Monday, June 29, 2015

Simon Young on the Need for Long-term Criminal Law Review (SCMP)

South China Morning Post
30 June 2015
With no political reform in sight for at least the next seven years, what does this mean for the reform of criminal law and justice?
     The good news is that we do not expect to see an “Allegiance to Hong Kong Bill”, like the one introduced recently in Australia to enhance anti-terrorism measures. Nor does Article 23 national security legislation stand a chance of returning any time soon. We are also lucky that we do not have “get tough on crime” political agendas thrust upon us by politicians.
     Even when news of a bomb plot was uncovered on the eve of the Legislative Council reform debate, we took it in our stride and avoided the knee-jerk reaction of labelling the arrested individuals as terrorists. After all, we have a constitutionally entrenched presumption of innocence.
     Unlike in some Western democracies, we have neither adopted legislation setting out minimum jail terms, “three strikes and you’re out” sentencing policies or intrusive police powers, nor stringent detention and blacklisting mechanisms.
     Some of our existing powers are already quite broad. With low crime rates, a decreasing incarceration rate and a low firearms presence, it is almost impossible to convince the polarised Legislative Council to pass laws that may impinge on rights or incur greater transaction costs.
     The same inertia that prevents legislative overreach, unfortunately, also contributes to a complacent attitude towards legal reforms... Click here to read the full article.

Congratulations to Faculty of Law Research Output Awardees 2014

Congratulations to Cora Chan, James Fry and Ernest Lim on being awarded Faculty of Law Research Output Awards 2013-2014.  Each receives HK$10,000 to further their research.

Their award winning research outputs were as follows: 

Kelvin Kwok Appointed Advisor to Hong Kong Competition Commission

Congratulations to Kelvin Kwok on his appointment by the Hong Kong Competition Commission as a non-governmental adviser to the International Competition Network (ICN) for a period of two years from 1 July 2015.  The Commission is an active member of the ICN and contributes to the work of its Working Groups.  
      Kelvin was also recently called to the Hong Kong Bar and commenced limited practice in April 2015. He began to advise on competition law matters as an ad-hoc consultant prior to joining the Bar. He has experience dealing with a competition matter under the Broadcasting Ordinance and applications concerning exclusion/exemption under the Competition Ordinance. He has been involved in various commercial and civil matters as a pupil at Des Voeux Chambers.  His recent publications can be found here.

Sunday, June 28, 2015

Albert Chen Interviewed by Emily Lau after the Political Reform Veto

Professor Albert Chen was interviewed in Cantonese by the Honourable Ms Emily Lau on on 25 June 2015.  In the 30-minute interview, Professor Chen expressed disappointment in the reform vote on June 17th and his belief that the reform debate won't be discussed again until the Legislative Council election in 2016.  He noted Beijing officials' statements to the effect that the restrictions in the 31 August 2014 decision would remain unchanged.  Professor Chen also believed that pan-democrats need to rethink their approach to the political reform issue and avoid oppositional tactics like filibustering, which was not favoured by the public.  Ms Lau said there were indeed many less politically sensitive issues on which pro-establishment and pan-democratic legislators could agree.  She called upon Professor Chen, in his capacity as a member of the Basic Law Committee, to convey to Beijing the Hong Kong people's strong desire for a genuine choice of Chief Executive candidates and their rational and peaceful approach to fighting for political reform.

Saturday, June 27, 2015

Douglas Arner to Give Keynote at 23rd Australia and New Zealand International Law Conference

Professor Douglas Arner will be delivering a keynote address on "The new silk road: all roads lead to China?" at the 23rd Annual Conference of the Australian and New Zealand Society of International Law hosted by the New Zealand Centre for Public Law at Victoria University of Wellington from 2-4 July 2015.  Other keynote speakers include former judge of the International Court of Justice, Sir Kenneth Keith (Prof Emeritus, Victoria University of Wellington), Professor Mary Keyes (Griffith Law School), and Professor Gerry Simpson (Melbourne Law School).  The focus of the conference is on international law-making.  The Victoria University of Wellington press release includes the following details:
Academics, practitioners and NGO and government experts on the law of armed conflict, use of force, private international law and financial regulation are among the speakers at an upcoming conference hosted by the New Zealand Centre for Public Law at Victoria University of Wellington.
     Attorney-General and Victoria Faculty of Law alumnus Hon Christopher Finlayson will speak at the opening session of the 23rd Annual Conference of the Australian and New Zealand Society of International Law (ANZSIL) which will take place from Thursday 2 to Saturday 4 July.
     Although states have traditionally been the main subjects of international law, new actors, processes and fora have been involved in the creation of international standards in recent decades. These innovative efforts at engaging in and making sense of legal diplomacy raise significant questions about the legitimacy, accountability, effectiveness and nature of international law.
     The conference will explore the theoretical and practical challenges these efforts pose to law-making in the broad fields of private and public international law, says Alberto Costi, Associate Professor at the School of Law.
     “We are delighted to host this conference, which is recognised as the annual gathering of international lawyers not only from the region but also from further afield, as shown by the affiliations of the speakers.”

Michael Davis on What Next for Hong Kong Leaders after Reform Veto

South China Morning Post
27 June 2015
A lot of recent attention has focused on Hong Kong pan-democrats and what they should do after their failed attempt to secure democracy. This attention might be better focused on the Beijing and Hong Kong governments. Last week's Legislative Council vote was a disastrous end to a nearly two-year campaign to push through alleged democratic reform. Soul-searching by our top officials is clearly needed.
     While opinion polls seemed to suggest equal support for and opposition to the bill, in fact, supporters often acknowledged that the proposal was flawed. Their support was often based on the premise of future changes - hardly a resounding endorsement if this is not a realistic possibility. Given the level of foot-dragging over democratic reform in the past 17 years, one would have to be pretty gullible to expect further significant reform to institute genuine democratic elections.
     Rather, public support for the bill was probably based on the intimidation factor; many were prepared to accept an undemocratic model to avoid further contention. But what is the source of this contention? Laying the blame at the feet of protesters hardly seems fair. The protests were driven by the efforts to block genuine reform. Beijing, in its white paper and its August 31 decision, clearly aimed to block pan-democrats from being presented to voters... Click here to read the full article.

Friday, June 26, 2015

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

Vol. 5, No. 5: 24 June 2015
Table of Contents

1. Legal Pluralism, Institutionalism, and Judicial Recognition of Hong Kong-China Cross-Border Insolvency Judgments
Emily Lee, The University of Hong Kong - Faculty of Law

2. The Evolution of Relational Property Rights: A Case of Chinese Rural Land Reform
Shitong Qiao, University of Hong Kong Faculty of Law
Frank K. Upham, New York University School of Law

3. What Determines M&A Legal and Financial Advisors’ Competitiveness in an International Financial Centre: Using China's Going Out Policy as a Natural Experiment
Bryane Michael, University of Hong Kong Faculty of Law, University of Oxford
Dariusz Wojcik, University of Oxford, St. Peter's College
Douglas W. Arner, University of Hong Kong - Faculty of Law
Chen Lin, The University of Hong Kong - Faculty of Business and Economics
Wilson H.S. Tong, Hong Kong Polytechnic University - School of Accounting and Finance, Hong Kong University of Science & Technology (HKUST) - Department of Finance
Simon X. Zhao, The University of Hong Kong - Department of Geography

4. Defaming by Suggestion: Searching for Search Engine Liability in the Autocomplete Era
Anne S. Y. Cheung, The University of Hong Kong - Faculty of Law

5. Trade Finance in East Asia: Potential Responses to the Shortfall
Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law
Douglas W. Arner, University of Hong Kong - Faculty of Law
Rebecca Stanley, University of New South Wales (UNSW) - Faculty of Law

Thursday, June 25, 2015

Symposium on Chinese Legal Reform and the Global Legal Order (Report)

Speakers from Germany, Canada, Australia, Mainland China and Hong Kong participated in a one-day symposium on Chinese Legal Reform and the Global Legal Order.  Professor Zhao Yun, Director of the Centre for Chinese Law, reports on the highlights from the event.
Profs Zhao (HKU) and Wang (City U)
China has been undertaking legal reforms of different scale in different aspects since the late 1970s. For over three decades, the result and impact of such reforms were very often understood and analyzed from the perspectives of legal convergence and divergence or law and development discourses. The limits of these Western-centric discourses are becoming increasingly conspicuous when China has emerged as one of the world's economic and political powers, yet following its distinct path of legal transformation.
Session 1
     The event aimed at examining China's efforts in justice reforms from a holistic manner and seeking alternative analytical frameworks that not only take into account legal ideologies and legal ideals, but also local demand, socio-political circumstances and cultures, to explain and understand such reforms so that more useful insights can be produced in predicting and analyzing China's as well as other emerging Asian countries' legal future.
Session 2
     The theme Chinese Legal Reform was further divided into specific areas/sub-themes, where Chinese legal reform will often interact/conflict/integrate increasingly with the world's legal order/powers: (1) Chinese Law and Criminal Justice (which includes essays on criminal procedures, access to justice, human rights, legal profession, etc.); (2) Chinese Law, Global Markets and International Relations (which incldues competition law, privacy protection, IP, foreign investment, maritime, etc.) (3) Chinese Law and Global Order in Historical Perspectives.
The event brought together local and overseas scholars of Chinese law to present their works with an aim of producing an edited volume of the same theme. It produced intensive academic dialogue in a relatively cozy environment of intellectual exchange.

Session 4
     The Centre for Chinese Law plans to hold the following events in the coming year: 1) a Conference on Rule of Law Development in China from a Comparative Perspective; 2) Young Chinese Scholars' Forum on International Law, to provide a platform for emerging Chinese scholars on international law to share their on-going research.  Written by Professor Zhao Yun.  The full symposium programme is available here.

Wednesday, June 24, 2015

Congratulations to Dr Jianlin Chen and Dr Shitong Qiao (New JSD holders)

Congratulations to Dr Jianlin Chen and Dr Shitong Qiao who were recently awarded their doctorates in law.
Dr Jianlin Chen obtained his JSD from the University of Chicago (Faculty of Law) for his thesis entitled "Law & Religious Market: Theoretical Perspective and Case Study Application of China".  His supervisors were Professors Tom Ginsburg and Lisa Bernstein.  Parts of his dissertation have been published in the Asian Journal of Comparative Law, Oxford Journal of Law and Religion and Journal of Law, Religion and State.  Details can be found on Dr Chen's SSRN page.  His thesis abstract reads as follows:
This J.S.D. dissertation presents Law & Religious Market as an alternative critical perspective to examine the normative considerations that are associated with laws/policies affecting religion. The current legal discourse on religious liberty posits the proper role of the law and other state instruments in relation to religious matters as a neutral arbitrator that avoids making normative claims as to the merits or shortcomings of any particular religion. Drawing from sociological research on religions, the foundational premise of Law & Religious Market perspective is the recognition that the impact of law (and other state instruments) on religion extends beyond circumstances where there are conscious and/or explicit support/suppression of particular religions or religion in general. Law continues to exert a far-reaching influence on prevailing religions and religious practices within jurisdictions through shaping the permissible competitive interaction between religions and the consequent effects on the identities and characteristics of the religions that emerge victorious over their religious rivals. Thus, Law & Religious Market perspective argues that legal discourse cannot hide behind a veil of religious neutrality and must confront the conversation regarding what sort of religious competition – and the consequent winner in the religious market – should be fostered by the state.
      This dissertation also utilizes the case study of China to highlight the factual and normative contributions that can be derived from the perspective. Factually, the case study lay out the precise nature of religious competition as envisaged by the current legal regime in China beyond the typical mere identification of how religious practices are restricted in China in the current literature. Normatively, the case study argues that although the current legal regime is excessively involved in heavy-handed interventions driven by compulsive concerns for political control, the conscious differentiation of religions based on their practical impact on society – not their theological content – is the necessary and appropriate inquiry that should be preserved in any actual reform. In addition, the case study argues that even if a religious free market is the normative goal of reform, several of the current restrictions on religious activities are useful for moderating religious competition during the transition from the relatively infant religious market of China.
Dr Shitong Qiao obtained his JSD from the Yale Law School; the members of his thesis panel included Professors Robert Ellickson (Chair), Susan Rose-Ackerman (reader) and Paul Gewirtz (reader).  The thesis "Chinese Small Property: The Co-Evolution of Law and Social Norms" has been partly published (or accepted for publication) in the American Journal of Comparative Law, Canadian Journal of Law and Society and a chapter of Law and Economics of Possession (Chang ed, CUP 2015).  See Dr Qiao's SSRN page.  Thesis abstract: 
This research investigates a market of informal real estate in China, referenced by the term “small property” (xiaochanquan), as their property rights are smaller/weaker than the big/formal property rights. In particular, I examine the formation and operation of this market, and how it interacts with the legal system and eventually leads to changes in the Chinese property law system. This case study endeavors to explore the co-evolution of property law and norms in the Chinese market transition. First, it finds that property norms changed more swiftly than property law and served as imperfect institutional infrastructure for a market economy at the beginning of the Chinese market transition. Second, it discloses a more dynamic interaction between law and social norms. In particular, it explores how a layered and fragmented legal system leaves room for the growth of property norms, and how the ad hoc legal responses to the deviating property norms lead to changes in both the property norms and property law itself. Overall it presents a story about the evolution of property rights with consideration of political, economic and communal factors combined, as opposed to the existing case studies that focus on only one of the above three aspects. At the methodology level, this research endeavors to combine on-the-ground observations with insights from social sciences, in particular, law and economics.

Monday, June 22, 2015

CL Lim on Britain's 'treaty rights' in Hong Kong

"Britain's 'treaty rights' in Hong Kong"
CL Lim
The Law Quarterly Review
July 2015, Vol. 131, pp. 348-354
Recent controversy over democratic reform in Hong Kong has, at its heart, the decision of August 2014 by the Standing Committee of the National People’s Congress (NPCSC) to restrict the choice of candidates while allowing the Hong Kong electorate to elect Hong Kong’s Chief Executive in 2017.
     Critics say that Britain has a "treaty responsibility" in the matter. They intend to refer to treaty obligations arising under the Sino-British Joint Declaration of 1984. However, these obligations are res inter alios acta. Any suggestion that there could be treaty responsibilities which may be owed by Britain to Hong Kong, or its people, is unsound. Nothing in the conduct of successive British Governments seems to have ever suggested this. A more realistic proposition would be that China owes Britain certain treaty obligations, the current Hong Kong controversy involves a breach of Britain’s treaty rights, and since Britain has not hitherto pressed its rights it now has the "responsibility" to do so. All that can be meant by British "responsibility" is that Britain owes a moral responsibility to Hong Kong to press its own treaty rights against China.
      For its part, Beijing has rejected any notion of British moral responsibility. More importantly, Beijing has also denied that there is any treaty right involved in the recent controversy let alone a breach of the Joint Declaration. The fact that the Joint Declaration states nothing about choosing Hong Kong’s Chief Executive by universal suffrage would tend to support Beijing’s view. The instrument in which such an express stipulation may be found, however, is Hong Kong’s Basic Law. Prior to the 1997 handover, the colonial government had attempted to democratise Hong Kong’s Legislative Council (LegCo). But there never was any point in doing that which could easily be undone by Beijing upon Hong Kong’s return to China. Everything therefore depended upon the outcome of what were, then, ongoing discussions between 23 Hong Kong and 36 Beijing representatives on the enactment of a Basic Law for post-handover Hong Kong. As Lord Patten had acknowledged in a speech to LegCo in October 1992, any colonial initiative will as a practical matter have to converge with the Basic Law.
    The upshot of all this was that, while it is merely a piece of Mainland Chinese legislation, all roads lead to the Basic Law... Because the Joint Declaration (Pt XIII, annex I) also states that "the provisions of the International Covenant on Civil and Political Rights … as applied to Hong Kong shall remain in force", it makes the rules of the Human Rights Covenant "relevant" to the interpretation of the Joint Declaration. These rules are "applicable" to any Sino-British treaty commitment concerning electoral reform because art.25(b) of the Covenant guarantees the "right to vote and to be elected at genuine periodic elections which shall be by equal and universal suffrage". There is a British treaty reservation which had excluded art.25(b)’s application to colonial Hong Kong, and which China subsequently preserved, but the reservation applies only to the "establishment" of an elected "Executive or Legislative Council". Arguably, Beijing has already decided to favour such "establishment" and Britain can say that the reservation no longer applies. 
      In sum, the argument for a British treaty right rests upon a prolonged argument about treaty interpretation, the essence of which is that commitments in the Joint Declaration ought to be amplified by terms contained in the Basic Law and that while Britain may have acquiesced to China’s previous interpretations of the Basic Law, this cannot now be taken for granted; not least, because the Human Rights Covenant also needs to be taken into account in interpreting the Joint Declaration... Full text version available on Westlaw.

Richard Wu Comments on Strengthening Procurator's Ethics in China

Legal Ethics
May 2015, Vol. 17, Issue 3, 2014, pp 454-457
In China, the public has had little access to information about legal cases. There has been a need for reform in this important area. On 1 October 2014, the Supreme People’s Procuratorate of China commenced the implementation of the ‘Provisional Stipulations on Open Access to Information in People’s Procuratorate Cases’ (‘the Stipulations’). This represented a milestone in strengthening the transparency of procurators’ works in the country. The Stipulations are divided into six chapters, and cover general principles, inquiries about procedural information for general cases, dissemination of information on important cases, public access to legal documents,5 and the supervision and protection of case information.
     In implementing open access to case information, the procuratorates should observe the principles of lawfulness, convenience to the public, timeliness, regulation and safety. They should use various means including the internet, telephone, post, and over-the-counter services to provide information to interested parties and the public. In addition, a unified national electronic system must be established so that the procuratorate at all levels can link to this electronic system in order to provide open access to case information. However, open access will not be granted to four categories of cases, namely cases involving state secrets, commercial secrets, privacy and minors’ offences. Information about these kinds of cases must not be disclosed to the public... Full text available on Taylor & Francis online and later from the Hart Publishing webpage.

Saturday, June 20, 2015

Felix Chan on Specific Words of Incorporation in Bills of Lading

"Specific Words of Incorporation in Bills of Lading"
Felix Chan
The Law Quarterly Review
(2015), Vol. 131, pp. 372-376
Abstract: Caresse Navigation Ltd. v Zurich Assurances MAROC and others (M/V “Channel Ranger”) [2014] EWCA Civ 1366 has attracted wide attention by virtue of its application of common law principles of contractual interpretation. To all engaged in shipping and marine insurance, the decision is equally significant for its discussion with regard to bill of lading and charterparty contracts. Stated shortly, the English Court of Appeal had to decide whether the exclusive jurisdiction clause in the charterparty was binding on the parties of the bill of lading issued under the charterparty, even though the bill of lading itself only referred to “arbitration” without mentioning “jurisdiction” at all. In this commentary, the implications behind the reasoning of the decision are examined...  Full article download available on Westlaw.  This article and Dr Chan's earlier article, "Incorporating the Charterparty's Applicable Law Clause into Bills of Lading" [2012] LMCLQ 481 (with L Zhao), were recently cited in the 23rd edition of Scrutton on Charterparties and Bills of Lading, the leading work in the area for more than 130 years.

Friday, June 19, 2015

Michael Davis Explains Why Democrats Vetoed Universal Suffrage in Hong Kong

"China must trust Hong Kong's desire for democracy"
Michael Davis
Nikkei Asian Review
19 June 2015
After nearly two years of planning, discussion and then a year of promoting Beijing's vision of democracy, the Hong Kong government on Thursday suffered an embarrassing defeat on its proposed electoral reform legislation.
      An impromptu walk-out by pro-government lawmakers just before the vote -- supposedly meant to delay proceedings by creating an insufficient quorum -- misfired. There were enough lawmakers left in the legislative chamber for the historic vote to go ahead and the "no's" overwhelmed the "yes" camp by 28 to eight.  However, even if the lawmakers had all stayed and voted, the united front presented by the opposition would still have been enough to veto the bill.
     For many in the local and international communities, this defeat demonstrates the Hong Kong people's vigorous determination to defend their city's autonomy, enshrined in its constitution since Britain returned it to mainland China in 1997.  Many fear Beijing's increasing interference in Hong Kong's internal affairs will bring with it the corruption and lack of rule of law long witnessed on the mainland.
      It may seem strange that the opposition lawmakers -- who come under a loose alliance called the "pan-democrats" -- would vote against a reform bill that was meant to allow Hong Kong people to select their head of government by one person, one vote for the first time.  The version of "universal suffrage" that is acceptable to Beijing comes with severe limitations, however, and they are designed to exclude anyone deemed unfriendly to the central government... Click here to read the full article.

Karen Kong Comments on the Lack of a Right for Refugees to Work in Hong Kong

"Refugees' Right to Work in Hong Kong - Or Lack Thereof: GA v Director of Immigration"
Karen Kong
Oxford University Commonwealth Law Journal
June 2015, Vol. 14, Issue, 2, pp 337-348
Abstract: This paper examines the domestic applicability of human rights treaties in Hong Kong in light of the recent Hong Kong Court of Final Appeal decision of GA v Director of Immigration (2014), which concerned refugees’ right to work. In the absence of a comprehensive domestic incorporation of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the immigration exception to the International Covenant on Civil and Political Rights (ICCPR) incorporated through the Bill of Rights, refugees do not enjoy a right to work in Hong Kong, except in some circumstances where forbidding work may amount to inhuman and degrading treatment under the ICCPR. This paper reviews the adequacy of the legal protection of refugees in Hong Kong, and argues for a more comprehensive domestic incorporation of the ICESCR to ensure the applicability of the rights thereunder.  Click here to download the article.

Thursday, June 18, 2015

"Intertemporality and international investment arbitration" (New Article by Fry & Repousis)

"Intertemporality and international investment arbitration: protecting the jurisdiction of established tribunals"
James Fry and Odysseas Repousis (PhD candidate)
Arbitration International
June 2015, Vol. 31, Issue 2, pp. 213-259
Abstract: The backlash against investor–State arbitration is building, to the point that some commentators even talk about termination or amendment of investment treaties in order to strip international arbitral tribunals of their jurisdiction after the arbitration process already has started. This suggestion has been made in the context of the Philip Morris Asia plain packaging ICSID arbitration involving the Australia–Hong Kong bilateral investment treaty (BIT). This suggestion raises a number of interesting issues for international law and dispute settlement, especially in relation to the limits of the intertemporal rule. States are free to agree to amend or terminate treaties, including ones relating to investment, even before they expire. Such amendments or termination do not have retroactive effects unless the parties to the treaty agree otherwise. This same freedom is available to states in relation to investment treaties. However, the analysis may vary in the context of investor–State arbitration. An arbitration clause in an investment treaty represents an offer made by those states to arbitrate disputes with investors. When investors accept that offer, the consent to arbitrate becomes perfected and cannot be withdrawn unless both parties to the arbitration—the investor and the host state—agree. This conclusion is based on the principle of irrevocability of the consent to arbitrate, which is a pillar of arbitration law and also is established in Article 25 of the ICSID Convention. Moreover, the applicable law to the dispute would be the law that was binding on the parties at the moment of the acts that created the dispute. The same principle applies in state responsibility disputes. Therefore, the argument that Australia simply can amend its BIT with Hong Kong to stop the Philip Morris arbitration might be incorrect. This article explores these issues.

Wednesday, June 17, 2015

Privacy and Legal Issues in Cloud Computing (New Book from Anne Cheung and Rolf Weber)

Privacy and Legal Issues in Cloud Computing
Editors: Anne Cheung and Rolf Weber
Edward Elgar, 2015, 320 pp.
Description: Adopting a multi-disciplinary and comparative approach, this book focuses on emerging and innovative attempts to tackle privacy and legal issues in cloud computing, such as personal data privacy, security and intellectual property protection. Leading international academics and practitioners in the fields of law and computer science examine the specific legal implications of cloud computing pertaining to jurisdiction, biomedical practice and information ownership. This collection offers original and critical responses to the rising challenges posed by cloud computing.
     An international team of legal scholars, computer science researchers, regulators and practitioners present original and critical responses to the growing challenges posed by cloud computing. They analyse the specific legal implications pertaining to jurisdiction, biomedical practice and information ownership, as well as issues of regulatory control, competition and cross-border regulation.  Law academics, practitioners and regulators will find this book to be a valuable, practical and accessible resource, as will computer science scholars interested in cloud computing issues.
     HKU Faculty chapter contributions: "Introduction: a walk in the clouds" (Anne Cheung & Rolf Weber), "Introduction to cloud computing and security issues" (Joe Kong, Xiaoxi Fan and KP Chow), "Legal safeguards for cloud computing" (Rolf Weber), "Re-personalizing personal data in the cloud" (Anne Cheung), "Lost in translation: Transforming healthcare information for the digital and cloud domains" (Terry Kaan).

Freedom of speech no justification for homophobic insults (Marco Wan in SCMP)

"Freedom of speech no justification for insults directed at gay Hong Kong lawmaker Raymond Chan"
Marco Wan
South China Morning Post
17 June 2015
The video of two women hurling homophobic insults at legislator Raymond Chan Chi-yuen sparked widespread condemnation but there have also been voices defending the speakers' right to express their views. This incident raises interesting questions about the nature and function of the right to freedom of speech.
     Freedom of speech is not an absolute right. All common law jurisdictions recognise that there are limits to what one can say in public, even though they differ on what those limits are. Defamatory speech, for example, can be legally proscribed: one cannot go around making false statements against someone which damages his or her reputation.
     A key reason why the law imposes limitations is the concept of dignity. The roots of dignity can be traced back to at least as far as the 18th century philosopher Immanuel Kant. At its simplest, "dignity" refers to the intrinsic worth that all individuals possess by virtue of their common status as human beings. Since all individuals have the same intrinsic worth, we should show respect for the equal dignity of other people.
     For Kant, a person's dignity is "unconditional", meaning it does not vary depending on factors such as race, class, gender or sexual orientation. This conception of equal dignity forms the basis of anti-discrimination law, and indeed much of human rights law... Click here to read the full article.

Tuesday, June 16, 2015

Hong Kong's Democratic Future (Report of the Canadian Foreign Affairs Standing Committee)

From March to May 2015, Canada's House of Commons Standing Committee on Foreign Affairs and International Development conducted a study of the political situation in Hong Kong.  The Committee held three meetings and took evidence from academics, representatives from NGOs, student leaders, and leaders of Hong Kong's pro-democracy movement. The Committee's 29-page report entitled "Hong Kong's Democratic Future" was recently published.  The Committee concluded that "Canada has both an interest and a role in ensuring that the spirit of democracy is respected in Hong Kong, a city with which Canada shares important history, economic ties and personal connections."  It emphasized "that there should be no gap between the rhetoric and the substance of universal suffrage".  In ended the report with three recommendations directed at the Government of Canada. Recommendation 1: The Committee recommends that the Government of Canada state its support for the democratic aspirations of Hong Kong people, including the need for genuine universal suffrage in the election of their political leaders. Recommendation 2: The Committee recommends that the Government of Canada reiterate its support for the ‘one country, two systems’ principle, and for the 1984 Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong. Recommendation 3: The Committee recommends that the Government of Canada encourage dialogue that can lead to governance reforms in Hong Kong that are broadly accepted by all concerned.  Professor Simon Young testified before the Committee and his views were taken into account in the Committee's report.

"Changing the tune of our calls for democracy in Hong Kong" (Kapai & Elgebeily)

"Changing the tune of our calls for democracy in Hong Kong"

Calls for democracy in Hong Kong, though rooted in serious concerns about the implementation of universal suffrage under the Basic Law, are undoubtedly romanticised; like birdsong, sweet and uplifting, they underscore our hopes for a more egalitarian future for us and our children – yet they risk beckoning us to see only the rose-tinted future without questioning what the path to achieving it entails. These calls spurred into action a public – notably, the younger generation – which has been thought to be apathetic to political and social issues. Recent movements have shown that they are anything but apathetic; they are passionate, hopeful and determined about their democratic future. But what exactly is this effort directed at? The irony is that calls for democracy have moved us further away from its goals of social cohesion than ever before; amidst the emotional crescendo from the Umbrella Movement to the political wrangling over the government’s reform proposal for the election of the next Chief Executive, have we ever paused to consider why we are calling for democracy and how it will serve Hong Kong?
     The actualisation of democracy in Hong Kong has acquired the status of a goal unto itself, without adequate attention paid to questions about which democratic models succeed or fail, and why. In this omission, the pursuit of democracy ‘at large’ without a discussion of the form and context in which an aspirational model is likely to operate in substantive terms, whether as a model that allows civic nomination or a blank vote option, puts the carriage before the horse. It predisposes calls to democracy to fail in fulfilling the expectations of the people of Hong Kong that democracy is the answer that will help fix all wrongs and deliver us from this political quagmire. The answer as to why we strive for democracy so vehemently lies perhaps in the societal conditioning that has nurtured a widespread logical fallacy: freedom is inherently good simply for the sake of offering us freedom. We seem to have taken for granted that democracy is both what we want and need in light of articles 3(2) and 3(5) of the Sino-British Joint Declaration and the promise of gradual and orderly reform towards universal suffrage guaranteed in articles 45 and 68 of the Basic Law. We are confident in Hong Kong that democracy can exist – and indeed, thrive; however, we must first decide what we want our democracy to look like, how we want it to function and to achieve what ends in order to protect our cherished Hong Kong values. 
     The pursuit of ‘democracy’ for democracy’s sake without considering the individual circumstances of Hong Kong and its present needs socially and politically, risks rendering it a meaningless concept. Do we seek democracy simply to mimic overseas systems? If so, we are no better than a schoolchild pleading to his parents for the latest pair of trainers in order to fit in with his peers. Or do we genuinely want an effectively functioning democratic system that will not entrench the mistakes other democratic systems are known for? 
     ‘One person, one vote’, a process of civic nomination and improved representation in the Nomination Committee are often cited as indicators of our vision for a democratic Hong Kong; but if Berlusconi’s iron grip on Italian elections through his quasi-monopoly of the media has taught us anything, it is that even a civic nomination process is no guarantee of a result that is fair. 
     Democracy must achieve egalitarianism in both form and substance so that Hong Kong can address the problems that are the major sources of social discontent and disharmony. How would it address the deep-rooted cleavages across different sectors in society that are currently crippling Hong Kong and fuelling animosity across the political divide: rising property costs, an ever-widening wealth gap, poverty, equal access to education? In the absence of a model with characteristics that fully account for how these issues might fare in the context of a democratic system, democracy – even if attained in name – would be ineffective in practice. 
     Democracy as a ‘predetermined’ model of political arrangement in one form or another is not a panacea for the woes of Hong Kong that can simply be administered to combat a chronic ailment; rather, it is an all-pervasive system that requires the painstaking fostering of an environment conducive to organic growth and integration of the numerous institutions and cultural practices which support successful exercise of democratic political power by its constituents. Successfully achieving democracy is not as simple a task as ticking off a homogenous check-list of flat-pack boxes fresh from the production-line of Democracy Industries™. Rather, it necessitates first the establishment of conditions for a thriving democracy to be functional in practice.
     “Democracy”, Karl Popper tells us, “is the word for something that does not exist” – it is ethereal and intangible. Thus, the quest for democracy ought to be as much about creating culturally and politically enabling conditions to pave the way for outcomes that have come to be universally defined as characteristic of a flourishing democracy – pluralism, freedom of expression and association, the structural and social institutions for change, and dialogue in conditions of reciprocal trust. It is moulding the malleable; it is artistry; it is living needlepoint, weaving the essence of culture, community, language and society into a canvas of supporting factors to create the DNA of a specialised democratic system. Each system warrants its own form of democracy. Therefore, while one cannot pinpoint a universal model of what democracy is, we can certainly identify what it is not.
     Accordingly, today, the basis upon which we can reject the government’s reform proposal is simply that we inherently know this is not democracy – it lies too far away on the spectrum to constitute democracy, even if we have not yet enumerated what the milestones towards democracy on this spectrum are. As we prepare for the looming rejection of the government’s reform proposal for the election of the Chief Executive, we must reflect on why so-called democratic models abroad have failed to deliver on the same issues that have struck at the heart of Hong Kong’s stability. It is only when we turn our gaze critically towards other democracies that we can identify the form our aspirational model of a democratic Hong Kong should take given its present composition, constitution and political constraints; we should not fall prey to demanding that we emulate one or another model blindly simply because certain mechanisms have worked in countries that are brandished as ‘democracies’. We ought to pay close attention to the specific context within which certain mechanisms thrive whilst others fail to do so and use that to inform our cause.
      Without focusing on the details of what we seek so desperately and more importantly, why, just like even the sweetest birdsong, calls for democracy will become nothing more than background noise after the failure of the government’s reform proposal, tuned out as we move forward with our daily lives.
    Ms. Kapai is Associate Professor of Law at the University of Hong Kong and Director of the Centre for Comparative and Public Law, University of Hong Kong; Dr. Elgebeily is Assistant Research Officer at the Centre for Comparative and Public Law, University of Hong Kong.

Monday, June 15, 2015

An Empirical Study of Post-Disaster Governance (New Article by Shahla Ali)

"Towards Peer Presence in Post-Disaster Governance: An Empirical Study"
Shahla Ali
Hastings International and Comparative Law Review
Summer 2015, Vol. 38, pp. 243-274
Abstract: Recent experience reminds us the United States is anything but immune to the effects of major natural disasters; in 2012 Hurricane Sandy demolished the entire eastern seaboard, impacted 24 states and caused $ 50 billion to $ 68 billion of damage. As natural disasters occur with increasing frequency, there is growing interest and scholarship in disaster relief governance. Empirical research regarding the mechanisms of post-disaster local governance is therefore timely given the scale and magnitude of suffering involved. The findings presented in this article draw on the attitudes and perceptions of practitioners working in disaster response fields to provide us with insights into the dynamics, challenges and lessons learned from the perspective of those directly engaged in the work of post-disaster relief. The principal finding of this paper, based on survey data and follow-up questions with 96 humanitarian aid practitioners, is that there is a statistically significant correlation between the level of "peer" engagement with local residents and the perceived effectiveness of response. In-depth knowledge about the elements of post-disaster humanitarian aid coordination efforts will be essential to understanding the role of states, transnational governance and legal networks, and global nonstate actors in order to contribute to effective post-disaster responses. Such insights will be particularly useful, as states and organizations increasingly implement and coordinate relief efforts with civil society participants.  Full article available on LexisNexis.

Sunday, June 14, 2015

"The U.K. Supreme Court at War" (New Article by PJ Yap)

"The U.K. Supreme Court at War"
Po Jen Yap
Pacific Rim Law & Policy Journal
April 2015, Vol. 24, pp. 363-389
Introduction (excerpt): In the wake of the September 11th terrorist attacks ("9/11") and similar tragedies across the globe, governments around the world have responded by passing a slew of legislative sanctions that seek to combat this global national security threat. The United Kingdom's government, like many of its foreign counterparts, has frequently contended that, in times of national crisis, democracies must recalibrate their institutional processes and reinterpret their legal norms to accept more intrusive encroachments on personal liberty that would usually be considered unacceptable during "normal" times. The British judiciary, in particular the Supreme Court (and the Appellate Committee of the House of Lords), has also entered the fray as they are tasked to review and rule on the legality of several contentious governmental measures.  However, as these judges sit at trial, they too also stand trial when their decisions are judged in the court of public opinion and are critiqued within the walls of academia. 
     Unsurprisingly, commentators have published a plethora of academic literature on how courts should address these legal challenges against governmental counter-terrorism efforts.  However, this discourse on national security has been dominated by the assertions of two polarized factions. On one side, we have the "executive unilateralists" who argue that courts - especially during emergencies or periods of crisis - should generally defer to governmental determinations on national security.  These scholars contend that delay and uncertainty would result from the judicial review of national security disputes and impose unacceptable costs on executive power. Furthermore, "judicial deference is both desirable and predictable, given the high stakes and the judges' limited information and competence." On the other side, we have the civil libertarians who insist that judges should never acquiesce to governmental intrusions on human rights, even in times of public emergencies, and that courts must be vigilant and provide robust oversight over state action at all times. They believe that public bodies tend to overreact and that "the government's own assessment may be colored by fear of the electoral response and - less charitably - by calculations of electoral advantage," such that it is vital for the courts to subject the assertions of the executive to "searching examination." 
      A central purpose of this article is to show why both opposing, strident views are normatively untenable and unsustainable, and why it is unsurprising that neither viewpoint has been accepted in practice by the House of Lords and its succeeding body, the Supreme Court (hereinafter referred to collectively as "the Court") in the post-9/11 cases. It is my contention that the underlying normative assumptions of scholars in both camps are premised on a variant of the "nirvana fallacy." Civil libertarians generate a best-case scenario for rigorous judicial oversight of executive action during emergencies and compare it to the worst-case scenario for executive action, while the reverse holds true for executive unilateralists. Realistically, judges on the Court are insulated from the political winds and are arguably more impartial in reviewing challenges to governmental action. However, they are comparatively more limited in their access to the requisite national security information and lack the training to make the predictive risk assessments on the necessity of national security measures. On the other hand, while it is equally true that, in times of crisis, the executive branch possesses the "speed, secrecy, flexibility, and efficiency that no other governmental institution can match," the need to assuage public fear and moral panics may distort the objectivity of the executive's assessments. The main trade-off in the institutional design of security policy is between freedom from bias and information. 
     This article contends that the Court has been generally cognizant of the institutional advantages and limitations of its office when adjudicating national security disputes, and has not succumbed to criticisms. Instead, there has been an inverse correlation between the degree of judicial deference displayed to the executive on national security matters and the information made available to the Court since 9/11. In other words, the intensity of the judicial oversight over various counter-terrorism measures increases when an emergency wanes, and the Court receives credible information that the impugned governmental measures are ineffective or unnecessary in addressing the perceived national security threats. As time passes, the Court often acquires more information, thereby narrowing the epistemic gap between the judges and the executive. Conversely, where the Court was not privy to the intelligence on which executive anticipatory risk-assessments were based, and where the costs of judicial errors were particularly high, the judiciary generally erred on the side of caution and deferred to the executive's national security determinations. 
     This article's central argument is that there exists an inverse relationship between the amount of information the Court has, and the level of judicial deference it affords the government.... Full text available on LexisNexis.

Saturday, June 13, 2015

Thomas Cheng on Japanese Competition Law

Masako Wakui and Thomas Cheng
Journal of Antitrust Enforcement
June 2015 (Advance Access)
Abstract: Abuse of superior bargaining position has long been a controversial area of Japanese competition law. Even though it is by no means unique to Japan—Korea, Taiwan, France, and Germany among others also have similar regulation—Japan’s abuse regulation has tended to attract more attention globally. One of the main sources of controversy for abuse regulation is whether it is consistent with competition law, and whether it serves any useful economic purpose. This article attempts to address this long-standing debate by examining whether abuse regulation is consistent with the various objectives of competition law and other economic rationales. Having determined that these objectives and rationales provide at best tenuous justifications for abuse regulation, or are inconsistent with the Japan Fair Trade Commission’s current enforcement practices, it proceeds to argue that abuse regulation can be best justified as a supplement to deficient contract law enforcement, which many commentators have noted is particularly serious for small- and medium-sized enterprises in Japan.

Friday, June 12, 2015

Gary Meggitt on the Doctrine of Insurable Interest

"Insurable interest - the doctrine that would not die"
Gary Meggitt
Legal Studies
June 2015, Vol. 35, Issue 2, pp. 280-301
Abstract: The doctrine of insurable interest grew out of eighteenth-century anxieties over fraudulent seafarers and habitual gamblers. It was created by the courts, entrenched by statute and remains in place to this day despite the fact that it serves no practical or legal purpose. It was hoped by many that, when the English Law Commission and Scottish Law Commission established their joint review of insurance contract law in 2006, the doctrine would be consigned to the proverbial dustbin of history. Eight years later, these hopes have been dashed. The doctrine is here to stay. This paper asks 'Why' and finds the answer to be elusive.

Thursday, June 11, 2015

Albert Chen Interviewed on Chinese National Television

Professor Albert Chen was interviewed by People Television (人民電視) on 22 May 2015 about the 25th Anniversary of the Basic Law. He explained that the enactment of the Basic Law provided a legal foundation for implementation of the “One Country, Two System” idea. The introduction of the Basic Law is of great importance in maintaining Hong Kong’s social and political stability before and after the handover.
     Professor Chen explained that the Basic Law allows Hong Kong’s electoral system to be modified gradually to become more democratic. Recently the Hong Kong Government has introduced the political reform proposal to allow all eligible voters to vote for the Chief Executive. However, the proposal can only be passed with the support of 2/3 of all LegCo members. At the moment it appears that the Government cannot gain enough support. If the proposal is not passed, Hong Kong will lose the chance of democratising its electoral system.
     As one of the six Hong Kong members of the Basic Law Committee, Professor Chen also shared his experience in working in the Committee. By studying judgments handed down by the Hong Kong courts and the implementation of the Basic Law in the territory, the Committee gives advice to the NPCSC as to how to interpret the Basic Law when a dispute arises. 
     Professor Chen is of the view that whenever there are controversial issues, such as the right of abode issue or political reforms, Hong Kong citizens know about the Basic Law through discussions on these issues. Yet the understanding of the Basic Law by the general public is not very in-depth and thorough.  Click here to view the interview (in Putonghua).