Sunday, April 22, 2018

Roda Mushkat on the Case Study Method in International Legal Research (J Juridical Science)

"The case for the case study method in international legal research"
Roda Mushkat
Journal for Juridical Science
2017, Volume 42, Issue 2, pp. 143-182
Abstract: The exploration of international law has gradually but perceptibly evolved into an increasingly multifaceted enterprise. A notable development, albeit not yet on a large-scale, has been the adoption of empirical approaches relied upon in the Social Sciences for purposes of description, explanation and evaluation. A genuinely rich body of theoretical insights has consequently taken shape, providing a more robust foundation than previously available for pursuing knowledge and engaging in policy action. Much of the information generated has been obtained via the examination, often elaborate in nature, of specific cases. However, the technical underpinnings of this scientific endeavour leave something to be desired, as illustrated by a juxtaposition of methodological requirements with prevailing practices and offering concrete examples of greater technical rigour observed in neighbouring disciplines.

Saturday, April 21, 2018

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


Vol. 8, No. 3: Mar 14, 2018
Vol. 8, No. 4: Arp 20, 2018


Vol. 8 No. 3: Mar 14, 2018

Cora Chan, The University of Hong Kong - Faculty of Law

Ernest Lim, National University of Singapore (NUS) - Faculty of Law
Cora Chan, The University of Hong Kong - Faculty of Law

Satyam Mukherjee, Northwestern University
Ryan Whalen, The University of Hong Kong - Faculty of Law

Thomas K. Cheng, The University of Hong Kong - Faculty of Law

Shitong Qiao, The University of Hong Kong - Faculty of Law

Angela Huyue Zhang, The University of Hong Kong - Faculty of Law, King's College London


Vol. 8 No. 3: Apr 20, 2018

Uzma Ashraf Barton, AIIFL, Faculty of Law, The University of Hong Kong, Georgetown University Law Center, Law & Economics Center, George Mason University

David S. Law, Washington University in St. Louis - School of Law, The University of Hong Kong - Faculty of Law, Washington University in St. Louis - Department of Political Science
Chien-Chih Lin, Institutum Iurisprudentiae, Academia Sinica, Institutum Iurisprudentiae, Academia Sinica

Henry Chang, The University of Hong Kong - Law and Technology Centre

Thomas K. Cheng, The University of Hong Kong - Faculty of Law

Thomas K. Cheng, The University of Hong Kong - Faculty of Law

Friday, April 20, 2018

Melissa Loja Presents Paper at 112th American Society of International Law Annual Meeting

PhD student Melissa Loja presented a paper on the New Voices in International Law panel of the 112th Annual Meeting of the American Society of International Law in Washington DC from 4-7 April 2017. Based on work done for her dissertation, Ms Loja’s presentation focused on the legal significance of international agreements between non-state actors. She discussed international agreements that national petroleum corporations, such as Petronas, PetroVietnam, PetroleumBrunei and China National Offshore Oil Corporations, enter into to manage disputes over petroleum resources that are shared by states across maritime zones and boundaries.
    The panel commentator, Professor Laurence Helfer, Editor-in-Chief of the American Journal of International Law, remarked that Ms Loja’s paper makes a concrete and original contribution to international law, because it presents primary data that have not been made known before, and it enables a granular examination of actual practices in international law.

Canada's Air Defence Identification Zone and the Battle for the Arctic (Herbert Aclan Loja)

Canada's Air Defence Identification Zone and the Battle for the Arctic
By Herbert Aclan Loja
When I mentioned to Professor Brian F. Havel that the Canadian Defence Department is expanding the Canada air defence identification zone (ADIZ) boundaries westward, northward, and eastward, he quipped that the battle for the Arctic has begun. The northeastward expansion in particular is critical to Canada’s long-term strategic position. The expanse of the expanded ADIZ covers a continuum of both territorial and extraterritorial airspaces. It blankets the airspaces superjacent Canada’s land territories, internal as well as interconnecting waters and territorial seas of the Arctic archipelago of the Provinces of Nunavut and Northwest Territories as well as the contested or disputed territorial and non-territorial domains.[1] 
     Canada defines ADIZ as the ‘airspace that extends upward from the surface in those areas of Canada and off the coasts of Canada, the boundaries of which are specified in the Designated Airspace Handbook.’[2] This innocuous phraseology, when associated with the pertinent circulars, regulations, and other issuances, really means that Canada, using ADIZ as a device, can control all aircraft flying through the defined airspace area by means of identification procedures. 
     The Canada ADIZ boundary expansion has at least four crucial implications. It envelops the airspaces above the Northwest Passage, the exclusive economic zone (EEZ) off the northern coast of Yukon and Canada’s Arctic archipelago, and portion of the Hans Island. The ADIZ’s northern breadth also somewhat generally follows the outlines of the sector of the Arctic which Canada has pushed rather ambivalently to be considered as Canadian territory. 
     The Northern Passage, the meandering sea route connecting the Atlantic and Pacific Oceans via the Canadian Arctic, was until recently non-navigable.[3] That changed when the warming sea temperatures began melting the ice sheets which once blocked the passage.[4] Canada, a state party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), considers the waters of the Northwest Passage as internal waters.[5] The United States (US), a state not party to the UNCLOS, treats the passage as international waters.[6] Other states, even those parties to the UNCLOS may follow or has even followed the US position and regard the passage as international strait.[7] If treated as international strait, ships can navigate through the passage and aircraft can fly through its superjacent airspace practically unhampered with at best minimal (or even non-existent) Canadian control over security and environmental matters.[8]
     While the EEZ off the northern coast of Canada’s Arctic archipelago does not seem to be very problematic, Canada’s maritime delimitation issues with neighboring states over the continental shelf and the extended continental shelf are far more challenging. In particular, the Russian Federation has continued the mapping, sampling, and marking of the sea floor to strengthen its claim to the continental shelf and the extended continental shelf.[9] 
     Canada and Denmark delimited their continental shelf between Ellesmere Island and Greenland in the 1970s by employing an adjusted median line.[10] However, territorial sovereignty over the Hans Island, which lies between points 122 and 123 of the continental shelf delimitation line along the Nares Strait, remains unresolved with both states taking turns performing flag raising ceremonies on the island.[11]
     Senator Poiriers first articulated the Arctic sector theory in 1907.[12] The theory posits that all ‘land, water, or ice’ within the longitudes which correspond to the projection of Canada’s landmass all the way to the common point at the North Pole shall be considered as Canadian territory.[13] The same rationale should likewise apply to the claims of all states contiguous to the Arctic.[14] Canada has not clearly indicated its avowal or disavowal of the theory in relation to the territorial status of the lands and waters in the Arctic.[15]
     Canada has gradually addressed these strategic concerns and objectives without unnecessarily unnerving its neighbors through an asymmetric way of extending its influence over the contested land, maritime, and aerial domains. The broadening of its ADIZ shores up its position in these areas as Canada can now exert control over the air volume of even the domains outside its territory. All aircraft, whether civil or state, irrespective of the intention to enter Canadian airspace have to comply with Canadian ADIZ regulations on the submission of flight plan, radio communications identification protocols, periodic altitude and position reporting and other requirements when flying through the Canada ADIZ area. [16] In addition, the enlarged ADIZ gives Canada the flexibility to use the coordinates as limits for sea defence applications. These ADIZ characteristics are not uniquely Canadian and can be found in other ADIZs as well especially in Northeast Asia.
     With the broadened ADIZ, Canada is now able to control not just the entry of foreign ships in the waters of the Northwest Passage but also the flight of foreign aircraft over the superjacent airspace, protect its EEZ in the north pending delimitations of the continental shelf and extended continental shelf, maintain its position in the territorial tussle over the Hans Island, and send a subdued message that it is not abandoning the sector theory and its future expressions or mutations.
    The revised Canadian ADIZ appears as a measured response to protect Canada’s territorial sovereignty and consolidate Canada’s claims on both aerial and maritime domains. The Russian Federation is not expected to overly react as the northward extension essentially embraces only the Canadian EEZ. Neither would Denmark as the geographic coordinates of the Canadian ADIZ northeast expansion pass roughly midway above the airspace of the Hans Island. But the US response in the form of freedom of navigation missions will present Canada with the usual neighbourly discomfort.
     Canada’s expanded ADIZ will take effect on 24 May 2018 at 9:01 UTC, just in time for the coming of the summer when the sea temperature heats up in earnest and the Northwest Passage becomes more navigable. With the world attention focused somewhere else on Syria, the battle for control of the Arctic has quietly begun.

About the author:
The author is a PhD Candidate under the supervision of Professor Simon N.M. Young at the University of Hong Kong, Faculty of Law. He is currently a graduate research trainee under the supervision of Professor Brian F. Havel at the Institute of Air & Space Law, McGill University, Faculty of Law.

Notes:
[1] See Aeronautical Information Circular (AIC) 2/18, 1 February 2018 (NAV CANADA) <www.navcanada.ca/EN/products-and-services/Service%20Project%20Announcements/SPA-2018-ADIZ-EN.pdf> accessed 10 April 2018.
[2] Canadian Aviation Regulations SOR-96-433 (current to 26 March 2018) Part VI – General Operating and Flight Rules, para 600.01.
[3] J. Lewis Robinson, ‘Northwest Passage’ The Canadian Encyclopedia <www.thecanadianencyclopedia.ca/en/article/northwest-passage/#h3_jump_3> accessed 16 April 2018.
[4] ibid.
[5] ibid.
[6] Carolyn Beeler, ‘Who controls the Northwest Passage? It’s up for debate’, quoting Michael Byers, PRI’s The World (4 September 2017) <www.pri.org/stories/2017-09-04/who-controls-northwest-passage-its-debate> accessed 14 April 2018.
[7] ibid.
[8] See United Nations Convention on the Law of the Sea (concluded at Montego Bay 10 December 1982, came into force 16 November 1994) 1833 UNTS 397, Part III – Straits Used for International Navigation; See also, François Côté and Robert Dufresne, ‘The Arctic: Canada’s Legal Claims’, Parliamentary Information and Research Service, Library of Parliament, Canada, Publication PRB 08-05E (24 October 2008) 3.
[9] See for instance, Côté and Dufresne (n 8) 5.
[10] Agreement relating to the delimitation of the continental shelf between Greenland and Canada (with annexes) (signed at Ottawa 17 December 1973, came into force 13 March 1974) 950 UNTS 147, Art I. 
[11] David H. Gray, ‘Canada’s Unresolved Maritime Boundaries’ (Autumn 1997) IBRU Boundary and Security Bulletin 61, 68-69; See also Ryan Kristiansen, ‘Desolate Dispute: A Study of a Hypothetical International Court of Justice (ICJ) Decision’ (Summer 2013) 13(3) Canadian Military Journal 34, 39-38.
[12] Cf: Donat Pharand, The Law of the Sea of the Arctic: with Special Reference to Canada (University of Ottawa Press 1973) 134 fn 116.
[13] Ivan L. Head, ‘Canadian Claims to Territorial Sovereignty in the Arctic Regions’ (1963) 9(3) McGill Law Journal 200, 202-203.
[14] ibid.
[15] Donald M. McRae, ‘Arctic Sovereignty: Loss by Derelection? in William C. Wonders (ed), Canada’s Changing North (Revised edn, McGill-Queen’s University Press 2003) 427, 430; See also Gray (n11) 65. 
[16] See Canadian Aviation Regulations SOR-96-433 (n 2) paras 602.145 – 602.46 and in relation see Designated Airspace Handbook 95 (M6) <www.navcanada.ca/EN/products-and-services/Documents/DAH_Current_EN.pdf> accessed on 10 April 2018 and AIC 2/18 (n 1).

Wednesday, April 18, 2018

New Book by Shahla Ali: Court Mediation Reform: Efficiency, Confidence and Perceptions of Justice (Edward Elgar)

Court Mediation Reform Efficiency, Confidence and Perceptions of Justice
Shahla Ali
Edward Elgar
March 2018, 296 pages
Description: As judiciaries advance, exploring how court mediation programs can provide opportunities for party-directed reconciliation whilst ensuring access to formal legal channels requires careful investigation. Court Mediation Reform explores comparative empirical findings in order to examine the association between court mediation structure and perceptions of justice, efficiency and confidence in courts.
Recommendations:     
‘Shahla Ali's work is an innovative meta-analysis of the trends in the institutionalization of mediation at the macro level. It has an ambitious approach that had not been attempted yet, and paves the way for other future research, as well as providing guidance to policy makers and professionals.’ Luigi Cominelli, The University of Milan, Italy

‘Professor Shahla Ali has performed a valuable service for conflict resolution policy makers around the world. Providing diverse and mixed data reports of the uptake and resistance to court (and some private) mediation programs in ten different legal systems, she artfully surveys important legal, social and cultural differences in the uses and effectiveness of voluntary and mandatory mediation programmes. While some seek efficiency, others seek efficacy, through party-tailored solutions or regional integration dispute resolution schemes. Different programme motivations (and the varied role of lawyers) provide variation, not uniformity, in the use of mediation to resolve civil, family, labour and commercial disputes. A must-read for any dispute system designer, or court administrator or mediator.’ Carrie Menkel-Meadow, University of California, Irvine and Georgetown University Law Center, US

‘Professor Ali's book offers the most comprehensive, qualitative study and insights on Global Court Mediation I have encountered. It should be in the hands of every court in the world.’ Judge Dorothy Nelson, United States Court of Appeals, 9th Circuit

Tuesday, April 17, 2018

Douglas Arner Speaks at FinTech Policy Forum in Jordan (Alliance for Financial Inclusion)

The Alliance for Financial Inclusion  (AFI)
2 April 2018
FinTech innovations can complement financial inclusion by broadening financial access “at scale” and improving the quality of financial services through “efficiency”, concluded 130 policymakers and regulators from 50 countries and over 45 institutions who are attending the FinTech Policy Forum, jointly organized by the Central Bank of Jordan (CBJ) and the Alliance for Financial Inclusion (AFI) on 2 April 2018 in Amman, Jordan...
     Prof. Douglas Arner — leading authority on the issue of FinTech laws and regulations — started the proceedings on a reassuring note saying that “the idea of technology transforming finance is not new, not unfamiliar, and as a result, nothing to be afraid of.” Technologies such as the telegraph, ATM and computer have contributed to the transformation of finance. Smartphones are amplifying this transformation through rapid penetration across the globe with a potential to provide financial services “at scale.”
     However, scale can create “risk blind spots” for regulators. FinTech companies can move from “too small to care” and “too large to ignore” to “too big to fail.” Prof. Arner suggested to build and facilitate a 21st century infrastructure for supporting market functions; develop appropriate regulatory responses and apply graduated regulatory requirements to firms based on their level of risk; and use regulatory sandboxes and other test-and-learn approaches as an opportunity to test new approaches.
     With the emergence of FinTech as a key catalyst for financial inclusion, the Forum aims to highlight the need for a paradigm shift in regulatory and policy approaches, as well as share practical solutions that can bring financial services to the most vulnerable segments of society. There are 1.1 billion people who lack legal identity and women globally who cannot access financial services. As a result, they are restricted in obtaining formal financial services, while there are 65.6 million forcibly displaced people globally, one of the highest levels of displacement the world has witnessed. At the same time, there are 200 to 245 million MSMEs in developing countries with restricted or no access to finance — an estimated credit gap of $2.1 to $2.6 trillion. ...
     Click here to read full text. 

Monday, April 16, 2018

Weixia Gu on the Developing Nature of Arbitration in Mainland China and Its Correlation with the Market (Contemporary Asia Arbitration Journal)

"The Developing Nature of Arbitration in Mainland China and Its Correlation with the Market:Institutional, Ad Hoc, and Foreign Institutions Seatedin Mainland China"
Weixia Gu
Contemporary Asia Arbitration Journal
2017, Issue 10, pp. 257-291
Abstract: In the process of developing arbitration in Mainland China, there are three important landmarks dividing the development into three phases. The Arbitration Law in Mainland China was promulgated in 1994 taking effect in 1995. As such, the first phase has been chronicled as between 1995 and 2006. This initial stage is characterized by the unitary system of institutional arbitration and the denial of ad hoc as well as foreign arbitration. In the second phase which is between 2006 and 2015, the position has been pushed forward by some recent reforms. In particular, the operation of foreign arbitral institutions seated in Mainland China has been relaxed in two recent cases, i.e., the Duferco case in 2009 and the Longlide case in 2013. Moreover the institutional arbitration market in Mainland China has been developed during this period as driven by not only the dramatic CIETAC split episode in 2013 but also the intensified competitions among local arbitration commissions in the past several years. The third phase is triggered by the issuance of the SPC Opinions on Providing Judicial Safeguard to the Construction of Free Trade Zones in 2016. The 2016 SPC Opinion is interpreted as limitedly granting validity of ad hoc arbitration and further promoting foreign institutional arbitration in Mainland China, both of which represent the latest development trend in the landscape of Mainland Chinese arbitration. Focusing on the development of institutional, ad hoc and foreign institutional arbitration in Mainland China, this Article takes a law and development perspective in analyzing the nature of Mainland Chinese arbitration, probes into the distinctions of development path and predicts into the future of development trajectory.

Sunday, April 15, 2018

Thomas Cheng on the Death of Colgate (U Penn J of Business L)

"Announcing the Death ofColgate"
Thomas Cheng
University of Pennsylvania Journal of Business Law
Vol. 20, Issue 1
Spring 2018
Abstract: This Article examines the agreement requirement in resale price maintenance (“RPM”) cases and the longstanding exception to the ban on RPM under the Colgate doctrine. It argues for the abolition of the doctrine for a number of reasons. First, there are no persuasive theoretical justifications for requiring an agreement in RPM cases as the most relevant purpose served by an agreement requirement under antitrust law does not apply to RPM. Second, there is no logically coherent and theoretically sound theory of agreement under the doctrine, which means that there is no principled way to apply the agreement concept in RPM cases. Third, there is no sound economic basis for requiring an agreement in RPM cases as none of the main theories of harm and pro-competitive justifications of RPM is premised on an agreement. Finally, it is argued that the Colgate doctrine has provided a highly unsatisfactory safe harbor for businesses to implement RPM due to costs and manpower involved in complying with the jurisprudence under Colgate. This Article also argues that dealer termination requires a different treatment from that accorded by Monsanto and Business Electronics after Leegin and proposes a framework for determining the legality of dealer termination independent of the existence of an RPM scheme.

Zhang, Liu & Garoupa on Judging in Europe: Do Legal Traditions Matter? (J of Competition Law & Econ)

"Judging in Europe: Do Legal Traditions Matter?"
Angela Zhang, Jingchen Liu & Nuno Garoupa
Journal of Competition Law & Economics
Published: 03 March 2018
Abstract: EU competition appeals typically involve applications by private businesses to annul decisions made by the European Commission. Moreover, these appeals are first assigned at random to a chamber, with a judge then designated as the rapporteur who will be most closely involved with the case. Using hand-collected original data on the background characteristics of EU judges and on competition judgments by the General Court between 1989 and 2015, we test the extent to which the legal origins of judges bear a statistically significant effect on case outcomes and that the rapporteur plays a crucial role in the decision-making process. In particular, if a rapporteur comes from a country whose administrative law has a strong French influence, the decision is more likely to favor the Commission than if he is from any other EU country. These results are robust to alternative political ideology variables, including left–right politics and a preference for European integration.

Thursday, April 5, 2018

Peter Chau on Hoskin's New Benefit-Fairness Theory of Punishment (Crim L & Philosophy)

"Hoskins’s New Benefit-Fairness Theory of Punishment"
Peter Chau
Criminal Law and Philosophy
published online, 17 Mar 12018, pp. 1-13
Abstract: The benefit-fairness theory of punishment (sometimes referred to simply as the “fairness” theory of punishment), which is one of the most prominent retributive justifications of punishment, appeals to some benefits received by an offender in explaining why it is fair to impose punitive burdens on him. However, many see the two traditional versions of the theory, found in the works by writers such as Herbert Morris, Jeffrie Murphy, and George Sher, as being susceptible to fatal objections. In a recent paper, “Fairness, Political Obligation, and Punishment,” Zachary Hoskins offers a new version of the benefit-fairness theory of punishment. I will highlight his original contribution by showing how his version of the benefit-fairness theory of punishment is different from the traditional versions in such a way that the main objections applying to the traditional versions do not apply to his account. Nonetheless, despite its many virtues, I will argue that Hoskins’s theory fails because it would entail disproportionate punishment.

Friday, March 30, 2018

Call for Papers: 11th East Asian Conference on Philosophy of Law @ HKU (13-14 Dec 2018)

11th East Asian Conference on Philosophy of Law
“Justice, Dignity and the Rule of Law”

*Call for Panels and Papers*


Faculty of Law, The University of Hong Kong 
13-14 December 2018

We are pleased to announce that the 11th East Asian Conference on Philosophy of Law will be held in Hong Kong on December 13-14, 2018, under the auspices of the University of Hong Kong’s Faculty of Law and its Centre for Chinese Law. The event is also part of the celebration of the 50th anniversary of the Faculty of Law of the University of Hong Kong. The overarching theme of the conference is “Justice, Dignity and the Rule of Law”.
     The East Asian Conference on Philosophy of Law has been held once every two years since 1996. The China University of Political Science and Law in Beijing hosted the 10th conference in 2016, and Hankuk University of Foreign Studies in Seoul hosted the 9th conference in 2014. The conferences provide a forum for dialogue among East Asian scholars of legal philosophy and other scholars interested in Asian legal philosophy. 
     The 11th Conference will be divided into plenary sessions and parallel sessions. We now invite proposals to present papers at the Conference.  A proposal to present a paper at the Conference should include the title and abstract of the paper. If you are interested in submitting a proposal for the conference, please note the following:
1.  The closing date for submission of proposals is 30 June 2018
2. The conference will be mainly in English and Chinese. Proposals to present papers at the Conference and panel proposals (mentioned below) should be written in English or Chinese. Oral presentations at the Conference should be in English or Chinese, except that (1) in panels formed (according to the procedure mentioned below) by Japanese or Korean scholars, the oral presentations may be in English, Japanese or Korean (scholars speaking in Japanese or Korean are strongly encouraged to provide a written English translation of their presentations); (2) interpretation will be provided for specially invited speakers at the plenary sessions who speak in Japanese or Korean (who will provide a written English translation of their speeches). 
3.  The proposed papers may relate to any aspect of philosophy of law or related fields, and need not be limited to the general theme of the conference (“Justice, Dignity and the Rule of Law”). 
4.  Every participant at the Conference (including paper presenters, and chairmen and discussants at the panels mentioned below who are not presenting papers themselves) should submit the ‘individual proposal form’. Paper presenters will make an oral presentation at the conference (approximately 15 minutes). Submission of full papers is welcomed but not required. 
5.  Proposals to form a panel at a parallel session are welcomed. Panel organisers should submit a ‘panel proposal form’. Panel members presenting papers at the panel should also submit ‘individual proposal forms’. The ‘panel proposal form’ should include the panel topic, the name of the chair and/or discussant, the names of the presenters of papers, and the title of each paper. The chair and discussant may also serve as a paper presenter. The same person may serve as both chair and discussant. 
6.  The conference registration fee is waived; however, participants who would like to join the conference dinner will be required to make a payment in advance. Conference participants are responsible for their own travel and accommodation expenses. A list of recommended hotels will be provided on the conference website. 
7.  Inquiries may be emailed to: shelbyc@hku.hk.
     The Conference will be an excellent opportunity for you to meet East Asian scholars of the philosophy of law to discuss topics of common interest. We hope you will be able to join us in Hong Kong!  To access the Conference website, click here.

Monday, March 26, 2018

Global Animal Law Conference @ HKU (4-5 May 2018)

III Global Animal Law Conference hosted by HKU Faculty of Law will be held on 4-5 May 2018 (Fri-Sat) at Large Moot Court, 2/f, Cheng Yu Tung Tower, the University of Hong Kong. The purpose of this Conference is to bring together experienced legal thinkers and writers in the area of animal law, in order to learn about how the different legal systems of the world are dealing with animal issues in their respective countries. Speakers from 17 countries, representing over 20 universities will be present.  Many of the speakers have authored important books and articles in the area of animal law. Most of the speakers come from a legal academic background. Sponsoring academic institutions are The University of Hong Kong Law Faculty, Michigan State University College of Law Animal Law Program, Lewis and Clark School of Law Center for Animal Law Studies, Universitat Autónoma de Barcelona Masters in Animal Law, and Harvard Law School Animal Law and Policy Program. 
 To view the Conference details, please click here. To register, please click here.  For enquiries, please contact Ms Winnie Law at winniewm@hku.hk.

Friday, March 23, 2018

Meet the Two HKU Endowed Professors of Law Celebrated at the 11th Inauguration (21 March 2018)


"Human rights are important, and human responsibilities are equally important. Ask not just what your rights are, but also what your responsibilities are, to yourself, to others and to the environment. 
Every society will have to strike its own balance of such rights and responsibilities."
                                                                         Mr Warren Chan
Appointed 2018. Professor Fu Hualing is Professor of Law and holder of the Warren Chan Professorship in Human Rights and Responsibilities at the Department of Law, The University of Hong Kong (HKU). He specialises in constitutional law, legal institutions, human rights with a focus on China, and cross-border legal relations in the Greater China region.
     Professor Fu's current research focuses on the rise of human rights lawyering in China and its implications for political and legal reform in the country, the politics of anti-corruption enforcement, popular justice, and a critical re-assessment of rule of law reform in China in the past four decades. His other research areas include the constitutional status of Hong Kong, in particular central-local relationships in the Hong Kong context and national security legislation. 
     He has a keen interest in building capacity in civil society, developing the rule of law, and enhancing legal protection of human rights in China. He has worked with and advised foreign governments and international institutions, as well as the Office of the High Commissioner for Human Rights (OHCHR), with respect to their projects in China. 
     His teaching focuses on human rights in China, corruption issues, and cross-border legal relations between Hong Kong and the Mainland. He is committed to expanding experiential learning opportunities for Hong Kong law students in the Mainland and Mainland law students in Hong Kong. He continues to actively promote student and faculty exchanges with leading Mainland law schools, in a spirit of better mutual understanding. 
     Professor Fu received his LLB from Southwestern University of Politics and Law, Chongqing, in 1983; his MA from the University of Toronto in 1988; and his Doctor of Jurisprudence from Osgoode Hall Law School in 1991. Prior to joining HKU in 1997, he taught at his alma mater in Chongqing, and at City University of Hong Kong. Professor Fu has served as Director of the Centre for Comparative and Public Law (2004-06), Head of the Department of Law (2008-10) and, since 2014, has been Associate Dean (China Affairs) at the Law Faculty. 
    He has been a visiting professor at the University of Washington, New York University, the University of Pennsylvania, the University of Michigan, and Zhongnan University. He served on the Mainland Affairs Committee of The Law Society of Hong Kong, and as an adviser to the Asian Law Centre, the University of Melbourne, and the Centre for Asian Legal Studies, National University of Singapore. 
     Professor Fu has published extensively in various books, and in local and international journals, including The China Quarterly, The China Journal and the Journal of Contemporary China. As a believer in collaborative approaches to scholarship, he has co-edited a number of significant studies including National Security and Fundamental Freedoms: Hong Kong's Article 23 Under Scrutiny (2005); Liu Xiaobo; Charter 08 and the Limits of China's Political Reform (2012); Mediation in Contemporary China (2017); Transparency Challenges Facing China (2018); and Socialist Law in Socialist East Asia (2018). 
     He is Co-editor of the Social Science Research Network Chinese Law eJournal, and Co-editor of The Routledge Rule of Law in China and Comparative Perspectives Series. Professor Fu was the recipient of the prestigious 2005 Gordon White Award from The China Quarterly for his 2005 article Re-education through Labour in Historical Perspective. He is widely regarded as one of the foremost commentators on the development and operation of public law in China. Professor Fu's perspectives on a broad range of legal issues are keenly sought internationally and also within Greater China. Overall, the work of Professor Fu Hualing has been important in helping to build HKU's exceptional reputation for research and scholarship in relation to China's law reforms, legal institutions, and civil society.

"We are honoured to support The University of Hong Kong with this Endowed Professorship. It is our shared vision that this Endowed Professorship will enrich the resources available at the Faculty of Law and help uphold its high standards of scholarship, research and education.
                                                    Kerry Holdings Limited
Appointed 2017. Cryptocurrency Bitcoin made headlines around the world across last year as it surged from less than US$1,000 to over US$20,000 in less than one year, before crashing in January 2018. Its massive surge and price volatility raises many concerns, with many banking and government officials warning investors not to trust it and that it is a bubble waiting to burst.
     While Bitcoin’s meteoric rise grabbed the headlines, it also put the spotlight on Financial Technology (FinTech). Today’s FinTech is the result of a long evolutionary interaction between finance, technology and regulation, which is transforming finance around the world, particularly in China. Increasingly, it represents technologies and technological innovation in the financial sector that are disrupting traditional financial services, including mobile payments, money transfers, loans, fundraising, and cryptocurrencies.
     Professor Douglas Arner is the Kerry Holdings Professor in Law at The University of Hong Kong (HKU). He is the founding Director of the University’s LLM in Corporate and Financial Law and LLM in Compliance and Regulation programmes. He specialises in economic and financial law, and regulation and development, and is recognised for his work in FinTech and financial regulation, particularly in the context of Regulatory Technology (RegTech).
    He is the Project Co-ordinator of a HK$15.36 million five-year project on “Enhancing Hong Kong’s Future as a Leading International Financial Centre” funded by the Hong Kong Research Grants Council Theme-based Research Scheme. He is also a member of the Hong Kong Financial Services Development Council, the Executive Committee of the Asia Pacific Structured Finance Association, and the Advisory Board of SuperCharger FinTech Accelerator. 
    After graduating with a BA from Drury College and a JD from Southern Methodist University, Professor Arner continued his studies at the University of London where he earned an LLM and a PhD. Prior to joining HKU in 2000, he was the Sir John Lubbock Support Fund Fellow at the Centre for Commercial Law Studies, Queen Mary University of London.
     Professor Arner served as Head of the Department of Law at HKU (2011-14) and as Co-Director of the Duke University-HKU Asia-America Institute in Transnational Law (2005-16). During this time, he managed 70 full-time academic staff at HKU and was responsible for over 1,500 students. He also taught postgraduate teaching programmes, undertook a major reform of the curriculum, and oversaw a significant expansion in student and staff numbers. 
     He co-founded the Faculty’s Asian Institute of International Financial Law in 1999 and served as its Director in 2006-11. The Institute is considered today the leading academic research institute focusing on international financial law, regulation and policy in Asia. In 2007, he received HKU’s Outstanding Young Researcher Award. 
     The World Bank, the Asian Development Bank, and Asia-Pacific Economic Cooperation (APEC), among others, have invited Professor Arner to serve as a consultant. He has been a visiting professor or fellow at numerous overseas universities, including the University of Melbourne where he is a Senior Fellow. More recently, he was the Ken Yun Visiting Professor at Duke University in 2017 and the Peter Ellinger Visiting Professor at the National University of Singapore in 2016.
     He is author, co-author or editor of 15 books, and the author or co-author of more than 120 articles, chapters and reports on related subjects. His most recent books include Reconceptualizing Global Finance and its Regulation(Cambridge University Press 2016) and Financial Regulation in Hong Kong (Oxford University Press 2016).
     His recent papers are available at the Social Science Research Network (SSRN) where he is among the top 1% of all authors by downloads and one of the top 25 law authors in the world.

Thursday, March 22, 2018

Richard Cullen on Filibustering: Flawed in Principle and Bad for Hong Kong (IPP Review)

"Filibustering: Flawed in Principle and Bad for Hong Kong"
Richard Cullen
IPP Review
March 9 2018
In October 2012, a leading member of the House of Lords visited Hong Kong on a regular visit. During one seminar, this experienced commentator expressed the view that the Judiciary in the Hong Kong Special Administrative Region (HKSAR) looked to be in sound health. It was doing the job it was institutionally designed to do very well. The Legislative Council (LegCo) received a less positive report card. The problems, already well entrenched, arising from filibustering were highlighted along with the lack of proper behavior within the LegCo by certain members — behavior, we learned, which would not be tolerated within the Parliament at Westminster. The LegCo emerged as the least functional of Hong Kong’s governance institutions according to this assessment.
    The LegCo recently voted, in somewhat controversial circumstances, to introduce significant restrictions on the capacity of LegCo Members to filibuster.
      In this essay, I want to discuss how this has come to pass, some 20 years after the establishment of the HKSAR within the People’s Republic of China (PRC), and why, on balance, it is a good thing that these restrictions have been put in place in Hong Kong. In order to do this, we need to consider what is meant by the term filibustering both specifically and more generally and, in particular, what this term has come to mean in the HKSAR.
     Those controversial circumstances concerned how the numbers within the LegCo changed so as to allow certain anti-filibustering amendments to the LegCo procedural rules ...
     Briefly, filibustering is the term applied when a member (or members) of a legislature speak at unusually great length on a proposal, which may often be a proposed new law (usually called abill), in order to delay or prevent a decision being made to enact that proposal by a vote of the legislature... 
     Given that the purpose of filibustering is political stonewalling — to stall or stop certain legislative processes — not surprisingly, a number of other procedural tactics are employed to this end, apart from ultra-lengthy member presentations. It is common for non-government members or groups within a legislature to resort, too, to tactics such as moving large, sometimes massive numbers of amendments to a bill, and making repeated calls to check that a quorum is present (that the specified minimum number of legislature members is present). Again, where the procedural rules allow this, amendments moved may be quite trivial and designed not to generate serious debate but simply to delay the process of legislating...
     Both the major parties in the deeply anchored two-party system in the US have benefitted from filibustering initiatives whilst in a minority in the Senate...
     The first filibuster in the HKSAR was mounted by the PE group within the LegCo in 1999 to delay a vote on a bill to dissolve the partially elected Urban and Regional Councils, established during the British Hong Kong era. The delay was needed to allow then absent PE LegCo Members time to return to the LegCo for the relevant vote. The PE group justified their action by reference to the accepted tradition of using filibusters within other notable legislatures around the world...
     It is simply quite difficult to locate suitable examples in order to draw up such a list of real benefits for the HKSAR (terrible laws stopped, for example) arising out of the extensive filibustering experience of recent years...
     The Judiciary in Hong Kong, particularly the Court of Final Appeal (CFA), continues to maintain very high standards (and independence), and to display the highest competence regularly. The LegCo can do much in a proper and positive manner. But it is beset by serious operational problems, sourced from within, which lower its performance level measurably and continuously. It is fair to say that the LegCo has, unfortunately, become the (comparative) pivot of governance dysfunction in Hong Kong. Filibustering has established itself as a significant part of how this has come to pass... Click here to read full text.

Wednesday, March 21, 2018

Alexa Lam on Crowdfunding in Hong Kong (HK Lawyer)

"Crowdfunding in Hong Kong - there are Sufficient Gateways"
Alexa Lam
Hong Kong Law Journal
March 2018, pp. 36-38
As start-ups and small businesses continue to crowdfund through the Internet, governments and regulators have had to respond.  The United States created a tailored regime for crowdfunding.  The United Kingdom and Singapore publicly consulted and clarified their regulatory approaches.  The Hong Kong regulator has been less proactive, thus inviting criticisms that Hong Kong has fallen behind in enabling financial innovation and entrepreneurship.
     Are these criticisms fair and accurate?  Not necessarily so.  In my latest research paper, I ventured to show that gateways for crowdfunding already exist in Hong Kong.  If these exemptions were fully utilised, Hong Kong would be broadly on a par with, or even ahead of, other international financial centres in allowing entrepreneurs to tap capital from professional (accredited) investors - the investor pool most coveted by entrepreneurs.
     With a strong political will to create jobs and promote growth after the global financial crisis, the United States was the most ardent in enacting legislation to enable crowdfunding.  The Jumpstart Our Business Startups Act ('Jobs Act') was passed in 2012 against this background...
   The HKCFA's clarification of the application of s.103(3)(k) has potentially far-reaching implications.  There are 200,000 high net worth individuals in Hong Kong holding US$1.1 trillion in wealth.  Start-ups will likely prefer a smaller number of keen professional investors to a large number of random retail investors.  It has been reported that angel investors tend to stay away from companies that have crowdfunded from retail - a company with too many investors is difficult to manage.   The HKCFA decision will make it easier for issuers to locate and connect with these business angels.  There is speculation that the authorities may consider legislating to reverse the HKCFA decision.  That would be regrettable.  As Fok PJ succinctly explained in his judgment in the Pacific Sun case, "if the investment products are not in fact sold or intended to be sold to the general public and instead are sold or intended to be sold only to professional investors, there is no necessity for protection to be afforded to the general public since they are not exposed to any material risk."  ...
     The HK$5 million small-scale offer exemption is slightly lower than the US$1.07 million small-scale offering exemption in the United States.  The Hong Kong regime however comes with a lighter touch.  There is effectively no particular disclosure requirement (subject however to provisions in the SFO governing false or misleading statements).  One should not underestimate the potential of this exemption for small or initial capital-raising, such as seed funding.  Note however that the exemption is available to companies only.  This exemption is not available to projects that are structured in the form of a non corporate CIS or a structured project.
     As demonstrated, Hong Kong is not falling behind in the gateways there are available for securities crowdfunding.    Yet, because the prohibitions and exemptions in the securities offering regime are fraught with difficulties, and the penalties for contravention severe, market players have been hesitant in making full use of the exemptions.
       We have heard endless debates on why and how the Hong Kong regulatory rules should kick-start their projects by making purposeful use of existing exemptions.  As the market starts to mature, regulators will have a fuller sense of how best to facilitate and regulate the crowdfunding space.  In the meanwhile, there is sufficient room for going forward. Click here to read the full text. 

Syren Johnstone on ICO Utility Tokens and the Relevance of Securities Law (HK Lawyer)

"ICO Utility Tokens and the Relevance of Securities Law"
Syren Johnstone
Hong Kong Lawyer
March 2018, pp. 30-33
     Abraham Lincoln famously posited that if one calls a tail a leg it doesn't mean that a dog has five legs. Similarly, a blockchain-based token offered in an initial coin offering ('ICO') may, irrespective of how it is called, be a security subject to securities laws applicable to the primary market as well as secondary market activities. ICOs are an example of how new technology is changing the way the public capital market is accessed by business, typically start-ups, in need of capital.
    The legal treatment of tokens remains unclear in my jurisdictions, which is increasingly problematic as ICO activity has ballooned from around US$300 million during 2013 to 2016 to well in excess of US$5 billion in 2017. As Hong Kong is now considering its potential status as an ICO hub, it is essential that regulatory agencies and market professionals come to grips with a better understanding of how tokens are, or may be, regulated.
     A focus of this article is "utility tokens"...The nature of a utility token is to permit the holder to access a service provided by the user's platform. This is typically a pre-sale made by a start-up seeking capital to develop the promised service. ...
    The law applying to the offering of securities and their marketing in Hong Kong, as set out in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) and the Securities and Future Ordinance ('SFO') (Cap. 571), is in general consistent with best international practices that prohibit accessing public capital unless registration or authorisation requirements are complied with it a relevant exemption applies. Tokens that are securities may also be subject to laws concerning regulated activities and the operation of exchanges and automated trading services. However, whether a specific token is a security will require careful consideration. ...
     First, because Howey has been applied to tokens by the U.S. SEC...
     Second, because of potential similarities to elements in the definition of CIS that align with, though are not identical to, the concept in Howey of a common enterprise in which the efforts of another are key.
    However, applying existing law to tokens is inherently problematic because blockchain has enabled fundamental changes in the ease and manner of accessing public capital, the cost and time of doing so, the willingness of the public to purchase tokens and the ease of trading them.
     Hong Kong practitioners will therefore need to exercise some caution when advising on the nature of a proposed token issuance and how it is undertaken.
     The increasing awareness that tokens can be subject to securities laws that possess uncertainties in their potential scope of application has had an impact on practices in the industry. ...
     While best practices have been developed to promote self-regulation of the industry, they have not always been observed in practice...
     Legal practitioners will be well aware that avoidance and evasion are quite different matters...
    While that distinction may be clear-cut in principle, the characteristics of a utility token that might cause it to be regarded as a security are less clear...
     The overarching purpose of securities laws is to regulate investments, irrespective of the form or name they assume ...
     One might point to the development of structured product regulation as a lesson in the failure of looking at how a product fits into a pre-existing set of categories, rather than considering its function in the market...
    New challenges may require regulatory agencies to interpret the law with one eye firmly fixed on regulatory intent...
   Care needs to be taken that purposive flexibility is not applied by regulators in a way that creates uncertainty...
     Returning to Abraham Lincoln, he was wrong semantically. If a tail is called a leg then it can be said that a dog has five legs. And if utility token issuances put public capital at risk, expose consumers to fraud, and behave similarly to an investment in established classes of securities, then perhaps that is enough to render it a security within the original intent of the legislature. Practitioners call it "the smell test". Indeed, the SFO provides that "interests, rights or property...commonly known as securities" are to be regarded as securities. On the other hand, calling a security a utility token does not change its nature. Click here to read the full text.

Tuesday, March 20, 2018

David Law Interviewed on the New Chinese Supervisory Commission (CGTN TV)

Professor David Law, Sir YK Pao Chair in Public Law, was interviewed on the television programme, The Point, on 13 March 2018.  He spoke to China Global Television Network (CGTN)'s Ms Liu Xin on China's New National Supervisory Commission and its constitutional and political implications.  Dr Xu Qinduo, Senior Researcher in Pangoal Institution, also joined the interview. Click here to view the programme. 

Monday, March 19, 2018

Puja Kapai on Workplace Sexual Harassment in Asia (Nikkei Asian Review)

"Time to confront workplace sexual harassment in Asia"
Puja Kapai
Nikkei Asian Review
15 March 2018
The #MeToo movement against sexual harassment that kicked off in the U.S. is starting to gain momentum in Asia. Actresses in Hong Kong, a prosecutor in South Korea, a journalist in Japan and even factory workers in China have spoken out about their experiences with workplace sexual harassment, putting to rest any notion the problem is not a concern in Asia.
     A study in 2009 by D.K. Srivastava, the former pro vice chancellor of O.P. Jindal Global University, in India, found that 80% of working women in China had experienced sexual harassment at least once in their careers. Some 70% of female factory workers participating in a more recent survey conducted in the city of Guangzhou by the Sunflower Women Workers Center reported encountering sexual harassment. Similarly, 84% of female Chinese journalists polled by reporter Sophia Huang Xueqin said they suffered from workplace sexual harassment. Some 20% reported at least five such experiences, but only 3.5% had reported any incidents to senior managers. ...
     How can we transform Asian workspaces to tackle sexual harassment effectively? ...
    First, companies must revisit their anti-sexual harassment policies and complaint mechanisms and critically examine any barriers victims face...
     Second, victim support is essential...
     Third, building the capacity for and practicing effective interventions to address harmful attitudes and actions will be key to institutionalizing a cultural shift toward dismantling systemic privilege and power and responding forcefully to sexual harassment...
     Likewise, staff training can dispel patriarchal, misogynistic values and myths about women and victims of sexual harassment and violence which can lead to blame, shame or silence... Institutional change also requires that bystander intervention training be introduced, from the bottom to the top of the pecking order to ensure that inappropriate conduct is checked not only through complaints but also informally...This serves an important educational function ...
     Finally, Asia must commit to rehabilitating perpetrators instead of just passing the problem on to the next employer. This requires accountability and a program for rehabilitation with professional assistance. Only a multipronged approach can address the myriad issues which undermine effective strategies to address sexual harassment given its roots in deeply entrenched patriarchal value systems.  Click here to read the full text.

Saturday, March 17, 2018

Hong Kong Law Students Win First Round of Global Legal Hackathon

HKU BBA(Law) & LLB Year 3 students, Alison Li Pui Wun, Edelweiss Kwok Yuet Yi and Sally Yiu Man Ki together with two CUHK LLB students and four computer science/information technology experts won the Hong Kong round of Global Legal Hackathon. They will represent Hong Kong in the next round of the competition, with a chance to head to the finals in New York in April.
     The Global Legal Hackathon 2018, which took place on 23-25 February 2018, was co-organised by various legal-tech companies including IBM Watson, Global Legal Blockchain Consortium and Integra, and is one of the largest legal hackathons taking place in over 20 countries and 40 cities. It brought together stakeholders in the legal industry, including legal professionals, technologists, business strategists and law students in an intense sprint of legal tech education, creativity and invention. Each team was required to create a technological solution for improving the legal industry worldwide under a tight schedule. A video for the event can be viewed here.
     The winning project "Decoding Law" is a machine learning powered browser plugin that helps people read and understand legislation. It finds the relevant section(s) of legislation by identifying keywords in questions entered by users, explains defined terms for easier navigation and breaks down complex legislative drafting into simple language, which is particularly useful to unrepresented litigants. If you are interested in knowing more or want to support the team, please like and follow their Facebook page.  They need as many likes as possible to get to the final round.
     Alison, Edelweiss and Sally are newbies to hackathon. Edelweiss said, "the competition is an eye-opening experience that provides lots of different insights for legal tech that I have never imagined before." Alison said, "the GLH is a great platform for us to meet legal and tech talents and exchange and even realise our innovative ideas. It is indeed inspiring to see different teams' approaches and solutions, which is unprecedented but feasible." Sally said, "I am indeed impressed to see so many talented minds collaborate and come up with feasible solutions to solve certain legal problems in the society."  For more information, read Brian Tang (curator of the event)'s coverage in Asia Legal Business.
Photo with the judges and the organiser
(First row left 2: Edelweiss Kwok; first row left 3: Alison Li; first row left 4: Sally Yiu)

Law students team photo
(Left 2: Sally Yiu; Middle: Alison Li; Right 2: Edelweiss Kwok)

Friday, March 9, 2018

HKU Team Wins Hong Kong Regional Jessup Round and Heads to Washington Finals

 
From left: Brian Lee, Natalie So, Jason Ko, Coach Ms Astina Au, Michelle Sum, and Sakinah Sat
Continuing the success of HKU last year, the HKU Jessup Team has won the Regional Champion in the 59th Philip C. Jessup International Law Moot Court Competition on 25th February 2018. The Team was also awarded with the Best Written Memorial Prizes for both the Applicant and Respondent.
     With participants from 700 law schools in 100 different jurisdictions, the world’s largest moot competition is based on a fictional case before the International Court of Justice. This year’s problem concerns international arbitration, law of the seas, nuclear disarmament, and use of force. It requires a thorough understanding of public international law, an increasingly important area of law in 21st century.
     The Team consists of 5 PCLL students – Ko Lun Jason, Lee Chun-Hin Brian, Sat Sakinah, So Tsz Ching Natalie, and Sum Hiu-Yan Michelle. Since the selection round in September 2017, the Team has been researching extensively on international conventions and customs. Further, numerous oral practice sessions were held before the Moot, through which the Team has tremendously benefitted from rigorous questions and comments on advocacy style. For this, the Team would like to express sincere gratitude to Mr Isaac Chan, Mr Jeff Chan, Mr Victor Lui, Mr Henness Leung and Ms Angel Cheng for their kind assistance.
     Last but not least, thanks must be given to Ms Astina Au and Mr Peter Barnes (team coaches), and Mr Sunny Hor (student coach), for their unfailing support all along. The Team will be representing Hong Kong in the upcoming international rounds in Washington DC in April 2018.

Thursday, March 8, 2018

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


Vol. 8, No. 1: Feb 8, 2018
Vol. 8, No. 2: Feb 14, 2018

SIMON N. M. YOUNG, EDITOR

Vol. 8 No. 1: Feb 8, 2018
  1. International Judges on Constitutional Courts
     Alex Schwartz, The University of Hong Kong - Faculty of Law
  1. Misconceptions of Interest Benchmark Misconduct
    Paul Lejot, The University of Hong Kong - Faculty of Law
  2. Strategic Public Shaming: Evidence from Chinese Antitrust
    Angela Huyue Zhang, The University of Hong Kong - Faculty of Law, King's College London
  3. Alternatives to Liberal Constitutional Democrac
    David S. Law, Washington University in St. Louis - School of Law, The University of Hong      Kong - Faculty of Law, Washington University in St. Louis - Department of Political Science

Vol. 8 No. 2: Feb 14, 2018

  1. The Biographical Core of Law: Privacy, Personhood, and the Bounds of Obligation
    Marcelo Thompson, The University of Hong Kong - Faculty of Law
  1. What Do the Panama Papers Teach Us About the Administrative Law of Corporate Governance Reform in Hong Kong?
    Bryane Michael, University of Oxford
    Say Hak Goo, The University of Hong Kong - Faculty of Law
  1. Hard Corporate Governance Law in a Soft Law Jurisdiction
    Bryane Michael, University of Oxford
    Say Hak Goo, The University of Hong Kong - Faculty of Law
  1. The Value of the Corporate Governance Canon on Chinese Companies
    Bryane Michael, University of Oxford
    Say Hak Goo, The University of Hong Kong - Faculty of Law

Wednesday, March 7, 2018

Angela Zhang on The Antitrust Paradox of China, Inc (NYU J Int’l L & Pol)

2018, Volume 50, Issue 1, pp. 159 -226
Abstract: Common ownership by the Chinese State recently caused a stir in Europe. During its review of a joint venture involving a Chinese nuclear power company, the European Commission (“Commission”) held that it would treat all Chinese state-owned enterprises (SOEs) in the energy sector as a single entity. This decision carries significant legal and practical implications for both businesses and the regulator. It also contradicts the Commission’s previous approach to European SOEs. In this Article, I argue that the legal framework under the E.U. Merger Regulation (EUMR) is unsuited to deal with the anticompetitive effects of state ownership. While the delineation of the boundary of an undertaking is a prerequisite for merger review, ownership and control are not absolute. Importantly, the extent to which the coordination by the Chinese State has lessened competition is a quantitative question rather than a qualitative one. Consequently, a bright-line approach to defining an undertaking is both over and underinclusive. To address the European Union’s dilemma in handling Chinese SOEs, I propose that the Commission should view national security review as a complement to its merger review. The optimal regulatory response to Chinese acquisitions hinges not only on economics but also, perhaps more importantly, on politics.

Angela Zhang on The Role of Media in Antitrust: Evidence from China (Fordham Int’l L.J.)

2018, Vol 41, Issue 2, pp. 473 - 530
Abstract: This Article examines the media, a neglected but important institution that plays a role in influencing Chinese antitrust enforcement. Drawing from the methodology used in communication studies, the Article conducted a content analysis of 1,394 news reports on six high-profile Chinese antitrust investigations from 2008 to 2015. The findings demonstrate that in reporting antitrust investigations, Chinese media tends to be biased against firms under investigation. Instead of providing a balanced and objective account of the story, the media was an effective conduit for amplifying the populist concern, and aided and abetted the regulator in advancing its enforcement. The Article argues that such an outcome is driven by at least three factors: the regulator’s strategic leakage of information to state-controlled media, the rarity of public dissents of agency decisions, and the populist pressures for lower prices and nationalism. See full text here.

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