-2:00 pm 
Afternoon Session (2:00 pm - 5:15 pm)

2:00-3:00 pm 
"Current Issues on Takeover Regulation" 
Gail Humphryes of The Securities and Futures Commission 

3:00-4:00 pm 
"The HKEX/SFC Joint Consultation on Listing Regulation" 
Syren Johnstone of The University of Hong Kong/Asian Institute of International Financial Law 

4:00-4:15 pm 
Coffee Break 

4:15-5:15 pm 
"Market Misconduct - Recent Developments" 
Nigel Davis of The University of Hong Kong

Fees: Morning Session or Afternoon Session - HK$800 per session. Whole Day - HK$1,400 including lunch. For registration or enquiries please contact Ms Lydia Bute, 10/F, Faculty of Law Building, Centennial Campus, University of Hong Kong, Pokfulam, Hong Kong. Tel: 3917 4323 / Fax: 2559 3543 / Email:

Saturday, October 15, 2016

Hualing Fu Interviewed on Chinese Corruption and Spying Cases

"China anti-corruption campaign backfires"
Hudson Lockett
Financial Times
10 October 2016
Xi Jinping’s high profile anti-corruption campaign has fallen short of its stated goal and appears to be doing more harm than good to the image of China’s Communist party, according to new academic research and an analysis of official statistics.
The Chinese president’s drive against graft, now nearly four years old, is one of the most powerful and far-reaching campaigns in the country since Mao Zedong’s death in 1976. But a new study suggests that it has backfired, with citizens often blaming local graft on the central government rather than on regional authorities, while an FT analysis indicates that the odds of officials being punished for corruption are slim.
“I don’t see any clear political will” to seriously punish corrupt officials at the grassroots level, said Fu Hualing, a law professor at the University of Hong Kong. “Maybe they understand that is probably very destructive if China does that in every county, every district,” he said. “The whole country would probably be in chaos.”... Click here to read the full article.

Louise Watt
The Washington Post
6 October 2016
Nine days had passed since Jeff Gillis, at home in Houston, Texas, had last heard from his wife. During that phone call, she told Gillis she was extending her business trip in China, but he grew anxious. He filed a missing person’s report with U.S. consular officials whose response left him flabbergasted: His wife, a business consultant, had been detained by Chinese state security agents almost two weeks earlier.
     Now, 18 months later, Phan Phan-Gillis is still detained, charged with spying and awaiting trial in China, consigned to an unknown fate in a highly opaque and impenetrable legal system in which even the charges brought against her remain cloudy. Gillis says that his wife appears to have been accused of spying against China two decades ago, although even her Chinese lawyer says he has been barred by Chinese law from providing details.
     Despite the scant information, Gillis has set about trying to prove his 56-year-old wife’s innocence. He hopes documents he has uncovered will help free Phan-Gillis, known as Sandy to friends. Her lawyer says her trial has been postponed indefinitely from its original Sept. 19 court date.
     The case speaks to both rising suspicion between Beijing and Washington and China’s drive to pursue those accused of crimes occurring outside its borders. Gillis says part of the charge relates to alleged spying carried out within the United States.
      “China probably is now more aggressive in pursuing anyone who can be regarded as harming China’s interests,” said Fu Hualing, a law professor at the University of Hong Kong.
     “If they think there’s a violation of Chinese criminal law and the impact is felt within China they are willing to pursue that and they think that they probably have the capacity to do that now,” he said. “Imagine: The case happened in the ‘90s. It’s not like it happened recently.”... Click here to read the full article.

HKU Faculty of Law Remembers Dr Cheng Yu Tung

Cheng Yu Tung Tower
The Faculty of Law is profoundly saddened by the passing of one of its best friends, Dr Cheng Yu Tung. Dr Cheng was a founding entrepreneur of Hong Kong. His vision and determination have helped to shape the development of Hong Kong into a vibrant international financial centre. We are truly honoured and privileged to have benefitted from Dr Cheng’s visionary efforts which came in the form of his very generous gift and support for legal education. A modern state-of-the-art building which proudly bears his name, the Cheng Yu Tung Tower, has been the new home of the Faculty of Law at the Centennial Campus since 2012. It is the envy of visiting faculty from around the world.
      The generosity of Dr Cheng has also allowed the Faculty to set up the Cheng Yu Tung Visiting Professorship and the Cheng Yu Tung Visiting Fellowship, These elite Programmes bring in legal scholars of international eminence to contribute to our teaching and research and to foster collaboration with the very best universities in the world. Back home, the benefaction has enabled us to attract very senior leaders in cutting-edge fields, like securities and finance, to join the Faculty. They bring with them a wealth of experience as well as the potential for collaborative and interdisciplinary research at the frontiers of legal knowledge such as surrogacy, and law and technology. Many students continue to benefit from support in the form of scholarships and sponsorships. With Dr Cheng’s generous gift, the Faculty will continue to bring in top-notch international scholars to nurture our own students, and so carry on this precious legacy of Dr Cheng.
      Our immediate past Dean, Professor Johannes Chan, who cemented the benefaction and oversaw the completion of the Cheng Yu Tung Tower, expresses the sentiments of the Faculty when he says: “Dr Cheng’s generous benefaction to the Faculty and strong support to legal education are a testimony to his vision which spurs the aspirations of generations of law students and legal scholars to contribute to Hong Kong and the international community. His belief in the rule of law as the cornerstone of Hong Kong’s prosperity, as inscribed at the Cheng Yu Tung Tower, will always be fondly remembered”.
      We extend our deepest condolences to Dr Cheng’s family.
Faculty of Law
The University of Hong Kong
11 Oct 2016

Friday, October 14, 2016

Arner and Soares's Report on Latin America and a Globalised RMB (Atlantic Council)

A Globalized Renminbi: Will it Reshape Latin America?
Douglas Arner and Andre Soares
October 2016, Atlantic Council, 12 pp
In the past four decades, beginning with Deng Xiaoping’s gradual opening in 1978, China has reemerged as one of the world’s most important economies. Its economic, geopolitical, and financial rise is underscored by key milestones: joining the World Trade Organization (WTO) in 2001; surpassing the United States, Germany and Japan to become the world’s most significant exporting nation; and becoming one of the world’s top three global sources of outward foreign direct investment (FDI). In 2015, China became a net foreign investor, sending more FDI out than it took in. China is well on its way to overtaking the United States as the world’s largest economy in absolute gross domestic product terms, and has already done so on purchasing power parity measures.
     Its economic and financial importance in Latin America echoes trends on the global stage. China is now among the three most significant trading partners for the region, eclipsing the European Union (EU) in 2012. Brazil, Chile, Peru, and Argentina count China as their top export destination, as well as a major source of imports. Chinese investment has also surged, with Brazil topping the list as the region’s leading destination for Chinese FDI. 
     China’s rise in the global economy is reflected by changes in the international significance of its currency, the renminbi (RMB). This is not surprising. Currency internationalization is a natural step in the evolution of a leading economy. The international use of the dollar, for example, grew out of the United States’s rapid economic emergence at the beginning of the 20th century, although it became the world’s leading currency only in the aftermath of World War II. Likewise, the international significance of the Japanese yen grew out of the country’s rapid economic ascent in the 1970s and 1980s.
      With the October 2016 inclusion of the RMB in the International Monetary Fund’s Special Drawing Right (SDR) basket of major international currencies, joining the US dollar, the euro, the Japanese yen, and the British pound sterling, China is now among a select group of countries whose currency is recognized as an international reserve asset. It adds credibility to a currency still observed with some skepticism in many parts of the world. 
      While China is now firmly established as a leading driver in the global economy, the ramifications of the renminbi’s internationalization are still evolving, especially for emerging markets such as those of Latin America. To the extent that Chinese authorities undertake additional domestic reforms—in areas including the capital account, financial market, and exchange rate policies—this may give other economies, including Latin American countries, more confidence to use the RMB for trade and finance transactions.
     If history repeats itself, it will just be a matter of time until China’s currency is widely used internationally. But the story is not that simple. The Chinese economy continues to be characterized by a high degree of government involvement, including with its exchange rate. This gives pause to the many governments and private businesses who question the possible implications for market behavior. 
      How relevant are these policies to Latin American countries? With major economic relationships with China, most of the region’s largest economies are likely to see both more businesses trading directly in the RMB and more Chinese-originated FDI using the RMB. To encourage this and manage possible liquidity issues, China has already signed currency swap agreements with countries such as Brazil, Argentina, and Chile. What do these agreements actually mean and what are the risks for businesses that traditionally have depended on trading and investing in dollars? What measures could Latin American countries and businesses take—individually and collectively—to adapt to China’s changing economic landscape and the opportunities and risks that come with greater use of the RMB?... Click here to download the full report.

Thursday, October 6, 2016

Peter Chau on Bennett's Expressive Justification of Punishment (Crim L & Philo)

"Bennett's Expressive Justification of Punishment"
Peter Chau
Criminal Law and Philosophy
2016, First Online May 2016, pp 1-19
Abstract: In this paper, I will critically assess the expressive justification of punishment recently offered by Christopher Bennett in The Apology Ritual and a number of papers. I will first draw a distinction between three conceptions of expression: communicative, motivational, and symbolic. After briefly demonstrating the difficulties of using the first two conceptions of expression to ground punishment and showing that Bennett does not ultimately rely on those two conceptions, I argue that Bennett’s account does not succeed because he fails to establish the following claims: (1) punishment is the only symbolically adequate response to a wrongdoing; and (2) punishment is permissible if it is the only symbolically adequate response to a wrongdoing.

Wednesday, October 5, 2016

Dan Matthews' Nomospheric Inquiry into Hong Kong's Umbrella Movement (S&LS)

"Narrative, Space and Atmosphere: A Nomospheric Inquiry into Hong Kong’s Pro-democracy ‘Umbrella Movement’"
2016, Online First May 2016
Abstract: Since the financial crash of 2008, the strategy of occupation has been widely deployed as a means of expressing and mobilizing political dissent. Within legal studies, responses to this mode of protest have remained wedded to a statist perspective that fails to assess the normative commitments immanent to occupations themselves. Rather than examining the strategy of occupation through a legalistic lens, this article approaches a recent occupation through the theoretical apparatus of the ‘nomosphere’. This term – originally coined by David Delaney but substantially expanded here – allows for an assessment of the spatial, narrative and atmospheric orderings of the Umbrella Movement, a pro-democracy campaign that sustained a 79-day occupation in Hong Kong’s city centre in late 2014. This ‘nomospheric inquiry’ assesses the forms of ordering that animated the movement from within and seeks to foreground the lived and felt reality of the occupation rather than focus on its legalistic or constitutional significance alone.

Tuesday, October 4, 2016

Gal and Cheng on Aggregate Concentration and Competition Law (JAE)

Michal S Gal and Thomas K Cheng
2016, Vol. 4, Issue 2, pp 282-322
Abstract: Competition law is generally focused on competition in a market. Yet, as recent economic studies have clearly indicated, one of the main sources of competition concerns of jurisdictions around the world is the impact of high levels of aggregate concentration in their markets, when a small group of economic entities controls a large part of the economic activity through holdings in many markets. High levels of aggregate concentration can significantly impact competition and welfare. On the one hand, conglomerates’ substantial resources and varied experiences, as well as their economies of scale and scope, often enable them to enter markets more readily than other firms, especially when entry barriers are high. On the other hand, high levels of aggregate concentration raise significant competitive concerns. Most importantly, oligopolistic coordination in and across markets as well as entry barriers into markets might be increased. These effects, in turn, might lead to stagnation and poor utilization of resources, which adversely affect growth and welfare. Another major concern is a political economy one: given their size and economic heft, large conglomerates may attempt to translate their economic power into political power in order to create, protect and entrench their privileged positions. Given these effects, the article attempts to explore the weight given—if at all—to aggregate concentration in the application of competition laws around the world. The analysis is based, inter alia, on the experiences of 35 different jurisdictions in dealing with aggregate concentration through competition law, based on a survey performed with the assistance of the UN Conference on Trade and Development.

Monday, October 3, 2016

Douglas Arner to Speak on Globalised Renminbi at Atlantic Council Meeting (4 Oct, Washington DC)

"A Globalized Renminbi: Will it Reshape Latin America?"
Altantic Council
4 October 2016, 9:00am, 15th ST NW, 12th Floor
Washington DC
China is approaching a new milestone. In October, its currency joins the dollar in becoming one of five official international reserves assets. This could be dismissed as just another technical development, but the reality is different. Internationalization of the renminbi may fundamentally reshape trade and finance with emerging markets around the world, with a particular impact in Latin America. Is the region ready for it?
Jon M. Huntsman 
Chairman, Atlantic Council 
Former Ambassador to People’s Republic of China, United States 

Gerardo Mato 
Chairman of Global Banking, Americas 

Professor, Faculty of Law, 
Hong Kong University 

Luis Miguel Castilla 
Senior Fellow, Adrienne Arsht Latin America Center 
Atlantic Council 
Former Finance Minister, Republic of Peru 

Mark Ramsey 
Senior Managing Director, Head of Latin America 
Macquarie Capital 

Introduced and Moderated by: 
Sam Fleming 
US Economics Editor 
The Financial Times 

Jason Marczak 
Director, Latin America Economic Growth Initiative 
Atlantic Council

Click here to view Live Webcast available 4 Oct, 9 pm (HK Time).

Jingyi Wang on the Chinese Approach to Transfer Pricing (British Tax Rev)

British Tax Review
2016, Issue 1, pp 89-118
Abstract: With the increasing integration of the Chinese market into the global economy, China’s tax policy on transfer pricing and its tax administration influence extremely large numbers of cross-border transactions between China and other states. China has suffered heavy revenue loss from transfer pricing manipulation. Since 2008, Chinese tax authorities have paid special attention to such tax avoidance methods. By examining the Chinese approach to transfer pricing based on publicly available information, this article analyses the reasons for the perceived aggressiveness of Chinese tax authorities in dealing with transfer pricing issues, and the inconsistency between the statutory endorsement of the arm’s length principle and the approach adopted in practice by tax authorities. Measures to improve the efficiency of the administration of transfer pricing in China are proposed.

Sunday, October 2, 2016

Haochen Sun on the Hermes Litigation and Trademark Protection in China (EIPR)

European Intellectual Property Review
2016, Vol. 38, No. 2, pp. 101-108
Abstract: A series of cases that Hermès litigated in China provide profound lessons for transnational companies to tap into the potential of trade marks in promoting their businesses in China. The first part of this article takes a close look at the trajectory of the Hermès v Dafeng litigation, in which Hermès failed to prove that both the HERMÈS mark and its Chinese transliteration were well-known trade marks in China. By drawing on Hermès v Dafeng and other cases Hermès litigated, the second and third parts provide a nuanced analysis of the key issues for protecting trade marks in the Chinese first-to-file system and for determining the well-known trade mark status of a mark in China. The fourth and fifth parts examine the lessons that can be gleaned from a series of Hermès cases for securing anti-confusion and anti-dilution protection of trade marks in China.

Saturday, October 1, 2016

Johannes Chan and Douglas Kerr on Academic Freedom in Hong Kong (JAF)

Johannes Chan and Douglas Kerr
Journal of Academic Freedom
Vol. 7, 21 pp
Abstract: In 2015, interference with academic freedom dominated public discourse in Hong Kong. This article provides an analysis of academic freedom in Hong Kong, addresses some systemic problems, and engages the debates between academic freedom and accountability of publicly funded institutions. It argues that the interference is not a one-off incident but forms part of a general trend toward a more restrictive regime of control over tertiary institutions in Hong Kong. Protection of academic freedom is of particular importance in such a restrictive political context. 
     From Giordano Bruno, who was burned for preaching the heresy that the Earth was not the center of the universe, to the many unknown scholars tortured for speaking the truth during China’s Cultural Revolution, history is filled with sad pages documenting the suppression of academic freedom. Academic freedom is vulnerable in that academics and academic institutions have little but their own conscience and integrity to rely on in defending it, and that defense is usually at great personal cost. The threat to academic freedom is powerful and disturbing, since when academic freedom is not tolerated, let alone respected, other fundamental freedoms are also likely in peril.  Click here to download the full article.

Friday, September 30, 2016

Glofcheski & Aslam's Employment Law and Practice in Hong Kong (2nd Edition)

Employment Law and Practice in Hong Kong, Second Edition
General Editors: Rick Glofcheski and Farzana Aslam
Sweet & Maxwell
Content highlights of the Second Edition: A string of ground-breaking Court of Final Appeal decisions in a number of important areas, including: (i) Trade union discrimination protections and an expanded interpretation of Employment Ordinance s 21B “activities of a trade union” (Blakeney-Williams v Cathay Pacific Airways, 2012); (ii) Restrictions on multiple concurrent employers (Chung Yuen Yee v Sam Woo Bore Pile Foundation, 2013); (iii) Reach of the Employment Ordinance’s statutory annual leave provisions (Kwan Siu Wa Becky v Cathay Pacific Airways Ltd, 2012); (iv) The extension of a contractor’s duty of care to subcontractor’s employees (Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming, 2011); and (v) Damages awards for failure to conduct contractually entitled disciplinary hearings (Blakeney-Williams v Cathay Pacific Airways, 2012). Important statutory developments examined in this edition including: (i) The introduction of the Minimum Wage Ordinance (2010); (ii) Criminalization of the failure to pay awards made by the Labour Tribunal and Minor Employment Claims Adjudication Board (2010); (iii) Expansion of the scope of the Protection of Wages on Insolvency Fund (2012); and (iv) The introduction of paternity leave and paternity leave pay (2015).

Thursday, September 29, 2016

Felix Chan on Assessing Personal Injury Liabilities in China (Asian J L & Eco)

Felix WH Chan, Wai-Sum Chan, and Johnny SH Li
Asian Journal of Law and Economics
Sept 2016, Ahead of Print
Abstract: In a tort-based legal system, when a party is injured as a consequence of another party’s negligence, the party should be provided with sufficient compensation so that he or she may live as fulfilling a life as possible after the injury. The moral objective underlying this supposition is intuitively appealing. It is not surprising, therefore, that this jurisprudential notion is favourably regarded and widely applied in various common law and civilian jurisdictions, despite differences in tradition and culture. Nonetheless, although the two bodies of law share a similar objective in this respect, there are a number of differences in the substantive content of the law and the configuration of the rules. The present authors argue, and provide empirical evidence to support, that there are signs of convergence as both legal systems are in fact applying the same multiplicand-multiplier approach in assessing the quantum of damages. Case studies in mainland China (concerning civil law) and in the United Kingdom and Hong Kong (regarding common law) are adopted as the research methodology to explore the broader implications of this convergence.

Wednesday, September 28, 2016

Discussion: Legal Quagmire and the Hong Kong Independence Issue (Video Available)

Legal Quagmire: Who is in Violation of the Law – Independence Advocates or Those who seek to have Them Barred from Standing for Election?

Wednesday 31st August 2016, 14:00-16:30 
Large Moot Court, 2/F Cheng Yu Tung Tower, Centennial Campus, The University of Hong Kong

Talk of the independence of Hong Kong from the People's Republic of China has triggered much discussion within the community as to the propriety and legality of such advocacy and the pursuit of independence and self-determination in Hong Kong. Two days prior to the commencement of the nomination period for candidates of the 2016 election to the Legislative Council, the Electoral Affairs Commission (EAC) announced the introduction of an additional eligibility criteria for nomination of candidates: the 'Confirmation Form', which stressed candidates' acceptance of Article 1 of the Hong Kong Basic Law on the inalienability of Hong Kong from China. Much legal debate has surrounded both the legality and legitimacy of the form itself, its enforceability, and the equality of treatment accorded to candidates who had or had not completed the form, among other questions. Critics have labelled the move as an attempt to suppress the pro-independence movement, prompting speculation as to the government's next steps to curb such calls, seen by Beijing loyalists and officials as fanning the flames of secession.
      More recently, the desire to prevent such a discourse from taking hold in Hong Kong's educational establishments, has led to the Education Bureau issuing a stern warning to teachers to ensure that they do not 'advocate' independence in schools and to urge them to responsibly 'tutor' students so that they can develop an 'appropriate' understanding and view of the topic. 
      This has thrown up numerous questions about the propriety and legality of discussing the independence of Hong Kong in various spheres and capacities in light of the rights to freedom of expression, freedom of assembly, political participation and the prospects for the application of China's national security legislation in Hong Kong. 
       This interactive discussion which took place on 31 August 2016 was aimed at engaging students and encouraging the development of critical thinking skills. Through a moderated discussion among expert panellists, led by a fellow student, followed by questions from the audience, the discussion led students through the process of assessing the validity of various arguments to help better understand the different points of view emerging in this ongoing debate.
Opening Remarks: Puja Kapai, CCPL Director and Associate Professor, Faculty of Law, HKU
Moderator: Brian Fan, Final Year, LLB Student, Faculty of Law, HKU
  • Simon NM Young, Professor and Associate Dean (Research), Faculty of Law, HKU
  • Benny Tai, Associate Professor, Faculty of Law, HKU
  • Eric Cheung, Principal Lecturer and Director of Clinical Legal Education, Faculty of Law, HKU
  • Carole Petersen, Professor and Director, Spark M. Matsunaga Institute for Peace and Conflict Resolution, School of Law, University of Hawaii
  • Michael Davis, Senior Fellow, CCPL, Faculty of Law, HKU

Dean Hor Co-Authors New Book on Criminal Law in Myanmar (LexisNexis)

Criminal Law in Myanmar
Chan Wing Cheong, Michael Hor, Mark McBride, Neil Morgan and Stanley Yeo
2016, LexisNexis, 587 pp
Description: The first of its kind, this commentary on the Myanmar Penal Code describes and critically evaluates the general principles of criminal responsibility contained in the Code with a view to assisting the application of the law. The major offences against the person and property are examined. Leading cases from Myanmar, India, Malaysia and Singapore are considered along with relevant cases from other jurisdictions. Given the antiquity of the Penal Code, this commentary engages with a law reform exercise for each topic covered. The end product is a “General Part” for inclusion in the Penal Code, comprising precise and comprehensible provisions reflecting contemporary views about criminal responsibility. Key Features - Comprehensive analysis of the general principles of criminal responsibility in Myanmar. - Analysis of the major offences against the person and property in light of the general principles of criminal responsibility. - Review of all major relevant cases from Myanmar, India, Malaysia and Singapore. - Placing the law in a historical and theoretical context pointing to its strengths and weaknesses, and suggesting potential reform to bring the law into the 21st Century.

Tuesday, September 27, 2016

Yun Zhao on China's Future Participation in the Space Protocol (new book chapter)

2016, Springer, pp 67-79
Abstract: After more than 10 years of work, the UNIDROIT finally adopted the Space Protocol to the Cape Town Convention in 2012. This protocol is meaningful in dealing with the issue of international interests in financing space assets. It is expected to create a predictable legal regime for the space financing industry. China, an important space power in the world, has great stake in the success of the space financing industry. China has been actively involved in the negotiation process for the Space Protocol and has already acceded to the Air Protocol to the Cape Town Convention. It would thus be necessary to examine possible impact of this third protocol on space financing industry in China. This article will further investigate the possibility of China’s accession to the protocol.

Monday, September 26, 2016

Scott Veitch Comments on Hans Lindahl's Fault Lines of Globalization (Jurisprudence)

"A comment on Hans Lindahl, Fault Lines of Globalization: Legal Order and the Politics of A-Legality"
Scott Veitch
2016, Vol. 7, Issue 2, pp 409-418
In his book about ‘Who owns Scotland and how they got it’, Andy Wightman tells the story of a miner walking home one night with a couple of pheasants in his jacket when he gets stopped by the landowner. ‘This is my land’, the laird tells him, ‘and my pheasants, so hand them back’. The miner says, ‘Your land—how did you get it?’ ‘I inherited it from my father’, says the laird. ‘And who did he get it from?’ ‘From his father; this land has been in our family for four hundred years.’ ‘And how did they get it then, four hundred years ago?’ ‘Well’, says the laird, ‘they fought for it’. ‘Fine’, replies the miner. ‘Take your jacket off and I’ll fight you for it now.’
     Sometimes situations or events rupture the routine expectations we have and which we behave in accordance with. In doing so they can expose the grounds on which these expectations rest, and they may force us to consider in a new light what has been extensively taken for granted. In responding to such an experience it is sometimes a matter of re-adjusting, of shifting the cognitive framework, of re-interpreting. Other times, the jolt is more serious and cannot be readily assimilated. In the shock it produces, there is a sense of unease, a sense of strangeness—which is sometimes registered in uneasy laughter—that will not easily go away. The story of the miner and the landowner might work in this way. Landholding is not something we take our jackets off and fight for. It is regulated by the laws of property, inheritance, title registration and the like. Except, that at some point it isn’t, or wasn’t. That property in land is gained, at some time in the past, by violence or theft is not likely to be disputed; but it does commonly have to be forgotten. This goes as much for continents—Australia in 1788, for example—as it does for landed estates (and the birds that just happen to live on them). To be too-reminded of this however provokes a sense of disorientation. And precisely because of this, it feels like something must be done about it by way of response. But what exactly? Even that greatest of philosophers of consistency, Immanuel Kant, in noting the same problem about theft and property, was forced to respond in a most unphilosophical way: ‘Best not to dwell on it’, he said, ‘just start from where we are and what we’ve got now’. (Perhaps someone should have asked Mr Kant to take his jacket off … )
     Where exactly the boundary between property and theft is drawn—between what is a legal gain and what an illegal one—seems to have a degree of contingency to it. But that there is such a boundary, which must be established if we are to have settled—or ordered—ways of acting with respect to each other and things in our society, appears however, to be necessary. Yet this very necessity seems, in turn, to have something of the contingent about it—in the origins of landed property, a taking, say, that is, from the perspective of the order it brings into being, itself neither legal nor illegal: in Australia, a non-justiciable act of sovereignty that ‘founds’ the nation and its law; or in the case of the laird’s ancestor, the founding of right on the basis of might...

Dan Matthews on Plasticity, Jurisdiction, and the Interruption of Sovereignty (Law & Literature)

Daniel Matthews
Law & Literature
Aug 2016, pp. 1-22
Abstract: In a series of recent interventions Catherine Malabou, the contemporary French philosophy of “plasticity,” argues that celebrated “deconstructions” of sovereignty have failed to transcend the concept's constitutive division between “symbolic” and “biological” life. Malabou's argument conspicuously fails to address the role of the juridical in giving form to sovereignty, an omission that is addressed here through an assessment of “jurisdiction.” This turn to the juridical opens a space for further critical reflection on Malabou's thinking. Through a reading of José Saramago's novel Seeing we can displace Malabou's insistence on the centrality of cerebral “life” in her effort to deconstruct the symbolic/biological binary and instead gesture towards a collectiveand affective “life” that remains refractory in relation to the juridical forms that sovereignty seeks to impose. Pointing to important tensions inherent in Saramago's text, the article brings critical pressure to bear on the position, articulated by Michel Foucault and endorsed by Malabou, that we need to transcend sovereignty tout court.

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