Thursday, February 15, 2018

Kung Hei Fat Choy 2018

HKU Legal Scholarship Blog wishes everyone a Safe and Prosperous Chinese New Year.  As usual, we mark the occasion (The Year of the Dog) with Professor Richard Cullen's annual cartoon.
'Gung Hei! Gung Hei!' by Richard Cullen

Monday, February 12, 2018

Family Victimisation and Adolescent Cyberbullying in China (Child Abuse & Neglect)

QiQi Chen,  Camilla K.M. Lo,  Yuhong Zhu,  Anne Cheung,  Ko Ling Chan, and Patrick Ip
Child Abuse & Neglect
March 2018, Volume 77, pages 180–187
Abstract: The sustained increase in their use of social networking facilitates the development of adolescents but comes with the risk of cyberbullying, which creates new challenges in regard to adolescent protection. Past evidence shows that family victimization may play an essential role in the way adolescents learn cyberbullying behaviors. Yet, research on the co-occurrence of family victimization and cyberbullying is limited. This study aims to investigate the associations between cyberbullying and family victimization among adolescents, and to examine the health correlates of cyberbullying and family poly-victimization. A large sample of 18,341 students, aged 15–17, from six cities in China, collected between 2009 and 2010 is employed in the present study, which investigated the association between various kinds of family victimization and adolescent cyberbullying. Data analysis was conducted in 2017. In-law conflict, intimate partner violence, elder abuse and neglect, and child maltreatment were associated with a higher possibility of children becoming internet victims. Parents’ divorce and separation, low family income, mother’s low level of education, and father’s unemployment were all associated with cyberbullying victimization. Cyber victimization was positively correlated to symptoms of PTSD and depression, self-harm, and other physical and mental health variables. Possible explanations for the relationships found in this study are discussed and implications for future research and services are provided. Proactive screening for family poly-victimization and cyberbullying is suggested. Schools are highly recommended to cooperate with parents to promote cyber safety.

Saturday, February 10, 2018

Douglas Arner Comments on Anti-money-laundering Regulations (Investor Daily)

"Anti-money-laundering Regulators 'Useless'"
Jessica Yun
Investor Daily
7 Feb 2018
Speaking at the University of New South Wales on Monday, University of Hong Kong law professor Douglas Arner called into question the aims and the efficacy of anti-money laundering and counter-terrorism financing regulatory bodies.
    “Is the point of [anti-money laundering agencies] about producing suspicious transaction reports? Not really,” he said. “It's about reducing the criminal and terrorist use of the financial system.” He said that producing reports was only an attempt that had “developed over time” to reduce criminal and terrorist activity, but that it “doesn’t really work very well”.
     “But it ends up, for a number of jurisdictions, with warehousefuls of suspicious transaction reports which regulators will typically only look at after something happens,” he said.
“They are completely useless from the standpoint of prevention. They are only useful from the standpoint of ex post facto (with retrospective action or force) pursuit.”... Click here to read the full article.

Cheng, Chui, Young & Ong on Why Criminal Trials in Hong Kong ‘Crack’? (Asian J Comp L)

"Why Do Criminal Trials ‘Crack’? An Empirical Investigation of Late Guilty Pleas in Hong Kong"
Kevin Kwok-yin CHENG, Wing Hong CHUI, Simon N M YOUNG, and Rebecca ONG
Asian Journal of Comparative Law
Published online: 7 Feb 2018, pp. 1-25
Abstract: ‘Cracked trials’, where defendants enter a late guilty plea after a trial date has been set, are considered a societal problem because public resources set aside for trials are wasted. Various government reports attribute the main cause to tactical defendants playing the system, and reforms have been initiated to encourage early guilty pleas and strongly discourage late ones. The aim of the present study is to investigate the reasons for cracked trials in the Hong Kong context, insofar as the reasons for late guilty pleas can be investigated without the influence of reforms seen in other jurisdictions used to discourage late pleas. A mixed methods approach of courtroom observations and interviews with defendants was adopted. We find that defendants who were represented by publicly-funded lawyers or who were in prolonged pre-trial detention were more disposed to changing their pleas. Subsequent interviews illustrate why these factors are salient. The findings support the notion that it is the pressures of the criminal justice process that lead defendants to ‘crack’ and highlight the costs to defendants for decisions on how to plead that are influenced by considerations other than actual culpability.

Thursday, February 8, 2018

HKU's Centre for Chinese Law Launches New Website


We are delighted to announce the launch of the new website for the Centre for Chinese Law (CCL) of the HKU Faculty of Law: www.ccl.law.hku.hk
     In addition to providing a more user-friendly interface, the new website introduces new functions to provide useful information for those who are interested in Chinese law research. Visitors will find publications of HKU Law Faculty members in six cutting-edge areas of Chinese law research: ‘China and International Law’, ‘Hong Kong Law’, ‘IP & IT’, ‘Law/Development/Society in China’, ‘Legal History & Philosophy’, and ‘Mediation & Arbitration’. 
      The site hosts databases for four long-term projects (‘Anti-Domestic Violence in China’, ‘Equal Rights in China’, ‘Death Penalty in China’, and ‘Legal History’), plus ‘External Links’ to other useful resources in Chinese law research.  To reach out to the greater China area, our new site contains integrated buttons for two social media platforms in mainland China: ‘the CCL’ weixin public account and the ‘HKUCCL’ weibo account. The website also contains information on major Chinese law academic conferences and events in the greater China area to encourage interactions among academic communities in and outside the region. 
     We hope this new site and our social media platforms will serve as an important on-line hub for researchers in Chinese law research. You are most welcome to join our mailing list by using the subscription function at the bottom of the web page.
     For any questions or feedback, please e-mail us at: shelbyc@hku.hk. We wish you all a Happy Chinese New Year!

Melissa Loja's Critical Legal Approach to the South China Sea Territorial Dispute (J History of IL)

Melissa H. Loja
January 2018 (published online)
Abstract: The ‘law of nations’ that colonial powers invoked to claim the South China Sea islands was based not on international convention or custom but on their own municipal laws on guano concession. It provides that states have the exclusive right to assert title over distant islands where their respective citizens have engaged in economic activities. It was applied selectively to advance colonial and maritime interests and to suppress the claim of China. In their own records, the United States and United Kingdom acknowledged China’s prior and exclusive economic activities on the Spratly Islands and Paracel Islands, and consolidation of title over the Paracel Islands. The records were ignored and subsequently revised, thereby excluding China from availing of the rule. The Japanese peace treaties formalized China’s exclusion by relegating its claim to the same category as the claims that emerged from recent acts of occupation, and subjecting it to resolution by convention.

Monday, February 5, 2018

Richard Cullen Comments on High Speed Rail Co-Location Arrangements in Hong Kong (China Daily)

"Opponents of co-location ignore 'living law' model"
Richard Cullen
China Daily
2 Feb 2018
The intense debate over co-location of Hong Kong and Chinese mainland immigration and customs controls at the Guangzhou-Shenzhen-Hong Kong Express Rail Link's West Kowloon terminus shows no sign of slackening off. Supporters rely significantly on the National People's Congress Standing Committee's statement on co-location's legal validity, made in December last year. This perspective stresses the sovereign authority of the NPCSC within the "one country, two systems" political-legal hierarchy governing the status of the Hong Kong Special Administrative Region within the People's Republic of China. ...
    Almost 20 years ago, Hong Kong's Court of Final Appeal laid down a set of primary principles designed to shape the interpretation of the Basic Law of the HKSAR. In a pivotal right of abode case, Chief Justice Andrew Li Kwok-nang stipulated that, with a constitutional document such as the Basic Law, a purposive approach is needed as gaps and ambiguities are bound to arise in such an instrument given its necessary generality. He also cautioned against using a technical, narrow or rigid approach when considering the language of the Basic Law. The chief justice did not rely directly on the living constitution theory in this seminal exposition but these CFA formulations are in harmony with that theory. ...
     Those arguments which say co-location has yet to be shown to be permitted by the Basic Law rely, above all, on a lack of explained particular authority in the Basic Law for co-location (a previously unforeseen need) and the Basic Law protections against the general application of mainland law in the HKSAR. These arguments are serious but they are, when viewed within a living constitution context (coupled with the cautionary words from the Court of Final Appeal), narrow and quite technical. Had similar arguments prevailed (and they were made) in Australia a century ago this would have conspicuously restrained the country's development and adaptation to a constantly changing world... Click here to read the full article.

Yash Ghai on Amending the Constitution or Amending Politicians? (The Star)

"Amending the Constitution or Amending Politicians?"
Yash Pal Ghai
The Star
27 Jan 2018
Until recently, a favourite occupation of politicians (in the wake of disputed elections) was to agitate for amending the 2010 Constitution...
     Because it is clear that few politicians have read the Constitution (but all are ready to blame it), I was very pleased to see the headline of Governor Kivutha Kibwana’s article: “Why in spite of new laws (meaning Constitution), we’re aggrieved”. I thought he would blame the politicians for our predicament — but not so. I missed, at first, the subtitle in small print over the heading: The 2010 Constitution has not cured all of the ills, let’s renegotiate it. He tries to demonstrate by 10 deficiencies in the Constitution, some of which I discuss now.
1. ‘Electoral justice must be realised in all its manifestations” ...
2. “The governance system requires restructuring”— referring principally­ to the replacement of the parliamentary system which the politicians threw out, replacing it with the executive presidency...
3. “Independence of the independent commissions must be buttressed….to curb the over-concentration of executive power”...
4. “Strengthening party coalition – building mechanisms through political party reforms is critical”...
5. “A dialogue that addresses the scourge of negative ethnicity to pave way for the flourishing of the Kenya nation is key”... “We must decisively deal with corrosive corruption.”...
AND SO?
     It is of interest to note that all discussions among the politicians on constitutional amendments focus on power sharing between politicians (of key political parties), and how they can increase the grease to themselves. Kibwana does mention as one goal, to attain “true economic justice for all” but conceives of it in terms of “equitable sharing of the national government component of budget”. Nothing about the broader issues of social policies that are necessary to ensure minimum well being of all Kenyans—not something that interests politicians.
     Every “change” that he advocates is clearly and extensively provided in the Constitution. It is time that he acknowledges that the “constitutional” problems he and other politicians are listing is really a device to hide the abominable conduct of politicians who regularly transgress and violate the Constitution and other laws—and to confer even greater authority upon politicians. ...
     This attitude of tribal-oriented politicians towards a united nation Kenya is hardly a qualification to amend the Constitution. In fact their dominance of the process is little short of disaster. ... On the other hand, the civil society driven processes were more broadly oriented, fighting for democracy, social justice and human rights...
     I do not believe the Constitution is perfect — far from it — thanks to the intervention of politicians with the Bomas draft after 2008. I consider that time has come for a review of its working. However, I would not trust politicians to undertake this task, as their own interests are deeply involved. Leave it to the people, who after all are sovereign.  Click here to read the full article.

Tuesday, January 30, 2018

Anne Cheung and Clement Chen's Work on Big Data in China Profiled in HKU's Bulletin (Jan 2018)

Bulletin
Jan 2018, Vol 19, No 2
How can individuals be protected when their personal data is constantly being collected for uses that may not be apparent until some future date? And when it may not be obvious who is collecting that data?
     As giants like Google, Facebook, WeChat and Alibaba track their users every minute of the day, these questions are rising high on government agendas around the world. In little more than a decade, most people now share personal information in order to gain access to services – whether socialising, shopping, seeking entertainment, or checking up on their health. Even our whereabouts can be tracked at every moment if the location service on our phones is turned on.
     That goldmine of information is being used by both businesses and governments to make decisions about individuals and groups, such as how much to charge certain users for services, whether to deny them access and what trends are revealed by their data. And therein lie several problems.
    First, the story told by big data may not be an accurate one. Professor John Bacon-Shone of the Faculty of Social Sciences, a statistician with an interest in big data and privacy who also advises the Hong Kong Government on the issues, cites the example of the Google Flu Trends web service which aggregated search queries about flu to predict outbreaks. “The problem is, it’s just an association, not causation, and it doesn’t work well at prediction. If you have a different type of flu, the whole thing falls apart,” he said...
     Personal data protection laws typically require banks and other institutions to keep accurate up-to-date information and disclose how it will be used. But when the technology is changing rapidly, with new and unanticipated uses becoming possible, this may no longer be sufficient.
     Professor Anne SY Cheung of the Faculty of Law has been studying privacy and personal data protection and is co-editor of the 2015 book Privacy and Legal Issues in Cloud Computing. “Recent legal reforms and position papers from the European Union (EU), the UK and the US have raised concerns about the problem of profiling, predictive decisions and discrimination, and the harm that may result from that. This is because the use of big data is very different from our traditional understanding of how to regulate personal data.
     “The traditional approach is essentially one of notice and consent: the collection of personal data is allowed only for a specific and limited purpose. But in the age of big data, the more data one has, the more accurate and arguably useful one’s conclusions will be. So the collector tries to collect as much data as possible and only after they have it and have done their analysis, will they find correlations and identify the purpose,” she said...

China: Big data, big brother?
The use of big data in China is of an altogether different level of concern from commercial uses of personal information.  The central government is in the process of rolling out a social credit system that draws on big data to rate each individual's reputation based on their political leanings, purchase history, social interactions and other factors.  
     "China is like a big data laboratory," said Professor Cheung, who has been studying the situation there with colleague Dr Clement Chen.  "Arguably, there is 360-degree surveillance watching individuals and gathering data. They have real-name registration [for mobile and internet services] and close connections between the government and the banking system and internet companies"...  Click here to read the full article.

Saturday, January 27, 2018

Ryan Whalen on Complex Innovation and the Patent Office (Chicago-Kent J of IP)

Abstract: As the universe of available information becomes larger and innovation becomes more complex, the task of examining patent applications becomes increasingly difficult. This Article argues that the United States Patent Office has insufficiently responded to changes in the information universe and to innovation norms. This leaves the Patent Office less able to adequately assess patent applications, and more likely to grant bad patents. After first demonstrating how innovation has been responsive to contemporary innovation norms for hundreds of years, this Article uses information and data science methods to empirically demonstrate how innovation has drastically changed in recent decades. After empirically demonstrating the changed innovation system and the inadequate response to these changes by the USPTO, this Article concludes with policy prescriptions aimed to help the Patent Office implement examination procedures adequate to assess 21st century innovation. These prescriptions include more granular crediting for the time spent by examiners assessing applications, an increased focus on teamwork at the Patent Office, improvements to the inter partes review process, and alterations to the analogous art doctrine.

Friday, January 26, 2018

New Book by Wilkinson, Cheung & Meggitt: Civil Procedure in Hong Kong (6th edition) (LexisNexis)

Civil Procedure in Hong Kong (6th edition)
Michael Wilkinson, Eric TM Cheung & Gary Meggitt
LexisNexis
December 2017,
Description: Civil Procedure in Hong Kong Sixth Edition provides practitioners with a clear and up to date exposition of the rules and judicial decisions governing the conduct of civil litigation in Hong Kong. The Civil Justice Reform has now been effective for more than 8 years and there are many judicial decisions reflecting judicial approaches and attitudes to the implementation of the new rules. The authors have chronicled these developments by reference to the considerable amount of case law on the new rules and practice directions.
     This sixth edition includes the most significant new cases affecting both the new rules and rules unaffected by the Reforms, including:

  • The use of translated documents in proceedings vide case development on High Court Civil Procedure (Use of Language) Rules r 5(5)(a)
  • Rules on service and forum in lieu with Hong Kong’s role in a developing global economy
  • Updates to procedural rules since previous edition eg vide L.N. 175 of 2015, L.N. 3 of 2016

Thursday, January 25, 2018

Wilson Chow on Legal Interpretation of Tax Law: Hong Kong (new book chapter)

"Legal Interpretation of Tax Law: Hong Kong"
Wilson Chow
in Robert  F. van Brederode & Richard Krever (eds.), Legal Interpretation of Law (Wolters Kluwer, 2017), ch 9
Introduction and Background: Three themes introduce this chapter, and they inform us why legal interpretation of taxation law in Hong Kong has evolved in the way it has.  They are historical development (which explains the reliance placed by Hong Kong courts on precedents from comparable common law jurisdictions and illustrates that, in different periods of Hong Kong's legal history, different approaches to statutory interpretation have evolved), simplicity and stability (which explains why Hong Kong 'tax law' in many key areas is found in case law, rather than statutory intervention; which supports the comparatively recent adoption by the courts of a practical and purposive approach to statutory interpretation; and which, as well shall see, has not been inimical to the interests of the Revenue) and low taxation rates (which, in part, explains the antipathy apparent in the courts to 'tax avoidance' transactions and which, in turn, reinforces the purposive approach).

Chow, Ng & Jen on Experientialization of Legal Education in Hong Kong (new book chapter)

As a former British colony, the legal system in Hong Kong is deeply rooted in and influenced by the common law tradition, and culture of England and Wales. Even its model of legal education and training was first guided by the English Report of the Committee on Legal Education, under the chairmanship of Sir Roger Ormrod, in 1971. Hence a vocational year, the Postgraduate Certificate in Law (PCLL), following the three year undergraduate law curriculum that was to be recommended in England and Wales was also implemented in the first law school in Hong Kong - the University of Hong Kong (HKU) - in 1972. The larger picture has not changed much despite the handover of Hong Kong in 1997 to People's Republic of China, which is a civil law jurisdiction. Nevertheless, like every other legal transplant which typically starts with the adoption of legal rules which work elsewhere and often continues to modify, develop and evolve in order to suit the particular jurisdictional social and cultural context, Hong Kong has also seen an extended four-year instead of three-year, LLB, joint degree programmes with law, and the degree of Juris Doctor (JD), all of which are not typical features of the traditional English common law educational framework and, with the exception of the lengthened LLB, are just other examples of legal transfer from outside Hong Kong...

Wednesday, January 24, 2018

Thomas Cheng's Consumer Behavioral Approach to Resale Price Maintenance (Virginia Law and Business Review)

"A Consumer Behavioral Approach to Resale Price Maintenance"
Thomas Cheng
Virginia Law and Business Review
Fall 2017, Volume 12, Issue 1, pp 1-92
Abstract: This Article reexamines the various pro-competitive justifications and theories of harm for resale price maintenance (“RPM”), one of the most controversial practices in antitrust law. It argues that the existing literature overlooks three important issues regarding RPM, namely, the kind of retail service invoked in a justification, the kind of retailer at issue, and the prevailing model of consumer behavior. All three issues have important implications for the plausibility and validity of the various justifications and theories of harm for RPM. It argues that most of the existing literature presumes the inter-brand primacy model of consumer behavior. Once this model is not applicable, much of the prevailing analysis breaks down and the legality of RPM needs to be reconsidered. In particular, this Article demonstrates that many of the accepted justifications for RPM are of doubtful validity or are only valid under limited circumstances. This lends support to a more hostile view of RPM.  Click here to download the full article.

Tuesday, January 23, 2018

David Law on Alternatives to Liberal Constitutional Democracy (Maryland Law Review)

December 2017, Volume 77, Issue 1, pp 223-243
Abstract: The global appeal of liberal constitutional democracy—defined as a competitive multiparty system combined with governance within constitutional limits—cannot be taken for granted due to the existence of competing forms of government that appear successful along a number of practical dimensions and consequently enjoy high levels of public acceptance. Proponents of liberal constitutional democracy must be prepared to proactively explain and defend its capacity to satisfy first-order political needs. A system of government is unlikely to command popular acceptance unless it can plausibly claim to address the problems of oppression, tribalism, and physical and economic security.
     Along these dimensions, the advantages of liberal constitutional democracy over the alternatives of social democracy of the type seen in Scandinavia, and bureaucratic authoritarianism of the type seen in parts of Asia, are not self-evident. Within Asia alone, seemingly functional alternatives to liberal constitutional democracy run the gamut from illiberal nondemocracy in China, to liberal one-party rule in Japan, to illiberal constitutional democracy in Singapore, to liberal constitutional nondemocracy in Hong Kong, to hereditary monarchy in Bhutan.  Click here to download the full article.

Puja Kapai Interviewed on Gender Pay Inequality in Hong Kong (SCMP)

Yupina Ng 
South China Morning Post 
21 January 2018 
There was quite a commotion in Hollywood when it was revealed that Michelle ­Williams was paid less than 1 per cent of what her male co-star received for ­reshooting scenes of crime thriller All the Money in the World...
     Although the Sex Discrimination Ordinance, which came into force in 1996, prohibits discrimination against either men or women on the basis of sex, marital status and pregnancy in seven public domains including employment, a lack of transparency in some companies’ pay scales has made it extremely difficult for complainants to establish their claims, according to Puja Kapai, an associate professor of law at the University of Hong Kong.
     “The legislation itself provides the scope for this kind of claim, but it’s about the practical implementation,” she says. “You really need a lot of transparency to be able to confidently say that any difference in pay is purely on the basis of gender.”
     Kapai adds that the legislation’s requirement of attempting reconciliation poses challenges. “It puts a lot of claimants in a very difficult position because oftentimes they don’t necessarily want to confront their very powerful employers.”...

Monday, January 22, 2018

Anselmo Reyes and Weixia Gu, Towards a Model of Arbitration Reform in the Asia Pacific (new book chapter)

"Introduction: Towards a Model of Arbitration Reform in the Asia Pacific"
Anselmo Reyes and Weixia Gu
Since the turn of the twentieth century, international commercial arbitration has flourished and prospered across the Asia Pacific. The development of international arbitration as a mechanism for commercial dispute resolution has not only mirrored, but also responded to, the commercial needs of continuing economic development within Asia Pacific jurisdictions. 
     Attracting foreign investment and boosting commercial confidence, whether in the short or long term, will typically necessitate the institution of efficient and effective dispute resolution mechanisms to handle the differences that inevitably arise as a matter of cross-border business. Given that outside investors may be wary of the impartiality of domestic courts in resolving cross-border commercial disputes, it is natural that arbitration has found itself uniquely situated in Asia Pacific jurisdictions as a preferred mode of dispute resolution, as well as a magnet for foreign investment within a given state. 
     The steady growth of international commercial arbitration in Asia is reflected by the numbers. Since 2008, the total number of arbitrations handled by key international arbitration institutions in the Asia Pacific has continuously exceeded the number of cases handled by similar institutions in the West. The establishment of key institutions from the Korean Commercial Arbitration Board in Northeast Asia, to the Singapore International Arbitration Centre and the Kuala Lumpur Regional Centre for Arbitration in Southeast Asia, and to the Australian Centre for International Commercial Arbitration in the Pacific, coupled with the ongoing consolidation of the China International Economic and Trade Arbitration Commission in China, has raised the presence and standing of international commercial arbitration as a form of dispute resolution in the Asia Pacific. 
     Each jurisdiction, however, has a different story to tell in terms of the trajectory of its respective arbitration reform efforts. While some jurisdictions have attained global renown in their efforts, others have trodden different paths with only modest or even minimal success...

Shahla Ali on Balancing Procedural and Substantive Arbitration Reforms: Advancing International Arbitration Practice in Hong Kong (new book chapter)

"Balancing Procedural and Substantive Arbitration Reforms: Advancing International Arbitration Practice in Hong Kong"
Introduction: This chapter examines how the UNCITRAL Model Law on International Arbitration (the Model Law) has affected arbitration practice in Hong Kong. It also examines measures taken in the region to promote the use of arbitration including training programmes and legislative reforms. It concludes by examining challenges in the implementation of the Model Law and efforts at reform...

Weixia Gu on China's Arbitration Modernisation Under Judicial Efforts and Marketisation Waves (new book chapter)

"China's Arbitration Modernisation Under Judicial Efforts and Marketisation Waves"
Introduction: Since 1978, China's drive towards economic modernisation and marketisation in its policy of 'reform and opening up' has led to increased foreign trade, investment, and as a natural corollary, commercial disputes. Arbitration, the preferred means of settling business disputes in China, plays a significant role in providing foreign cooperative partners with the confidence and reassurance that are necessary to encourage trade and investment.
     China's Arbitration Law, promulgated in 1994 (effective in 1995) forms the cornerstone of the modern Chinese arbitration regulatory framework. However, there has been little legislative improvement afterwards towards meeting the changing needs of the past two decades. Instead, top-down judicial efforts by China's Supreme People's Court and bottom-up institutional initiatives by Chinese arbitration commissions have played their role in further refining and internationalising the Chinese arbitration system. Arbitration commissions in particular have proliferated int he years following the promulgation of the Arbitration Law, and their rising competition for independence and professionalism in recent years has pushed the formation and flourishing of the Chinese arbitration market...

Anselmo Reyes and Weixia Gu on an Asia Pacific Model of Arbitration Reform (new book chapter)

"Conclusion: An Asia Pacific Model of Arbitration Reform"
Anselmo Reyes and Weixia Gu
The Introduction chapter to this book promised three deliverables. The first, a summary of arbitration reform in 12 Asia Pacific states, has been provided in the preceding 12 chapters. The function of this Conclusion is to make good on the remaining two promises. 
     The initial part of this Conclusion will pull together various strands in those previous chapters to evaluate the model for arbitration reform in the Asia Pacific posited in section 3 of the Introduction. The second part will deal with the three sets of questions (looking to the past, present and future) posed in the same section of the Introduction. The final part will make good on the promise of a third deliverable by forecasting likely future arbitration reform initiatives in the Asia Pacific...

HKU Law Welcomes Two New Colleagues: Frank He Xin (Chinese Law) and Anya Adair (Law & Literature)

The Faculty of Law warmly welcomes Professor He Xin (Frank), who joins us from City University of Hong Kong, and Assistant Professor Dr Anya Adair, who joins us from Sydney University.  They further strengthen respectively our leading research areas of Chinese law and law & literature.
Prof He Xin (Frank)
     Professor Frank He's research interests are law and society, empirical legal studies, comparative laws, and Chinese legal systems, especially on judicial reforms in China and Chinese family laws.  He obtained his LLB and LLM from Peking University, China, and his JSM and JSD degrees from Stanford University, where he was an Asia-Pacific Scholar. Before joining HKU, he was Professor and Director of the Chinese and Comparative Law Center at School of Law, City University of Hong Kong. He has also taught at the law schools of NYU and University of Illinois as Visiting Professor.  His recent works appear in the American Journal of Sociology, Law & Society Review, China Quarterly, China Journal, and American Journal of Comparative Law. His monograph Embedded Courts: Judicial Decision Making in China with Kwai Ng was recently published by Cambridge University Press.
Dr Anya Adair
    Dr Anya Adair is a jointly appointed Assistant Professor in the Department of Law (Faculty of Law) and School of English (Faculty of Arts) in the University of Hong Kong.  Her research interests include medieval English literature, as well as pre-modern English law and legal culture.  She is currently teaching LALS2001 "Introduction to Law and Literary Studies" this semester. The historical scope of Dr Anya Adair’s present research covers the seventh to the sixteenth centuries. It aims to unite more closely the fields of medieval law and medieval literature, and to provide insight into the intellectual, emotional and social dimensions of legal and literary production across the period. She holds a Bachelor of Arts and Bachelor of Laws from the University of Melbourne and graduate degrees in English from Melbourne, Oxford and Yale.  Dr Adair's joint appointment, a first of its kind at HKU, will enhance our law and literary studies double degree programme (BA & LLB) and further HKU's interdisciplinary research in this field.

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:

Editors
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





Articles

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
Lectures

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



Articles

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

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