Wednesday, January 17, 2018

New Book: Rethinking Regulation of International Finance: Law, Policy and Institutions (Kluwer)

Rethinking Regulation of International Finance: Law, Policy and Institutions
Uzma Ashraf Barton (PhD 2016)
Kluwer Law International
December 2017, 280 pages
Description: Rethinking Regulation of International Finance encapsulates the most important aspects of the development and operation of the international financial system. This book questions the fundamental basis of the existing international financial architecture (soft law) and explores the need for a compliance-based model based on legitimacy of regulations and accountability of the regulatory bodies in international financial stability. Why have financial standards and institutions almost always failed to effectively predict and respond to real-world financial crises? The answer, as this challenging book shows, is that international financial law suffers from a persistent lack of judicial or quasi-judicial enforcement mechanisms, leaving flaws in the structure of the international financial system that lead inevitably to excesses that threaten the public good of global financial stability. The author, an internationally renowned legal expert on financial and fiscal reforms, responds to the increasingly urgent call for rethinking the structure and the functioning of international financial law and argues that a resilient procedural mechanism with judicious regulatory substance can make the financial system safer for all actors, including the taxpayers of not only the Member States but also the unrepresented countries. To this end, the book suggests short-to-medium term reforms within the existing financial system and for longer-term it recommends an unconventional alternative that takes risk away from the market and thereby makes every stakeholder accountable to the system.
     This book asserts that the existing financial architecture repeatedly fails to safeguard the essential public good of financial stability and this failure perpetuates higher risks in financial markets. Centering on the concept of enforcement – which continues to be an unresolved issue in the discipline of international financial law – the analysis describes the likely contours of hard-law regulatory reform. It weighs the pros and cons of much-talked-about regulatory and policy issues such as the following and more:
  • policy implications from the transformation of finance from a domestic to an international concept;
  • new or revised supervisory and regulatory bodies with redefined mandate, jurisdictions and powers;
  • possibility of a treaty-based structure similar to the European Union’s integration framework; and
  • consolidation of crisis-prevention and crisis-management policies.
The analysis takes into account instances from trade and monetary systems pertinent to the development of the discipline of international financial law. The concluding chapter explores possibilities for putting in place an asset-backed resilient financial system based on risk sharing that is empowered to legislate reform and authorized to seek compliance from its members.

Tuesday, January 16, 2018

Launch of the New SSRN Chinese Law eJournal

We are proud to announce the launch of the new Chinese Law eJournal, published as a Subject Matter eJournal on the Legal Scholarship Network of the Social Science Research Network (SSRN). The eJournal includes working and accepted abstracts and papers providing a platform for scholars of different background and approaches to communicate with each other. We welcome submissions of doctrinal as well as interdisciplinary, quantitative as well as qualitative, macro as well as micro studies of China. We are pleased that there are already almost 3500 papers within the paper series.
     The HKU Faculty of Law has the widest range of expertise in Chinese Law outside Mainland China. Our expertise ranges from One Belt One Road, dispute resolution, criminal law, public law, securities regulation and finance, and intellectual property, to cross-border issues, one country two systems, and legal theory and jurisprudence. Coupled with our strength in common law, we are in a strong position in offering comparative law research and teaching on civil law and common law. 
     To access the papers in the new paper series, click here.  To subscribe to the paper series, click here (sign in to SSRN required).  We encourage all Chinese Law (including Taiwan, Hong Kong and Macau law) scholars to publish their latest work in this series for wide and speedy dissemination.  The editors and advisory board members (confirmed thus far) are as follows:

Professor Fu Hualing, Faculty of Law, The University of Hong Kong
Dr Shitong Qiao, Assistant Professor & Co-Director, LL.M. (Chinese Law), Faculty of Law, The University of Hong Kong

Advisory Board Members
Professor Albert H. Y. Chen, Cheng Chan Lan Yue Professor in Constitutional Law, Faculty of Law, The University of Hong Kong
Dr Michael Ng, Assistant Professor, Director of Centre for Chinese Law, Faculty of Law, The University of Hong Kong

Monday, January 15, 2018

New Issue of Hong Kong Law Journal (Part 3 of 2017)

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


1. Constitutionality of the Co-location Arrangement at the West Kowloon High-Speed Rail Terminus Lin Feng 699

2. Corporate Governance and Company Law: The Disconnect between Accountability and Directors’ Duties Ernest Lim 733

3. Mediation and Resolving Disputes Involving Emergency Nurses in Hong Kong: A Legal Empirical Inquiry Ka Ki Cheng and Andra Le Roux-Kemp 763

4. Decriminalisation of Same-Sex Relations and Social Attitudes in Singapore: An Empirical Study Lynette J Chua, Dickson Su, Rayner Kay Jin Tan and Koh Wei Jie 793

5. Rethinking the NPCSC’s Power to Interpret the Basic Law Jonathan Lam 825

6. Latest Developments on the Right to be Forgotten — Is the Time Ripe for Hong Kong? Griffith Cheng 847

7. Developing MDBs’ Dispute Settlement Systems: A Perspective of Asian Infrastructure Investment Bank Bin Gu 871

8. Judges, Access to Justice, the Rule of Law and the Court of Final Appeal under “One Country Two Systems” Lord Neuberger of Abbotsbury 899

9. Legal Implications of Hanjin Shipping’s Rehabilitation Proceeding In Hyeon Kim 915

China Law

10. Cybercrime in China — A Review Focusing on Increasing Criminalisation of Harmful Cyberactivities Jiajia Yu 937

11. Sino-Vietnam Dispute Over Hydrocarbon Resources Exploration in Nansha Waters after the South China Sea Arbitration Ran Guo 951

12. The Acquisition and Use of International Law by Chinese Diplomat as a Sword to Defend Sovereignty and Challenge Chinese Exclusion Act in the Late Qing Dynasty Li Chen 987

Book Reviews

China’s Legal System Thomas Coendet 1013

The Making of the Modern Chinese State: Cement, Legal Personality and Industry Dr Jonathan Chappell 1017

A Theory of Discrimination Law PY Lo 1023

Click here to read the abstracts of each article. Hong Kong Law Journal is published by Sweet & Maxwell. Full text is available on Westlaw.

New Issue of Asia-Pacific Journal on Human Rights and the Law, 2017, Vol 18(2)

Publisher: Brill, Leiden


1. The Communist Party of China’s Approach to Human Rights and the Death Penalty
Huang Gui
Volume 18, Issue 2, pages 117 - 154, 2017

2. Enforcement of Fatwas in Bangladesh and the Violation of Constitutionally Guaranteed Fundamental Rights of Others: Compromising Between Rights
Md Jahid Hossain Bhuiyan
Volume 18, Issue 2, pages 155 - 171, 2017

3. Moving Away From Paternalism: The New Law on Disability in Indonesia
Agung Wardana and Ni Putu Yogi Paramitha Dewi
Volume 18, Issue 2, pages 172 - 195, 2017

4. Achieving the Zenith of Education: Human Rights Based Transformation of Higher Education in Sri Lanka
Binendri Perera
Volume 18, Issue 2, pages 196 - 218, 2017

5. Contents
Volume 18, Issue 2, pages 219 - 220, 2017

Saturday, January 13, 2018

Simon Young on Enforcing Criminal Law Through Civil Processes: How does Human Rights Law Treat 'Civil for Criminal Processes'? (JICL)

"Enforcing Criminal Law Through Civil  Processes: How does Human Rights Law Treat  'Civil for Criminal Processes'?"
Simon Young
Journal of International and Comparative Law
Dec 2017, Volume 4, Issue 2, pp. 133–170
Abstract: The distinction between civil and criminal procedures has blurred with the advent and growth of hybrid procedures. Governments in common law jurisdictions have created civil processes and penalties to further criminal law aims. This article describes them as “civil for criminal processes”. Some controversial examples include civil forfeiture, anti-social behaviour orders and measures targeting money laundering and insider dealing. They serve as an alternative to traditional criminal proceedings. Foregoing the sanction of imprisonment and stigmatising effect of a criminal conviction, these civil processes provide governments with evidential and procedural advantages and greater opportunities for case settlement. But human rights law has treated civil for criminal processes inconsistently, deeming some as criminal proceedings and therefore entitled to high levels of procedural protection and others not. This article explores different approaches developed by the European Court of Human Rights and the Supreme Court of Canada. It argues in favour of the Canadian approach, defining the “criminal” sphere more narrowly, and calls for the concomitant, principled development of adequate procedural protections in civil for criminal processes.  Click here to download the full article.

Friday, January 12, 2018

Call for Papers:The Emergence of Computational Legal Studies @ HKU (June 28–29, 2018)

Call for Papers: The Emergence of Computational Legal Studies @ HKU

June 28 & 29, 2018, the University of Hong Kong

     In recent decades, technology has had a profound influence on the practice of law, and the legal education landscape. Meanwhile, it has also begun to transform the way that scholars perform empirical legal research. Improved access to data, increased computational power, and the development of new analytic techniques have led to the emergence of a body of work that some refer to as “Computational Legal Studies.”
     Much of the scholarly discourse surrounding “Law and Technology” has focused on either the doctrinal issues raised by technological developments, or the impact of legal technologies on the practice of the law. Meanwhile, comparatively little attention has been paid to Computational Legal Studies as such.
     The Department of Law at the University of Hong Kong, in conjunction with the University’s Law & Technology Centre, is excited to provide a venue for computational legal scholars to come together and discuss the promises and challenges facing this emerging body of research.

     We seek papers or presentations broadly related to Computational Legal Studies. Our definition of Computational Legal Studies is expansive, including:
  • Research that applies computational data processing or analytic methods to questions of interest to legal scholars
  • Work that explores computational legal studies as a sub-discipline
  • Methodological work that develops or assess computational methods of interest to legal scholars
We are interested in hearing from scholars using any-and-all computational methods including: machine learning, natural language processing, large-data set analysis, network analysis, computer simulation and modeling, computational data collection, etc.

     Some financial assistance may be available to partially offset travel costs.

     To submit work, or inquire about the workshop please contact Ryan Whalen at

     Submissions can include drafts of papers or extended abstracts (~500 words) about research projects you would like to undertake and present at the workshop. Submissions should be received by February 28, 2018

     Papers from the workshop will be made available in an edited volume.

Satyam Mukherjee and Ryan Whalen on "Priority Queuing on the Docket: Universality of Judicial Dispute Resolution Timing" (Frontiers in Physics)

"Priority Queuing on the Docket: Universality of Judicial Dispute Resolution Timing"
Satyam Mukherjee and Ryan Whalen
Frontiers in Physics
Accepted: 03 Jan 2018. 
Description: This paper analyzes court priority queuing behavior by examining the time lapse between when a case enters a court’s docket and when it is ultimately disposed of. Using data from the Supreme courts of the United States, Massachusetts, and Canada we show that each court’s docket features a slow decay with a decreasing tail. This demonstrates that, in each of the courts examined, the vast majority of cases are resolved relatively quickly, while there remains a small number of outlier cases that take an extremely long time to resolve. We discuss the implications for this on legal systems, the study of the law, and future research.

Thursday, January 11, 2018

Albert Chen's Legal Analysis of Hong Kong's Joint Checkpoint Co-Location Arrangements (Ming Pao)

Professor Albert Chen provides a legal analysis of the NPCSC’s Decision on the Co-location Arrangement in a two-part article in Chinese published in Ming Pao on 8 January and 9 January 2018. He argues that the uproar in the legal profession after the NPCSC Decision is a result of different understandings of the meaning of the Decision and different ways of interpreting the Basic Law. The Decision is not inconsistent with the Basic Law. Taking into account the convenience of the passengers and the nature of “colocation”, the Co-location Arrangement can be understood to be a “proportionate” arrangement under Article 18 of the Basic Law if the Article is interpreted in accordance with a “purposive approach”.
     He contends in the first article:
“[T]he Decision of the NPCSC considers that Article 18 (of Basic Law) does not prohibit the Hong Kong SAR from exercising its high degree of autonomy in matters of immigration (entry and exit) control to set up the co-location arrangement and to deem the Mainland Port Area in the West Kowloon station to be part of the Mainland. Accordingly, the HKSAR can prescribe that for the purposes of the application of law and the jurisdiction of the courts (except for the six types of matters stipulated in the “cooperative arrangements on colocation” to be governed by the law of Hong Kong), the Mainland Port Area is deemed to be part of the Mainland. Therefore, the application of Mainland law in the Mainland Port Area of the West Kowloon station does not contravene Article 18 of the Basic Law. It must be pointed out that the Decision of the NPCSC does not assert or imply that the HKSAR government or the HKSAR legislature shall have power to mark out a piece of land anywhere in the Hong Kong for any purpose and to stipulate that Mainland law will be implemented on that piece of land. Therefore the Bar Association is mistaken in contending in a Statement on December 28 last year that the Decision of the NPCSC implies that the HKSAR government is capable of authorizing the application of Mainland laws to any part of the HKSAR designated by itself (e.g. the High Court Building) as long as it does not cover the whole of the HKSAR. This is definitely not the legal meaning of the NPCSC Decision.” 
     In the second article, Professor Chen states that: 
“Some legal professionals argue that the co-location arrangement is in clear violation of Article 18 of the Basic Law, and this is because they interpret Article 18 in accordance with the literal rule of interpretation. Let us put aside for the moment the interpretation approach (of “original intent”) adopted by the NPCSC, which may differ from the common law approach adopted in Hong Kong. Even in the common law tradition, the literal interpretation of law is not the only way of interpretation. Another method of judicial interpretation that has long been established by common law courts is to interpret and apply relevant legal provisions so as to give effect to the legislative purpose behind the provisions. This is the so-called purposive approach. In the precedents of common law, despite the fact that courts have followed the literal approach of interpretation in large numbers of cases, there are quite a few cases in which the Court applies the purposive approach in order to give a more flexible interpretation or application of the relevant laws; it is not rigidly constrained by the literal meaning of the legal text.”
For the full article in Chinese only, see Legal Analysis of the NPCSC Decision on the Co-location Arrangement II.  This post was prepared by Ms Isabella Liu, Research Officer, Faculty of Law.

Yash Ghai Envisions the Future of Kenya (The Star)

8 Jan 2018
In an article published in the Star (December 22) and the Sunday Standard ( on December 24 ), I advocated the conferment of the title of the Baba wa Taifa on Raila Odinga by his admirers and followers, rather than his seeking to be sworn in as President, which he and millions of Kenyans think he is entitled to after the August 8 election.
     I gave several reasons for this, including the ability to influence the fortunes of a society from outside of the State, following the examples of Gandhi, Mandela and Martin Luther King. This would, I argued, minimise the risks of ethnic conflict and massacre, driven by the State. The other major reason was the need to move away from the highly corrupt government and to a fair allocation of resources and social justice, and a truly democratic state.
     Of the readers who wrote to me, only Charles Kipkulei, who I do not know, expressed severe criticism (in the Star on December 29 ). I am writing in the spirit of an academic: Not to score a point but to search for the truth. This article is intended to assure him and readers, who he might have convinced, that my fidelity to the Constitution remains unshaken. However, I have to admit that political parties and electoral candidates have shown that they do not have any respect for the Constitution — a point I made repeatedly during the electoral process, which seems to have upset Kipkulei. Kipkulei accuses me of “three false notions that should be a concern and should be disabused”... Click here to read the full article.

Wednesday, January 10, 2018

New Book by Anselmo Reyes and Weixia Gu: The Developing World of Arbitration - A Comparative Study of Arbitration Reform in the Asia Pacific (Hart)

The Developing World of Arbitration - A Comparative Study of Arbitration Reform in the Asia Pacific
Editors: Anselmo Reyes and Weixia Gu
Hart Publishing
January 2018, 356 pages
Description:  The Developing World of Arbitration studies the recent emergence of Asia Pacific jurisdictions as regional or international arbitration centres, thanks to various reform efforts and initiatives. This book provides an up-to-date and comprehensive analysis of the ways in which arbitration law and practice have recently been reformed in Asia Pacific jurisdictions. Leading contributors across the Asia Pacific region analyse twelve major jurisdictions representing varying patterns and degrees of development, whether driven from top down, bottom up, or by some hybrid impetus. Setting the arbitration systems and reforms of each investigated jurisdiction in the context of its economic, political, and judicial dynamics, this book presents, for the first-time, a cross-jurisdiction comparative and contextual study of the developing world of arbitration in the Asia Pacific and contributes to comparative international arbitration literature from an Eastern perspective. It also aims to identify an Asia Pacific model of arbitration modernisation, one that may be distinct from a Western model, and predicts future trajectories of development and challenge in light of the ever increasing competition between Eastern- and Western-based arbitration centres. This edited collection will be an invaluable addition to the libraries of academics and practitioners in the field of international commercial arbitration.

Tuesday, January 9, 2018

CCPL's Submission to the Working Group on Gender Recognition in Hong Kong

December 2017. The Centre for Comparative and Public Law (CCPL) in the Faculty of Law at the University of Hong Kong welcomes the opportunity to comment on the Consultation Paper published by the Hong Kong SAR Government’s Inter-departmental Working Group on Gender Recognition (IWG). 
     This submission identifies recent interpretative materials produced by international human rights treaty monitoring bodies that shed light on the content of relevant human rights provisions that apply to Hong Kong. The Consultation Paper, while providing an impressive and thorough overview of gender recognition schemes from around the world, does not fully evaluate whether – or which of - these schemes comply with Hong Kong’s international human rights obligations. Consistency with human rights should be the IWG’s primary consideration when reviewing submissions and ultimately proposing a gender recognition scheme suitable to the Hong Kong context. Human rights and the rule of law are core societal values in Hong Kong and cornerstones of the SAR’s constitutional framework. 
     Our responses to the issues raised in the Consultation Paper are summarized below. These are based on developments in international human rights law as reflected in the treaty body comments described in section II. 
  1. International human rights law applicable to Hong Kong mandates the introduction of a gender recognition scheme that enables a person to acquire a legally recognized gender other than his or her birth gender. Response to issue 1: yes. 
  2. The requirements discussed in the Consultation Paper related to medical treatment (including, but not limited to, sex reassignment surgery and hormone therapy), immigration, marital and parental status, age, etc., are inconsistent with human rights and should not be introduced. A self-determination model that does not necessitate medical intervention or other unjustifiable conditions would likely be the most compliant with Hong Kong’s human rights obligations. Responses to issues 2-12: no. 
  3. The scheme should be based on legislation in order to ensure clarity and consistency. If the legislative process results in unacceptable delays, however, an administrative procedure might serve as a reasonable stopgap measure until appropriate legislation can be finalized. Response to issue 13: the gender recognition scheme should be based on a legislative framework. 
  4. The 2004 UK Gender Recognition Act does not fully comply with international human rights law. We note, however, that the UK intends to amend the 2004 Act to remove all medical preconditions. A future revised Act may be an appropriate model for Hong Kong to consider. In the meantime, however, the Act in its current state is flawed. Response to issue 14: no. 
  5. Introducing a dual-track scheme would be unnecessarily complicated and likely contain elements that are inconsistent with self-determination and international human rights obligations. Response to issue 16: no. 
Section II of this submission notes a selection of recent, relevant interpretive comments by United Nations (UN) human rights treaty monitoring bodies that elucidate Hong Kong’s human rights duties and support these responses. These comments confirm that Hong Kong is obliged under international human rights law – and domestic constitutional law - to introduce a gender recognition scheme based on self-determination without medical or other unreasonable requirements. Section III explains that any restrictions on a right to gender recognition, including medical and other requirements, must be evaluated according to a proportionality analysis. Section IV disputes claims that gender recognition is a particularly divisive issue in Hong Kong based on recent research. Section V reflects on connections between the rights to gender recognition and equality and non-discrimination and the need to proceed simultaneously with the introduction of both gender recognition legislation and an anti-discrimination ordinance on the grounds of gender identity.  Click here to download the full submission which was prepared by Kelley Loper, Director of CCPL, with the assistance of Lili Ullmann, Assistant Reserach Officer in Human Rights, CCPL.

Marco Wan's Masculinity and the Trials of Modern Fiction Awarded Two Book Prizes

Congratulations to Marco Wan whose book, Masculinity and the Trials of Modern Fiction, published by Routledge in 2016, was awarded the 2017 Penny Pether Prize of the Law, Literature, and Humanities Association of Australasia. The citation for the book on the prize certificate reads as follows:
Marco Wan’s monograph, Masculinity and the Trials of Modern Fiction, is an exemplary work of law and literature. In Wan’s layered reading of five obscenity trials in 19th-century England and France, this book realises some of the most vital aims of the field. Wan’s command of law, and of literature, enables him to appraise the reading practices and pretensions of each, and to illuminate the courtroom conversations that take place between them. Wan asks a question at the heart of law and literature, how does the law read not just the texts but the novels that come before it? He answers this question by attending not only to final judgment, but to an original archive of trial transcripts, prosecution and defence submissions and oral argument. Wan’s reading of law’s encounter with these novels as shaping and preserving hegemonic forms of masculinity deepens his argument and extends the already impressive reach of this book. This is an exceptionally meticulous and beautifully crafted text: alongside its contribution of the fields of law, literature and masculinity and gender studies, Wan prosecutes his case with clarity and authority, and with the pleasure of the reader in mind.
The prize is awarded by the Association to the author whose book has, in the judgment of the Committee, made the most significant contribution to the field of Australasian law, literature and humanities. The prize honours the late Penny Pether (1957-2013), an Australian scholar whose passionate life-long commitment to the field pervaded every aspect of her teaching, research, and academic work. She helped convene the first conference of the Association and founded the interdisciplinary journal Law Text Culture
     As further testament to the excellence of the work, Masculinity and the Trials of Modern Fiction was awarded The University of Hong Kong's Research Output Prize 2016-17 in the Faculty of Law announced in January 2018.

Shitong Qiao Awarded the First Masahiko Aoki Award for Economics Paper

Congratulations to Shitong Qiao who was awarded the first Masahiko Aoki Award for Economics Paper for his book, Chinese Small Property: The Co-Evolution of the Law and Social Norms, published by Cambridge University Press in 2017.
      The Masahiko Aoki Award for Economics Paper was established in honor of Professor Masahiko Aoki, Professor Emeritus of Stanford University, the famous economist, co-founder of Center for Industrial Development and Environmental Governance (CIDEG) at Tsinghua University and former former joint chairperson of CIDEG Academic Committee, with a view to excavate and encourage Chinese young scholars to conduct academic research concerning public policy and institutional construction, and promote academic research and concrete progress in China’s public governance area. The award is in the name of Prof. Masahiko Aoki to honor his hopes.  The focus is on economics and China’s reform and development.  The award recognises excellent research papers making academic contribution to comparative institutional analysis.  The first Award Ceremony was presented in Beijing on 16 December 2017.  News coverage of the award and ceremony can be found here: Tsinghua University, Nikkei, Sina, and Sohu.

Thursday, December 21, 2017

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

Vol. 7, No. 10: Dec 19, 2017

1. Moving Forward on Listing Reform
Syren Johnstone, Department of Law, University of Hong Kong, Asian Institute of International Financial Law
Nigel Davis, University of Hong Kong
Douglas W. Arner, University of Hong Kong - Faculty of Law

2. Law School Productivity & Impact–Evidence from the Legal Scholarship Network
Ryan Whalen, The University of Hong Kong - Faculty of Law

3. The ICO Gold Rush: It's a Scam, It's a Bubble, It's a Super Challenge for Regulators
Dirk A. Zetzsche, ADA Chair in Financial Law / Inclusive Finance, University of Luxembourg, Heinrich Heine University Duesseldorf - Faculty of Law - Center for Business & Corporate Law (CBC)
Ross P. Buckley, University of New South Wales (UNSW) - Faculty of La
Douglas W. Arner, University of Hong Kong - Faculty of La
Linus Föhr, Research Assistant @ ADA Chair in Financial Law (inclusive finance)

4. 2016年香港立法会选举及宣誓风波法律评析———历史和比较法的视角 (A Legal Analysis of the 2016 Hong Kong Legislative Council Oath-Taking Controversy: A Historical and Comparative Perspective)
Han Zhu, Centre for Chinese Law, The University of Hong Kong Faculty of Law
Albert H. Y. Chen, The University of Hong Kong - Faculty of Law

5. The Developing Nature of Arbitration in Mainland China andIts Correlation with the Market: Institutional, Ad Hoc, and ForeignInstitutions Seated in Mainland China
Weixia Gu, University of Hong Kong - Faculty of Law

6. Judging in Europe: Do Legal Traditions Matter?
Angela Huyue Zhang, King's College London, The University of Hong Kong - Faculty of Law
Jingchen Liu, Columbia University
Nuno M. Garoupa, Texas A&M University School of Law, Catholic University of Portugal (UCP) - Católica Global School of Law

Wednesday, December 20, 2017

Vicci Lau Appointed Chairman of the Toys and Children's Products Safety Appeal Board Panel

Congratulations to Vicci Lau who has been appointed Chairman of the Toys and Children's Products Safety Appeal Board Panel. Another graduate of the HKU Law Faculty was appointed the Deputy Chairman, Ms Abigail Wong (LLB 2001, PCLL 2002).
     The Toys and Children's Products Safety Appeal Board Panel is established under section 15 of the Toys and Children's Products Safety Ordinance (Cap 424), which was enacted in 1993 to "provide for safety standards for children's toys and safety standards for specified chattels used in association with children, and to provide for other powers to enhance the safety of children" (long title). 
    The appointments will take effect on 1 January 2018, for a term of two years. Click here for the government's announcement.

Ryan Whalen on Common Law Evolution and Judicial Impact in the Age of Information (Elon L Rev)

"Common Law Evolution and Judicial Impact in the Age of Information"
Ryan Whalen, Brian Uzzi and Satyam Mukherjee
Elon Law Review
Vol. 9, Issue 1
May 2017, pp. 115-170
Abstract: All common law systems draw from the past. As judges draft opinions, they cite to relevant case law to guide their decision making. These citations provide a record of how new legal developments draw on previous holdings. This Article presents the first thorough data-driven analysis of how different patterns of drawing from precedent are related to the influence a judicial opinion has on the evolution of the law.
     We show that there are previously undiscovered patterns in the way that common law systems evolve. By focusing on two measures of the age of the references cited in a judicial opinion—reach (average age of cited works) and range (variance of ages cited)—we find that there is one type of citation behavior that is strikingly more likely to be used in highly influential opinions. Cases featuring low reach and high range are more than twice as likely as other types of cases to go on to be highly influential opinions. Evidence for these conclusions is based on three sets of judicial opinions that span a century of time and diverse jurisdictions— the U.S. Supreme Court, the Supreme Court of Canada, and the Supreme Court of India. While these three jurisdictions vary in the way they cite to precedent, the single referencing pattern found to exist behind especially influential cases suggests there is a nearly universal commonality in the evolution of the law.
     Our findings help us better understand how common law high courts draw from the past to support important legal holdings. In addition to our substantive findings, this article demonstrates the power of computational legal studies of large datasets to generate novel analyses and findings of previously undiscovered empirical legal patterns.  Click here to download the full article.

Monday, December 18, 2017

Richard Cullen on Hong Kong, the Chinese Anthem and the Basic Law (IPP Review)

"Hong Kong, the Chinese National Anthem and the Basic Law"
Richard Cullen
IPP Review
13 December 2017
Abstact: The history of the creation and use of the Chinese National Anthem is remarkable. Those who choose to direct scorn at the National Anthem when it is played at certain events in the Hong Kong likely have limited understanding, at best, of this intriguing history.
     The new National Anthem Law (NAL) will be applied in Hong Kong: (a) through reliance on Article 18 and Annex III of the Basic Law of the HKSAR; and (b) by local application. Although it is unlikely that the criminalizing provisions of new NAL will be applied retroactively in the Hong Kong, the exploration of that possibility shows how National People’s Congress Standing Committee laws properly added to Annex III for application in the HKSAR may enjoy a quasi-constitutional status in Hong Kong. The status of these Annex III laws within the HKSAR has, hitherto, been little researched.  Click here to read the full article.

Wednesday, December 13, 2017

Gu Weixia on Piercing the Veil of Arbitration Reform in China (Am J Comp L)

Gu Weixia
The American Journal of Comparative Law
Published on 8th December 2017
Abstract: The promulgation of the China Arbitration Law in 1994 largely reformed and gave shape to the modern Chinese arbitration regulatory framework. However, since then, there has been little legislative improvement in meeting the changing needs. Instead, judicial efforts by China’s Supreme People’s Court and institutional initiatives by Chinese arbitration commissions have further refined and internationalized the Chinese arbitration system. Recent years have witnessed many changes in the Chinese arbitration landscape, particularly the formation, expansion, and complication of the Chinese arbitration market. This Article first critically examines the current regulatory framework and special features of the Chinese arbitration system, many of which promised in the China Arbitration Law, and often referred to as “arbitration with Chinese characteristics.” It then analyzes comprehensively arbitral developments of the past decade in order to pierce the veil of arbitration reform in China, highlighting the pitfalls, patterns, prognoses, and prospects. Finally, this Article identifies the “essential” and “highly recommended” ingredients in prospective reform proposals and examines the extent to which such proposals can actually transform China into a favorable international arbitration forum.  Click here to read the full article.

Gu Weixia on The Developing Nature of Arbitration in Mainland China (Contemp Asia Arb J)

Gu Weixia
Contemporary Asia Arbitration Journal
Nov 2017, Volume 10, Issue 2, pp 257-291 (Special Issue on “Institutional and Ad Hoc Arbitration and Mediation”)
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.  Click here to download the full paper.

Monday, December 11, 2017

New Book by Shitong Qiao: Chinese Small Property (CUP)

Chinese Small Property: The Co-Evolution of Law and Social Norms
Shitong Qiao
Cambridge University Press

October 2017, 230 pages
Description: Small property houses provide living space to about eight million migrant workers, office space for start-ups, grassroots police stations and public schools; their contribution to the economic growth and urbanization of a city is immense. The interaction between the small property sector and the formal legal order has a long history and small property has become an established engine of social and legal change. Chinese Small Property presents vivid stories about how institutional entrepreneurs worked together to create an impersonal market outside of the formal legal system to support millions of transactions. Qiao uses an eleven-month fieldwork project in Shenzhen - China's first special economic zone that has grown to a mega city with over fifteen million people - to demonstrate this. A thorough and detailed investigation into small property rights in China, Chinese Small Property is an invaluable source of new information for students and scholars of the field.
  • Investigates a market of informal but prevalent real estate in China known as 'small property', providing new information on this growing phenomenon for scholars and policymakers concerned with land reform and urbanization in developing countries
  • Presents a detailed explanation of law and market transition in China, based on the author's expertise in Chinese law, property law, and law and social norms, offering a unique case study for China scholars in law schools and wider disciplines
  • Proposes a theory of the co-evolution of law and social norms in which social norms bypass laws meaning the interaction mechanism between the fluid law and norms is the focus, which will appeal to property and legal theorists seeking new insights into successful economies such as China

Saturday, December 9, 2017

New Book by Yun Zhao & Michael Ng: Chinese Legal Reform and the Global Legal Order (CUP)

"Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation"
Cambridge University Press
published in November, 2017, 312 pages
Description: This volume critically evaluates the latest legal reform of China, covering major areas such as trade and securities law, online privacy law, criminal law, human rights and international law. It represents a bold departure from the most recent works on Chinese legal reform by engaging the ideas of experts in contemporary Chinese law with the archival scholarship of Chinese legal historians. This unique interdisciplinary feature affords readers a more nuanced view of the complexities and specificities of how China has problematised legal reforms in various historical contexts when building a progressive yet sustainable legal system. This volume appraises the most current reform in Chinese law by considering China's engagement with globalisation, increasingly complicated domestic situation and historical legal transplantation experiences. It will be of huge interest to students, researchers and practitioners interested in Chinese law and policy, China and Asian studies and Chinese legal history.
  • Provides a critical evaluation of the latest reform in Chinese law and China's global interactions in law, politics and international relations
  • Explores ideas of contemporary Chinese law with historical perspectives that provides a unique insight into the developments of its legal system
  • Presents different perspectives to help readers gain a better understanding of the ongoing Chinese legal reform and a fuller picture of the developing Chinese legal system

Chinese Legal Reform and the Global Legal Order (Introduction)

"The Law, China and the World: An Introduction"
Yun Zhao & Michael Ng
in Chinese Legal Reform and the Global Legal Order: Adaption and Adoption, (Cambridge University Press, Nov 2017), pp. 1 - 12
Introductory paragraph:  China has undertaken a series of legal reforms of varying scales over the past century, borrowing models from a disparate range of countries.  Since the late Qing period, laws and legal concepts from Germany, France, Switzerland, Japan, the United Kingdom and United States, and the former Soviet Union, among other countries, have been transplanted into China at various times.  The latest wave of legal reforms originated in the office of Xi Jinping, who set the law as the central theme of the  Chinese Communist Party's Eighteenth Central Committee Plenary Session in October 2014.  Yet, despite these century-long efforts, as contributor Li Chen puts it, the reformed Chinese legal system often appears 'too foreign to the Chinese and too Chinese to foreigners'...

Michael Ng on Imaginaries of Chinese Legal Transplantation in Common Law (new book chapter)

"Judicial Orientalism: Imaginaries of Chinese Legal Transplantation in Common Law"
Michael Ng
in Chinese Legal Reform and the Global Legal Order: Adaption and Adoption, (Cambridge University Press, Nov 2017), pp. 211 - 237
Introduction: Hong Kong, a common law jurisdiction with a predominantly Chinese population of mainland ancestry, offers an ideal site in which to investigate the historical laws of China from a comparative perspective.   Since the early twentieth century, Hong Kong courts have accumulated more than one hundred years of experience dealing with cases of historical Chinese marriage that took place in Mainland China during the Republican era (1912-1949), forming a common law narrative of the historical changes that the law underwent from the imperial to modern legal systems.  Into the twenty-first century, a considerable number of family and succession law cases that touch upon the issues involved in these historical marriages continue to be brought before the courts of Hong Kong every year.  This chapter challenges the century-old approach to narrating how family law changed in Republican China and raises wider methodological concerns about the tendency of common law-trained judges to follow judicial precedents based on archaic documentary sources and to adopt abandoned historiography in their investigations of Chinese legal transplantation.
     In deciding how to ascertain the meaning of the law governing these matters, the Hong Kong court (and apparently also the court of Singapore) demarcates historical China by the effective dates of the various books of the Republican Civil Code transplanted from the West from 1929 to 1931.  Cases concerning matters that took place prior to 1929 (primarily those dating to the late Qing [mid-nineteenth century to 1911] and Beiyang [1912-1928, also known as warlords period] eras) are decided with reference to the Qing Code and Chinese custom, whereas those concerning matters that took place in the Nationalist era (1928-1949) are decided solely on the basis of transplanted legal codes modelled on European templates.  Hence, traditional Chinese law and custom are ignored.
     This conventional judicial practice of demarcating the Chinese legal past has gone largely unchallenged for the past hundred years in both common law courts and in legal scholarship in Hong Kong or other former British colonies in which Chinese law remains relevant to civil lawsuits.  However, this chapter argues, through a critique of a Hong Kong Court of Final Appeal (CFA) case important to understanding Chinese family law, that this century-old judicial approach is flawed and indeed Orientalist, particularly in its understanding of how historical legal transplantation took place in China.  Such an approach, if not corrected, will remain the authority in directing judges in deciding family law cases not only in Hong Kong but also in other former British colonies populated by indigenous Chinese such as Malaysia and Singapore.  More importantly, this chapter also argues that such a  judicial approach is but one example of the Orientalist knowledge system governing Chinese legal traditions and legal culture in general, family law and custom included, within common law.  Here, drawing on Teemu Rusko-la's work on legal Orientalism, judicial Orientalism is defined as an epistemological representation of traditional Chinese law and legal culture produced and recycled in the courtroom and common law knowledge system.  Such a representation for the past century distinguishes traditional Chinese jurisprudence from modern (by default Western) law, thereby 'othering' it.  The resulting knowledge system cements the cultural distance between the modern West and the traditional Orient in law, as this study shows.
      The case analysed here concerns two women who became concubines in Nationalist China.  The CFA imagines a binary division between pre-transplant customary Chinese law on the one hand, and post-transplant modern Chinese on the other, and presumes that traditional Chinese jurisprudence is irrelevant in understanding the legal meanings ascribed to the new legal codes imported from the West.  Such a simplistic presumption and binary division has produced incorrect judgments on statutory interpretation of the transplanted legal codes practised in Republican China, as well as huge injustices to litigants, as the following landmark 2001 CFA judgment on the status of the two Nationalist-era concubines, Suen Toi Lee v Yay Yee Ping, shows.
      The chapter begins with the story of two deceased women, Sung So Chun and Chu Lee, whom a man named Sung Chuen Pao took as concubines in Shanghai in 1933 and 1945, respectively, following his marriage in 1929.  Both Mr Sung's wife and other family members openly accepted and recognized the two women as his concubines.  In 1951, Mr Sung moved to Hong Kong, where Mrs Chu joined him in 1952.  Mrs Sung and Mr Sung's wife remained in Mainland China until their deaths in 1983 and 2000, respectively.  Mr Sung and Mrs Chu died in 1985 and 1987, respectively.
     The appeal before the CFA in 2001 concerned Mrs Chu's estate, with the court asked to determine who was entitled to it.  The appellant, Suen Toi Lee, was Mrs Sung's daughter by Mr Sung.  If both Mrs Sung and Mrs Chu had been Mr Sung's concubines, then the appellant was entitled to a share of Mrs Chu's estate as an 'issue' under the definitions provided by the Intestate Estate Ordinance of Hong Kong.  If neither woman had been a concubine, then none of Mr Sung's children were entitled to any of Mrs Chu's estate, which would instead remain in her own family.  Because she had no children herself, in this case her estate would pass to her siblings, whose interests in the case were looked after by Mrs Chu's niece, the respondent Yau Yee Ping.
      The two women's union with Mr Sung was openly accepted by the man's family, including his wife, and one of them bore him a number of children.  Yet, after their deaths, the women were rules by the CFA in 2001 to have, at best, enjoyed the status of mistress, thereby causing their issue to lose her right to succession within Sung's family under Hong Kong law.  The critical issue that the CFA had to consider in this case was whether, as a matter of historical fact, the Book of Family of the Republican Civil Code (Book of Family hereafter), which came into effect on 5 May 1931, abolished the system of concubinage in Mainland China, rendering any union of concubinage created after that date (such as that of Sung and Chu) unlawful or invalid.  The CFA judges ruled unanimously that the Book of Family had indeed abolished the system of concubinage, and therefore that it was unlawful for any union of concubinage to take place thereafter.  This deprived the two now-deceased women of their legal status as concubines. 
     The CFA's judgment was based on three lines of reasoning: first, that the express provision against bigamy in the Civil Code was meant to prohibit the taking of concubines; second, that the Civil Code had created a new institution known as the 'household' to replace the old institution of 'concubinage', and through such creation concubinage was meant to have been abolished; and, third, that a published statement by the law drafter pointed to his intention that the transplanted Civil Code be used to uphold gender equality and eliminate concubinage in China by no longer mentioning concubines in the code.  This view has become common law authority on the interpretation of the transplanted modern marriage law of Republican China, and will remain so until overruled by the CFA or a common law court of similar standing in the future.
     Drawing on the latest scholarship of historians of the marriage regime in Republican China (1912-1949) and archival materials, this chapter argues that such judicial representation not only does not stand up to historical scrutiny; it actually distorts the way in which the marriage law was intended, understood and practiced in the Republican era.  More importantly, it demonstrates that it was the Orientalist image of traditional Chinese law and custom that has been continuously produced and recycled in the common law knowledge system over the past century that contributed to the anomalies of the CFA judgment. In the following sections, the chapter rebuts each of the three lines of reasoning offered by the CFA in its ruling in Suen Toi Lee v Yau Yee Ping, before turning to a succinct history of the common law knowledge system on traditional Chinese law exhibited in a set of judicial decisions, colonial reports and publications on Chinese law and custom relied on by the courts, as well as in common law textbooks that are still in use in law schools today.  This analysis suggests the need for a revision of the judicial approach of Orientalising, and thus the neglecting of traditional Chinese jurisprudence in interpreting modern Chinese law.  This chapter argues for a 'thicker description' of the legal reform process in China and perhaps in other parts of Asia.  Such a description requires that imported legal codes and systems no longer be analysed as the simple displacement of old, traditional institutions by the implementation of Western-inspired and modern legal regimes.  Instead they ought to be understood as the outcome of a more complex interplay between indigenous and foreign legal ideas and the way in which those ideas were discussed, interpreted and practised in their historical context.  In that process, traditional ideas and practices were assimilated with the borrowed legal regime in a quest for legal modernity that fit particular political and societal needs.

Yun Zhao on Online Privacy and Personal Data Protection in China (new book chapter)

"Online Privacy Protection: A Legal Regime for Personal Data Protection in China"
Yun Zhao
in Chinese Legal Reform and the Global Legal Order: Adaption and Adoption, (Cambridge University Press, Nov 2017), pp. 156 - 178
Introduction: Privacy is an important right in modern society, but we lack a clear and universal definition of the concept of 'privacy'.  Generally speaking, privacy belongs to the set of human rights that protects individuals' private information from unlawful interference, use and disclosure.  Private information can include personal life, personal information and private communication.  The Electronic Privacy Information Center (EPIC) and Privacy International (PI) divide privacy into four categories: information privacy, bodily privacy, privacy of communications and territorial privacy.
     The cyberspace created by the Internet has brought the world closer than ever before; geographical boundaries are no longer important, as information can transcend national borders easily. Technological developments have rendered the easy collection, storage, analysis, instantaneous disclosure and wide dissemination of private information possible at low cost.  Such tools as cookies and web bugs are widely used for online information collection, which is often carried out without users' knowledge.  The online sharing culture and active netizen participation pose serious challenges to privacy protection online.  First, the scope of online privacy and information is expanding rapidly.  In addition to such traditional data as land line and mobile telephone numbers, the privacy of such online personal data as email addresses, user names and instant messaging information (e.g. QQ numbers) is receiving increasing attention from the public.  Second, online data are increasingly important to merchants.  Hence, online privacy and information should be understood in both personal and economic terms.  For example, personal data have become a valuable asset in transactions carried out online.  Information collected by online merchants is used to create personal profiles indicating consumer preferences, which subsequently helps merchants to devise tailored marketing strategies.  Privacy protection online is thus receiving unprecedented attention.  As far as the Internet is concerned, of the four categories identified by EPIC and PI, information privacy is the primary concern.  Discussions in this arena concern how best to ensure the legal and reasonable use of online information.  Accordingly, this chapter examines the protection of online information, or personal data protection, rather than other aspects of privacy in the context of China.
     China does not have a strong tradition of privacy protection.  As one scholar has correctly observed, the general population of China does not know what the concept of privacy is.  Chinese history presents a picture of non-respect for privacy protection, particularly during the country's successive dynasties and, more recently, the Cultural Revolution period.  The online censorship created by the Great Firewall of China is another example of the downplaying of privacy protection in China.  However, the situation is changing.  The Chinese government has realized the importance of online privacy protection and taken initiatives to improve the legal regime governing it.  Chinese citizens' awareness of the need for privacy is also rising along with serious threats to personal data.   Furthermore, an increasingly globalized marketplace requires the existence of a data protection regime on par with the standards of other jurisdictions for the promotion of economic activities.  
     This chapter starts the discussion against this backdrop.  Section 2 briefly examines the current situation of privacy protection at the international level, followed by a closer examination of the current legal regime for privacy protection in China in Section 3.  The discussion of the relevant laws and regulations in China is by no means exhaustive.  In recent years, the Chinese government has taken a number of important steps to protect personal data.  Section 4 discusses these new initiatives and confirms that we would be optimistic about future developments in the field in China.  Section 5 continues with analysis of the problems with the current legal regime in China and shows the possible ways ahead for personal data protection in the country in future.  The chapter concludes in the final section that China is moving steadily, though slowly, towards the construction of a fair legal regime for personal data protection.

Thursday, December 7, 2017

HKU Class of 2017 Graduates (Law PhD, SJD and MPhil.)

Congratulations to our 8 PhD, 2 SJD and 2 MPhil. graduates who had their degrees conferred upon them at the 198th Congregation on 6 December 2017 at the University of Hong Kong. The Congregation also saw the graduation of 595 other Faculty of Law students: 18 LLM, 21 LLM in Human Rights, 80 LLM in Corporate & Financial Law, 32 Master of Common Law, 24 LLM in Chinese Law, 14 LLM in Information Technology and Intellectual Property Law, 43 LLM in Arbitration and Dispute Resolution, 1 LLM in Compliance and Regulation, 27 JD and 335 LLB. The newest members of our RPg alumnae family include the following:

1. Dr Atcharawongchai Worrawong, The Criminal Enforcement of Copyright in Thailand. Supervisors: Dr Yahong Li and Mr Michael Jackson

2. Dr Buhi Jason Gerald, The Constitutional and Administrative History of Macau During the Era of Portuguese Jurisdiction, 1553-1999. Supervisors: Professor Hualing Fu and Professor Albert Chen

4. Dr Liu Jia, Global Justice: The Right to Life and the Global Community. Supervisor: Professor Scott Veitch

5. Dr Liu Junru, Towards Cultural-Rights-Based-Approaches to Reconciling Trade Liberalization and Cultural Diversity: The Role of the WTO in Governing Trade in Motion Pictures. Supervisor: Professor Xianchu Zhang

6. Dr Liu Yang, Necessity and the Law of State Responsibility: A Contextual Approach. Supervisor: Dr James Fry

7. Dr Xu Bijun, Re-examining the Discourse of the 19th Century International Law: A Case Study of the First Sino-Japanese War 1894-1895. Supervisors: Professor C. L. Lim and Professor Tony Carty

8. Dr Zhang Xiaoshi, The Sino-French controversy over Vietnam 1880-1885 : from tributary system to international legal system. Supervisors: Professor C. L. Lim and Professor Tony Carty

9. Dr Du Rong (SJD), Unifying Space Financing Through Space Assets Protocol to the Cape Town Convention: A Desirable Effort for the Space Sector?. Supervisor: Professor Yun Zhao

10. Dr Lam Kwan Nam (SJD), Confucian Values and Corporation Governance: a Comparative Analysis. Supervisor: Professor Say Goo

11. Mr Meggitt Gary, Mediation and ADR Privilege – the Existing Law and Potential Reforms. Supervisor: Ms Janice Brabyn.

12. Ms. Wang Yihan, An Empirical Study of US and Chinese Perspectives on Barriers and Possibilities for the Expansion of Online International Commercial Arbitration. Supervisor: Dr Shahla Ali

The Honourable Madam Justice Susan Kwan (LLB 1977, PCLL 1978), Justice of Appeal of the Court of Appeal, The High Court, delivered the keynote address.

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