Wednesday, May 22, 2019

Award Winning Competition Law Scholarship by Dr Angela Zhang (2019)

Congratulations to Dr Angela Zhang for her outstanding success in this year's Antitrust Writing Awards 2019.  Two of her recent articles won an award and a third one was shortlisted.  She is the only person to win more than one award this year.
Winner (Procedure Category)  "Strategic Public Shaming: Evidence from Chinese Antitrust Investigations" (2019) 237 China Quarterly 174-195.  
Winner (Asian Antitrust)  "The Role of Media in Antitrust: Evidence from China" (2018) 41 Fordham International Law Journal 473-530. 
Shortlisted (Concerted Practices)  "Strategic Comity" (2019) 44 Yale Journal of International Law
Hearings on Competition and Consumer Protection in the 21st Century: An FTC - GW Competition Law Center Event, FTC Headquarters, March 25-26, 2019    Dr Zhang was recently a panel speaker at the Hearings on Competition and Consumer Protection in the 21st Century organised by the United State's Federal Trade Commission from 25-26 March 2019 in Washington DC.  The 11th session was titled "The FTC's Role in a Changing World" and focused on the agency's international work.  It explored the FTC’s international role in light of globalization, technological change, and the increasing number of competition, consumer protection, and privacy laws and enforcement agencies around the world. Speakers addressed the implications of international developments on the FTC’s work on behalf of American consumers.  Dr Zhang spoke on a panel with three other professors including Francesca Bignami (George Washington University), Christopher Yoo (University of Pennsylvania) and Philip Masden (College of Europe). During the hearing, Dr Zhang referred to several of her articles on EU courts and judges and the institutional challenges in Chinese antitrust enforcement.

Friday, May 3, 2019

Albert Chen's Commentary on Proposed Changes to Hong Kong's Extradition Law

A Commentary on the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (“the Bill”) 


The above Bill, which was gazetted on 29th March 2019, has become highly controversial in Hong Kong. The controversy concerns mainly whether, and if so, what extradition or rendition arrangement should be introduced as between Hong Kong and mainland China. 
     The existing law in the Fugitive Offenders Ordinance (“FOO”) does not permit rendition as between Hong Kong and mainland China or between Hong Kong and Taiwan (or Macau), either by agreement in the form of an extradition (rendition) agreement (treaty) similar to those which Hong Kong has entered into with other countries, or in an ad hoc manner on a case-by-case basis in the absence of such rendition agreement. Despite negotiations between the HKSAR government and the mainland authorities for many years, no rendition agreement as between the two jurisdictions has been concluded. It is noteworthy that there is also no rendition agreement between the Macau SAR and mainland China. 
     In order to deal with the recent case (the Chan Tong-kai 陳同佳case) concerning a suspected murder committed in 2018 by a Hong Kong resident in Taiwan, and also in order to improve the existing law so as to facilitate ad hoc extradition on a case by case basis in the absence of extradition treaties, the government has proposed the Bill. The Bill, if enacted, will enable rendition/extradition on a case by case basis as between Hong Kong and Taiwan, between Hong Kong and mainland China, between Hong Kong and Macau, and between Hong Kong and any other country. (The term “extradition” is generally used to describe transfer of suspects and convicted persons as between states, while the term “rendition” (also known as “surrender”) is used to describe such transfer between different regions of the same state. For purpose of convenience, the word “extradition” will be used below to refer to both extradition and rendition.) 
     As the Bill proposes to introduce in Hong Kong a new system of ad hoc extradition in the absence of extradition treaties, this paper will first study such systems in several common law jurisdictions, and then turn to examine the proposed system in the Bill
     In the contemporary world, extradition as between states is widely practised on the basis of extradition treaties entered into between states. Extradition in the absence of treaties (i.e. extradition on a case-by-case basis, alternatively known as ad hoc extradition or extradition by specific or special agreement) is relatively exceptional. Whether such ad hoc extradition may be practised by a state depends on the law of the state concerned. There is much variation among the laws of different states on this matter. 

The U.S.A. 
For example, in the US, ad hoc extradition in the absence of extradition treaties is only permissible in very limited circumstances: “There is only a very narrow avenue within U.S. law for formally extraditing an individual to the requesting state absent a treaty. In 1996, the U.S. Congress amended federal law to provide for extradition from the United States, even in the absence of a treaty, of foreign nationals who have committed crimes of violence against U.S. nationals outside the United States.”[1](The author added: “Beyond this narrow window for formal extradition absent a treaty, though, in some circumstances, U.S. immigration laws permit the removal of individuals sought by other countries when extradition by treaty is not available.”) 
      In the United Kingdom and Canada, ad hoc extradition is permitted by law in a wider range of circumstances. Since the HKSAR government has referred to the relevant laws of these jurisdictions as reference points for the purpose of the government's present proposal of “special surrender arrangements” (as distinguished from “arrangements of a general nature”, i.e. extradition treaties) in the Bill, the relevant UK and Canadian law will be examined more closely in this paper. 

Canada 
In Canada, the law on extradition originally distinguished between “extradition” as between Canada and countries that did not belong to the British Commonwealth, and “rendition” as between Canada and other countries in the Commonwealth. The former was governed by the Extradition Act (R.S.C. 1985, c. E-23) originally enacted in 1877, and the latter by the Fugitive Offenders Act originally enacted in 1882 (which provided for rendition among Commonwealth countries in the absence of treaties).[2] Extradition as between Canada and non-Commonwealth countries in the absence of extradition treaties was governed by Part II (sections 35 to 40) of the Extradition Act (before the introduction of the new Extradition Act 1999).[3] Under this law, extradition as between Canada and a non-Commonwealth country in the absence of an extradition treaty was only possible if and when the Canadian Governor-General made a “proclamation” applying Part II of the Act to the country concerned. The law provided expressly that such application was limited to crimes committed after the proclamation was made. In other words, with regard to any non-Commonwealth country with which Canada did not have any extradition treaty, no extradition between Canada and that country was possible before a proclamation (by the Governor-General applying Part II of the Act to the country concerned) was made; after the proclamation was made, extradition would only be conducted by Canada with regard to offences committed after the proclamation was made. Such operation of this scheme of extradition in the absence of extradition treaties has been described as a non-retroactive operation.[4] The statutory provision concerned was section 36 of the Act: “[Part II] applies to any crime mentioned in Schedule III that is committed after the coming into force of this Part with respect to any foreign state to which this Part has, by proclamation pursuant to subsection 35(1), been declared to apply.”[5]
     The proclamations scheme under Part II of the Extradition Act had only been used 3 times – “with respect to the Federal Republic of Germany, Brazil, and India. Canada has subsequently entered into [extradition] treaties with both the Federal Republic of Germany and India, and, accordingly, proclamations have been issued declaring that Part II ceases to have effect with respect to these States.”[6]
     In 1999, the Canadian law extradition was reformed by the introduction of a new Extradition Act. A new provision was made for extradition in the absence of treaties. Section 10 of the Act “provides that the Minister of Foreign Affairs may, with the agreement of the Minister of Justice, enter into a specific agreement with a state or entity for the purpose of effecting extradition in a particular case. A certificate is issued by or under the authority of the Minister of Foreign Affairs. The agreement is attached to the certificate. This certificate is conclusive evidence of the agreement … If there is any inconsistency between the agreement and the Act, the Act prevails.”[7] Unlike the scheme of proclamations under the previous law, there is no bar to the retroactive operation of the new system under section 10 of the Act. The relevant statutory provision is section 6 of the 1999 Act: “Subject to a relevant extradition agreement, extradition may be granted under this Act whether the conduct or conviction in respect of which the extradition is requested occurred before or after this Act or the relevant extradition agreement or specific agreement came into force.” 
     Despite the introduction in Canada in 1999 of this new system of extradition by “ad hoc extradition agreement applying to one particular case”,[8] it has been pointed out (in a book published in 2017) that “There does not appear to be any cases where extradition was based on [such a] specific agreement.”[9]

The United Kingdom 
We now turn to the British law on ad hoc extradition in the absence of treaties. The law was originally contained in section 15 of the Extradition Act 1989, which has now become section 194 of the Extradition Act 2003. The system has been summarised as follows: “A novel feature of the Extradition Act, 1989 is that it empowers the United Kingdom government to enter into what may be termed ad hoc extradition arrangements with other States. Often arrangements of this nature are intended to deal with situations of urgency, where there may be no formal extradition treaty or where whatever arrangements as exist are regarded as inadequate for the particular purpose. … Section 15 of the 1989 Act authorises the conclusion of ‘special extradition arrangements’ with another State ‘in respect of a person’. In other words, while there may be no general extradition treaty with that State or such treaty as exists may not cover the relevant circumstances, the UK Government may agree to extradite a person in accordance with a specially made agreement. The existence of any such arrangement is proved conclusively by a certificate from the Secretary of State. There is no indication in section 15 of the 1989 Act what those arrangements should contain. … No ad hoc extradition arrangement has been made prior to 1 January 1995 [the time of completion of writing of this book].”[10]
     The background and rationale behind the enactment of section 15 has been explained as follows:[11]
“The purpose of ‘special extradition arrangements’, as explained in the Home Office Working Party Report, is to widen the options on granting or obtaining the surrender of fugitive criminals; to save time and expense in arranging for extradition with a country ‘with which the likely amount of extradition traffic does not justify the effort of negotiating a treaty’ and to ‘reduce our inhibitions of making an extradition application to a country with which we had no treaty’. 
“The intention is to provide, for the purpose of an individual case, a short and simple form of extradition arrangement, which is subject to the safeguards of Part III of the Extradition Act 1989 but not to a treaty.” 
It is particularly noteworthy that the same authors (in their book published in 2000) point out as follows: 
“The utility of this procedure has yet to be demonstrated in practice. General extradition arrangements in the form of bilateral or multilateral treaties already cover all those countries with which the United Kingdom has most ‘extradition traffic’. It is the understanding of the courts that such countries are deemed to be worthy of trust, and likely to honour their obligations, or the treaties would not have been made. What of other countries with whom the United Kingdom has no treaty arrangements? Which of them provides what Article 14 of the International Covenant on Civil and Political Rights calls ‘a fair and public hearing by a competent independent and impartial tribunal established by law’? If a State seeks the extradition of a fugitive on the basis of a special arrangement, how will the Secretary of State decide whether it is to be trusted to carry out its obligations? 
“These are questions which may involve enquiries and research when a request is received from a country with which there are no existing extradition arrangements. … The greater problem lies in the fact that even if all the statutory safeguards are included in the special arrangement, the standards of justice administered in the requesting country and its prison conditions may make it undesirable to grant a special arrangement in the first place. 
“For this reason the Home Office Working Party recommended a cautious approach to ad hoc extradition: 
We think it right, therefore, that if there were to be a power to extradite without a treaty, the legislation should require that the Secretary of State be satisfied, before issuing an Order to proceed and before surrendering a fugitive, that the standards of justice and penal administration in the requesting State were such that it would be in the interests of justice to surrender the fugitive. 
“Such considerations might involve the continuous monitoring of regimes in all countries outside the present nexus of formal extradition arrangements, since decisions are likely to be taken at a moment's notice. Such monitoring is already the normal practice of UK diplomatic missions abroad.”[12]
The above quotations show that although in theory, the arrangement of ad hoc extradition by special extradition arrangements under section 15 of the Extradition Act 1989 opens the door to extradition requests from all countries in the world with which the UK does not have any extradition treaty, in practice, the UK government will be very cautious in invoking the power granted to it by section 15 to engage in ad hoc extradition on a case by case basis, particularly where there is doubt as to whether the situations in terms of rule of law, judicial independence and protection of human rights in the requesting jurisdiction are satisfactory enough to warrant extradition -- which, in the case of extradition under extradition treaties, are based on the UK government’s (and the people’s) trust and confidence in the legal and judicial systems of the jurisdiction requesting the extradition. In practice, it seems that the power to extradite by special extradition arrangements under section 15, and its successor which is section 194 of the Extradition Act 2003, is only used in rare and exceptional circumstances, such as cases of extradition of suspected perpetrators of genocide to Rwanda for trial.[13] In a leading treatise on the law of extradition in the UK published in 2013, only one case arising from special extradition arrangements has been cited.[14] This is the case of Brown v Governor of HMP Belmarsh [2007] EWHC 498 (Admin), in which the government of Rwanda, which did not have any extradition treaty with the UK, sought the extradition of several persons “in connection with their alleged involvement in genocide and murder in that State”.[15]

The proposal in the Bill 
We now turn to the HKSAR Government’s proposal in the Bill, which proposes to introduce a system of ad hoc extradition by “special surrender arrangements”, which are similar to the “special extradition arrangements” under section 194 of the British Extradition Act 2003, and the “specific agreement” under section 10 of the Canadian Extradition Act 1999. 
     As a starting point, it should be noted that there is under the existing Fugitive Offenders Ordinance (FOO) no provision similar to those on ad hoc extradition arrangements on a case by case basis in the British and Canadian laws mentioned here. In explaining its proposal in the papers for the Legislative Council, the government has correctly pointed out that the existing arrangements in section 3 of the FOO does not facilitate the introduction and implementation of ad hoc extradition of the kind that is permitted under the current UK or Canadian law. The existing system of extradition under the FOO caters for extradition conducted in accordance with extradition treaties. After an extradition treaty has been entered into between the HKSAR and a foreign state, subsidiary legislation in the form of an “order” to implement the treaty will be introduced by the Chief Executive in Council; the “order” is subject to the “negative vetting” procedure of the Legislative Council. The scheme embodied by the extradition treaty and the “order” will only become operational after the period for negative vetting by the Legislative Council expires. 
     The Bill now proposes to introduce new “special surrender arrangements” that will exist side by side with the extradition “arrangements of a general nature” provided for in extradition treaties and in the existing FOO. The Chief Executive will be empowered by the proposed section 3A of the FOO to enter into “special surrender arrangements in respect of a person”. Once the “special surrender arrangements” have been concluded with another jurisdiction and the relevant “certificate” stating that the arrangements exist has been issued by the Chief Executive, extradition can proceed in the same manner as where an extradition treaty has been entered into and the negative vetting by LegCo has been completed. There is in the case of “special surrender arrangements” no need for LegCo to be involved at any stage once the present Bill is passed into law by LegCo. 
     Under the existing FOO, extradition does not apply as between Hong Kong and other parts of China (including Macau, mainland China and Taiwan). The Bill proposes to remove this exception to the operation of the FOO, so that it would be possible to have either extradition by way of extradition treaty or ad hoc extradition on a case by case basis (under the “special surrender arrangements” proposed in the Bill) as between Hong Kong and any of the other three jurisdictions within China. 
     Under the existing FOO, any case of extradition in Hong Kong should be conducted in accordance with (a) the conditions and restrictions set out in the FOO (hereafter called the “FOO Conditions”) as well as (b) the conditions and restrictions provided for in the extradition treaty concerned (hereafter called the “Treaty Conditions”), which almost invariably add to the FOO Conditions. If the Bill is passed into law, then there will be an additional mode of extradition (i.e. ad hoc extradition) which is subject to certain modified conditions and restrictions introduced by the Bill (hereafter called “Modified Conditions”) as well as any additional conditions or restrictions set out in the “special surrender arrangements” concerned. The Bill however does not indicate whether or what additional conditions and restrictions may be set out in “special surrender arrangements” to be concluded on an ad hoc or case by case basis with any particular jurisdiction with which Hong Kong does not have an extradition treaty.[16]
     There are two principal differences between the FOO Conditions and the Modified Conditions. First, under the FOO Conditions there is a total of 46 categories of extraditable offences, while the Modified Conditions provide only for 37 of these 46 categories of offences. Secondly, whereas the FOO Conditions provide that an extraditable offence is one punishable with imprisonment for more than 12 months, under the Modified Conditions extraditable offences are limited to those punishable with imprisonment for more than 3 years. 
     Both the FOO Conditions and Modified Conditions include the “general restrictions on surrender” in section 5 of the existing FOO, such as those relating to political offences and prosecution on account of the accused’s race, religion, nationality or political opinions. These general restrictions are in practice reproduced in the Treaty Conditions when the HKSAR enters into an extradition treaty with another state.[17]
     Another FOO Condition which is in practice often reproduced in Hong Kong’s extradition treaties is that in section 13(4) of the FOO: “The Chief Executive may decide to make no order for surrender in the case of a person who is a national of the People’s Republic of China.” 
     A significant number of states (including not only Continental European countries but also Singapore which is a common law jurisdiction) with which Hong Kong has entered into extradition treaties have, in the extradition treaties concerned, reserved the right not to extradite their own nationals to Hong Kong. The following are examples. 
     Article 3 of Hong Kong's extradition treaty with Germany: “(1) The Government of the Hong Kong SAR reserves the right to refuse the surrender of nationals of the People's Republic of China and the Government of the Federal Republic of Germany reserves the right to refuse the surrender of its nationals. (2) Where the Requested Party exercises this right, it shall, if asked to do so by the Requesting Party, take all possible measures in accordance with its own law to prosecute the person. The Requesting Party shall be informed of the result of its request.” 
     Article 3 of Hong Kong's extradition treaty with Singapore: “(1) The Government of the Hong Kong SAR reserves the right to refuse the surrender of nationals of the People's Republic of China. The Government of the Republic of Singapore reserves the right to refuse the surrender of its nationals. (2) Where the requested Party exercises this right, the requesting Party may request that the case be submitted to the competent authorities of the requested Party in order that proceedings for prosecution of the person may be considered. (3) The nationality of the person whose surrender is sought shall be determined at the time of the commission of the offence for which surrender is requested.” 
     As far as the number of extraditable offences are concerned, the Modified Conditions appear to be more restrictive (on extradition) than the FOO Conditions. But this does not necessarily mean that ad hoc extradition is applicable to fewer offences than extradition in accordance with a particular extradition treaty. This is because the Treaty Conditions in a particular extradition treaty may limit the number of extraditable offences to a greater extent than that provided for in the Modified Conditions. For examples, the numbers of extraditable offences provided for in extradition treaties between Hong Kong and the following countries are actually less than the number of extraditable offences under the Modified Conditions.[18] The countries concerned and the numbers of extraditable offences are listed as follows. Singapore (30); Netherlands (30); Canada (27); Finland (20).[19]
     As mentioned above, Treaty Conditions usually add additional conditions and restrictions to the FOO Conditions which are therefore only the minimum conditions and restrictions. The following are examples of Treaty Conditions that go beyond the FOO Conditions. 
     Article 6 (“discretionary refusal of surrender”) of Hong Kong’s extradition treaty with Singapore: 
“(1) The surrender of any person sought under the terms of this Agreement may be refused if it appears to the appropriate authority of the requested Party that: (a) by reason of the trivial nature of the offence of which he is accused or was convicted; or (b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large as the case may be; or (c) because the accusation against him is not made in good faith in the interests of justice; or (d) because such surrender would be likely to enter exceptionally serious consequences related to age or health, it would, having regard to all the circumstances, be unjust or oppressive to return him. (2) … ” 
Article 7 (“discretionary refusal to surrender”) of Hong Kong extradition treaty with Germany. 
“… (2) The surrender of a fugitive offender may also be refused if the Requested Party considers that: (1) in the circumstances of the case, the surrender of the fugitive offender would be incompatible with humanitarian considerations in view of age, health or other personal circumstances; or (2) the surrender would prejudice essential interests of the Requested Party; or (3) the surrender of the fugitive offender may place that Party in breach of its obligations under international treaties. …” 
Article 7 of Hong Kong's extradition treaty with the Netherlands. 
“The surrender of a fugitive offender may also be refused if the requested Party considers that: (a) the offence is, having regard to all the circumstances, not sufficiently serious to warrant the surrender; or (b) there has been excessive delay, for reasons which cannot be imputed to the fugitive offender, in bringing charges against him, in bringing his case to trial or in making him serve his sentence or the remainder thereof; or (c) the surrender of the fugitive offender may place that Party in breach of its obligations under international treaties; or (d) in the circumstances of the case, the surrender of the fugitive offender would be incompatible with humanitarian considerations in view of age, health or other personal circumstances.” 
There is no indication or requirement in the Bill that in deciding whether to enter into “special surrender arrangements” for ad hoc extradition, the Chief Executive is bound to take into account the kind of factors that commonly appear in Treaty Conditions (that add to the FOO Conditions which are only minimum conditions and restrictions) such as those reproduced above, or whether the court should take into account such factors in deciding on the extradition case. 

Conclusion 
A preliminary conclusion may be stated as follows. 
     The Fugitive Offenders Ordinance (FOO) only provides for minimum conditions (“the “FOO Conditions” as defined above) for extradition. Extradition treaties usually provide additional safeguards and restrictions on extradition (i.e. the “Treaty Conditions” as defined above). Under the existing law, proceedings in any case of extradition must comply with both the FOO Conditions and the Treaty Conditions. 
     The Bill introduces a new form of extradition (i.e. ad hoc extradition on a case by case basis pursuant to “special surrender arrangements” entered into between the HKSAR and any state with which Hong Kong does not have an extradition treaty, or between the HKSAR and mainland China, Macau and Taiwan) that is subject to a slightly modified version of the FOO Conditions (i.e. the “Modified Conditions” as defined above). Given the absence of Treaty Conditions, this new system of extradition is in some respects subject to less conditions and restrictions than extradition in accordance with extradition treaties (which is the original form of extradition provided for in the FOO). 
     It is of course possible that in practice, the Chief Executive will adopt an extremely cautious approach in deciding whether to enter into “special surrender arrangements” for ad hoc extradition, and that the power of ad hoc extradition will only be used in rare and exceptional circumstances as in the cases of Britain and Canada discussed above. On the other hand, it must be recognised that by creating a new system of ad hoc extradition which can be initiated in any case (so long as the minimum “Modified Conditions” (as defined above) are satisfied) in the sole discretion of the Chief Executive, the Bill proposes to add enormously to the extradition power of the Chief Executive (though without reducing the power of judicial control), which represents a fundamental change in the existing law, not to mention the removal of the original exception to the application of the FOO as between Hong Kong and other parts of China. 
     This paper has demonstrated that extradition in the absence of treaties (i.e. ad hoc extradition) is available in the United States only under very narrowly defined circumstances, and although such extradition is legally permissible in a broader range of circumstances in Britain and Canada, it is in rarely used in practice and only in exceptional circumstances of very serious crimes. This is because with regard to countries whose legal systems have gained the trust of the state concerned, it is likely that the state would already have concluded extradition treaties with such countries. Ad hoc extradition, if available under the law of a particular state, raises the question of whether the legal system of the requesting state is such that the requested state has sufficient trust and confidence in it for the purpose of granting extradition to it. It is primarily the responsibility of the government (i.e. the executive branch of government) of the “requested state” to conduct relevant inquiries in this regard. 
     If and when ad hoc extradition as proposed in the Bill is introduced as between mainland China and Hong Kong, the concern of many people in Hong Kong is that since the Chief Executive can hardly refuse any extradition request from the Central Authorities that formally complies with the “Modified Conditions” (as defined above) in the law as amended by the Bill, the practice of this arrangement will not be limited to rare and exceptional circumstances but may become a regular extradition arrangement as between Hong Kong and mainland China without additional safeguards that are usually introduced by treaties when they are negotiated. 
     Furthermore, Hong Kong courts will be placed in a difficult and invidious position in adjudicating upon whether the legal and judicial systems in mainland China are sufficiently compliant with relevant human rights standards that need to be satisfied before extradition may be granted, particularly since the PRC is not yet a party to the International Covenant of Civil and Political Rights (which according to Hong Kong case law would be relevant to extradition cases) which is applicable to the HKSAR under Article 39 of the Basic Law.[20]
     It may thus be questionable whether the model of ad hoc extradition in countries like Britain and Canada is appropriate as far as extradition (or rendition) as between mainland China and Hong Kong is concerned. Ideally, such rendition should be regulated by an agreement between the two sides similar an extradition treaty, as Article 95 of the Basic Law contemplates judicial cooperation agreements between Hong Kong and the mainland, and some such agreements have already been entered into in civil and commercial matters. 
     If, despite the above considerations, the HKSAR Government and the Legislative Council decide to proceed with the Bill, it is advisable for them to consider further modifying the “Modified Conditions” so as to impose additional restrictions and safeguards on ad hoc extradition. For example, the list of extraditable offences for the purpose of ad hoc extradition may be limited to the most heinous crimes.[21] This would be consistent with the practice in foreign jurisdictions whose law permit ad hoc extradition in the absence of extradition treaties but which resort to ad hoc extradition only in rare and exceptional circumstances such as those involving the most heinous crimes. 
     Secondly, consideration may be given to a non-retroactive arrangement of extradition in the absence of extradition treaties similar to that under Part II of the former Canadian Extradition Act (R.S.C. 1985, c. E-23), so that the new arrangement of ad hoc extradition in the absence of extradition treaties will only be applicable to crimes committed after the law on ad hoc extradition has been introduced in Hong Kong. 
     Thirdly, consideration may also be given to whether Hong Kong residents should be excluded from ad hoc extradition, just as section13(6) of the existing Fugitive Offenders Ordinance and most extradition treaties which Hong Kong has entered into reserve the right of the Hong Kong authorities not to extradite Chinese nationals. This provision was originally designed as a restriction to extradition between Hong Kong and foreign states. It does not make sense as far as extradition or rendition between Hong Kong and mainland China is concerned. A modified version of this principle as adapted to rendition as between Hong Kong and mainland may be that Hong Kong will not extradite Hong Kong residents to the mainland, but will prosecute them instead in Hong Kong, just as it is commonly provided in extradition treaties that where Hong Kong exercises its right not to extradite a Chinese national, the requesting state may request that Hong Kong initiate proceedings to prosecute the person concerned in Hong Kong. This is the proposal recently put forward by Mr Michael Tien, a Legislative Councillor in Hong Kong, and it deserves further study and serious consideration. 
     Mr Tien also proposed a two-stage reform of the existing law on extradition: in the first stage, the existing law will be reformed so as to enable the Chan Tong-kai case to be dealt with expeditiously by way of extradition to Taiwan; the second stage would involve the introduction of a scheme of “special surrender arrangements” that is a modified version of the scheme now proposed in the Bill. This two-stage approach deserves to be supported, as discussed in greater detail in the Appendix to this paper. 

Cheng Chan Lan Yue Professor in Constitutional Law 
Faculty of Law, The University of Hong Kong 
3 May 2019 

APPENDIX: The Chan Tong-kai Case 
There is considerable support among Legislative Council members and members of the public for a speedy amendment of the existing law to facilitate the extradition of Chan Tong-kai to Taiwan for trial for suspected murder. As proposed by Mr Michael Tien, the first stage of a two-stage reform of the existing law of extradition can enable such extradition in the Chan case to be achieved. Technically, there is nothing in the existing law to prevent the Hong Kong SAR government from entering into a “special surrender arrangement” (i.e. an ad hoc arrangement applicable only to a particular individual requested by another jurisdiction to be extradited) for extradition. Such a special surrender arrangement may be embodied in an “order” made by the Chief Executive in Council under sections 3 of the FOO, and can become effective after the period for “negative vetting” by LegCo expires. The only legal impediment to the entry into such a special surrender arrangement to deal with the Chan case lies in the definition of “arrangements for the surrender of fugitive offenders” in section 2(1) of the FOO, which excludes the operation of such arrangements with regard to “any other part of the People's Republic of China” (which includes Taiwan). The first stage of the proposed reform of the existing law would therefore involve the deletion of this exclusion from the FOO. Once the deletion becomes effective, the government can, by making an “order” under section 3 of the FOO (which is subject to “negative vetting” by the Legislative Council), arrange for Chan’s extradition to Taiwan. 

Notes
[1] Matthew Bloom, “A comparative analysis of the United State’s response to extradition requests from China” (2008) 30 Yale Journal of International Law 177 at p. 200. See also Bruce Zagaris, International White Collar Crime (Cambridge University Press, 2nd ed. 2015), pp. 431-433. 
[2] See David Goetz, “Bill C-40: A New Extradition Act”, Library of Parliament, http://publications.gc.ca/Collection-R/LoPBdP/LS/361/c40-e.htm 
[3] See A.W. La Forest, Extradition to and from Canada (3rd ed 1991), p. 39. 
[4] See generally E.F. Krevel, T. Beveridge and J.W. Hayward, A Practical Guide to Canadian Extradition (Carswell, 2002), pp. 42-43, 52-56. 
[5] Ibid., p. 42. 
[6] A.W. La Forest, Extradition to and from Canada (3rd ed 1991), p. 39. 
[7] Seth Weinstein and Nancy L. Dennison, Prosecuting and Defending Extradition Cases: A Practitioner’s Handbook (Toronto: Emond Montgomery, 2017), p. 53. 
[8] Krevel et al. (see n 4 above), p. 53. 
[9] Weinstein and Dennison (see n 7 above), p. 53. 
[10] Michael Forde, The Law of Extradition in the United Kingdom (Round Hall Press, 1995), p. 26. 
[11] I. Stanbrook and C. Stanbrook, Extradition: Law and Practice (Oxford University Press, 2nd ed. 2000), p. 232. 
[12] Ibid., pp. 232-3. 
[13] “Extraditing genocide suspects from Europe to Rwanda: Issues and challenges”, report of a conference organized by REDRESS and African Rights at the Belgian Parliament, 1 July 2008, https://redress.org/wp-content/uploads/2018/01/Sep-08-Extraditing-Genocide-Suspects-from-Europe-to-Rwanda.pdf . This report points out that section 194 of the Extradition Act 2003 “was applied in the case of four Rwandan genocide suspects who were found living in the UK in 2006 and arrangements were entered into with Rwanda, allowing for the arrests of the suspects on the basis of extradition requests issued by Rwanda” (p. 11 of the report). For further details of these cases, see pp. 18-20 of the report. 
[14] Clive Nicholls et al., The Law of Extradition and Mutual Assistance (Oxford University Press, 3rd ed. 2013), p. 40. 
[15] This case is also the only case on special extradition arrangements cited in A Review of the United Kingdom’s Extradition Arrangements (presented to the Home Secretary on 30 Sept 2011), http://www.homeoffice.gov.uk/ , p. 455, note 238. 
[16] The Bill does provide (in the proposed section 3A of the FOO) that “special surrender arrangements” may include provisions that “in addition to the procedures [in the FOO], further limit the circumstances in which the person may be surrendered”. 
[17] For the texts of the 19 extradition treaties which the HKSAR has entered into, see http://www.doj.gov.hk/eng/laws/table4ti.html
[18] Here I refer only to extraditable offences specifically listed in the extradition treaties concerned. It should be noted that such treaties may include a residual or “catch-all” provision, such as that in article 2(1)(a)(xxx) of Hong Kong’s extradition treaty with Singapore: “any other offences for which surrender may be granted in accordance with the laws of both Parties”. 
[19] See note 17 above. 
[20] See, e.g., Ubamaka v Secretary for Security (2012) 15 HKCFAR 743. 
[21] This means that the list of extraditable offences should only include a relatively small number of most serious offences, and the minimum number of years of imprisonment for the purpose of an extraditable offence should be significantly increased beyond the proposal in the Bill of three years’ imprisonment. 
* I am grateful to my colleague Prof. Simon Young for his referring me to relevant literature for the purpose of my research for this paper, and for his comments on an earlier draft of this paper. I am also grateful to Prof. Young, Mr Kevin Lau (劉進圖) and the Honourable Mr Michael Tien, Legislative Councillor, for sharing with me their views on the subject of this paper.

Friday, April 26, 2019

New Book: An Introduction to the Chinese Legal System, Fifth Edition (Albert Chen)

LexisNexis
Published on 21 March 2019, 
Description: An Introduction to the Chinese Legal System, first published in 1992, was one of the first books in English on the developing legal system of the People’s Republic of China. It provides a systematic account of this system’s history, constitutional structure, sources of law, major legal institutions (such as the courts, the procuratorates, the legal profession and the Ministry of Justice), as well as the basic concepts and principles of Chinese procedural and substantive law.
Table of Contents:
Chapter 1 : Introduction — Legal Theory, Comparative Law and the Case of China
Chapter 2 : The Legal History of Traditional China
Chapter 3 : The Legal History of Modern China
Chapter 4 : Constitution and Government — Constitutional Doctrines and State Structure
Chapter 5 : Constitution and Government — Political Parties and Elections
Chapter 6 : Sources of Law and the Law-making System
Chapter 7 : Legal Institutions — Courts and Procuratorates
Chapter 8 : Legal Institutions — Lawyers, Legal Education and the Ministry of Justice
Chapter 9 : The Law of Procedure
Chapter 10 : The Substantive Law
Chapter 11 : Chinese Legal Developments 2011–2018
Appendix I : Note on Further Research
Appendix II : References
Appendix III : Glossary of Names, Terms and Romanisations
Appendix IV : Table of Legislative and Normative Documents
Index

Hualing Fu on Touching the Proverbial Elephant: The Multiple Shades of Chinese Law (China Perspectives)

China Perspective
2019, Issue, pp 3-9
In a powerful speech to celebrate the 40th anniversary of China’s reform and opening-up policy, Xi Jinping declared: “We must resolutely reform what should and can be changed, and we must resolutely not reform what shouldn’t and can’t be changed” (gai gai de, neng gai de, women jianjue gai; bu gai gai de, bu neng gai de, jianjue bu gai 该改的, 能改的, 我们坚决改; 不该改的, 不能改的, 坚决不改).
     Xi’s speech captures and explains the dilemma in which, on one hand, China has initiated the most repressive campaign against political dissidents, real or perceived, as show-cased in the continuous crackdown on lawyers, journalists, religious believers, and civil society activists, among others; and, on the other, has jump-started the most systematic and structural legal reform, unprecedented since Chinese reform started 40 years ago. Xi’s speech also reflects the duality of Chinese reform: sustaining and strengthening the political system with the leadership of the CCP at the core and liberalising the economic and social system... Click here to read the full editorial.

Han Zhu on Beijing’s “Rule of Law” Strategy for Governing Hong Kong (China Perspective)

Han Zhu (PhD 2016)
China Perspectives
2019, Issue 1, pp 22-33
Abstract: This paper examines the evolution of legal strategies that the central government has used in managing Hong Kong affairs in the past three decades. It demonstrates that the Beijing government appears to have successfully employed the tactic of “legalisation without democratisation” to neutralise political resistance, to resolve thorny issues, and to stifle pro-independence voices. However, as Beijing’s legal strategies for Hong Kong have become more hands-on and assertive, the flaws and instrumentalism of Chinese-style “rule of law” have become increasingly salient, giving rise to deepening conflicts with the Hong Kong common law system. Legalisation without democratisation has given rise to a worrying trend of rising authoritarian legalism in Hong Kong.

Xianchu Zhang on Integration of CCP Leadership with Corporate Governance (China Perspectives)

China Perspectives
2019, Issue 1, pp 55-63
Abstract: Since 2018, a political campaign to integrate leadership by the Communist Party as the core force in corporate governance in China has reversed the course of market reform in the past 40 years, which was predicated on separation of the Party’s political functions from company business operations. This article critically reviews the trend of developments from a historical perspective and analyses the impact of the political campaign on China’s socialist market economy and rule of law conditions. Some institutional implications are also examined in the comparative context with reference to the OECD Corporate Principles. The major argument of this article is that enhancing the Party’s leadership in companies will negatively affect development of the market economy and rule of law as well as China’s attempt to create an innovative society for its economic upgrading.

Tuesday, April 23, 2019

Benny Tai on Round Three of Hong Kong's Constitutional Game (HKLJ)

"Round Three of Hong Kong's Constitutional Game: From Semi-Democracy to Semi-Authoritarianism"
Benny YT Tai
Hong Kong Law Journal
Vol 49, Part 1 of 2019, pp 335-356
Abstract: A game-analytical framework is used to understand the constitutional development of Hong Kong. The constitutional game of Hong Kong has entered into Round Three. The theme for Round Three is “from semi-democracy to semi-authoritarianism”. The existing game-field is neither genuinely democratic nor totally authoritarian. The Civil Society of Hong Kong, a key game player, adopted a new strategy to put pressure on the Central Government (CG) aiming to transform the game-field from semi-democratic to genuinely democratic. A large-scale civil disobedience movement by occupying main streets at the heart of the city was organised in 2014. The CG, the most powerful and resourceful game player, responded by blocking Hong Kong’s road to democracy. The CG worries that Hong Kong could be used as a subversive base to threaten its rule in the Mainland if democratic elections were to be fully implemented. The game-field is further transformed by the CG from semi-democratic to semi-authoritarian. The Opposition, the Legislative Council, the Courts and the Civil Society of Hong Kong are weakened so that the Chief Executive under the direction of the CG could have a free hand to gain legitimacy through implementing policies to improve people’s livelihood. The voices demanding for democracy might then be silenced. This article analyses how these changes happened and illustrates how these changes may affect all the players in the next round of the constitutional game.

Benny Tai on 30 Years After Tiananmen (J of Democracy)

"30 Years After Tiananmen: Hong Kong Remembers"
Benny Tai
Journal of Democracy
April 2019, Vol 30, Issue 2, pp 64-69
Abstract: The three landmark events in Hong Kong’s ongoing struggle for democracy over the past thirty years were directly or indirectly connected with the Tiananmen Square protests of 1989. Inspired by the sacrifices of the students and citizens in Beijing, Hong Kong people continue to strive to establish a democratic system to defend Hong Kong’s way of life against interference by the Chinese Communist Party. The souls of Tiananmen Square have not left Hong Kong, and Hong Kong’s persistent struggle for democracy may have preserved the seeds of change in China.

Thursday, April 18, 2019

Yun Zhao et al on Identity Construction of Suspects in Telecom and Internet Fraud (Social Semiotics)

"Identity construction of suspects in telecom and internet fraud discourse: from a sociosemiotic perspective"
Ning Ye, Le Cheng & Yun Zhao
Social Semiotics
Published online: 25 Mar 2019
Abstract: As a new kind of contactless crime, the telecom and internet fraud has become a public hazard, with criminals targeting massive numbers of innocent victims. It is a prominent criminal problem that currently affects social stability and the sense of security of the public. Since the six Ministries and Commissions jointly cracked down the crime in 2016, the number of cases and the number of people deceived have decreased, but the occurrence and frequency has still been at a high rate, and the situation is deteriorating. Regardless of the scientific and technological means used by fraudsters, the main medium is language. From a sociosemiotic perspective, this study identifies that the criminal suspects use the discourse resources to fabricate false information and construct false identities through discursive practice, with the aim of achieving the communicative purpose of obtaining victims’ trust, tricking, deceiving and manipulating their victims into giving out confidential information and funds. This study, taking telecom fraud discourse as one type of genre, examines the dynamic process of selecting and constructing identities by manipulating related discourse resources and strategies in the social-cultural context. This study further provides a sociosemiotic solution to telecom fraud prevention.

New Book: Personal Injury Tables Hong Kong 2019: Tables for the Calculation of Damages, 5th edn ("Chan Tables")

Personal Injury Tables Hong Kong 2019: Tables for the Calculation of Damages, 5th edn
Neville Sarony, Wai-sum Chan, Felix W H Chan, Johnny S H Li
Sweet and Maxwell,
April 2019
Description: Continually cited in Hong Kong Courts as the “Chan Tables”, they are the authoritative and court-approved tables and provide the definitive starting point for all calculations for personal injury compensation claims in Hong Kong.
“I agree that the Chan Tables should be accepted as the starting point in Hong Kong…” 
  Justice Bharwaney, Chan Pak Ting (No.1) [2012] 1 HKCFI 1584; [2013] 1 HKLRD 643
Personal Injury Tables Hong Kong 2019 updates and revises the essential reference information for calculating damages in personal injury and fatal accident cases. The 2019 edition has been fully updated to take into account revised Hong Kong mortality projections by the Census and Statistics Department (Hong Kong Life Tables 2018-2066 and Hong Kong Population Projections 2017–2066), under which there is an increase in life expectancy. 
     Evaluating damages is no longer a time-consuming and challenging task. Its comprehensive contents include Hong Kong actuarial tables for the calculation of: 
  • Inflationary rates for adjusting PSLA
  • Wage statistics
  • Retail price indices
“The quantification of damages in personal injury cases is not an exact science. Indeed Lord Bridge observed that it will never be so, and explained how the common law courts have been “traditionally mistrustful of reliance on actuarial tables”: Hunt v Severs [1994] 2 AC 350, 365. Lord Pearson placed more trust in the experience of practitioners and judges than relying on tables, as otherwise there would be “a false appearance of accuracy and precision in a sphere where conjectural estimates have to play a large part”: Taylor v O ‘Connor [1971] AC 115, 140. 
These days of judicial skepticism against mathematics and actuarial science are bygone.  It is now clear that our very own Chan Tables, much like the Ogden Tables in England, have become an indispensable part and the starting point of our law in this area (Chan Pak Ting v Chan Chi Kuen [2013] 1 HKLRD 634, [32]), and rightly so. As required by modern standards of civil justice, Hong Kong law now demands greater consistency, predictability, and efficiency in all types of cases. This need is particularly felt in personal injuries cases by reason of their very nature. Tables like the present publication assist greatly in achieving this goal. 
It is noteworthy that the Law Reform Commission’s recent consultation on periodical payments for future pecuniary loss could ultimately lead to some interesting changes in this area of law, and, perhaps, the role and the complexity of the future editions of this work. 
Whatever murky waters that may lie ahead, the general editor and the contributors should be congratulated again for their arduous work thus far, and their efforts to keep this valuable work up to date and relevant for practitioners and the courts alike.” 
  Andrew Cheung, Permanent Judge of the Court of Final Appeal, February 2019
About the Authors: Felix W H Chan is an associate professor in the Faculty of Law, the University of Hong Kong. Neville Sarony QC, SC is a respected and experienced personal injury practitioner in Hong Kong. Wai-Sum Chan is a Professor of Finance at the Chinese University of Hong Kong. Johnny SH Li is a Professor of Actuarial Studies at the University of Melbourne, Australia, and a Professor of Actuarial Science at the University of Waterloo, Canada.

Thursday, April 11, 2019

Melissa Loja on International Agreements between Nonstate Actors as a Source of International Law (ASIL Proceedings)

Melissa Loja
2018, Vol 112, pp 151-5
Proceedings of the 112th Annual Meeting of The American Society of International Law
Abstract: International issues that are resolved traditionally through agreements between states are managed currently through agreements between government agencies and corporate entities. Government agencies1 and corporate entities are nonstate actors that have no formal capacity to engage in international lawmaking. Are their international agreements a source of international law? 
     The question is addressed in a case study of petroleum agencies and corporations in ninety-eight countries. These agencies and corporations are authorized to conclude agreements to settle disputes over petroleum resources that are shared by states across maritime zones and boundaries (shared resources). Their agreements are subjected to linguistic and procedural criteria for purposes of identification as a source of international legal rules on shared resources. The present paper summarizes some of the data and findings in the case study.  To listen to the presentation, click here.

Wednesday, April 10, 2019

Haochen Sun on Copyright Law as an Engine of Public Interest Protection (NW J Tech & IP)

Northwestern Journal of Technology & Intellectual Property
2018, vol 16, p 123
Abstract: Courts around the world have been confronted with bewilderingly complex challenges in protecting the public interest through copyright law. This article proposes a public interest principle that would guide courts to settle fair use cases with better-informed decisions. I argue that the proposed principle would legally upgrade fair use from serving as an engine of free expression to serving as an engine of public interest protection.
     Based on comparative study of the conflicting rulings handed down by the U.S. and Chinese courts on Google Library, the article first considers the necessity of adopting the public interest principle in guiding the judicial settlement of fair use cases substantively and procedurally. The article then canvasses the two substantive legal standards to be embodied in the public interest principle. First, the principle would create a public interest use standard for courts to utilize in weighing the first fair use factor without applying the dichotomy of transformative and non-transformative use. At the same time, it would also require courts to employ the significant market harm standard when considering the fourth fair use factor. Second, the public interest principle would also modify the procedural rules concerning the assignment of burden of proof in fair use cases. It would place only the burden of proving a public interest use under the first factor on the user of a work who is the defendant in the judicial proceedings at hand.

Tuesday, April 9, 2019

Karen Kong on Human Rights Activist Scholars and Social Change in Hong Kong: Reflections on the Umbrella Movement and Beyond (Int'l J H Rts)

"Human rights activist scholars and social change in Hong Kong: reflections on the Umbrella Movement and beyond"
Karen Kong
The International Journal of Human Rights
Published Online: 24 Jan 2019
Abstract: The Umbrella Movement in Hong Kong in 2014, which was the city’s largest scale civil disobedience movement, was first initiated by two university professors and a Baptist Reverend. They advocated the use of non-violent civil disobedience to fight for universal suffrage and genuine election of the Chief Executive in Hong Kong. Though the Umbrella Movement did not end up in successfully changing the electoral system of Hong Kong, its impact on students, academics and the civil society was far beyond the few months of occupation. At the same time, activist scholars had to pay the price for their political activism outside the academia. This paper reflects on the experience of activist scholars in the Umbrella Movement, evaluates their roles in pursuing social change, the challenges they faced, and their impact on students, the academia, and the civil society.

Sunday, April 7, 2019

New Book: Hybrid Constitutionalism, The Politics of Constitutional Review in the Chinese Special Administrative Regions (Eric Ip)

Hybrid Constitutionalism: The Politics of Constitutional Review in the Chinese Special Administrative Regions
Eric C Ip
Cambridge University Press
April 2019
Description: This is the first book that focuses on the entrenched, fundamental divergence between the Hong Kong Court of Final Appeal and Macau's Tribunal de Última Instância over their constitutional jurisprudence, with the former repeatedly invalidating unconstitutional legislation with finality and the latter having never challenged the constitutionality of legislation at all. This divergence is all the more remarkable when considered in the light of the fact that the two Regions, commonly subject to oversight by China's authoritarian Party-state, possess constitutional frameworks that are nearly identical; feature similar hybrid regimes; and share a lot in history, ethnicity, culture, and language. Informed by political science and economics, this book breaks new ground by locating the cause of this anomaly, studied within the universe of authoritarian constitutionalism, not in the common law-civil law differences between these two former European dependencies, but the disparate levels of political transaction costs therein.

Tuesday, March 26, 2019

New Book: Constitutional Remedies in Asia (Editor: Po Jen Yap)

"Constitutional Remedies in Asia"
Edited by Po Jen Yap
Routledge
March 2019, 194 pp.
Description: Many jurisdictions in Asia have vested their courts with the power of constitutional review. Traditionally, these courts would invalidate an impugned law to the extent of its inconsistency with the constitution. In common law systems, such an invalidation operates immediately and retrospectively; and courts in both common law and civil law systems would leave it to the legislature to introduce corrective legislation. In practice, however, both common law and civil law courts in Asia have devised novel constitutional remedies, often in the absence of explicit constitutional or statutory authorisation. Examining cases from Hong Kong, Bangladesh, Indonesia, India, and the Philippines, this collection of essays examines four novel constitutional remedies which have been judicially adopted - Prospective Invalidation, Suspension Order, Remedial Interpretation, and Judicial Directive - that blurs the distinction between adjudication and legislation.​
'By taking us on an eye-opening tour of constitutional remedies in Asia, this fascinating collection of essays broadens the landscape of comparative constitutional analysis. Not only does it open up new territory, it also deepens our understanding of remedies by highlighting the multiple ways in which judges seek to engage political actors in the joint endeavour of making rights real.' - Aileen Kavanagh, Professor of Constitutional Law, University of Oxford, UK
'This volume brings important developments in Asia into comparative constitutional debates that have overwhelmingly focused on the U.K., Canada, and New Zealand. Combining theoretical engagement with on-the-ground experiences, it makes a valuable contribution and will broaden the scholarly conversations.' - Robert Leckey, Dean of the Faculty of Law and Samuel Gale Professor, McGill University, Canada
'A fascinating and rich systematic study of the under-studied but vital topic of comparative constitutional remedies. Constitutional Remedies in Asia is path-breaking scholarship which makes many deep connections between various remedies devised by courts and the political systems within which they operate. Essential reading for those interested in comparative constitutional law.' - Kent Roach, CM, FRSC, Prichard Wilson Chair in Law and Public Policy, University of Toronto, Canada
'Combining careful legal analysis with a realistic understanding of courts' positions in different national legal system, these essays are important contributions to the growing field of comparative constitutional studies.' - Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School, USA
'Constitutional Remedies in Asia is a sophisticated collection of chapters on an understudied aspect of judicial power and creativity. The volume illustrates the power of comparative analysis, integrating diverse country experiences into a common framework, and opens up new angles for courts and scholars.' - Tom Ginsburg, Leo Spitz Professor of International Law, University of Chicago, USA​

Sunday, March 24, 2019

New Book: Mediation and ADR Confidentiality in Hong Kong (Gary Meggitt)

Mediation and ADR Confidentiality in Hong Kong
Wildy, Simmonds and Hill Publishing
March 2019, 288 pp
Description: It is generally accepted in Hong Kong and many other jurisdictions that mediation is ‘confidential’. This book examines the three non-statutory components of mediation confidentiality in Hong Kong:-
  • contractual or equitable confidentiality;
  • the without prejudice doctrine;
  • and legal professional privilege – together with the Hong Kong Mediation Ordinance.  
This study looks at the protection which each of the components and the Ordinance affords to the participants in mediation and the deficiencies in the same.
     The author argues that the justification for a specific mediation confidentiality may be found in the very nature and philosophy of mediation itself and, in particular, its distinctive empowerment of the parties and its independence from the litigation process. It is contended that, to the extent that they share these qualities, other forms of ADR should be similarly protected.
    This book will interest and be useful to academics, students and legal practitioners interested in mediation and ADR in Hong Kong and elsewhere. The thesis upon which this book is based was awarded the University of Hong Kong’s prestigious Li Ka Shing Prize.

Saturday, March 23, 2019

Amanda Whitfort Interviewed on Pangolins: The World’s Most Trafficked Mammals Slipping Into Extinction (Earth.Org)

"Pangolins: The World’s Most Trafficked Mammals Slipping Into Extinction"
Samantha Topp
Earth.Org
25 Feb 2019
For most of us the thought of wildlife crime brings to mind ivory and rhino horns, yet in reality the most trafficked mammal in the world remains relatively unknown. An animal ranging from the size of a common house cat to a medium sized dog, but covered in hundreds of scales and found only in Asia and Sub-Saharan Africa: the pangolin ...
     Associate Professor at Hong Kong University (HKU) Amanda Whitfort explains that all eight species of pangolin are in high demand for traditional Chinese medicine in China. “Hong Kong is the fifth busiest container port in the world and only about 1% of our containers are inspected. Given the low risk of detection it is not surprising that we are used by traffickers seeking an easy gateway to China.”
      Currently, wildlife trafficking offences are listed under legislation aimed to protect endangered species of animals and plants in Hong Kong: Cap.586. However, many have pushed for it to be now listed as under the Organised and Serious Crime Ordinance (OSCO). Whitfort says that this legislation change would allow investigators to use more coercive powers when investigating wildlife crime operations.
     Alexandra Andersson, founder of the conservation group Hong Kong for Pangolins, also stresses the importance of listing wildlife offences under OSCO, saying that the Hong Kong government needs to “increase associated penalties, close various loopholes in the law, and work with forensic scientists to develop tools to detect laundering.”
     In traditional Chinese medicine, some practitioners prescribe pangolin scales to cure ailments from rheumatism, soreness and itchiness to cancer and impotence. However, activists like Andersson argue that scales are proven to be made of keratin, the substance of human fingernails.
     In 2008 a global NGO focused on illegal wildlife trade, TRAFFIC, found that pangolin scale alternatives include Wang Bu Lui Xing (Vaccaraie semen) and dried seeds of cowherb (Vaccaria segetalis). Within the study it was found that the medicinal effects of both alternatives were classed as being equally as effective as pangolin scales.
     Whitfort says that many traditional Chinese medicine practitioners publicly support the use of alternatives to endangered species, though it is evident that pangolin products are still in high demand both for its scales and its meat. “No species should go extinct for traditional Chinese medicine,” says Whitfort. ...“Eventually we will have the correct laws,” Whitfort says. “Unfortunately, for some species, those laws will come too late.”  Click here to read the full text. 

Thursday, March 21, 2019

HKU Class of 2018 Law PhD Graduates

Congratulations to our 12 PhD graduates who had their degrees conferred upon them at the 200th Congregation on 30 November 2018 at the University of Hong Kong. The newest members of our RPg alumnae family include the following:

1. Dr. AMESHEVA Inna Ilieva, Unravelling Differential Treatment: From Coexistence to Cooperation in International Climate Change Law. Supervisor: Dr James Fry


3. Dr. CHONG Agnes, The Non-Hierarchical Norms of No-Harm and PhD Equitable Utilization in International Watercourses Law. Supervisor: Dr James Fry

4. Dr. FEI Mengtian, An Analysis of Modernization and Law concerning Same-sex Sexuality in China.  Supervisor: Mr Benny Tai

5. Dr. LEJOT Paul Louis, The Place of Law Legal and Regulatory Influences on Financial Sector Agglomeration. Supervisor: Professor Douglas Arner

6. Dr. LONG Jie, China's Space Station in Light of Long-term Sustainability of Outer Space Activities: Cooperation, Law, Reality and Potential. Supervisor: Professor Yun Zhao

7. Dr. REPOUSIS Odysseas, The Rise of Multilateral Investment Treaties: International Investment Law Between Codification and Progressive Development. Supervisor: Dr James Fry

8. Dr. RUANGSAWASDI Chernporn, The Virtue-Based Paradigm of Judgment in the World of Investment Disputes.  Supervisor: Professor Hualing Fu

9. Dr. SPINA ALI Gabriele, Article 39(3) TRIPS: Understanding the Obligations, Exploiting the Flexibilities.  Supervisor: Ms Alice Lee

10. Dr. WEST Michael John, Federal Frontiers: the Constitution of Hunan Province in 1920s Republican China.  Supervisor: Professor Hualing Fu

11. Dr. ZHANG Xiaohan, The Application of the Consumer Protection Principle in the UNCITRAL ODR Rules and Its Implications for the ODR Practice in China. Supervisor: Professor Yun Zhao

12. Dr. ZUO Anlei, Institutional Fragmentation of International Intellectual Property Law in a World Society: Ontological Ethos, Structural Biases and Regime Interaction.  Supervisor: Dr. Li Yahong

Wednesday, March 20, 2019

Guanghua Yu on Open Access Order and Interconnected Institutions in Brazil (Law & Development Rev)

"Open Access Order and Interconnected Institutions in Brazil: A Challenge"
Guanghua Yu
Law and Development Review
Published Online: 2018-05-10
Abstract:
This article examines the evolution of democratic practice in Brazil. The article begins with a discussion on the country’s performance in terms of social equality, violence, and weak economy after the consolidation of democracy in 1985. Based on historical evidence, the article offers explanations concerning the weak performance in Brazil. The case of Brazil provides a challenge to the theory of open access order of North and his colleagues in the sense that open access to political organizations and activities does not necessarily lead to either better political representation or better economic performance. The case of Brazil also shows that open access to economic organizations and activities in the absence of the necessary institutions in the areas of property rights protection and contract enforcement, the financial market, the rule of law, and human resources accumulation does not lead to long-term economic growth.

Tuesday, March 19, 2019

Hualing Fu on Social Organization of Rights: From Rhetoric to Reality (UCLA Pacific Basin Law Journal)

"Social Organization of Rights: From Rhetoric to Reality"
Hualing Fu
UCLA Pacific Basin Law Journal
2019, Volume 36, Issue 1
Abstract: Public interest litigation (PIL) is a form of socio-legal activism. PIL originated in the United States, and spread, through the aggressive promotion of U.S.-centric rule of law, to China, where it has had a significant impact on socio-legal activism since the 1990s. This Article explores both the process through which human rights discourse is translated into practice by activist lawyers and human rights defenders, as well as the circumstances that cause socio-legal mobilization to fail or succeed. This Article examines the collective and sustained endeavour by human rights lawyers and other activists to advocate for the rights of specific communities through a rights complex, composed of activist lawyers, NGO leaders, and citizen journalists, as well as supporters within state institutions, Chinese society, and the international community. This Article looks at the institutionalized manner through which legal cases facilitate socio-legal mobilization to serve the broader objectives of educating citizens, enhancing the capacity of civil society, and making the government more accountable and responsive. The principal argument is that once citizens are endowed with legal rights and institutions are put in place for their implementation, the remaining issue is raising rights-awareness among rights-bearing citizens and generate demand for rights in society and channel those rights to institutions. Lawyers and other rights defenders play an indispensable bridging function in translating rhetoric to practice.