Tuesday, August 21, 2018

Hualing Fu & Han Zhu on After the July 9 (709) Crackdown: The Future of Human Rights Lawyering (Fordham ILJ)

"After the July 9 (709) Crackdown: The Future of Human Rights Lawyering"
Hualing Fu & Han Zhu (PhD 2016)
Fordham International Law Journal
2018, Volume 41, Issue 5, pp. 1135-1164
Introduction:  Eighteen months after the 709 crackdown on human rights lawyers, a debate took place within China’s human rights lawyers’ communities. It is a brief, yet passionate and provocative debate focusing on some of the fundamental questions about law’s limits in seeking justice and protecting rights in an authoritarian state and the limited role of lawyers in their endeavour. Having grown for about twenty years since the mid-1990s, human rights lawyers have engaged in social-legal activism in wide policy areas including consumer protection, anti-discrimination, rights in the criminal process, and the freedom of religion and speech. The growth of legal rights and their enhanced protection in China in the past two decades are inextricably tied to China’s growing legal profession, especially a small group of lawyers who variously called themselves weiquan lawyers, die-hard lawyers, or human rights lawyers—lawyers who are public interest minded, legal rights-focused, and politically motivated in their battles against arbitrary powers. Yet, those are the lawyers who have received severe crackdown, and the repression has naturally provoked some of them to reflect on the vulnerability of the legal profession in the authoritarian state and the future prospect of socio-legal activism in bringing meaningful changes in society. The debate involved two issues: one specific and the other one general. The specific, pointed question that they have raised is this: is the traditional case-focused and law-centred legal mobilization, moderate or aggressive, still a feasible approach to take to bring structural changes to the political system, incremental or otherwise? In the aftermath of the crackdown, estranged lawyers started to reflect on their past success and failure, to cast doubts about their potential of their own profession in catalysing political transformation, and to express their deeply felt anxiety, frustration, and confusion about law, courts, and human rights lawyering.  A more general question touches on a more sensitive issue relating to the politics of lawyering. For the rights lawyers who have experienced or witnessed the crackdown, the Party has revealed its true nature and whatever hope that lawyers may have on law’s potential to tame the Party must have proven false.  For them, what matters in the Chinese political-legal system is Article 1 of the Constitution that states clearly that China is a democratic dictatorship. The occasional success in a few legal battles, they admit, may have blinded their eyes on the true nature of the Party state. Some of them, they admit, may just have forgotten that, in Svolik’s terms, repression is the “original sin” of authoritarianism. If that were the case, human rights lawyers should step out of the shadow of law, call a spade a spade and confront the Party head-on. Human rights lawyers need to be openly political. Before the 2015 crackdown, China had experienced waves of social-legal activism since the mid-1990s in which right discourses are translated into rights practices. As it happens, human rights lawyers and other activists have been situated at the forefront in the tireless efforts to expanding the sphere of rights and freedom and in constraining the arbitrary exercise of state power.  Together with media, especially social media and domestic Non-governmental organizations (“NGOs”) working in different sectors, human rights lawyers form a strategic “legal complex” in China in protecting legal rights and freedom and in the process hold the Party state accountable to its own legal rhetoric. Supported and sometimes aided by foreign donors, the legal complex used law as an entry point to engage in social-legal activism in shaping public opinions and influencing court decisions. For what they have done in leading and organizing those movements, lawyers and other activists have paid heavy prices and, one may argue, the prices that they pay are precisely indicative of their significance and impact. During the crackdown, leading human rights lawyers were placed under lengthy and secretive detention; many were humiliated and forced to confess their sins in state controlled or arranged media outlets, some were sentenced to lengthy imprisonment terms for subverting state power, and all were placed under tight control. The post-crackdown era also witnessed enhanced professional regulation by the government regulators—the Ministry of Justice (“MoJ”) and its provincial and local counterparts. With the appointment of Fu Zhenghua as the Minister of Justice, the Party seems to be determined to disappear human rights lawyering in China once for all. Ultimately all the challenging questions boil down to this: is there a future for human rights lawyering in China as we know it? After examining the debate on the future of rights lawyering among human rights lawyers, this article proposes three overlapping alternatives for human rights lawyers in the post-crackdown era: a triviality thesis, a co-optation thesis, and a resilience thesis. While the authoritarian system can be suffocating for its enemies, human rights lawyers can struggle to create their own breathing space.

Monday, August 20, 2018

New Book: Law, Obligation and Community (Dan Matthews and Scott Veitch)

Law, Obligation and Community
Edited by Daniel Matthews and Scott Veitch
Routledge: Taylor and Francis Group
June 2018, 272 pp.
Description: Against an ever-expanding and diversifying ‘rights talk’, this book re-opens the question of obligation from not only legal but also ethical, sociological and political perspectives. Its premise is that obligation has a primacy ahead of rights, because rights attach to practices and modes of being that are already saturated with obligations. Obligations thus lie at the core not just of law but of community. Yet the distinctive meanings, range and situations of obligation have tended to remain under-theorised in legal scholarship. In response, this book examines the sense in which we are multiply ‘bound beings’, to law and legal institutions, as much as we are to place, community, memory and the various social institutions that give shape to collective life. Sharing this set of concerns, each of the international group of scholars contributing to this volume traces the specificity of the binding force of obligations, their techniques and modes of expression, as well as their centrally important role in giving form to lawful relations. Together they provide an innovative and challenging contribution to legal scholarship: one that will also be of relevance to those working in politics, philosophy and social theory.

Scott Veitch on Duty Free (new book chapter)

in Daniel Matthews & Scott Veitch (eds), 
Law, Obligation, Community (Routledge, June 2018), Chapter 5, 21 pages
Introduction: The Panama Papers exposé went some way to revealing the mechanisms and magnitude of global asset distribution as a way of circumventing state accountability techniques (Obermayer & Obermaier 2016). Two things stand out about this: one is the exposure to publicity of that which had hitherto been secret, and the other, that despite such secrecy much of what was exposed was legal. In the following, I attempt to understand the interplay of legal concepts and practices that make people, assets and obligations disappear from the radar of state and public accountability. I argue that the work of obligations and regulation is, ironically, key to this. I then consider how this ‘duty free’ scenario reveals the asymmetrical treatment of property rights and social rights, the conceptual labour that underpins this and some implications with respect to austerity and free riders.

Stacy Douglas & Dan Matthews on Sovereignty, Affect and Being-Bound (new book chapter)

Stacy Douglas &  Daniel Matthews
in Daniel Matthews & Scott Veitch (eds), Law, Obligation, Community (Routledge, June 2018), Chapter 7, 22 pages
Introduction: If ever it left us, sovereignty has returned. The protectionist and nativist instincts that helped propel Donald Trump into office have been felt throughout the Western world as new nationalisms have forced themselves into the political mainstream. The promise of post-national identities, global flows of people and capital, and the weakening of the ‘bright lines’ of state control have been met by a forceful resistance that foregrounds local interests and concerns, often depends on ethnically defined notions of identity and clings fervently to nationalistic histories and modes of belonging. Whilst we might dismiss some of these movements as being motivated by atavistic fears of difference, there is a powerful sense that the events of 2016 represent the high watermark for the form of turbo-charged globalisation let loose as the Berlin Wall fell and the ‘new world order’ took hold in the early 1990s. As Kyle McGee argues, the West is suffering from a loss of both ‘place’ and ‘land’ as the dual forces of globalisation and global warming put extant forms of attachment to locale and community under erasure (McGee 2017). In such conditions, the allure of sovereignty with its promise to ‘take back control’, as the Brexit campaign had it, is quite understandable. If ‘waning sovereignty’ (Brown 2014) has accompanied these ‘twin vertigoes of placelessness and landlessness’ (McGee 2017, p. 128), its recent revival offers – some would believe – a line of defence against the forces of globalisation and the increasing precarity this brings. Against this background we engage with the theme of obligation in two ways.
     First, we explore the ways in which juridically enforceable obligations installed and defended by modern constitutional sovereignty are crucial to giving shape to the affective life of a community. We approach sovereignty through the sentiments that it produces – or claims to produce – and the particular effect that it has in enframing the world and giving scope to a sense of our political attachments and modes of belonging. We dwell on the sensibilities associated with sovereignty and on how the mobilisation of the rights and duties associated with the protection of sovereignty affectively enframes the way a political community attaches to place, past and an imagined future. 
     Second, continuing our emphasis on the register of affect, we explore a sense of ‘being-bound’ that both precedes and exceeds juridically defined obligations. The binding quality of obligations – evidenced in the root word ligare, which we find in ligature, ligament, allegiance and religion – limited notion of an obligation at law. It is this more expansive sense of ‘being-bound’ that we explore in what follows, underscoring the affective, political and existential dimensions to the bonds that give form to collective life. Ultimately, we are interested in unsettling the affective life of sovereignty, in revealing and attuning our selves to a sense of ‘being-bound’ that challenges sovereignty’s power to recentre an autonomous legal subject, and its attendant national community, within an anthropocentric horizon. Such a horizon is today increasingly compromised. In particular, the ‘twin vertigoes’ of globalisation and climatic change ought to attune us to a set of relations that transcend the assumed bifurcation between human and non-human life, ushering in a sensitivity to the bonds that sustain habitability beyond the limited set of relations honoured by modern sovereignty. 
     We find possibilities for such an unsettling of sovereignty’s affective force in artistic practices coming out of South Africa, namely in the work of J. M. Coetzee and Nandipha Mntambo, and explore the implications of their work for rethinking what it means to ‘be-bound’ beyond the juridical proscriptions associated with sovereignty. The complex challenges associated with the constitutional settlement in South Africa is not our central concern. Rather, by attending to the practices of two artists working within this context we hope to shed light on a broader problematic. The oldest questions of legal and political theory – the nature of the body politic, the territorial limits of political power and the aspirations of the common good – are today being reposed with a renewed urgency. It is our contention that turning to art and literature helps unseat the predominant affective disposition installed by contemporary juridico-political techniques. We think that the South African case, as it has been tumultuously unfolding for the past nearly 25 years, can offer some important insights here, especially as it demonstrates how the affective force of sovereignty reaffirms a deeply held anthropocentricism that we must today begin to challenge if we are to avoid an eternal return of well-worn scripts that equate constitutional sovereignty with justice. We begin by unpacking our approach to affect before moving to discuss sovereignty, South Africa, Coetzee and Mntambo.

Marcelo Thompson on the Biographical Core of Law: Privacy, Personhood, and the Bounds of Obligation (new book chapter)

in Daniel Matthews & Scott Veitch (eds), Law, Obligation, Community (Routledge, June 2018), Chapter 9, 34 pages
Introduction: What is the origin of the force of privacy obligations? That privacy obligations are legal obligations and obligations endowed with a certain force is indisputable. The daily news appears intent on convincing us of the contrary, so insistent and pervasive are the privacy violations it portrays. There is also a great deal of normative indeterminacy in the expectations on which privacy rests. Yet it is clear that, in a vast number of circumstances, people can expect others to be bound by an obligation to respect their privacy. For all their seeming fragility, these expectations are immensely powerful. So much so that the whole edifice of the law rests on them. The visible face of privacy expectations may be that of their pervasive disappointment. Much more prevalent, however, are those less visible situations where the boundaries of access obtain, where privacy is preserved and, with it, the spaces for the development of human subjectivity. It is only through the discreet workings of such boundaries that law can exist – that law can pass – as a normative order. For law, thus, protecting privacy is an existential affair. Privacy, human subjectivity, and the law hold, in other words, a relationship of reciprocal necessitation; a relationship so profound it might be said that, like space, time, and the universe, none of these ideas would be able to exist without the others. Together, they form a biographical core of legal normativity. Understanding how they intertwine has important implications for how we approach each of them as a concept. Pursuing such an understanding is the chief aim of the pages that follow. There are immediate theoretical reasons for pursuing this inquiry. On privacy, it provides an answer to the question at the beginning of this paper, enabling us to observe how the origin of the force of privacy is bound with that of law itself. On law, it not only addresses contemporary social theories that see law emerging in non-human realms, but also highlights how law and morality are intertwined, before any interpretive enterprise, at the very genesis of the interpreter. On human subjectivity, it invites us to revisit theories according to which law exists to address certain normative defects or perform certain functions, but which refrain from fully acknowledging the human dimension of such tasks. Beyond situated theoretical gains, however, carrying out this inquiry is, I believe, an existential task for jurisprudence. It is so as it highlights how pursuing and institutionalizing the best normative interpretation of human subjectivity and its boundaries might, in the end, be the central task of any legal system, and a task on which the very existence of law depends. One could think here of an allegory in which, through the looking glass, law seeks to interpret human subjectivity, while human subjectivity conducts the same interpretive survey regarding the law. But that could raise the question of whether the relationship between law and human subjectivity is then purely one of mutual reflexivity and interaction between beings that display episodic curiosity about but otherwise remain external to each other. A better illustration would be M. C. Escher’s lithograph of two hands drawing each other in a strange loop. Law and human subjectivity, in effect, constitute each other. Their origin and their boundaries, their fate and their force are intrinsically and reciprocally intertwined. Privacy is the quintessential realm where this relationship takes place. It is here that law probes the reasonableness of the boundaries between human subjects, and between these and the world around them, institutionally recognizing such boundaries, and lending thus some fixity to them. Those are also the boundaries from within which human subjectivity, like the hand in Escher’s drawing, emerges to further constitute the law. Yet human subjectivity does not arise casually. It calls for institutional membership in the community of legal beings. It needs recognition from the law before it can, in turn, shape the law. Such a recognition is given, and queried in each raise of hands, through personhood. Personhood, the institutional face of human subjectivity, defines membership within the law. This membership comes with certain capacities, which in turn are differentiated on the grounds of certain statuses. But all these are laid out in fairly general and non-negotiable terms, attaching to whoever falls into a certain legal position. Privacy, instead, contains as much objectivity as subjectivity; it follows, traces, and further enables the development of human subjectivity as it unfolds. In doing so, it extends and individuates the institutional contours of human personhood, in the light of expectations that are recognized as reasonable in the law. Law exists through these expectations, as they enable the rational exercise of the capacities, faculties, and powers – whilst addressing the shortcomings and vicissitudes – of the beings on whose existence law depends; that is, human beings, beings through and for the sake of whom law exists. Before we take this exploration further, a note is due on the usefulness of our inquiry. It may seem obvious to affirm that law cannot exist without the recognition of human subjectivity and the consequent enablement of the conditions for its development. Indeed, if human flourishing is not seen as an end of the law, to what end, then, does law provide people with reasons for action; to what end does law mediate ‘between people and the right reasons that apply to them’? For however maligned the very thought of what ‘right reasons’ might be, there would be something profoundly inconsistent, delirious even, in denying that the value of human subjectivity is one such reason. The recognition of human subjectivity and its boundaries is, at the same time, end and condition of the very idea of normativity – or at least of forms of normativity whose reflective, central-case viewpoint is that of human beings. And the institutional order of the law is one such form.

Monday, August 6, 2018

Johannes Chan and Wing Kay Po on the Applicability of the Chinese Constitution in Hong Kong (SCMP)

"How China's constitution ensured that the Basic Law remains pre-eminent in Hong Kong"
Johannes Chan and Wing Kay Po
South China Morning Post
6 August 2018
In recent years, there seems to be a tendency for mainland Chinese officials to omit or avoid references to the Sino-British Joint Declaration in any discussion about “one country, two systems”, as if the Joint Declaration were non-existent or wholly irrelevant. It is an undeniable historical fact that for about 150 years between 1842 and 1997, Hong Kong was under British jurisdiction. The British government introduced to Hong Kong, among other things, the common law system and a free capitalist economy. By the end of the last century, Hong Kong enjoyed a legal, social, political and economic system and lifestyle that were quite different from that on the mainland.
     It was precisely because of this historical fact that the British and the Chinese governments entered into what turned out to be two years of negotiation on the future of Hong Kong in 1982, resulting in the signing of the Joint Declaration in 1984. Under the Joint Declaration, the British government relinquished any sovereignty claim over Hong Kong in 1997, in return for a promise from the Chinese government to preserve the previous systems and lifestyle in Hong Kong and not to apply the socialist system and policies of the mainland to Hong Kong after its resumption of sovereignty over Hong Kong... Click here to read the full article.

Saturday, August 4, 2018

Amanda Whitfort Interviewed on Wildlife Crime on New Radio Programme, Legally Speaking (RTHK)

Associate Professor Amanda Whitfort was interviewed by Annalie Chow on RTHK Radio 3 last Saturday (28 July) concerning Hong Kong's major role in the illegal trade in endangered species in Asia. Whitfort is currently researching legislative methods to improve protection for endangered species smuggled into and through HK, particularly for use in traditional Chinese medicine. 
     Utilising a KE Impact project grant to work with the Kadoorie Farm and Botanical Garden, and a larger grant from the Research Grants Council, Whitfort has prepared 33 victim impact statements for use in wildlife crime prosecutions. The statements describe the effects of crime on the most commonly smuggled animals routed into and through Hong Kong, and may be used by judges to inform sentencing decisions in our courts. She is also preparing a report calling for legislative changes in Hong Kong to better protect endangered species. Her full report will be released to the government and the public in early 2019.  The radio programme can be heard here.

Friday, August 3, 2018

Douglas Arner Interviewed on How Central Banks Can Capitalise on Regtech (Central Banking)

"Capitalising on regtech"
Joel Clark
Central Banking
30 July 2018
If one were to imagine the ideal financial supervision system of the future, it would probably look very different from what we have today. Financial institutions would report details of transactions to a central utility, from which regulators would be able to extract information in real time. They might monitor markets through multiple screens in futuristic control rooms, picking up systemic risks with the help of flashing lights and heat maps.
     Data reporting requirements have increased dramatically since the 2007–2008 financial crisis, but central banks and regulators admit they cannot yet use this data to build an accurate picture of risk in the financial system. The evolution of regulatory technology, or regtech, might help deal with this problem – and some central banks are actively exploring opportunities – but there is a long way to go.
   “New regulations over the past decade have created a massive new pool of data that didn’t previously exist, so there is a major opportunity for central banks to use this data to obtain better insights and achieve better regulatory outcomes,” says Douglas Arner, professor of law at the University of Hong Kong.
     Enthusiasm for exploring regtech varies across the central bank community, with some institutions already surveying and testing new approaches while others wait to see how the technology evolves. But the data challenge shows little sign of diminishing, with the likelihood of further reporting requirements being layered on top of existing ones... Click here to read the full article.

Thursday, August 2, 2018

Martin Kwan Warns Practitioners on the Precedential Value of Unreported Judgments on the Interpretation of Standard Contract Terms (Business L Rev)

Martin YC Kwan (PCLL candidate)
2018, Vol. 39, Issue 4, pp. 136-8
Abstract: In the recent Court of Appeal decision Allianz Insurance Plc v. Tonicstar Limited [2018] EWCA Civ 434, the Court did not follow the previous interpretation of a standard contract term made by an unreported High Court judgment in 2000. Whilst the Court could lawfully not follow the unreported judgment given (1) the contractual interpretation was just a non-binding finding of fact and (2) the unreported judgment was made by a lower court, a critical reason why the Court did not follow it was because the Court considered the unreported status meant the interpretation was not well known. The meaning of the contract term thus has not been settled by the previous inconspicuous interpretation, which meant it was amenable to reinterpretation. This note suggests that practitioners should be mindful when relying on unreported judgments on contractual interpretation. Although the Court did not expressly and generally devalue any unreported judgment, the Court’s reasoning may be understood to have diminished its precedential value on the interpretation of standard contract terms. It will also be argued that there would be more certainty if the Court had not made such a distinction based on the status of being reported and unreported when considering whether a clause has been given a settled meaning by a previous judgment.

Wednesday, August 1, 2018

Weixia Gu on Issues of Extraterritorial Arbitration in Non-Foreign-Related Disputes (PKU LJ)

"Issues of Extraterritorial Arbitration in Non-Foreign-Related Disputes"
Weixia Gu
Peking University Law Journal (中外法学)
2018, Vol. 30, No. 3, pp. 651-670
Abstract: As China further liberalises and marketises, a new type of dispute has emerged. This type of dispute is domestic and has no foreign-related elements, but is submitted for arbitration outside China. The orthodox standard for determining whether a dispute is foreign-related — The Theory of “Three Essentials of Legal Relations” — is too simplistic and rigid. The addition of "catch-all provisions" in the evolution of laws and regulations demonstrates that China normatively foresees cases with unorthodox foreign-related elements. Specifically on the determination of foreign-related elements in arbitration, existing arbitration laws and rules in China have not expressly precluded disputes without foreign-related elements to be submitted to arbitration outside China. Despite this, judicial practice and judicial rationality tends to dismiss the validity of such arbitrations. 2015 was a watershed moment for the judicial attitude towards the issue. At the end of 2015, the Shanghai Golden Landmark case removed the restrictions to determination method of foreign-related elements that has been in place for decades, a breakthrough in recognising unorthodox foreign-related elements. From the perspective of interactivity between law and economic development, the arbitration system in China needs to open up further in the context of the Belt and Road Initiative and Free Trade Zones development, and the breakthrough in recognising new forms of foreign-elements has great implications on Chinese arbitration market.  Click here to download the paper in Chinese.

Tuesday, July 31, 2018

Yongxi Chen & Lingqiao Song on China and the Regulation of Cross-Border Genomic Data Sharing (Human Genetics)

Human Genetics
Yongxi Chen & Lingqiao Song
published online, 16 July 2018
Abstract: This paper reviews the major legal instruments and self-regulations that bear heavily on the cross-border sharing of genomic data in China. It first maps out three overlapping frameworks on genomic data and analyzes their underpinning policy goals. Subsequent sections examine the regulatory approaches with respect to five aspects of responsible use and sharing of genomic data, namely, consent, privacy, security, compatible processing, and oversight. It argues that substantial centralised control exerted by the state is, and would probably remain, the dominant feature of genomic data governance in China, though concerns of individual protection are gaining momentum. Rather than revolving around a simplistic antinomy between privacy preservation and open science, the regulatory landscape is mainly shaped by the tension between government desires for national security, state competitiveness, and public health benefits.

Monday, July 30, 2018

Anne Cheung on Moving Beyond Consent For Citizen Science in Big Data Health and Medical Research (Northwestern J Tech & IP)

Anne Cheung
Northwestern Journal of Technology and Intellectual Property
Summer 2018, Volume 16, Issue 1
Abstract: Consent has been the cornerstone of the personal data privacy regime. This notion is premised on the liberal tenets of individual autonomy, freedom of choice, and rationality. The above concern is particularly pertinent to citizen science in health and medical research, in which the nature of research is often data intensive with serious implications for individual privacy and other interests. Although there is no standard definition for citizen science, it includes generally the gathering and volunteering of data by non-professionals, the participation of non-experts in analysis and scientific experimentation, and public input into research and projects. Consent from citizen scientists determines the responsibility and accountability of data users. Yet with the advancement of data mining and big data technologies, risks and harm of subsequent data use may not be known at the time of data collection. Progress of research often extends beyond the existing data. In other words, consent becomes problematic in citizen science in the big data era. The notion that one can fully specify the terms of participation through notice and consent has become a fallacy. Is consent still valid? Should it still be one of the critical criteria in citizen science health and medical research which is collaborative and contributory by nature? With a focus on the issue of consent and privacy protection, this study analyzes not only the traditional informed consent model but also the alternative models. Facing the challenges that big data and citizen science pose to personal data protection and privacy, this article explores the legal, social, and ethical concerns behind the concept of consent. It argues that we need to move beyond the consent paradigm and take into account the much broader context of harm and risk assessment, focusing on the values behind consent – autonomy, fairness and propriety in the name of research.  Click here to download the full article.

Sunday, July 29, 2018

New Book: Socialist Law in Socialist East Asia (CUP, Hualing Fu and others)

Socialist Law in Socialist East Asia
Edited by Hualing Fu,  John Gillespie, Pip Nicholson and William Edmund Partlett
Cambridge University Press
July 2018, 460 pp.
Description: Since China's reform and opening up started in 1978 and Vietnam's Doi Moi reforms were initiated in 1986, these two East Asian economies have adopted capitalistic models of development while retaining and reforming their socialist legal systems along the way. Tracking the trajectory of socialist laws and their legacy, this book offers a unique comparison of laws and institutional designs in China and Vietnam. Leading scholars from China, Vietnam, Australia and the United States analyze the history, development and impact of socialist law reforms in these two continuing socialist states. Readers are offered a varied insight into the complex quality and unique features of socialist law and why it should be taken seriously. This is a fresh theoretical approach to, and internal critique of, socialist laws which demonstrates how socialist law in China and Vietnam may shape the future of global legal development among developing countries.
  • Rejuvenates academic interest in socialist law with a unique comparison of laws and institutional designs in different socialist states
  • Insightfully accounts for the resilience of authoritarian socialism and explores the function of law in legitimizing and governing socialist states in transitions
  • Offers a sharp focus on China and Vietnam as an ongoing interpretation of the Soviet formulation of socialist law following the 100th anniversary of the Russian Revolution
Hualing Fu, The University of Hong Kong
Professor of Law and Associate Dean at The University of Hong Kong.

John Gillespie, Monash University, Victoria
Professor of Law in the Monash Business School at Monash University, Victoria.

Pip Nicholson, University of Melbourne
Professor of Law and Dean at Melbourne Law School, University of Melbourne, Australia.

William Edmund Partlett, University of Melbourne
Associate Professor at Melbourne Law School, University of Melbourne, Australia.

Hualing Fu, John Gillespie, Pip Nicholson, William Partlett, Michael Dowdle, Glenn Tiffert, Pham Duy Nhia, Jason Buhi (PhD 2018), Bui Ngoc Son (PhD 2013), Sarah Biddulph, Pham Lan Phuong, Aaron Halegua, Cynthia Estlund, Do Hai Ha, Wendy Ng, Chen Li, Toan Le

'Socialism is dead – long live socialist law! This important volume examines the genealogy, influence and continued relevance of socialist law in contemporary East Asia. Relying on a mix of conceptual, historical and analytic contributions, the authors collectively shed light on this understudied tradition, and in doing so advance our understanding of several important countries.' 
- Tom Ginsburg, Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, University of Chicago Law School
'This rich volume demonstrates that socialist law remains a critical concept despite decades of liberal reforms. The fascinating chapters in this book not only shed light on the myriad ways in which socialist legal traditions have adapted to the modern world, but also highlight underappreciated institutions and practices. There is much here that will drive agendas in future comparative work.'
- David E. Landau, Mason Ladd Professor and Associate Dean for International Programs, Florida State University College of Law
'Socialist legality, which originated from the Russian Revolution one century ago, is still very much alive and well today in Asia. In this book, leading scholars of Chinese, Vietnamese and Soviet laws provide up-do-date accounts of contemporary socialist law and society. They demonstrate that despite far-reaching reforms in recent decades, the contemporary legal systems and practices of China and Vietnam can only be fully understood in light of the socialist/communist political-legal tradition.' 
- Albert H. Y. Chen, Cheng Chan Lan Yue Professor in Constitutional Law, University of Hong Kong

Fu, Gillespie, Nicholson and Partlett on "Socialist Law in Socialist East Asia" (new book chapter)

"Socialist Law in Socialist East Asia"
Hualing Fu, John Gillespie, Pip Nicholson and William Edmund Partlett
Introduction: More than fifty years ago, socialist states in Asia turned to the Soviet Bloc for inspiration in developing their political and legal systems. They enacted constitutions and laws, and established institutions that, with varying degrees of faithfulness, replicated Soviet regulatory models. The collapse of socialism in the Soviet Bloc was accompanied by the literal collapse of structures and bodies previously considered indestructible, such as the Berlin Wall and statues venerating social heroes. Mirroring this decline, much subsequent analysis about socialist Asia promptly devalued and dismissed social institutions, legal theories and forms of knowledge - presupposing a linear transition from socialism to liberal legalism. Far from linear, legal reform in this region has been variegated and complex - raising the question of whether socialist laws and institutions were more resilient and adaptable than previously thought. 
     This book argues that the scholarly focus on the emergence of liberal legalism has marginalized the ongoing normative and structural legacy of Asian socialism found in various guises in contemporary Vietnam and China. The assumption of the inevitable export of Western capitalism, together with versions of liberalism and its institutional manifestations, is, we suggest, flawed, or at least misconceived, in socialist Asia. The chapters suggest that, at lease in part, a failure to recognize the normative and structural legacy of Marxist-Leninist approaches to socialism constrains our capacity to interpret the contemporary Vietnamese and Chinese reforms. Further and significantly, a failure to recognize the socialist legacy risks overlooking a key reason for ongoing local support for strong/authoritarian states in socialist Asia, which seek to promote 'development' while also resisting its destabilizing effects. As will become evident, the impacts of contemporary socialism vary across countries, jurisdictions and institutions.
     We commence this Chapter with a brief review of the history of socialism, including recalling socialist debates before the advent of the Russian revolution. Subsequently, we briefly trace the 'import' of Soviet socialism into both the People's Republic of China, and the Socialist Republic of Vietnam. We turn then to the 'puzzle' of socialism's resonance and relevance today, outlining the debates about its resilience and adaptation in socialist Asia...

Hualing Fu & Jason Buhi on Diverging Trends in the Socialist Constitutionalism of China and Vietnam (new book chapter)

Hualing Fu & Jason G. Buhi (PhD 2018)
Introduction: This chapter provides an overview to comparative study of Sino-Vietnamese comparative constitutionalism by exploring the bases of three core, substantive pillars of socialist constitutionalism through the Sino-Vietnamese comparison: insistence on Party leadership, reliance on socialist rule of law, and adaptation to populism. After considering several examples of how constitutional rules are currently operating through political and popular constitutionalism in all three areas, we conclude that Vietnam is presently moving in a direction offering more prospects for convergence with international norms, as the current Vietnamese Party-state is relatively less politically monolithic, more open to the influence of international laws, and more tolerant of civil society than its Chinese counterpart. That being the case, we predict that Vietnam will likely continue to depart from the increasingly insular Chinese model of constitutional development for the foreseeable future. The chapter can be downloaded from SSRN from here.

Bui Ngoc Son on Socialism and Constitutionalism in Contemporary Vietnam (new book chapter)

"Constitutional Dualism: Socialism and Constitutionalism in Contemporary Vietnam"
Bui Ngoc Son (PhD 2013)
Introduction: In early 2013, when the Socialist Republic of Vietname released the draft Constitution to the public for comment, people called for, among other things, a change to the nation's name by eliminating the term 'socialist'. They proposed alternative names such as Democratic Republic of Vietnam, Republic of Vietnam and People's Democratic Republic of Vietnam. The new Constitution approved by the National Assembly of Vietnam on 28 November 2013 rejects the call to change the nation's name, and other substantive reforms. It retains fundamental socialist constitutional principles and the overall Leninist constitutional structure. However, it also introduces some concepts and principles that are unconventional to the socialist constitutional tradition and that resonate with the normative requirements of constitutionalism. The Constitution has still functioned as an instrument to describe the party-state's socialist principles and goals in constitutional terms, but at the same time it has begun to perform prescriptive function. This Chapter examines these two competing functions of the Constitution in socialist Vietnam, with a particular focus on the 2013 Constitution.
     International scholars, namely John Gillespie, Pip Nicholson and Mark Sidel, have provided useful explorations of Vietnamese constitutional law, although they have not yet accounted for the 2013 Constitution. Recently, the Asian Journal of Comparative Law published a special issue on Vietnamese and comparative constitutional law, focusing on the constitutional debates leading to the birth of the 2013 Constitution. The featured scholars helpfully demonstrated how fundamental socialist constitutional principles were subject to social contestations, contributing to the understanding of the dynamics of constitutional law within the socialist regime. They did not, however, consider the function of the new Constitution.
     In this Chapter, I will focus on the function of the Constitution in Vietnam. I propose the concept of 'functionalist constitutional dualism', which denotes two competing functions of a constitution in response to competing concerns. Within that conceptual framework, I argue that, in response to competing demands of state and social actors, the Constitution in Vietnam now has dual functions - its traditional, hegemonic socialist function and a new, nascent constitutionalist function. On the one hand, in response to the concern of the socialist elite, the constitution has predominantly remained the instrument for the party-state to describe the socialist principles, structure and goals in constitutional language. On the other hand, in response to the concerns of society, it has incrementally assumed constitutionalist function: it establishes normative constraints upon constitutional politics.
     First, I will describe the background on how socialism informed constitutional history in Vietnam. Next, I critically review several relevant theories and consider how functionalist constitutional dualism may be a useful concept. I then examine the two functions of the constitution in Vietnam, before concluding with some discussions and reflections...

Dr Po Jen Yap Promoted to Full Professor (HKU Law)

(Belated) Congratulations to Dr Po Jen Yap on his promotion to full Professor earlier this year.  Professor Yap's specialises in  constitutional and administrative law. A LLB graduate of National University of Singapore,  he received  a PhD degree from the University of Cambridge, apart from obtaining LLM qualifications from both Harvard Law School and University College London.  He is the recipient of HKU's 2016 Outstanding Young Researcher Award.  He joined HKU in 2006.
  He is a prolific researcher and has made important contributions to the literature on constitutional law in Asia. His first sole-authored monograph, Constitutional Dialogue in Common Law Asia, was published by Oxford University Press in 2015, for which he was awarded HKU's University Research Output Prize in 2016.
    His second sole-authored monograph, Courts and Democracies in Asia, was published by Cambridge University Press in October 2017.​ He has been the Principal Investigator of two RGC General Research Fund (GRF)​ projects.  He is currently editing a special issue of Hong Kong Law Journal to mark the 20th anniversary of Hong Kong's Basic Law.  He is also organising a collaborative project on proportionality in Asian jurisdictions. Leading scholars in this area will convene at HKU in December 2018 to present and discuss papers which are to be published in an edited volume by an international publisher.  This project will complement a similar project led by Professor Yap on the judicial review of elections in Asia which led to the publication of an edited volume published by Routledge in 2016.

Friday, July 27, 2018

New Issue: SSRN Legal Studies Research Paper Series (HKU)

Vol. 8, No. 8: July 19, 2018


       Anselmo Reyes, Court of First Instance (Hong Kong) 
       Weixia Gu, University of Hong Kong - Faculty of Law

       Han Zhu, Centre for Chinese Law, The University of Hong Kong Faculty of Law
       Fu Hualing, The University of Hong Kong - Faculty of Law

      Danny Gittings, University of Hong Kong, College of Humanities and Law, School of 
      Professional and Continuing Education, The University of Hong Kong, Faculty of Law

Thursday, July 26, 2018

Fu Hualing Interviewed on China’s National Supervisory Commission (SCMP)

South China Morning Post
19 July 2018
     The unbridled power and reach of China’s anti-corruption super agency have exceeded the initial fears of lawyers and academics in the four months since the new controversial system was introduced.
      When Beijing set up the National Supervisory Commission in March, the most contentious issue was the commission’s power to detain anybody for investigation for up to six months without access to a lawyer.
     But a recent case in the central Chinese province of Hunan has exposed how the commission’s activities could be used to deny detainees held by other law enforcement agencies access to legal counsel, even over unrelated offences.
     The example has prompted lawyers and legal scholars to call for urgent official checks on the super agency’s “bloated power” under the National Supervision Law introduced in March.
     The commission has been described by some critics as lending a veneer of legality to the party’s anti-corruption watchdog, the Central Commission for Discipline Inspection, and its long-criticised extra-legal measures. The two commissions share the same office and personnel, as do their various local branches.
     Fu Hualing, a law professor at the University of Hong Kong who specialises in China’s legal system, said that if true, the supervision commission’s intervention in Chen’s police custody was illegal and a perfect example of the new agency’s “bloated power”.
     “The [supervisory commission] does not have the right to command the police – the two organisations are totally separate and operate under different laws. There is no [direct supervisory] relationship between the two, at least legally, if not politically,” Fu said.
     “The problem now is that the law and politics are entangled. The ‘New Era’ is an era where the law and politics cannot be separated – once something involves politics, the law does not have a say any more.”
     Under China’s newly revised constitution, the supervisory commission has a status close to the cabinet and is ranked higher than the supreme court and top prosecutor’s office.
     “Now they can lead the police; later they may lead the prosecutors by commanding which cases should proceed and what should be the penalty,” Fu said.
      “In the future, will they try to lead the judiciary as well?”
     “The supervisory commissions’ power must be confined to the cage of the National Supervision Law – it has already escaped the cage.”  Click here to read the full text. 

Wednesday, July 25, 2018

Emily Lee on Equity Crowdfunding in Hong Kong (J Corp L Studies)

"Equity crowdfunding in Hong Kong: potential, challenges and investor protection"
Emily Lee
The Journal of Corporate Law Studies
July 18 2018, published online
Abstract: Equity crowdfunding is a relatively new investment format that allows investors to purchase unlisted securities from a company that does not meet listing requirements for an initial public offering. Equity crowdfunding offers investment rewards but also has risks of fraud, herding, insolvency and dilution of shareholder equity. Regulation is a natural response to negative externalities like systemic risk caused by asymmetric information, adverse selection and lemon problems. While the US and the UK have extensive crowdfunding regulations, Hong Kong does not, although crowdfunding is not specifically banned under the Securities and Futures Ordinance. This article focuses on the current state of equity crowdfunding in Hong Kong but draws inspiration from legal requirements for equity crowdfunding in the US, the UK and Singapore, as well as the Korea Startup Market in South Korea. The author makes regulatory suggestions for consideration by Hong Kong’s law-makers and policy-makers.