Monday, August 31, 2015

Corporate Governance Reform in Hong Kong (Bryane Michael and Say Goo)

"Corporate governance and its reform in Hong Kong: a study in comparative corporate governance"
Bryane Michael and Say Goo
Corporate Governance
2015, Vol. 15, Iss. 4, pp. 444-475
– The purpose of this paper was to determine to what extent Hong Kong’s experience proves (or disproves) theories from corporate governance in the areas of family ownership, concentration, self-dealing in Hong, executive compensation and other issues. This paper – written in the comparative corporate governance tradition – uses data from Hong Kong to discuss wider trends and issues in the corporate governance literature.
– The authors use the comparative corporate governance approach – exposing a range of corporate governance theories to the light of Hong Kong data. The authors purposely avoid over-theorising – leaving the data to speak for themselves for other researchers interested in such theorising.
– The authors find that Hong Kong presents corporate challenges that are unique among upper-income jurisdictions – in terms of potentially harmful (shareholder value diminishing) family relationships, shareholder concentration and self-dealing by insiders. The authors also show that excessive executive compensation, accounting and audit weaknesses do not pose the same kinds of problems they do in other countries. The authors provide numerous comments on theoretical papers throughout the presentation in this paper.
Research limitations/implications 
– The authors chose a relatively unused research approach that eschews theory building – instead, the authors use data from a range of sectors to build an overall picture of corporate governance in Hong Kong. The authors subsequently affirm or critique the theories of others in this paper.
Practical implications
– The original analysis conducted by the authors provided 22 recommendations for revising listing rules for Hong Kong’s stock exchange. Others – particularly Asian officials – should consider Hong Kong’s experience when revising their own corporate governance listing rules and regulations.
– This paper offers new and original insights in four directions. First, the authors use the empiricist’s method – presenting data from a wide range of corporate governance areas to comment on and critique existing studies. Second, the authors provide a system-wide view of corporate governance – showing how different parts of corporate governance rules work together using concrete data. Third, the authors provide a new study in the comparative corporate governance tradition – another brick in the wall that is “normal scientific progress”. Fourth, the authors pose tentative resolutions to highly debated questions in corporate governance for the specific time and place of Hong Kong in the early 2010s.   Click here to download the article.

Sunday, August 30, 2015

Anna Koo on International Commercial Mediation in China

"Mediation in China: Towards a Modernised and Harmonised Framework for International Commercial Mediation"
(2015) 19 Vindobona Journal of International Commercial Law and Arbitration 55-78
Abstract: As China’s international trade in goods led the world in 2013 and ranked number two if trade in services was included, its economic activeness provides a fertile ground for cross-border commercial mediation. A comparative analysis of the mainland’s, Hong Kong’s and Macao’s dominant mediation rules in their respective legal context will suggest that intraregional cooperation could strengthen China’s position as an attractive forum to foreign parties for international commercial mediation than maintaining the status quo. This article first describes the rules and laws applicable to international commercial mediation in mainland China and its two special administrative regions. It then explains the extent to which such rules and laws address pressing procedural problems differently or whether they generate largely similar results under different labels. It concludes by arguing that regional resemblances and disparities prompt modernisation and harmonisation in light of the unformulated policies of keeping the parties’ freedom of action intact and maintaining the need for flexibility, and that the Conciliation Rules, the Model Law, recent deliberations of the UNCITRAL Working Group on Arbitration and Conciliation, and up-to-date mediation rules of global mediation service providers could provide helpful resources for improvements.  Contact the author for a copy.

Saturday, August 29, 2015

Weixia Gu on "Responsive Justice" in China During Transitional Times

"Responsive Justice in China During Transitional Times: Revisiting the Juggling Path Between Adjudicatory and Mediatory Justice"
Weixia Gu
Washington University Global Studies Law Review
2015, Vol. 14, pp. 49-85
Abstract: China has been discussed in international literature as a transitional state in both social and economic senses; however, scholarly literature analyzing how China’s justice system responds to the country’s social and economic transitions is scant. This Article studies the international “transitional justice” framework that examines justice systems in economic, societal, and political transition in post-Communism Central and Eastern European (CEE) jurisdictions. Although China is not a transitional state in a political sense, the transitional justice framework, particularly its analyses on how successor regimes in CEE countries deal with the aftermath of economic restructuring and societal reparations through the justice system, is of relevance to China’s ongoing judicial reforms and its future development. By comparing the judicial situation in China to that of CEE countries during transitional times, this Article attempts to analyze China’s distinctive judicial response to her massive economic and societal transformation so as to conceptualize “responsive justice” in China during transitional times.  Click here to download the article.

Douglas Arner on Cross-Border Supervision of Financial Institutions

in Niamh Moloney, Ellis Ferran and Jennifer Payne (eds), The Oxford Handbook of Financial Regulation (Oxford: Oxford University Press, Aug 2015) 487-510
Introduction: This Chapter discusses regulation and supervision of financial institutions operating across borders.  The cross-border supervision of international active financial institutions raises a distinct set of institutional and coordination risks to financial stability.  As a result of the global and eurozone financial crises, major challenges in this respect have been revealed and increasing efforts are being made at the international level to develop effective approaches.
     The Chapter begins with a discussion of questions relating to market access and licensing before turning to questions of supervision, regulation, and resolution.  The Chapter concludes with a discussion of the outlook for continued globalization of financial services.  Click here to preview the chapter.

Friday, August 28, 2015

Eric Cheung Comments on the Charges Against Hong Kong Student Leaders (LA Times)

"Hong Kong student leaders on charges: We'll 'use trial to spread our message'"
Violet Law
Los Angeles Times
27 August 2015
Three student leaders who were instrumental in spearheading Hong Kong's pro-democracy demonstrations last fall were charged Thursday with participating in an unlawful assembly and other counts.
     Joshua Wong, founder of high-school activist group Scholarism and the best-known face of the movement, was charged with participating in an unlawful assembly and inciting others to join. Nathan Law, head of the college group Hong Kong Federation of Students, also was charged with one count of inciting, while his predecessor, Alex Chow, faces one count of participating in an unlawful assembly... 
     The charges filed Thursday stemmed from the storming of a public plaza at the semi-autonomous territory’s main government compound by nearly 200 people, mostly university and high school students, at the end of a class boycott in September...
     Secretary for Justice Rimsky Yuen rejected any speculation that Thursday’s prosecution was politically motivated.
     University of Hong Kong principal law lecturer Eric Cheung said even though the storming may constitute an act of unlawful assembly, he said “the bar [of conviction] is quite high.” That’s because the prosecution must prove that the person is engaged in disorderly conduct likely to cause immediate injury to others or damage to property, or both, he said... Click here to read the full article.

Thursday, August 27, 2015

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

Vol. 5, No. 7: 25 August 2015
Table of Contents

1. The Basic Law, Universal Suffrage and the Rule of Law in Hong Kong
Michael C. Davis, The University of Hong Kong - Faculty of Law

2. Shadow Banking System in China after the Global Financial Crisis: Why Shadow Banks Can Distort the Capital Market Order
Emily Lee, The University of Hong Kong - Faculty of Law

3. Professional Legal Education Reviews: Too Many 'What's', Too Few 'How's'
Wilson Chow, The University of Hong Kong - Faculty of Law
Firew Kebede Tiba, Lecturer in Law, Deakin University School of Law, Melbourne, Australia

Wednesday, August 19, 2015

Shitong Qiao and Frank Upham on Chinese Rural Law Reform (Iowa Law Review)

"The Evolution of Relational Property Rights: A Case of Chinese Rural Law Reform"
Shitong Qiao and Frank Upham
Iowa Law Review
August 2015, Vol. 100, pp 2479-2506
Abstract: The most notable, or at least the most noted, form of property evolution has been the transfer of exclusive rights from collectives to individuals and vice versa, such as the farm collectivization in Soviet Union and the establishment of the People’s Communes in Mao’s China and their reversals. Such radical moments, however, constitute only a small part of history. For the most part, property rights evolve quietly and incrementally, which is hard to explain if we take exclusive rights as the core of property, or, to put it more generally, if we are focusing solely on the question of who owns the things. To describe the evolution of property rights in China, we employ the concept of relational property. It is a concept that is heavily influenced by Joseph William Singer’s “social relations model” and Ian Macneil’s “relational contract” and, in particular, their emphasis on the determinative role of social relations in the construction of property and contract rights. The bundle of sticks metaphor is at the heart of relational property because it recognizes that property rights can be, and often are, disaggregated as they adapt to changing social, economic, and technological demands. As we show in the context of the reform of Chinese rural land, the combination of the metaphor of separable interests — the sticks in the bundle — and the dependence of property interests on social relationships can explain the evolution of property rights more accurately than a perspective that stresses a single central meaning of property.  Click here to download the full article.

Friday, August 14, 2015

Susan Finder on Private Lending and Shadow Banking in China

"Private Lending in China: Out of the Shadows?"
Susan Finder (Visiting Fellow, Centre for Chinese Law)
The Diplomat
12 August 2015
As I wrote in June, the Chinese courts are flooded with private (or “shadow”) lending cases, involving increasingly large amounts of money. The law on shadow lending is particularly unclear and fluid, causing uncertainty for debtors, lenders, and judges. Government recognition of internet lending and P2P lending, now at an early stage, means that many more shadow lending disputes are destined for the already stressed court system.
     On August 6 the Supreme People’s Court (SPC) issued what it calls a “judicial interpretation” to set out basic rules for private lending. This private lending judicial interpretation, which will become effective on September 1, applies to P2P internet platforms but not internet platforms operated by entities regulated by financial regulators.
     When announcing the private lending judicial interpretation, the SPC released updated statistics on private lending. Private lending disputes are the second most numerous type of civil case in the Chinese courts, with 526,000 cases in the first six months of this year, up 26 percent in comparison to the same period in 2014. The flood of cases has put enormous pressure on the court, and uncertainty concerning the legal structure has affected all parties, from small and medium enterprises to judges and lawyers... Click here to read the full article.

Thursday, August 13, 2015

Emily Lee on Cross-Border Insolvency Matters (Am J of Comp Law)

"Problems of Judicial Recognition and Enforcement in Cross-Border Insolvency Matters Between Hong Kong and Mainland China"
Emily Lee
American Journal of Comparative Law
2015, Vol. 63(2), pp. 439-465
Abstract: This article first explores whether it is legally possible to extend the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region Pursuant to Choice of Court Agreements between Parties Concerned to cover cross-border insolvency matters between Hong Kong and mainland China and, if so, the advantages and disadvantages of so doing. It then examines other alternatives for facilitating judicial recognition and enforcement of judgments between the courts in Hong Kong and mainland China that focus specifically on cross-border insolvency judgments (including court orders) that concern both Hong Kong and mainland China, such as signing a new arrangement, a special treaty, or a Memorandum of Understanding. It seeks to highlight the defi- ciencies of the Arrangement as well as discuss the options to remedy those deficiencies. The situation for Hong Kong–China cross-border insolvency cases is opaque due to the lack of local cross-border insolvency legislation in Hong Kong. In China, there is only one article (article 5) of the 2006 Enterprise Bankruptcy Law that concerns cross-border insolvency, but that article is inapplicable to Hong Kong–China cross-border insolvency cases. That article is inapplicable because it applies only to cross-border insolvency cases involving a foreign state. Since Hong Kong is not a foreign state, it is precluded from the article’s application. Also, Hong Kong and China have not adopted the UNCITRAL Model Law on Cross-Border Insolvency. Although internationally accepted soft law standards such as the Model Law can provide institutional guidance to cross-border insolvency matters, it is compatible with Hong Kong–China cross-border insolvency cases only when a third jurisdiction is involved. The lack of a formal judicial recognition mechanism for Hong Kong-China cross- border insolvency judgments creates problems such as legal uncertainty and forum shopping. This article aims to raise awareness of the difficulties facing practitioners involved in Hong Kong–China cross- border insolvency cases and to share academic perspectives on the issue.  Click here to download the full paper from SSRN.

Wednesday, August 12, 2015

Human Rights, the Rule of Law and Democracy (Keynote Speech by Johannes Chan)

"Human Rights, the Rule of Law and Democracy: Recent Experience of Hong Kong and China"
Johannes Chan
Keynote Speech at the East Asian Law and Society Conference 2015, 4-6 August 2015, Waseda University, Tokyo
Abstract: This paper argues that the discourse on the rule of law is of particular significance in Asia, partly because the rule of law is, rightly or wrongly, perceived to be more objective or less disturbing than discourses on human rights or democracy, and partly because it is perceived to be an essential condition for economic development. While there are considerable ambiguities about the concept, this is not a reason to dismiss its importance. The paper then develops the core content of the rule of law, with the absence of arbitrary powers as a central theme. Although the rule of law has gained an increasing acceptance among Asian states, many Asian states focus only on the enactment of legislation, whereas the implementation of the law and the availability of remedy are usually ignored. In particular, there is an absence of an independent judiciary, which, it is argued, is essential to the rule of law whatever the legal or political system is. It argues that the judiciary stands between the state and its people, and the legitimacy of the judiciary lies not in popular ballots but in its transparency, its rationality, its fairness and its independence. 
      The paper then reviews the concept of the rule of law as advocated in the recent 4th Plenum of the Central Committee of the Chinese Communist Party where the rule of law was adopted, for the first time, as the theme of the conference, and argues that despite the emphasis on party leadership, the effort to improve and strengthen the judiciary is a positive step that may have greater impact than it is generally expected. 
     The paper then explores the different perceptions of the rule of law in Hong Kong and China, and examines, in the context of One Country, Two Systems, the implications of two decisions of the Hong Kong Court of Final Appeal that have ended up in an interpretation by the Standing Committee of the National People’s Congress of the PRC. The interaction of the two systems highlights in particular the awkward position of legislative interpretation by a state organ in the development of the rule of law. The paper then turns to Hong Kong, exploring the relations between the rule of law and civil disobedience in the context of the recent Umbrella Movement. Finally, the paper returns to the core issue of constitutional review and the legitimacy of judicial review, and argues that it is possible to have the rule of law in an evolving democracy.  Click here to download full paper from SSRN.

Congratulations to Wesley Wong SC (New Solicitor General)

Congratulations to our alumnus, Mr Wesley Wong SC (LLB1992; PCLL 1993), who has been appointed Solicitor General of the HKSAR Government.  Mr Wong will vacate from his current post as Deputy Director of Public Prosecutions and assume office on 3 September 2015.  In announcing the appointment, the Secretary for Justice, Mr Rimsky Yuen SC (LLB 1986; PCLL 1987) described Mr. Wong as "a lawyer of outstanding abilities and integrity."  The Solicitor General is a Law Officer in the Department of Justice and head of the Legal Policy Division, which oversees the Law Reform Commission Secretariat and the general and constitutional law legal policy sections.  The Solicitor General is responsible for "the development of legal policy" and "advising the Secretary for Justice on a wide range of complex and sensitive legal issues and overseeing the department's legislative programme."  Mr. Wong was appointed Senior Council in 2013.

Tuesday, August 11, 2015

Dean Hor to Speak at Criminal Justice Conference in Singapore

Dean Michael Hor and Po Jen Yap will be speaking at the Criminal Justice Conference 2015: Criminal Justice and the Singapore Constitution to be held on 15 August 2015 at the Singapore Management University.  They will speaking on a panel addressing Punishment/Sentencing and the Singapore Constitution.  Some of the issues that might be discussed on this panel include  
  • Limits on the types of punishment that the state can impose 
  • Punishment/ sentencing, Art 12 and the rule of law in Singapore
  • Mandatory minimum sentences 
  • Constitutional prohibition against cruel and inhuman/unusual punishments 
  • Judicial independence and judicial power in sentencing 
  • The rights of prisoners in Singapore and Art 10
Click here for more information about the conference.

Thinking Like a Lawyer (New Book by Dr Mi Zhou)

Thinking Like a Lawyer
Dr Mi Zhou
Sweet & Maxwell
August 2015, 126 pp.
DescriptionThinking Like a Lawyer is an essential guide for those starting out on their study of law. Drawing on a wealth of sources, it shares key tips on how to stay afloat in an ocean of legal texts. The volume answers the crucial questions facing first and second-year law students: What is close reading? What does thinking critically mean? How can you analyse a problem efficiently and effectively? It takes you step-by-step through the process of acquiring the skills you will need to get the most out of your law studies.
     The book uses landmark cases from England and Hong Kong to demonstrate these skills. It also draws on literature, musicology, judges’ biographies, and podcasts to show how you, too, can think like a lawyer.
     Using a fun, unconventional, yet highly rigorous, approach to law, the volume will build students’ confidence by demonstrating:
  • Legal analysis skills – statutory interpretation, close reading of case law
  • Different registers of argument and analysis – from black-letter law to socially and politically aware approaches
  • Legal research and reasoning: how to ask the right questions, locate the right sources, and use them effectively
  • The importance of communication – from tweets to appeal court judgments.
It also contains a handy Short Guide to Survival, which contains crucial advice for new law students.

Thursday, August 6, 2015

Hong Kong's Legislature under China's Sovereignty (New Book)

Hong Kong's Legislature under China's Sovereignty 1998-2013
Dr Gu Yu (PhD 2013)
Brill, 2015
Description: In Hong Kong's Legislature Under China's Sovereignty: 1998-2013 Dr Gu Yu thoroughly analyses how Hong Kong’s legislature has impacted the law-making process as well as the financial control and supervision of the executive branch of the government. The political cleavage in Hong Kong seen in recent years has affected the level of Legco’s autonomy in terms of leadership, rules, committee autonomy and control over the legislative agenda. Given the weakened autonomy of Legco and the decline of moderate forces in both the pro-Beijing and pro-democracy camps, the role of Legco as a collective actor of checks and balances against the executive branch has been weakened. This book will appeal to both academics and practitioners whose work involves the relationship between the legislature and the executive branch in the HKSAR.  Click here for Google books version.

Wednesday, August 5, 2015

"China Tightens its Two-Systems Approach for Hong Kong" (Michael Davis)

"China Tightens its Two-Systems Approach for Hong Kong"
Michael Davis
4 August 2015
Abstract: A one-country, two-systems model describes China’s relationship with Hong Kong. Observers naturally can’t help but weigh the pros and cons of each system, regarding one better than the other. China is tightening controls on the mainland for human-rights advocates, educators and internet users while also denying the “high degree of autonomy” once promised to the citizens of Hong Kong as a special administrative region, explains Michael Davis, a professor of law at the University of Hong Kong. How to proceed on candidates for the 2017 election of Hong Kong’s chief executive is at a stalemate: Pro-democracy supporters would like open nominations, and China prefers to screen candidates. Davis concludes that “It’s not in the interest of local Hong Kong people or global investors for Beijing to increase its grip on Hong Kong.” Lingering dissatisfaction, tightening controls and uncertainty could put Hong Kong’s status as a global financial center at risk.  Click here to read the full article.