Monday, February 10, 2020

Felix Chan et al on a Bayesian Approach to Developing a Stochastic Mortality Model for China (Statistics in Society)

Johnny Siu-Hang Li, Kenneth Q Zhou, Xiaobai Zhu, Wai-Sum Chan and Felix WH Chan
2019, Vol 182, Issue 4, pp 1523–1560
Summary: Stochastic mortality models have a wide range of applications. For instance, in Hong Kong and England, multipliers used in the assessment of personal injury compensation are calculated using mortality rates from the most recent projections. However, owing to data-related problems, stochastic modelling of mainland Chinese mortality has not been given adequate attention. Stochastic mortality models are particularly important for analysing Chinese mortality, which is subject to rapid and uncertain changes. In this paper, we attempt to use a Bayesian approach to model the evolution of Chinese mortality over time, taking into account all of the problems associated with the data set. 

Sunday, February 9, 2020

Weixia Gu's “China’s Belt and Road Development and A New International Commercial Arbitration Initiative in Asia” Translated and Published in Chinese Review of International Law

Dr Weixia Gu's article, “China’s Belt and Road Development and A New International Commercial Arbitration Initiative in Asia” (2018) 51(5) Vanderbilt Journal of Transnational Law 1305-1352, was recently translated into Chinese and published in volume 37(1) of the Chinese Review of International Law《国际法研究》, pp. 105-128, the official journal of  the Chinese Academy of Social Sciences' Institute of International Law(中国社会科学院国际法研究所).
   Dr Gu's works on arbitration in Asia have received much attention lately. She was invited to give a keynote speech at the British Institute of International & Comparative Law (BIICL) in its conference, “Challenges of Arbitration in Asia”, at the Senate House, London, on 12 November 2019. She also presented her work at the IV Oxford Symposium on Comparative & International Commercial Arbitration, organised by the Commercial Law Centre, University of Oxford, on 15 November 2019. 

Weixia Gu on the Dynamics of International Dispute Resolution Business in the Belt and Road (Proceedings of the ASIL Annual Meeting)

"The Dynamics of International Dispute Resolution Business in the Belt and Road"
Weixia Gu
Proceedings of the ASIL Annual Meeting
2019, Vol 113, pp. 370-374
Published on 31 Dec 2019
Introduction: China's Belt and Road Initiative (BRI) ambitiously aspires toward expanding regional markets and facilitating economic integration across Asia and Europe. It has been regarded as a game-changer on the landscape of dispute resolution market, triggering a proliferation of "adjudication business." This report examines the dynamics of international dispute resolution in context of the BRI, discussed from the three following perspectives: (1) BRI investors and disputants; (2) three major means of dispute resolution on offer; and (3) institutions involved.

Friday, February 7, 2020

Emily Lee & Eric Ip on Judicial Diplomacy in the Asia-Pacific and the Singapore-initiated Transnational Judicial Insolvency Network (J Corp L Studies)

Published online on 9 Jan 2020
Abstract: The promulgation of the Judicial Insolvency Network (JIN) Guidelines by the Supreme Court of Singapore in 2017 has triggered innovative cross-border insolvency developments in the Asia-Pacific. It is intriguing that the Guidelines were conceived not by Singaporean judges alone, but jointly with a transnational network of bankruptcy judges. This article undertakes the original contribution of examining the Guidelines in light of the overall need for participating jurisdictions to craft a transnational insolvency framework. It uses Hong Kong as a test case to illustrate trends of likely future convergence.

Thursday, February 6, 2020

Syren Johnstone & Frederick Long on Hong Kong’s Paperless Prospectus Law (HK Lawyer)

"Hong Kong’s Paperless Prospectus Law"
Syren Johnstone & Frederick Long
Published in January 2020
Introduction: With limited exceptions, companies seeking a listing for their equity shares in Hong Kong will normally also engage in a public offering that invokes the prospectus provisions of the Companies (Winding-up and Miscellaneous Provisions) Ordinance (Cap. 32) (CWUMPO). In addition to the requirements of the CWUMPO, it will be necessary to comply with the non-statutory listing rules of The Stock Exchange of Hong Kong Limited (SEHK), which require a listing document to be produced - this will be combined with the CWUMPO-compliant prospectus into a single document (together, the prospectus). While the prospectus is typically produced in a physical print run of around three to five thousand copies that are made available at banks and other financial services providers, Alibaba’s recent secondary listing (26 November 2019) and public offer was achieved on a paperless basis – the prospectus and the application forms were only made available electronically.
      As a wholly paperless public offering is a first for the Hong Kong market, this article explores the underlying legal and regulatory requirements and considers whether Hong Kong must remain wedded to paper when competitor markets are not. It queries the necessity of the waivers obtained by Alibaba to go paperless and suggests that regulatory clarity - and regulator proaction - is required to facilitate Hong Kong more clearly moving forward to a paperless system that reflects the modernisation of public offering and placement processes. This has become essential in view of developments internationally, commercial and environmental considerations, and local realities... Click here to read the full text. 

Wednesday, February 5, 2020

New Book by Malcolm Merry: The Unruly New Territories (HKU Press)

Malcolm Merry
Hong Kong University Press
Published in January 2020, 300 pp.
Description: At the end of the nineteenth century a slice of imperial China was abruptly incorporated into the British Crown Colony of Hong Kong. It became known as the New Territories. The people of this remote and traditional corner of the Ching empire were not consulted about the annexation, initially resisted and long resented it. To placate them, the incoming authorities promised that little would alter and that their customs would be respected. The promise would not be fully kept but it became the source of the preservation of Chinese customary law in respect of rural land and the justification for privileges afforded to indigenous inhabitants. Their tenacious assertion of those rights and aversion to authority is detectible throughout the twentieth century and into the era of the Hong Kong Special Administrative Region; it permeates almost every aspect of policy and law relating to rural land.
     The Unruly New Territories is an account of the annexed area and of its special place in Hong Kong history and law. It recounts the customs and privileges, how they preserved a China that was elsewhere disappearing and how they gave—and, despite enormous changes, continue to give—leverage to indigenous representatives in dealings with government as well as handsome profits to rural landowners.

Book Reviews: 
‘This fascinating and impressive book is a must-read for all who want to know more about the New Territories. Malcolm Merry traces, with his usual clarity and insight, its unique land history that blends, not always harmoniously, Chinese custom with the advance of common law and this area’s dramatic development.’ 
—Sarah Nield, University of Southampton
The Unruly New Territories covers various aspects of land law and custom in the New Territories and the history of this region in a thoughtful and provocative combined thesis. A must-read for anyone studying the laws and customs affecting land in rural Hong Kong and interested in the history of the New Territories.’
—Steven Gallagher, The Chinese University of Hong Kong

Tuesday, February 4, 2020

HKU Law's SSRN Legal Studies Research Paper Series (January 2020)

Vol. 10, No. 1: January 16, 2020

Table of Contents

Shahla F. Ali, The University of Hong Kong - Faculty of Law
Wilson Mbugua, The University of Hong Kong, Faculty of Law, Students

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law
Douglas W. Arner, The University of Hong Kong - Faculty of Law
Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)
Eriks Selga, The University of Hong Kong, Faculty of Law, Students

Lauren Yu-Hsin Lin, City University of Hong Kong (CityUHK) - School of Law, City University of Hong Kong (CityUHK) - Centre for Chinese & Comparative Law
Say Hak Goo, The University of Hong Kong - Faculty of Law

Shahla F. Ali, The University of Hong Kong - Faculty of Law

Monday, February 3, 2020

New Issue of Hong Kong Law Journal (Part 3 of 2019)

Vol. 49, Part 3 of 2019

Editor-in-Chief: Professor Rick Glofcheski
Associate Editor: Professor Albert Chen
Publisher: Sweet & Maxwell

Conflict of Fundamental Rights and the Double Proportionality Test Hon Mr Justice Andrew Cheung PJ
Amnesty in Hong Kong? Esther Mak and Jason Fee
China Law
Book Review
Emden's Construction Law Hong Kong Hiu H. Wong, Athena
Review Article

Johannes Chan on the Power of the Chief Executive to Grant an Amnesty: A Possible Solution to the Extradition Bill Controversies (HKLJ)

"The Power of the Chief Executive to Grant an Amnesty: A Possible Solution to the Extradition Bill Controversies"
Johannes Chan
Hong Kong Law Journal
2019, Vol 49, Part 3, pp. 865-882
Abstract: In response to calls for an amnesty as one of the measures to bring to an end the 5-month conflicts arising from the proposed amendments to the Extradition Bill, the HKSAR Government said that it has no power to grant an amnesty and that to do so is against the rule of law. This article refutes both arguments, and argues that there are different legal means to allow the HKSAR Government to grant amnesty to both the protesters and the police; that granting immunity from prosecution on grounds of public interest is not contrary to the rule of law; and that, in light of foreign experience, the situation in Hong Kong is ripe for a serious consideration of the granting of amnesty.

Po Jen Yap and Jiang Zixin on Electoral Disqualification, Political Allegiance, and the Courts (HKLJ)

Po Jen Yap and Jiang Zixin (JD 2018)
2019, Vol 49, Part 3, pp 825-834
Abstract: We disagree with the Court of First Instance's decision in Chow Ting v Teng Yu Yan Anne to confer upon the Returning Officer (RO) the power to evaluate the authenticity of election candidates' intentions to uphold the Basic Law and to disqualify those who are deemed disingenuous. In our view, neither the text of s 40(1)(b)(i) of the Legislative Council Ordinance (Cap 542) nor its history indicates that the RO has this power. The Court of Appeal's decision in Chief Executive of HKSAR v President of the Legislative Council is not precedent for this position. The 2016 Standing Committee of the National People's Congress Interpretation also does not mandate this result.

Sunday, February 2, 2020

New Book: Research Handbook on Asian Financial Law (Edward Elgar)

Edited by Douglas Arner, Wai Yee Wan, Andrew Godwin, Wei Shen,  and Evan Gibson
Edward Elgar
2020, 592 pages
Description: This comprehensive Research Handbook provides an in-depth analysis of the different financial law approaches, legal systems and trends throughout Asia. Considering how reforms following the crises have been critical for the development and growth of the region, this insightful book explores a broad range of post-crisis financial regulatory issues. It also examines how inconsistent and divergent approaches to financial market regulation are curtailing the region’s potential.
     By focusing on the legal frameworks and regulatory models at a national level, this innovative Research Handbook addresses opportunities and challenges for financial markets and convergence in the region. Key topics include the different legal and regulatory approaches to common issues, such as banking regulation and resolution, FinTech, insolvency frameworks and ASEAN financial market integration. Specific regulatory approaches are discussed in relation to areas such as Renminbi internationalization, Islamic banking and finance, shadow banking, crowdfunding, venture capital, derivatives, bond and securities markets. The book concludes with an analysis of the impact of FinTech on regulatory convergence in Asia.
     The Research Handbook on Asian Financial Law will be of great value to law students, academics and policymakers working across a diverse range of fields including financial regulation, Asian studies, banking resolution and insolvency.  Click here to see the Table of Contents.

"BigTech" in the Financial Sector, In Conversation with Douglas Arner (SEACEN Podcast Season 3 Episode 1)

14 January 2020
Summary: “BigTech” in the Financial Sector: More Choice for the Consumer, More Challenges for the Regulator? SEACEN financial sector supervision experts Mark McKenzie and Glenn Tasky talk with prolific writer and educator Professor Douglas Arner, Kerry Holdings Professor in Law and Co-Founder, Asian Institute of International Financial Law, Faculty of Law, University of Hong Kong, about the entry of BigTech – companies such as Facebook, Apple, Google, Microsoft, Amazon, Alibaba, and Tencent – into the provision of financial services such as lending, payments, and even exotic cross-border instruments such as stablecoins. What are the benefits these big players bring, and what are the risks of allowing firms that are already big in other markets potentially dominate banking as well?

Friday, January 24, 2020

Kung Hei Fat Choy 2020

HKU Legal Scholarship Blog wishes everyone a Happy Chinese New Year 2020.  

Thursday, January 23, 2020

Po Jen Yap on Remedial Discretion and Dilemmas in Asia (UTLJ)

"Remedial discretion and dilemmas in Asia"
Po Jen Yap
University of Toronto Law Journal
Nov 2019, Vol 69, Supp 1, pp 84-104
Abstract: Asian courts have mitigated the individual harms and institutional uncertainties associated with the judicial use of delayed remedies by incentivizing the government to comply with the court’s ruling or putting in place judicial safeguards against any legislative delinquency. Expedited remedies like remedial reinterpretation and judicial directives in certain contexts may also be necessary or desirable, even if the judicially imposed result may not be what the enacting legislature had originally intended. Insofar as the legislature can respond and amend these judicial reinterpretation or directives by ordinary legislation, the judiciary does not have the final word and has merely facilitated a constitutional dialogue on rights with the current legislature.

Wednesday, January 22, 2020

Eric Ip on Constitutional Limits on States of Emergency under Article 18(4) of Hong Kong's Basic Law (Public Law)

"Hong Kong - Constitutional Limits on Emergency Powers amid the 2019 Crisis"
2020, Issue 182 
Abstract: This comment discusses the potential invocation of emergency powers by the Standing Committee of the National People's Congress over the Hong Kong Special Administrative Region pursuant to art.18(4) of the Basic Law to combat civil unrest; examines the constitutional and legal limits regarding their application; and demonstrates that art.18(4) or any other provision of the Basic Law offers no lawful authority to the Standing Committee to suspend the Basic Law itself, or the relevant provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong, or the entire common law system of the Region, even temporarily, during a state of emergency.

Richard Cullen on the Chinese Constitution and Hong Kong's Basic Law (China Daily)

"Chinese Constitution is Fundamental to Hong Kong's Basic Law"
Richard Cullen
China Daily
19 Dec 2019
If you want to comprehend the constitutional order in Hong Kong, almost everyone focuses their attention on the Basic Law. This approach is premised on the valid understanding that the Basic Law is the directly operative constitutional document of the Hong Kong Special Administrative Region. What, though, is the primary source of the constitutional standing of the Basic Law within the HKSAR?
     Hong Kong’s Basic Law is a law of the National People’s Congress (NPC). It was passed in 1990 under the authority conferred on the NPC by Article 31 of the Chinese Constitution (allowing for the creation of special administrative regions within the People’s Republic of China). The Basic Law provides the elemental, regional legal foundations for governing the HKSAR within the PRC under the “one country, two systems” formula. At the most fundamental level, the Basic Law draws its lifeblood from the Chinese Constitution of 1982.
     Some have argued that there is an important difference between what is described as a “liberal constitution” and a “socialist constitution”. The former is treated as the benchmark of what an authentic constitution is, where a supreme law stands apart from and above the state and its government. The latter, meanwhile, may be portrayed as an instrument of the state which is put in place to further the interests of the state, above all... Click here to read the full article.

Tuesday, January 21, 2020

Pedraza-Fariña and Whalen on A Network Theory of Patentability (U Chicago L Rev)

"A Network Theory of Patentability"
Laura G. Pedraza-Fariña and Ryan Whalen
January 2020, Vol 87.1, pp 63-144
Abstract: Patent law is built upon a fundamental premise: only significant inventions receive patent protection while minor improvements remain in the public domain. This premise is indispensable for maintaining an optimal balance between incentivizing new innovation and providing public access to existing innovation. Despite its importance, the doctrine that performs this gatekeeping role—nonobviousness— has long remained indeterminate and vague. Judicial opinions have struggled to articulate both what makes an invention significant (or nonobvious) and how to measure nonobviousness in specific cases. These difficulties are due in large part to the existence of two clashing theoretical frameworks, cognitive and economic, that have vied for prominence in justifying nonobviousness. Neither framework, however, has generated doctrinal tests that can be easily and consistently applied. This Article draws on a novel approach—network theory—to answer both the conceptual question (what is a nonobvious invention?) and the measurement question (how do we determine nonobviousness in specific cases?). First, it shows that what is missing in current conceptual definitions of nonobviousness is an underlying theory of innovation. It then supplies this missing piece. Building upon insights from network science, we model innovation as a process of search and recombination of existing knowledge. Distant searches that combine disparate or weakly connected portions of social and information networks tend to produce high-impact, new ideas that open novel innovation trajectories. Distant searches also tend to be costly and risky. In contrast, local searches tend to result in incremental innovation that is more routine, less costly, and less risky. From a network theory perspective, then, the goal of nonobviousness should be to reward, and therefore to incentivize, those risky distant searches and recombinations that produce the most socially significant innovations. By emphasizing factors specific to the structure of innovation—namely, the risks and costs of the search and recombination process—a network approach complements and deepens current economic understandings of nonobviousness. Second, based on our network theory of innovation, we develop an empirical, algorithmic measure of patentability—what we term a patent’s “network nonobviousness score” (NNOS). We harness data from US patent records to calculate the distance between the technical knowledge areas recombined in any given invention (or patent), allowing us to assign each patent a specific NNOS. We propose a doctrinal framework that incorporates an invention’s NNOS to nonobviousness determinations both at the examination phase and during patent litigation. Our use of network science to develop a legal algorithm is a methodological innovation in law, with implications for broader debates about computational law. We illustrate how differences in algorithm design can lead to different nonobviousness outcomes, and discuss how to mitigate the negative impact of black box algorithms.  Click here to read the full article.

Monday, January 20, 2020

Claudia Tam (LLB 2019) on Measuring Law Students’ Attitudes Towards and Experiences of Clinical Legal Education at HKU (Int'l J Clinical Legal Ed)

"Measuring Law Students’ Attitudes Towards and Experiences of Clinical Legal Education at The University of Hong Kong"
Claudia Man-yiu Tam (LLB 2019)
International Journal of Clinical Legal Education
2020, Volume 27, Issue 1
Abstract: As law schools in Hong Kong begin to integrate experiential learning into their educational models, clinical legal education (CLE) has symbiotically gained traction as an effective way for students to apply their legal knowledge in a skills-based and client-centered environment. This empirical study is the first of its kind to evaluate the impacts of CLE at The University of Hong Kong (HKU) over the past ten years, by analyzing the survey responses provided by 125 law students regarding their attitudes towards and experiences of CLE. The article traces the birth and development of CLE at HKU, turning first to its theoretical basis to make the case for its importance, and placing emphasis on the ability of CLE’s teaching-service pedagogy to alleviate the public interest law deficit and supplement passive learning as an engaging instructional method in the Hong Kong context. The survey results are then discussed in light of the doctrinal analysis to illustrate that clinic and non-clinic students alike are generally satisfied that HKU’s CLE program has achieved its skills, cognitive, and civic aims, and notably, that clinic students had a statistically significant higher intention to participate in pro bono work after graduation than non-clinic students or students engaged in volunteering.

Sunday, January 19, 2020

Weixia Gu on Belt and Road Dispute Resolution: New Development Trends (new article)

Belt and Road Dispute Resolution: New Development Trends
in Ying-jeou Ma (ed), Chinese (Taiwan) Yearbook of International Law and Affairs, December 2019, Volume 36, pp. 150-169.
Gu Weixia
Introduction: The Belt and Road Initiative (BRI) was first proposed by President Xi Jinping in 2013 with a view to promoting regional economic and infrastructural cooperation in Asia, Europe and the Middle East. The BRI is a two-faceted cross-border economic strategy, consisting of the "Silk Road Economic Belt" and the 21st Century Maritime Silk Road." It engages the joint effort and participation of sixty-five countries in the world. As outlined by China's National Development and Reform Commission (NDRC) in its report dated March 28, 2015, the BRI has five major goals: enhancing policy coordination, facilitating connectivity, removing trade barriers, facilitating financial integration, and building people-to-people bonds.   With the dual boost to land and maritime trade and business within the Belt and Road Nations, the BRI fosters market integration in the Asian region and forges new economic ties between China and the global economy.

Weixia Gu on Hybrid Dispute Resolution beyond Belt and Road: Towards a New Design of Chinese Arb-Med(-Arb) and Its Global Implications (Wash ILJ)

"Hybrid Dispute Resolution beyond Belt and Road: Towards a New Design of Chinese Arb-Med(-Arb) and Its Global Implications
Gu Weixia
December Issue, pp. 117-172
Abstract: Arb-med is a form of hybrid dispute resolution that combines an adjudicative approach (arbitration) with a non-adjudicative approach (mediation). Dispute resolution clauses requiring arb-med will assume a popular role in resolving disputes that arise under China’s Belt and Road Initiative. This article argues that China should regulate arb-med in a way to reconcile local practices (mediation) with international expectations (arbitration) in context of the BRI. As an economic bloc proposed by China, the BRI development has the potential to promote dispute resolution means with Chinese characteristics such as arb-med. Global comparative study of leading arbitration jurisdictions in the East and the West shows a heightened awareness of arb-med due process concerns regarding international enforcement of arb-med awards. Most recent reforms on arb-med by leading Chinese arbitration institutions, such as the CIETAC, BAC and SCIA, evidence a trend toward bifurcating the two processes when facing international clients. China is aware of procedural justice in the hybrid dispute resolution. The establishment of the China International Commercial Court (“CICC”), and its creation of the “One-Stop” Platform shows the need to attract foreign parties, in addition to merely Chinese ones, and the pressure to compete in the BRI dispute resolution market. These are the leading factors that drive Chinese regulators to look beyond sociopolitical imperatives and cultural boundaries in promoting arb-med outside of the Belt and Road. As China is anticipated to propel the BRI arbitration system, Chinese arb-med, and its unique process, will remain a fluid area of localized globalism in contrast with globalized localism in China-led BRI dispute resolution development.