Saturday, March 17, 2018

Hong Kong Law Students Win First Round of Global Legal Hackathon

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

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

Friday, March 9, 2018

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

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

Thursday, March 8, 2018

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

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


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

Vol. 8 No. 2: Feb 14, 2018

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

Wednesday, March 7, 2018

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

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

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

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

Tuesday, March 6, 2018

David Law Discusses President Trump's Stance on Gun Legislation (AM870; FM105.3)

"There is a Middle Ground Here"
Host: Newell Normand
Radio (AM870; FM105.3)
President Trump calls for a comprehensive gun bill, taking a more liberal stance on possible gun legislation. David Law, Professor of Law and Political Science at Washington University in St. Louis and University of Hong Kong, joins Newell to discuss the President's stance and what we may see coming out of Congress soon.  Listen to the interview here (duration: 20 minutes).

Monday, March 5, 2018

Anselmo Reyes on Foreign Direct Investment in the Philippines and the Pitfalls of Economic Nationalism (new book chapter)

"FDI in the Philippines and the Pitfalls of Economic Nationalism"
Anselmo Reyes
in Julien Chaisse and Luke Nottage (eds), International Investment Treaties and Arbitration Across Asia (Brill, 2018), pp. 243-279
Abstract: Recent trends in Philippine growth and FDI reveal only modest achievements, when compared with other ASEAN countries, and little impact on income inequality.  These outcomes are attributed to the policy of economic nationalism in the Philippines' constitutional and legislative framework for FDI, whereby government reserves 'strategic' fields to Filipinos, while foreigners face hurdles in making investments.  The account doubts whether foreign nationals can safeguard investments by recourse to Philippine BITS as those reinforce economic nationalism by requiring FDI to comply with Philippine law.  Poulsen's observation that developing countries entered into BITS oblivious of the risks does not seem applicable to the Philippines, which has deftly used BITS to advance economic nationalism.  Litigation before domestic courts is not an alternative for protecting investor rights, but international commercial arbitration may become so in due course.  The account concludes with proposals for future policy.

Saturday, March 3, 2018

Albert Chen and PY Lo on Hong Kong's Judiciary under 'One Country, Two Systems' (new book chapter)

"Hong Kong's judiciary under 'one country, two systems' " 
Albert H. Y. Chen and P. Y. Lo (PhD 2012)
in Hoong Phun Lee and Marilyn Pittard (eds), Asia-Pacific Judiciaries: Independence, Impartiality and Integrity (Cambridge University Press, Dec 2017),  pp. 131-168
Introduction: Hong Kong, formerly a British colony and since 1997 a Special Administrative Region (HKSAR) of the People's Republic of China (PRC) under the constitutional formula of 'One Country, Two Systems', has a judicial system that is much more highly evaluated, trusted and respected internationally and locally than its counterpart in mainland China.  The colonial judicial system in Hong Kong, though modelled on the common law system in England, did not always fully guarantee the litigant's right to a fair hearing before an independent and impartial tribunal, but at least the normative ideals of the rule of law and judicial independence were implanted on Hong Kong soil during the colonial era.  Such ideals have remained alive and well, and more cherished and vigorously defended than ever before, since Hong Kong was re-unified with China in 1997.   Under the Hong Kong Basic Law - the HKSAR's constitutional instrument that was enacted by the PRC's National People's Congress in 1990 and came into effect in 1997 - Hong Kong enjoys a high degree of autonomy, and its pre-existing legal and judicial systems have largely remained intact, save that a new Court of Final Appeal was established, which exercises the power of final adjudication in Hong Kong cases - a power formerly exercised by the Judicial Committee of the Privy Council in London.
    This chapter provides an overview of the Hong Kong Judiciary, particularly those aspects of the judicial system that are relevant to the independence, impartiality and integrity of the courts and their judges.   The chapter includes the following sections: (7.2) the structure of the judicial system; (7.3) judicial features of 'One Country, Two Systems'; (7.4) appointment and conditions of service of judges; (7.4.11) rules of bias and recusal; (7.4.12) contempt of court by 'scandalising the court'; (7.4.13) judges and free speech; (7.4.14) judges and non-judicial functions.  These sections will be followed by a concluding section.

Thursday, March 1, 2018

Reviving Article 23: Two-Part Story on Hong Kong's National Security Debate (Hong Kong Free Press)

Elson Tong (JD candidate)
17 Feb 2018
Hong Kong Free Press
“As long as we work on the basis of ‘loving the country and loving Hong Kong’, there will always be hope,” said the city’s outgoing Secretary for Security at a dinner in Wanchai’s Grand Hyatt, organised by various pro-Beijing trade unions. “But sometimes I see an unhealthy wind blowing across society. People mix up what is right and what is wrong, what is black and what is white. I even sense a Cultural Revolution-era mentality and language in some of the media.” The speech was not delivered in 2017 - but in the pivotal year of 2003...
     With these existing laws in mind, scholars such as Hong Kong University professor Johannes Chan are sceptical as to whether – by asking Hong Kong to “enact laws” – Article 23 really means that the government has to table a fresh bill.
     “We shouldn’t say that Hong Kong has failed to fulfil its constitutional duty under Article 23. We should ask whether existing laws already do so,” Chan told a conference last March...
     At the time, Regina Ip and Elsie Leung respectively led the Security Bureau and the Department of Justice. But Hong Kong University professor and prosecutor Simon Young told HKFP that colonial-era British officials, like solicitor-general Robert Allcock, were more involved as hands-on drafters for the bill. ... Click here to view the full article.

"Reviving Article 23 (Part II): Old wine in new bottles for Hong Kong’s national security debate"
Elson Tong (JD candidate)
18 Feb 2018
Hong Kong Free Press
In December 2017, Hong Kong’s pro-democracy lawmakers – who were six members short after some were ousted by the courts – fought a lost cause to prevent their pro-Beijing colleagues from changing the legislature’s house rules. Henceforth it would become much harder to filibuster controversial bills. ...
     Hong Kong University law professor Eric Cheung speculated that the motive for this document was to strip Hong Kong courts of their oversight of the arrangement. He added that Beijing may do the same thing to stop future Article 23 national security laws from being judged unconstitutional for any violations of protected rights and freedoms...
     Mainland constitutional law professor Fu Hualing told attendees that in pushing for a national security law, Beijing’s aim is now to suppress Hong Kong’s pro-independence movement.
     “The Falun Gong, for example, disappeared entirely from the field of debate,” he told HKFP. “I think Hong Kong will continue to be a foundation for activities within mainland China… like civil society development, working with NGOs.”...
     A national security bill only requires the support of a simple majority in the legislature to be voted into law. The pro-Beijing camp has always obtained over half of the seats. Therefore, few legislative obstacles exist to the passing of a law that would criminalise mere speech.
     However, Hong Kong University criminal law professor Simon Young told HKFP that the courts can refuse to enforce vague or otherwise unconstitutional laws.
    “The courts could say that the provision is so vague that it violates the principle of legal certainty… because it gives no indication to anyone what the law is, and you can’t regulate your conduct accordingly… But that rarely happens.”
    “The second thing that they can do is [to say] that there are provisions or aspects of the law that violate specific constitutional rights, whether it’s the freedom of expression or the presumption of innocence.” A judge would then either strike down the provision, or employ more lenient legal tests favouring the accused...
     His colleague Albert Chen told attendees at the December conference that under Article 17 of the Basic Law, the National People’s Congress Standing Committee (NPCSC) might invalidate a Hong Kong security law and ask for new legislation if it deems the provisions unsatisfactory...
     Click here to view the full article. 

Wednesday, February 28, 2018

Hualing Fu on The July 9th Crackdown on Human Rights Lawyers (J of Contemporary China)

Hualing Fu
Journal of Contemporary China
published online: 15 Feb 2018
Abstract: This article first studies the 2015 crackdown on human rights lawyers in China and the context in which the crackdown took place. It then analyses the development of three types of human rights lawyers since 2011—the weiquan (rights protection) lawyers, the sike (die-hard) lawyers and the gongyi (public interest) lawyers—the interaction among them and the challenge they pose to the authoritarian governance. Finally, the article proposes three likely scenarios for human rights lawyering in China.

Tuesday, February 27, 2018

Amanda Whitfort Interviewed on the Welfare of Dogs in The Year of the Dog (RTHK's The Pulse)

CNY Special: Lai Chi Wo Hakka Culture & Welfare of Dogs
RTHK Radio 31: The Pulse
17 Feb 2018
Summary: It’s the Year of the Dog, and in Chinese iconography, dogs symbolise good luck, loyalty, obedience, prosperity, and a promise of friendship. But their relationship with humans isn’t always an easy one. Not only are they – often brutally - killed and eaten in some Asian countries, including China, commercial breeders and pet shops are known to confine them in particularly distressing conditions, and would-be owners are not even allowed to keep them in many Hong Kong housing estates. Things are looking up, as more people across Asia and locally are adopting dogs and looking out for their welfare. As anyone who lives with them knows, they often give back at least as much affection and trust as they receive.
   In this special episode of The Pulse, Amanda Whitfort shares her thoughts on why breeders should be obligated to have a duty of care, the need for animal welfare legislation in Hong Kong, and penalties for those who breach animal welfare laws. Click here to view the interview.

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:
     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: 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.”...
     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)

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
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.

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