Saturday, October 12, 2019

RTHK and HKU Law Faculty Co-Produce “A Legal Journey” (6-episode TV docudrama in English and Cantonese)

The rule of law is a core value of Hong Kong as well as a cornerstone of the city’s prosperity. To uphold this value and safeguard our system, the Faculty of Law has nurtured not only members of the legal profession but also committed community leaders. Through the 6-episode TV docudrama “A Legal Journey” (現身說法), co-produced by RTHK and the Faculty of Law as one of its 50th Anniversary celebration activities, let us trace the journey of local legal education in the past five decades and how it contributes to the legal system and the rule of law in Hong Kong when meeting the challenges of a rapidly changing environment.

 

To mark the occasion, a Premiere of the programme was held at JC Cube, Tai Kwun on 11 March 2019, which was attended by Professor Xiang Zhang, President and Vice Chancellor of the University, representatives from RTHK, members of the profession, many friends and alumni, staff members and students.  “A Legal Journey” was first aired from March 24 to April 28 on RTHK31 and also on TVB Jade from March 27 for six consecutive weeks.  To view all the episodes recorded in Cantonese, click here. The English version was aired from 15 August 2019 on RTHK31 and can be viewed here.  See also the HKU Law 50th Anniversary website.

Friday, October 11, 2019

Weixia Gu on the Recognition and Enforcement of Judgments in Civil and Commercial Matters in China (new book chapter)


"China"
Weixia Gu
in Anselmo Reyes (ed.), Recognition and Enforcement of Judgments in Civil and Commercial Matters (Hart Publishing 2019)
Chapter 2, pp. 31-50
Introduction: The unparalleled economic growth of the People's Republic of China has resulted in a paradigm shift in its legal regime.  Once a closed market to the world, China now faces an unprecedented surge of international business and movement of global capital into its domestic market in light of its immense economic growth in the past 40 years.  As a result of this growth, the internationalism of business in China requires the domestic courts to accommodate private international law practices such as allowing foreign judgments to be recognized and enforced in the domestic courts: a clear indicator of globalization and the development of China's economy. 
     An important step China has taken in the past few years is to improve efficiency in recognizing and enforcing foreign judgments.  Specifically, the salient shift to a more liberal application of the reciprocity principle, the signing of the 2005 Hague Choice of Court Convention (2005 Hague Convention) and the growing number of bilateral treaties on judicial assistance are clear indicators of China's recent willingness to improve commercial certainty for the parties involved, to promote fairness for both domestic and foreign litigants, and to ensure the global movement of judgments, resulting in increased investor confidence and further economic growth in China.
     This chapter will analyse current theory and practice with respect to the recognition and enforcement of foreign civil and commercial judgments in China.  There are three regimes that will be analysed: (1) the existing Sino-bilateral judicial assistance treaties on civil and commercial matters; (2) in the absence of a bilateral treaty, the application by the Chinese courts of the principle of 'reciprocity' while taking account of procedural and substantive concerns specific to China; and (3) the potential impact of the 2005 Hague Convention signed by the Chinese government in September 2017...

Thursday, October 10, 2019

Kelley Loper on Human Rights and Substantive Equality: Prospects for Same-Sex Relationship Recognition in Hong Kong (N Carolina J Int'l L)

Kelley Loper
Spring 2019, Volume 44, No. 2, Article 4
Introduction: This Article considers judicial approaches to the adjudication of the rights of Lesbian, Gay, Bisexual, and Transgender (LGBT) persons in the Hong Kong Special Administrative Region of the People’s Republic of China (Hong Kong). Hong Kong provides a notable case study of litigation strategies and court responses in a jurisdiction open to international human rights law. Sodomy was decriminalized in 1991 under the former British colonial regime, and, since 2006, Hong Kong courts have decided a number of cases concerning a range of issues including transgender marriage, different ages of consent for vaginal and anal intercourse, other discriminatory criminal provisions, restrictions on television broadcasts about relationships between gay men, the rights of incarcerated transgender persons, and the rights of same-sex couples. Other cases are still working their way through the system and future challenges are anticipated as advocates continue to pursue a persistent litigation strategy... Click here to read the full text. 

Tuesday, October 8, 2019

Johannes Chan on a Dynamic Relationship between the Judiciary in a Liberal Society of Hong Kong and a Socialist-Leninist Sovereign State (Current Legal Problems)

First Published 27 September 2019
Abstract: Hong Kong provides a unique case study on the roles and functions of the judiciary within an authoritarian or semi-authoritarian sovereign. Under the unique constitutional arrangement in Hong Kong, a liberal common law judiciary in a highly sophisticated modern metropolis is encapsulated within a Socialist-Leninist sovereign regime that ideologically rejects separation of powers, independence of the judiciary and values of individual liberalism. Notwithstanding the sharp ideological differences and the greatly asymmetrical distribution of social, economic and political powers in this One Country, Two Systems constitutional model, it is argued that the relationship between the courts and the authoritarian sovereign power is and has been complex and dynamic. The Hong Kong courts have been able to create their institutional space by establishing an impressive liberal constitutional common law, but that constitutional space is shrinking as the over-zealous sovereign is increasingly assertive of its views on matters that it perceives to be affecting state interests. By examining a series of controversial decisions, this paper argues that there are reasons that the courts could, with creativity and sensitivity, maintain a delicate and balanced relationship with the sovereign without succumbing to the political pressure, but that the greatest threat of independence of the judiciary comes from within the judiciary in internalizing the values of the socialist state.  Click here to read the full article.

Monday, October 7, 2019

Pursuing Democracy in an Authoritarian State: Protest and the Rule of Law in Hong Kong (Special Dialogue and Debate in Social & Legal Studies)

"Pursuing Democracy in an Authoritarian State: Protest and the Rule of Law in Hong Kong"
First Published 26 September 2019
pp 1-39
Introduction: Democrats in the Dock by Scott Veitch
On 14 December 2018, the month-long trial of nine co-accused in the Occupy Central (OC) trial in Hong Kong came to a close. They were being prosecuted 4 years after the democratic protests they had inaugurated, charged with various public order, conspiracy and incitement offences at common law. Facing up to 7 years in prison for their leadership role in the mass pro-democracy civil disobedience movement that occupied central Hong Kong for 79 days in 2014, the nine included a Christian pastor, a sociology professor, a legislator and barrister, and the legal academic Benny Tai. In his closing submission to the court, Tai quoted from a judgment of Lord Hoffmann which stated that ‘civil disobedience on conscientious grounds has a long and honourable history’, and made the case for its value in progressing justice and enhancing the principle of the rule of law. ‘If we were to be guilty’, he concluded, ‘we will be guilty for daring to share hope at this difficult time in Hong Kong. I am not afraid or ashamed of going to prison. If this is the cup I must take, I will drink with no regret’...

Challenges to the Rule of Law in a Semi-Authoritarian Hong Kong by Benny Tai 
Abstract: Hong Kong has been recognized for its well-established rule of law (ROL). After the Umbrella Movement in 2014, the Chinese Communist regime adjusted its strategy towards Hong Kong and closed the road to democracy. With the end of the era of semidemocracy, the governing system in Hong Kong is now going in an authoritarian direction. In this new era of semi-authoritarianism, Hong Kong’s ROL faces the most serious challenges. The meaning of the ROL is now being redefined by the Chinese Communist regime. Hong Kong is fighting a battle on the discourse of the ROL. The legal culture of Hong Kong people may not be strong enough to withstand such an ideological encroachment. The legal professionals in Hong Kong play a critical role in defending more advanced understandings of the ROL which is not just about maintaining social order and compliance with law but concerns constraints on arbitrary powers and protection of the civil and political rights of citizens. There are worries as well as hopes. One thing is sure, the battle will be long and tough.

One Country, Two Systems: A Critical Analysis of Benny Tai’s Account by Fu Hualing 
Few constitutional scholars write like Benny Tai does. As a leader in Hong Kong’s democracy promotion and a constitutional scholar, Tai writes to reflect his democratic practices and, more importantly, to offer a road map for Hong Kong’s constitutional odyssey. As one of the chief architects of the powerful Occupy Central Movement (OCM) that shocked the world and a coordinator for strategic voting among pandemocratic groups, Tai writes as a legal practitioner and, for many in his community, a spiritual leader of sorts, in a passionate pursuit and a desperate search for solution. His work demonstrates that Hong Kong society has acquired sophisticated democratic thinking, but it also shows its weaknesses in its conceptualization of Hong Kong’s democratic journey in these unchartered waters. Tai should be taken seriously and his thinking, because of its importance, should be subject to rigorous scrutiny. I will take issue with Tai’s essay on its normative framing of authoritarianism, its positive analysis of the contention between Hong Kong and the Central Authority in Beijing and the future strategies it plans...

Response to Benny Tai by Richard Cullen
I am pleased to respond to Benny Tai’s engaging contribution to the fundamental discussion about the future of the Hong Kong Special Administrative Region (HKSAR) within the People’s Republic of China (PRC).
     Emma Woodhouse, one of Jane Austen’s most remarkable characters, concludes a particular analysis of life around her with the observation that what she has just said ‘is the exact truth’. Regardless of how firmly grounded Miss Woodhouse’s claim may be, in this discussion there are, I believe, no exact truths. Here we are absorbed, instead, in a debate based on sincere, differing, extensive reflections.
     It is clear that the PRC is poorly ranked internationally (and within the West, especially) for its failure to apply (Western-hewed) Rule of Law (ROL) governance principles – and for the continuing grim examples within the PRC of abuse of State power.1 However, this perspective, by itself, provides a measurably incomplete picture of the broad political-economic operation of the PRC...   Click here to read the full text. 

Sunday, October 6, 2019

Call for Papers: Special Issue on Street Protests and Human Rights (Asia-Pacific Journal on Human Rights and the Law)

Asia-Pacific Journal on Human Rights and the Law
Centre for Comparative and Public Law

Call for Papers

Special Issue on Street Protests and Human Rights

In 2019 Hong Kong saw unprecedented confrontations between police and protesters sparked by human rights concerns with a proposed amendment bill that would have enabled the surrender of fugitive offenders to other parts of China.  Street protests leading to clashes with the police also flared up in Moscow, Kashmir, West Papua, Cape Town, Mexico, Zimbabwe, and Honduras. Police powers and public order measures can have severe consequences for protesters, journalists, and other members of the public.  These recent events have given rise to many important human rights law issues that may require the attention of courts, tribunals, legislative bodies, governments, and international organisations. To contribute to a global discussion of these issues, the Asia-Pacific Journal on Human Rights and the Law is soliciting new scholarship on the human rights law issues of street protests in the Asia-Pacific or of potential interest to the region, particularly in terms of international standards.  An editorial committee of experts will peer review submitted papers and the best ones will be published in a special issue of the journal planned for issue 1 of volume 21 (2020). 
  Established in 2000 and now based at The University of Hong Kong, the Asia-Pacific Journal on Human Rights and the Law is the leading law journal on human rights in Asia.  It has published influential articles on important human rights issues occurring in most Asia-Pacific jurisdictions.  Two issues of the journal are published each year. Abstracts of articles are indexed on Scopus and searchable on Westlaw.  Full text is available on BrillOnline, EBSCO, and HeinOnline. The journal’s website is https://brill.com/view/journals/aphu/aphu-overview.xml.
  Submission instructions. For the special issue, papers should be no longer than 12,000 words (inclusive of footnotes).  Please follow the OSCOLA (4th edn) standard for the citation of legal authorities. Email papers to apjhrl@hku.hk.  For papers to be considered for the special issue, they must be received by 31 January 2020.

                                                             Editors-in-Chief

Simon N. M. Young                                     Kelley Loper
Professor                                                        Associate Professor
Faculty of Law                                               Faculty of Law
                         The University of Hong Kong                    The University of Hong Kong

Saturday, October 5, 2019

Law and Humanities Summer School, The University of Hong Kong, 8-13 June 2020 (Applications Deadline: 6 Jan 2020)

Law and Humanities Summer School

8-13 June 2020

ABOUT
The Faculty of Law and the Faculty of Arts at the University of Hong Kong will hold its first law and humanities summer school, 8-13 June 2020. This week-long event is open to post-graduate research students and early career academics from any discipline, based anywhere in the world, who are working at the intersection of law and the humanities. Summer school participants will take two intensive seminar series led by Alison Young, Francine V. McNiff Professor of Criminology at the University of Melbourne and James Martel, Professor of Political Science at San Francisco State University. In addition, there will be sessions on interdisciplinary methodologies, research and writing skills, as well as cultural and social events. This is a fantastic opportunity to work with two of the world’s leading law and humanities scholars, to develop your research and writing skills, expand your knowledge and learn from your peers in the global community of law and humanities researchers.

The seminar series

James Martel: How the law can undo what the law does
This course will consider the notion of law when it is not merely understood in its black letter, rationalist sense. The opposite of such a form of law is not necessarily chaos or nihilism but can have its own creative, contingent and positive forms. Thinking about law in this other, anarchist and decentralized sense allows us to imagine what is common to all forms of law even laws that serve to upend and contest the law as it is usually considered. In thinking about this kind of law, we will engage with a range of thinkers including Walter Benjamin, Giorgio Agamben and Fred Moten.

Alison Young: Imagining Justice in the City
Increasing urbanization means that more and more people live and work in urban centres, and increasing urban populations present particular challenges for social organisation and urban planning, but also for law: how do we imagine a just city in times of increasing population density and social inequality? In this course, we will examine a range of ways of thinking about justice in the city, including concepts of affect, urban encounters, the precariat, ambience and atmosphere, and the lawscape, drawing on the work of Ananya Roy, Sarah Keenan, Ben Anderson, Andreas Phillippopoulos-Mihailopoulos, Guy Standing, Peter Adey and others. A range of case studies will be utilised, including debates around urban aesthetics (and how they are regulated by law); how law responds to visible precarity; and the relationship between city and citizenship. 

Summer school participants will take both seminar series. Participants will be sent reading materials in advance. All reading and preparation must be completed before the summer school begins.

HOW TO APPLY
The summer school is open to post-graduate researchers and early career academics working in any discipline. Your current work should engage with law and the humanities, broadly conceived, and may include (though need not be limited to): legal, critical, cultural or political theory; law and literature; law and film; law and aesthetics; legal history; post-colonial studies; feminist legal studies; critical legal studies; critical race theory; the anthropology of law; law and geography.

Please complete the application form by clicking here

Deadline for applications: 6th January 2020

For any inquiries please contact Dr Daniel Matthews (Faculty of Law, HKU) at danmat@hku.hk.

Peter Chau Comments on Hong Kong's New Anti-Mask Regulation

The Chief Executive in Council made the Prohibition on Face Covering Regulation (hereafter referred to as “the Regulation”) under the Emergency Regulations Ordinance (Cap. 241) yesterday. The regulation came into force at midnight, 5 October 2019. 
     It is regrettable that violence has been escalating on the streets. Whatever their legitimate grievances, the violence used by some protesters cannot be justified. However, this short note is not about whether the acts of the protesters are justified. It is concerned solely with the narrow question of whether the Regulation is a good response. I set out my reservations below. 

The offences 
The Regulation, amongst other things, creates two offences. 
     The first offence is created under section 3(2) of the Regulation. To simplify a little bit, a person commits this offence if that person uses any facial covering that is likely to prevent identification while the person is at (a) an unlawful assembly; (b) an unauthorized assembly; (c) a public meeting that is not prohibited by the Commissioner of Police; or (d) a public procession that is not prohibited by the Commissioner of Police. There is a defence of lawful authority or reasonable excuse under section 4. The maximum penalty is a fine at level 4 (HK$25,000 at the time of writing) and imprisonment for 1 year. 
    The second offence is created under section 5(3) of the Regulation. Under section 5(2), a police officer can require a person to remove his facial covering to enable the officer to verify the identity of the person, if that person is in a public place and is using a facial covering that the officer reasonably believes is likely to prevent identification. If that person fails to comply with the requirement, he commits the offence under section 5(3). The maximum penalty is a fine at level 3 ($10,000 at the time of writing) and imprisonment for 6 months. 
     This note will focus on the offence under section 3(2). 

The substantive merits of the section 3(2) offence 
One glaring point about the section 3(2) offence is that it does not only forbid the usage of facial covering in assemblies that are illegal (situations (a) and (b) above). It also forbids usage in meetings and processions that are lawful (situations (c) and (d) above). It is worthwhile to observe that so called anti-mask offences around the world do not always take this form. For example, under sections 65(2) and 66(2) of the Canadian Criminal Code, it is an offence for a person to, without lawful excuse, wear a mask or other disguise to conceal his identity when participating in an unlawful assembly or a riot. However, it is not an offence under the Canadian Criminal Code to conceal one’s identity when participating in a lawful assembly (unless he has an intent to commit an indictable offence – see section 351(2)). A natural question we may ask about the section 3(2) offence is why should it be drafted with such a wide scope? Why should we not adopt the Canadian model and ban facial coverings only in illegal assemblies? 
     In light of the regrettable polarization of the Hong Kong community and the increasing politicization of the business world, one can have a legitimate fear for retaliation (against oneself or one's family members) when one expresses one’s political preferences in public. The section 3(2) offence would, therefore, have a serious chilling effect on our right to expression: it is a very significant cost that must be squarely recognized. Of course, it may be argued that it is a worthwhile price to pay because a narrower offence, like one based on the Canadian model, would be much less effective in deterring violence. But not much evidence has been provided for this by the government. 

Other issues: manner of creating the offences and political reaction 
Two other issues are worth mentioning. First, the manner of creating the offences is obviously less than ideal. Given that anti-mask offences can take many different forms with different degree of abrogation of our rights, the issue of whether (and if so which) anti-mask offences should be created involves a delicate balancing exercise. One may question the wisdom of making the offences hastily without proper consultation. 
     Second, regardless of the substantive merits of the Regulation, I am not sure if it is wise, given the controversial nature of anti-mask law and the extremely hostile attitude the protesters have towards it, to add fuel to the fire at present, if the most pressing need is to restore peace and order. Members of the public and the police who are targets of violence deserve our sympathy; precisely because of this, it is of utmost importance that the government does not choose a means that can be counter-productive: as it is sometimes said, the road to hell is paved with good intentions. Written by Peter Chau.

Friday, October 4, 2019

Alex Green on 'Our Constitution, Accountability and the Limits of the Power to Prorogue' (UK Const L Blog)

"Our Constitution, Accountability and the Limits of the Power to Prorogue"
Alex Green
UK Constitutional Law Blog
26 September 2019
Constitutions do many things. They distribute authority amongst public bodies, enshrine important points of substantive principle, and cement relationships between rulers and the ruled. However, in a more abstract and fundamental sense, constitutions also tell us something about ourselves as political collectives: they express the kind of polity we embody and the kind of people we have come to be.
     Whether written or unwritten, constitutions establish the contours of our political communities. To use Hannah Arendt’s metaphor – borrowed from the Ancient Greek understanding of law as nomos – constitutions are the walls that encircle, define, and defend the everyday aspects of our political lives. It is against this normative backdrop that I want to reflect upon one element of what is expressed by the recent judgement of the United Kingdom Supreme Court in the cases of R (on the application of Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland. This element, which I contend is of fundamental importance to the overall justifiability of our constitutional order, is mentioned in paragraphs 46 and 47 of that judgement. It relates to the governmental accountability, and is expressed in the following terms... Click here to read the full blog post.

Thursday, October 3, 2019

Po Jen Yap & Francis Chung on Statutory Rights and De Facto Constitutional Supremacy in Hong Kong? (Int'l J Const L)

"Statutory rights and de facto constitutional supremacy in Hong Kong?"
Po Jen Yap & Francis Chung
International Journal of Constitutional Law
July 2019, , Volume 17, Issue 3, pp. 836–859
Abstract: Fundamental rights in the Hong Kong Special Administrative Region (Hong Kong) are protected in its Basic Law and the Hong Kong Bill of Rights Ordinance (BORO). The Hong Kong Basic Law enshrines most of the BORO rights, thereby expressly conferring constitutional status on these rights. But there are a number of BORO rights that are not protected in the Basic Law. This article analyzes the cases in which the Hong Kong judiciary has addressed disputes concerning three exclusive BORO rights: (i) the right to participate in public affairs; (ii) the right to a fair hearing in civil cases; and (iii) the prohibition against cruel, inhuman, or degrading treatment or punishment. We will also explain how the courts have conferred de facto constitutional supremacy on all these statutory rights, while simultaneously providing significant leeway and decisional space for the government to craft a considered response in their remedial legislation, thereby promoting a constitutional dialogue between the judiciary and the government on rights-protection in Hong Kong.

Wednesday, October 2, 2019

David Law Participates in "Do We Need the Constitution?" Forum (Harper's Magazine)

Forum: "Constitution in CrisisHas America’s founding document become the nation’s undoing?"
By Donna Edwards, Mary Anne Franks, David Law, Lawrence Lessig, Louis Michael Seidman
Harper's Magazine,
2019, October Issue
America’s Constitution was once celebrated as a radical and successful blueprint for democratic governance, a model for fledgling republics across the world. But decades of political gridlock, electoral corruption, and dysfunction in our system of government have forced scholars, activists, and citizens to question the document’s ability to address the thorniest issues of modern ­political life.Does the path out of our current era of stalemate, minority rule, and executive abuse require amending the Constitution? Do we need a new constitutional convention to rewrite the document and update it for the twenty-­first century? Should we abolish it entirely? This spring, Harper’s Magazine invited five lawmakers and scholars to New York University’s law school to consider the constitutional crisis of the twenty-­first century. The event was moderated by Rosa Brooks, a law professor at Georgetown and the author of How Everything Became War and the Military Became Everything: Tales from the Pentagon.
Participants
  • Donna Edwards is a former member of the U.S. House of Representatives from Maryland and cosponsored a constitutional amendment to overturn Citizens United v. Federal Election Commission.
  • Mary Anne Franks is a professor at the University of Miami School of Law, president of the Cyber Civil Rights Initiative, and the author of The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech.
  • David Law is the Sir Y. K. Pao Chair in Public Law at the University of Hong Kong and the editor of the forthcoming Constitutionalism in Context.
  • Lawrence Lessig is a professor at Harvard Law School and the author of America, Compromised and Republic, Lost: How Money Corrupts Congress—­and a Plan to Stop It
  • Louis Michael Seidman is the Carmack Waterhouse Professor of Constitutional Law at the Georgetown University Law Center and the author of On Constitutional Disobedience.
Click here to read the full article.

Tuesday, October 1, 2019

HKU Law Welcomes Two New Experiential Learning Teachers

HKU Law warmly welcomes Mr Carter Chim, Senior Lecturer and barrister, who joins the Clinical Legal Education Programme, and Ms Bella Liu, Lecturer, who oversees the Faculty's  Rule of Law Education Programme.
Mr Carter Chim
   Mr Carter Chim has been appointed a Senior Lecturer starting from September 2019. His responsibilities include teaching the Clinical Legal Education courses for upper year LLB  and JD students. His areas of expertise include competition law, constitutional law, administrative law, criminal law and general civil litigation.  Mr Chim is a practising barrister of Denis Chang’s Chambers. After reading political science and law in HKU, he obtained his LLM in Competition Law (Distinction) from King’s College London on the British Chevening Postgraduate Scholarship and the Peter Vine Postgraduate Law Scholarship in 2011. He also obtained his Postgraduate Diploma in Economics for Competition Law from King’s College London in 2016.  In 2015-2016, he was appointed as a legal counsel to the Competition Commission (Hong Kong). He is currently a member of the Hong Kong Bar Association’s Special Committee on Competition Law. In 2016-2019, he taught competition law as a Professional Consultant of the Faculty of Law of The Chinese University of Hong Kong. Since early 2018, he has been appointed as a Non-Governmental Advisor to the International Competition Network.
Ms Isabella Liu
    Ms Isabella Liu has been appointed Lecturer and Deputy Director of the Master of Common Law Programme. She is an MPhil and MCL graduate of The University of Hong Kong. She holds a LLB in Chinese Law (Southwest University of Political Science and Law) and a Graduate Diploma in English and Hong Kong Laws (MMU).  For the past few years, Ms Liu has been administrating the Rule of Law Education (ROLE) project, a major KE initiative of the Law Faculty.  Ms Liu's teaching/research interests include jurisprudence, constitutional law, law and religion, criminal justice and Chinese public law.

Welcome to HKU Law's Inaugural Global Academic Fellows

Welcome to Dr Yu-Jie Chen, Dr Anna Dziedzic, and Dr Alexander Ezenagu, our first batch of Global Academic Fellows.  The fellows were selected following a global competition of accomplished postdoctoral law applicants. The inaugural group will further enrich the Faculty of Law's research areas of strength in human rights law, constitutional law, and financial law.
Dr Yu-Jie Chen
   Prior to joining HKU, Dr Yu-Jie Chen was a Postdoctoral Research Associate at the Institutum Iurisprudentiae of Academia Sinica in Taiwan. Dr Chen received her JSD and LLM degrees from New York University School of Law. She also holds an LLM and LLB from National Chengchi University in Taiwan. She has had extensive experience as a research scholar at the US-Asia Law Institute, NYU School of Law. Prior to that, she served as a researcher and advocate for the non-governmental organization Human Rights in China. She earlier practiced in the Taipei-based international law firm Lee and Li. Dr Chen's research focuses on human rights issues in China, Taiwan and cross-strait relations.
   Dr Chen's recent scholarship includes “China’s Challenge to the International Human Rights Regime,” “Human Rights in the Chinese Administration of Justice,” “Localizing Human Rights Treaty Monitoring: Case Study of Taiwan as a Non-UN Member State,” “Isolated but Not Oblivious: Taiwan’s Acceptance of the Two Major Human Rights Covenants,” “China-Taiwan Relations Re-examined: the ‘1992 Consensus’ and Cross-strait Agreements” (with Jerome A. Cohen), “China-Taiwan Repatriation of Criminal Suspects: Room for Human Rights?” (with Jerome A. Cohen), “Freedom from Arbitrary Detention in Asia: Lessons from China, Taiwan and Hong Kong” (with Jerome A. Cohen), “‘Rule of Trust’: Powers and Perils of China’s Social Credit Megaproject” (with Ching-fu Lin & Han-wei Liu), “Beyond State v Loomis: Artificial Intelligence, Government Algorithmization and Accountability” (with Han-wei Liu & Ching-fu Lin), and “Transitional Justice in Taiwan: Changes and Challenges” (with Nien-chung Chang Liao).
Dr Anna Dziedzic
    Dr Anna Dziedzic researches in the field of comparative constitutional law, with a particular focus on judges and judiciaries and constitutional change. She completed her PhD at Melbourne Law School in 2019, with a doctoral thesis examining the use of foreign judges on courts of constitutional jurisdiction in Pacific island states. She will use the Global Academic Fellowship at HKU Faculty of Law to undertake broader comparative research into foreign judges and the significance of nationality to judicial office.
     Dr Dziedzic was awarded an MA in Human Rights from University College London in 2011, and first class honours degrees in Arts and Law and the University Medal in English Literature from the Australian National University in 2004. Prior to undertaking post-graduate study, Dr Dziedzic  worked at the Australian Law Reform Commission, the Australian Department of the Prime Minister and Cabinet, as an Associate to a Justice of the Federal Court of Australia and a volunteer legal analyst at the Samoa Law Reform Commission.
     Dr Dziedzic’s academic publications include work on constitutional law and constitution making in Pacific island states, Australian constitutional law, Indigenous constitutions, federalism, parliamentary sovereignty, and judges and judiciaries. She has also undertaken consultancies on various issues including constitutional implementation, gender and constitutions, and citizenship.  She is a co-convenor of the Constitution Transformation Network at Melbourne Law School, a network that brings scholars and practitioners together to explore the dynamics and challenges of change in constitutional law, theory and practice across the globe. 
Dr. Alexander Ezenagu
     Dr Alexander Ezenagu researches on the intersections of trade, investment, tax and development. He is also designing a taught course on the governance of development from a developing country perspective. 
     Dr Ezenagu obtained his doctorate degree from McGill University, Canada, in International Tax Law. His doctorate dissertation studied the alternatives to the arm’s length principle of income allocation among related entities and the adoption and application of unitary taxation approach for allocating income among entities within a multinational group. Dr Ezenagu is a graduate of the University of Cambridge, United Kingdom, where he obtained a Master of Law degree (LLM) in Commercial Law. 
      Dr Ezenagu’s current research focuses on the relationship between taxation and economic development, as well as the role of government and non-government institutions and actors in the creation of tax policies and rules. He writes on the right to tax by countries and how such taxing rights should be allocated. He also researches and writes on illicit financial flows out of developing countries and ways to curb them. 
    The HKU Faculty of Law launched the Global Academic Fellows Programme in 2018 under the directorship of Dr Jed Kroncke, assisted by Ms Ivy Lai.  The aim of this postdoctoral law programme is to provide a highly stimulating research environment for the most promising legal academics to continue and develop their internationally excellent research.

Monday, September 30, 2019

Marcelo Thompson & Zhang Xin on Justice & Social Credit (working paper)

"Justice & Social Credit"
Marcelo Thompson & Zhang Xin
Abstract: China’s Social Credit System (SCS) has been characterized as embodying a new, reputation or trust-based paradigm of State authority, said to defy the ideal of the rule-of-law. This paper contests such a view, explaining the SCS, instead, as a response to justice concerns typical of liberal societies in conditions of high modernity. Such concerns spring from the exponentially increasing articulation of identity attributes under circumstances of dominance and lack of trust. To address these, the SCS institutionally reconfigures an important conceptual relationship — that between trust, identity, and the law — which, far from new, is found at the roots of modern societies.  Click here to download the full paper.

Fu Hualing & Michael Jackson on Protest, Law, and Regime Type: A Case Study of Hong Kong, Mainland China and Taiwan (forthcoming book chapter)

Protest, Law, and Regime Type : A Case Study of Hong Kong, Mainland China and Taiwan
Fu Hualing & Michael Jackson in
Democracy and the Rule of Law in China’s Shadow (forthcoming Hart Publishing)
Abstract: This article explores the politics of protest law in Hong Kong, Taiwan and Mainland China. Our principal argument is that regime type is determinative of the political meaning and significance of protests, the structure of protest law, and punishment imposed on protesters. Different regimes assign drastically different political meanings and significance to protests; empower or limit courts in offering different degrees of protection of the right to protest; and encourage or prohibit civil society organizations in  their function of nurturing a society with the freedom to protest.  Click here to download the full paper.

Sunday, September 29, 2019

John Liu & Angela Zhang on Ownership and Political Control: Evidence from Charter Amendments (Int'l Rev L & Econ)

"Ownership and Political Control: Evidence from Charter Amendments"
Author links open overlay panelJohn Zhuang Liu and Angela Huyue Zhang
International Review of Law and Economics
published online in Sept 2019, Vol 60
Abstract: The latest debate about Chinese state owned enterprises (SOEs) revolves around whether there is a positive association between ownership and control, or whether all firms in China are similarly captured by the government. The recent Chinese Communist Party (Party)’s policy mandating all SOEs to amend their corporate charters to enhance the Party’s control has provided us with a rare opportunity to empirically investigate this question. We find that the state’s equity interest is positively correlated with an SOE’s responsiveness to the Party’s mandate, while the concentration level of nonstate owners and overseas listing are inversely related. These results show that ownership is important for the Party to exercise control over SOEs, but the Party also faces external constraints from other nonstate owners and overseas regulators and investors.

Saturday, September 28, 2019

Giuliano Castellano on UNCITRAL Secured Transactions (Podcast)

"UNCITRAL Podcast 3 Secured Transactions"
11 September 2019
Description: A panel of experts discusses the UNCITRAL Practice Guide to the Model Law on Secured Transactions adopted by the Commission in July 2019. The Practice Guide explains the key features and benefits of the Model Law and provides step-by-step explanations on how to use movable assets as security for financing purposes. Experts participating in the podcast are (in alphabetical order): Mr. Bruce Whittaker (University of Melbourne, Chair of Working Group VI that prepared the draft Practice Guide), Ms. Catherine Walsh (McGill University), Mr. Giuliano Castellano (University of Hong Kong), Mr. Marek Dubovec (Kozolchyk National Law Center) and Mr. Neil Cohen (Brooklyn Law School). Mr. Ryan Harrington (UNCITRAL) moderates the discussion.

Avgouleas and Arner: "Belt and Road Needs Its Own Asset Class" (Caixin)

"Opinion: Belt and Road Needs Its Own Asset Class"
Emilios Avgouleas and Douglas Arner
Caixin
14 August 2019
By some estimates, annual infrastructure investment needs across the Belt and Road Initiative participant countries are at least $1.7 trillion until 2030. Naturally, global funding needs for essential infrastructure are much greater and rising and this is before factoring in the expenditure to implement the UN’s sustainability gap in the context of environmental, social and governance (ESG) and green investment.
     Some of the countries facing the largest gap are located on the Eurasian plateau and the African regions that the Belt and Road is targeting. With its focus on connecting people and cultures as well as economies, the funding and connectivity scheme of the Belt and Road should have been enthusiastically embraced given also that actual investment and committed funding from Chinese development banks and other Chinese funded institutions is in excess of $250 billion.
     Yet the Belt and Road has raised issues for both geopolitical reasons as well as due to earlier structural weaknesses. The latter include placing an emphasis on credit over equity investment, lack of an embedded debt and environmental sustainability framework, and lack of an explicit link to the implementation of the UN Sustainable Development Goals (SDGs)
      The Chinese leadership has already taken measures to redress these shortcomings drawing public praise for the revamped Belt and Road, so-called Belt and Road 2 by the head of the IMF Christine Lagarde during her keynote speech to the Belt and Road Forum on April 29 in Beijing. For example, President Xi Jinping said at the second Belt and Road Forum in April that China needs to help participating countries build affordable, durable and high-quality infrastructure projects to promote greater interconnection.
     In this spirit, the Export-Import Bank of China Chairwoman Hu Xiaolian has recently stated that the new phase of the Belt and Road should include an “investment, construction and operation” integration model whereby Chinese enterprises can participate in a part of the investment and get involved in the long-term benefits of the project to reduce project owners’ debt pressure.
     These are all very welcome developments in the evolution of the Belt and Road’s implementation. However, to secure the successful application of these principles and also close the infrastructure and SDG funding gap China and its Belt and Road partners have to devise credible ways to attract private finance. The sources of such finance may be Western institutional investors but also Asian pension funds and other private investment schemes...

Friday, September 27, 2019

James Fry & Huang Yining on the Semisecret Life of Late Mao-Era International Law Scholarship (Pace L Rev)

James Fry & Huang Yining
Pace Law Review
Sept 2019, Vol. 39, Issue 2
Abstract: This Article is delimited by a focus on international law scholarship during the late Mao era, not on the PRC’s actual approach to or pronouncements on international law, mainly in order to respond directly to the assertion of U.S.-based international law scholars on late Mao-era scholarship. Of course, considerable ambiguity surrounds what constitutes scholarly work; no legal or even consensus definition generally exists. To be clear, definitions might exist in specific contexts such as the Foreign Agents Registration Act (“FARA”) of the United States, which prohibits foreign lobbying except for “bonafide religious, scholastic, academic or scientific pursuits or the fine arts,” inter alia, although the distinction between scholarly and other types of activities is left entirely ambiguous under the legislation and the case law. In this particular context, Chiu signaled in 1966 what he might have meant by scholarly when he added the qualification to similar assertions from the past that Mao-era international law commentators exhibited “a lack of interest in original studies of international law problems,” suggesting that his definition of scholarly requires an element of originality and intellectual rigor concerning clearly identified problems. Whether the plain-language definition of scholarly contains such elements depends on which dictionary one consults. The Oxford English Dictionary refers to “learned, erudite” for its definition. The Cambridge English Dictionary defines scholarly as “containing a serious, detailed study of a subject,” which suggests the same type of study that a learned or erudite person would undertake. As this Article looks at U.S.based international law scholars, it might be helpful to look at U.S. dictionaries. The Merriam-Webster dictionary provides a similar definition as that of the Oxford English Dictionary— “of, characteristic of, or suitable to learned persons.” Collins Dictionary provides a first definition of “learned” and then a second of “having or showing much knowledge, accuracy, and critical ability.” Of course, accuracy might depend on the viewer’s perspective and the referent employed. Regardless, an amalgam of these definitions would include a large measure of detailed knowledge and serious independence in expressing that detailed knowledge, which presumably would create some form of originality in addressing the problem at issue. This Article uses all three elements—knowledge, independence and originality—to assess whether a particular Mao-era work between 1965 and 1979 represents a scholarly contribution. This is distinguished from non-scholarly contributions, which may relate to education but more closely resemble indoctrination and political propaganda.

Thursday, September 26, 2019

Puja Kapai on Undue Influence and Unconscionability in Comparative Common Law: Delivering Contextualized Justice for Minority Sureties (J of Transnational Law & Contemporary Problems)

Puja Kapai
Journal of Transnational Law and Contemporary Problems
Spring 2019, Vol. 28, Issue 2, pp 361-448
Abstract: Legal transplantation through colonization, mass migration, and—more recently—globalization has long been under the microscope of scholars, anthropologists, and lawyers, among others, who have sought to better understand the workings of the law in contexts foreign to its place of origin. This quest for understanding the relevance and operationalization of law in different contexts is part of the broader discourse of legal pluralism, which encompasses the study of the role of formal and informal normative values and institutions and the interaction between them as alternative, overlapping, or conflicting systems of relational ordering in diverse socio-political contexts. The law’s effectiveness as a tool for responsive justice is brought into sharp focus due to implicit biases which result from the law’s grounding in a dominant cultural framework which leaves minorities outside its legal lens. When the legal order delivers differential justice by overlooking or distorting the lived realities of those who fall outside law’s original frame of reference, it befits a critical inquiry about the law’s commitment to equality and non-discrimination in a plural legal order. The increasing convergence of legal systems cannot, on its own, be taken as determinative of an on-the-ground shift in values among all populations, communities, and peoples. Without an accompanying shift at the societal level, the law risks marginalizing and excluding minorities from an accessible framework for justice. Indeed, equality scholars have long argued that justice requires more than equal treatment and warrants a review of the substantive law itself as much as issues of procedural propriety in its application in demonstrating law’s fairness in terms of outcomes under the law. Despite the open-ended presentation of the common law as an apparatus with sufficient flexibility to achieve substantively just outcomes (and prevent miscarriages of justice) through the use of equitable principles where necessary, limitations inherent in the law’s institutional structure, how its content is populated, its reliance on agents for its dispensation, and its value-laden interpretive and analytical methodologies carve out an underclass of claimants for whom substantive equal justice remains unachievable. Law’s capacity to fulfill its function to deliver meaningful justice rests on its capacity to recognize the full range of complex legal subjects that may present themselves before it and to assess, understand, and interpret their claims and actions meaningfully by acknowledging the impact of the varied contexts within which human activity occurs. This paper critiques law’s purported neutrality in the field of contract law. It uses the doctrine of undue influence as a vehicle for investigating and understanding the implications of law’s entrenchment in a particular cultural context. Reviewing courts’ analyses of the factors grounding a successful claim of undue influence in guarantee contracts involving individuals of minority background, this paper examines the law’s capacity to identify and incorporate broader contextual factors to protect minority claimants against unfairly procured contractual liabilities in a range of jurisdictions. The paper’s critique of the courts’ analyses and framing of cultural factors in relation to the doctrine presents the imperative for a critical re-examination of modern jurisprudence developing judicial doctrine and its capacity for dispensing justice for subjects situated within plural normative orders. In doing so, the Article breaks ground with traditional rule of law analyses which ground conversations about law’s impartiality on law’s principled commitment to equality or, alternatively, seek an essentialized brand of justice. Instead, it avoid essentialism while placing burdens for due diligence where they are likely to be met. Building on this model, the Article offers arguments for incorporating considerations informed by a variety of social and human conditions in efforts to deliver substantive justice for all people regardless of their race, color, religion, or other background. This proposal bears notable implications for devising bespoke analytical tools which may well be specific to a legal field to ensure that legal understandings are rooted in the lived realities of those seeking law’s justice. Such an approach has the potential for development and application in a range of other areas of law such as violence against women and children’s rights. Click here to read the full text.