Saturday, May 30, 2015

Eric Cheung Criticises the Offence of Accessing a Computer with Intent

Hong Kong Economic Journal
28 May 2015
Barry Ma Kin-yin, chairman of local radical group The Faculty of Orchid Gardening was arrested after he posted on his Facebook page that all five members of a columnist’s family should be killed.
     Ma attacked former Ming Pao columnist Chris Wat Wing-yin for her pro-police stance in the recent saga of the wrongful arrest of an autistic man.
     He was arrested on suspicion of accessing a computer with criminal or dishonest intent, Apple Daily reported Thursday.
    Police confirmed that Ma, 47, was arrested in Tai Po Wednesday.
     Two other members of Orchid Gardening were arrested, for allegedly assaulting police officers, Sing Tao Daily reported.
     Chan Man, 63, was arrested in Tin Shui Wai Wednesday and Ho Kai-ming, 58, in Tai Po early Thursday.
     Ta Kung Po reported that on an online talk show Ma and Chan had called for suicidal people to kill a few police officers.
     While video recordings of the show have now been removed from the web, reports said the arrests were related to those remarks.
     Eric Cheung, principal lecturer in the law faculty at the University of Hong Kong, said the offense of accessing a computer with criminal or dishonest intent was originally aimed at computer hackers, but the law has been used more broadly as it was written rather vaguely.
     There is a large degree of subjectivity in determining what is dishonest, Cheung told Apple Daily.
     He said police should consider pressing criminal intimidation charges if there is enough evidence to make a case, as using a charge of accessing computer with criminal or dishonest intent could raise the question whether the authorities were trying to suppress freedom of speech.

Friday, May 29, 2015

Political Reform ABC (Ming Pao Interview with Albert Chen)

Political Reform ABC
by Professor Albert Chen
The political reform proposal introduced by the Hong Kong Government has been met with both support and opposition. This article will discuss the controversies by means of Q&As.

Q: What is the political reform proposal all about?
A: In short, the latest proposal is about ‘returning the votes to the people’ in order to achieve the goal of ‘returning the power to the people’ to a certain extent, so that the democratic development of Hong Kong can move one step forward. In the existing Chief Executive election mechanism, the Election Committee formed by 1,200 members from four sectors in the society takes complete control of both the nomination and the election of the Chief Executive. Under the latest proposal, this Election Committee will be transformed into a Nominating Committee. Like the Election Committee, the Nominating Committee will still have the right to nominate Chief Executive candidates, but the right to vote to choose the Chief Executive will devolved to the hands of over 5 million eligible voters. The nominating procedures will involve two stages (the first stage involves a lower threshold for ‘recommendation’ of potential candidates, while the second stage requires the affirmative vote of at least half of all of the Nominating Committee members) for selection of two to three candidates. After that the Hong Kong people may elect the Chief Executive by one person one vote. Then the Chief Executive elect will be appointed by the Central Government.
     At present, Hong Kong people already have the right to elect District Council and LegCo members. The proposal gives extra fundamental civil right to the people, that is to say, the right to elect the Chief Executive. Since Hong Kong’s political system is an ‘executive-led’ system, the right to elect the Chief Executive is a more powerful and important right compared with the right to vote in District Council and LegCo elections.

Q: Why can political reform help Hong Kong’s democratic development move forward?
A: The core value of ‘democracy’ is ‘public opinion can be expressed and will be respected’. The ballot is the best tool to express public opinion. One’s opinions can be expressed in a civilised, rational and peaceful manner by way of voting. People speak their minds by casting their ballots. It is difficult to have democracy without voting. There are of course other means to express opinions other than by voting, for example, to exercise the freedom of speech, freedom of publication, freedom of assembly or freedom of petition. However, in general, there would be relatively fewer people expressing their political views by these methods.

Q: What are the advantages for the people to have the right to elect the Chief Executive?
A: An elected leader has to be responsible to and monitored by those who have elected him/her. If the Chief Executive is elected by all Hong Kong people directly (not elected by 1,200 persons), that Chief Executive has to be responsible and accountable to all Hong Kong people. ‘Those who have a vote are the boss’. People who have the right to vote (the public) and the person being elected (the Chief Executive) have a master and servant relationship. In an universal suffrage with two or more candidates, each candidate has to make the best efforts to put forward a political platform that can move the voters, thereby to obtain their votes (which is called “baipiao” (拜票,or ‘solicit votes’) in Taiwan). From the people’s perspective, this is a kind of ‘benign’ (‘productive’ or ‘positive’) competition. Since the majority of voters in Hong Kong come from the grass root or the middle class, the political platforms suggested by the candidates in an universal suffrage election are likely to be more beneficial to the grass root and middle class people compared to those who are going to be elected by 1,200 persons. A Chief Executive who has gone through the ‘baptism’ of universal suffrage will very likely be more sensitive to public sentiments and acquainted with people’s needs.

Q: Why do the pan-democrats strongly oppose the political reform proposal?
A: We may use grades A, B and C (A is the best, C is the worst, B is somewhere in between) to illustrate the crux of the proposal. The existing Chief Executive election method (which has always been criticised by the pan-democrats as a ‘small circle election’) is a class C political system. What the pan-democrats are fighting for is a class A political system (in compliance with the ‘international standards’ for universal suffrage; no ‘unreasonable restrictions’ on the right to stand for election; and a ‘true universal suffrage’ without ‘screening’). For this political reform proposal, we could say it is a class B political system (see diagram).
Credit: Ming Pao
    Some pan-democrats object to B because they see it as worse than C. Some believe that B is better than C, but still they cannot accept it, because ‘to pocket it first means to pocket it forever’. They believe that if B is adopted, there will never be a chance to fight for A.
     My opinion is that B is better than C. It is more democratic. We may first ‘upgrade’ the political system from C to B, after that the pan-democrats may move forward in fighting for A (including universal suffrage for all seats in LegCo and a more democratically constituted Nominating Committee for the Chief Executive election).
     Either from the viewpoint of human history or by taking into account the political reality of ‘One Country Two Systems’, this kind of progressive democratisation is more feasible than jumping from C to A directly. On the other hand, if the pan-democrats reject B (which is now within reach) and insist on going after the distant A, the outcome will be all Hong Kong people will have to tolerate C for an indefinite period of time, to tolerate a system which the pan-democrats have criticised and described as an extremely un-democratic political system. The price for the pan-democrats going after their dreams is to be paid by all people in Hong Kong. Would that be too costly? The price we have to pay may include these: the government continues to function in difficulties; the LegCo continues to be paralysed by filibuster; the political situation remains deadlocked and in chaos; Hong Kong continues to be stagnant in its economic and social developments. Hong Kon’s prosperity may eventually to be dragged down by the disputes arising from political reform, universal suffrage and the August 31st decision.

Q: Why do some pro-democrats think B is worse than C?
A: Their usual arguments are as follows: (1) The candidate chosen by the Nominating Committee in accordance with B will be ‘rotten oranges, rotten apples’. They will not be welcomed by the public; (2) Voters could only vote like ‘voting machine’. Voters are to clothe the ‘pre-selected’ candidate with ‘pseudo-legitimacy’. This is a ‘fake universal suffrage’. My opinion is: (1) is jumping to an arbitrary conclusion. It is still uncertain as to how the Nominating Committee will function. Why do the pan-democrats predict that the worst scenario will materialise? Why do they exclude all good possibilities at the very beginning, that is, delicious apples and oranges are available to be chosen? Why don’t they give it a try and give the Nominating Committee a chance? As regards (2), according to my understanding, the reason for the ‘high threshold’ settings is not designed to facilitate the Central Government in determining who will be the Chief Executive. Instead, it is designed to reduce the chance of allowing people whom the Central Government is unwilling to appoint as the Chief Executive (i.e. those considered to be “non-patriots” and “controntational towards” the Central Government) to be nominated. Subject to this pre-requisite, the Nominating Committee is allowed and encouraged to nominate two to three candidates freely by way of anonymous votes. Thus the Chief Executive who is ultimately elected will be one who is trusted by the Central Government and supported by the Hong Kong people at the same time. I do not agree with the opinion about ‘covering the candidate with pseudo-legitimacy’. This statement implies disrespect for the voters. Hong Kong is unlike North Korea (which some pan-democrats often mention by way of analogy). Hong Kong is a free and open society. The public can understand all candidates thoroughly and decide freely on whether to vote for a specific candidate, to cast a blank vote or not to vote. How many voters’ hearts have been won over by the Chief Executive will be reflected by the election outcome. This is an outcome that reflects Hong Kong citizen’s true and freely expressed opinion, a ‘genuine public opinion’ (it does not matter whether the universal suffrage is described as ‘true’ or ‘fake’).

Q: The pan-democrats believe that as delegates, they only need to vote in accordance with their political belief and conscience. They need not be affected by the majority public opinion. Do you agree?
A: The election of the Chief Executive by one person one vote is a fundamental civil right as well as a human right. This cannot be deprived of unreasonably. The human rights of the minority cannot be taken away by the majority. It is even worse if the human rights of the majority are taken away by the minority (or the LegCo members who represent their voices). Some public opinion polls show that about half of the interviewees are hoping to elect the Chief Executive in 2017 according to the proposal suggested by the Government. This amounts to about 2.5 million people (using 5 million eligible voters as the base for calculation). There are 27 pan-democratic LegCo members. If they veto the political reform proposal, each of them, on the average, will be striking down the voting rights of over 90,000 voters. Are they thus acting in accordance with the principle of human rights and democracy? Actually, those who oppose the political reform proposal may, at the time of the Chief Executive election by universal suffrage, choose not to vote or cast a blank ballot to show their dissatisfaction with the Chief Executive election system. The pan-democrats should not take away the sacred votes from the hands of millions of voters who want to cast their vote in a Chief Executive election (given that we are now just one step away from such a Chief Executive election).

Q: Apart from the right to vote, is the right to be elected a fundamental civic right?
A: Yes. The Central Government has set a high nomination threshold to restrict the right to be a candidate because it insists that the Chief Executive must be a ‘patriot’ who ‘loves China and loves Hong Kong’. The pan-democrats oppose the political reform proposal by sacrificing the people’s right to vote. This is the difficult situation that Hong Kong's democratic development is facing under One Country Two Systems.
     Translated by Jessica Wu. The original article was published in Ming Pao on 12 May 2015 (in Chinese), reprinted in speakout.hk.

Thursday, May 28, 2015

New Edition of Halsbury's Laws of Hong Kong (Constitutional Law and Contempt of Court)

Congratulations to Mr Justice Kemal Bokhary (Honorary Professor) and Professor Johannes Chan who have re-written and updated the Constitutional Law chapter in volume 16 of Halsbury's Laws of Hong Kong, second edition (May 2015). The contributing editors to the chapter were Mr Danny Gittings (PhD candidate), Ms Alison Y.Y. Choy (BSocSc(Government & Laws), LLB & PCLL), and Mr Anson Wong Yu Yat (BBA (Law), LLB & PCLL). 
     Dr. Keith Hotten is the author of the revised Contempt of Court chapter.

Tuesday, May 26, 2015

Shitong Qiao on the Problem of Illegal Buildings in Shenzhen

"Small Property, Adverse Possession and Optional Law"
Shitong Qiao
in Yun-chien Chang (ed), The Law and Economics of Possession
Cambridge University Press, May 2015, pp 290-319
Abstract: “How to deal with these illegal buildings?” was the question I was frequently asked in my interviews with government officials in Shenzhen, a Chinese city in which almost half of the buildings were built illegally. To demolish them has proved to be a mission impossible; to legalize them would encourage more illegal buildings. People in China call these illegal buildings small-property houses (xiaochanquan) because their property rights are “smaller” (weaker) than those on the formal housing market, which have “big” property rights protected by the government. I frame this Chinese conundrum as an adverse possession question and resolve it by utilizing the optional law framework developed by Ayres. My argument is that the allocation of initial options matters at least as much as the allocation of initial entitlements and that options should be granted to parties that have the best information to make decisions, which in the small-property case, are the numerous individual owners rather than the government. I find that in an effort to grandfather-in existing small properties and deter further development of small properties, the Shenzhen Municipal Government in the last two decades has adopted land use policies that can be neatly categorized into the five rules of legal entitlements under the optional law framework. The only missing rule, Rule 5, also provides a solution to a certain type of cases.  Click here to download the chapter from SSRN.

Monday, May 25, 2015

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

Vol. 5, No. 4, 18 May 2015
1. The Yet-to-Be Effective But Effective Tax: Hong Kong's Buyer's Stamp Duty as a Critical Case Study of Legislation by Press Release
Jianlin Chen, University of Hong Kong - Faculty of Law, University of Chicago - Law School

2. Institutional Fragmentation and the Ontological 'Ethos' of International Law as a Legal System in a World Society
Anlei Zuo, The University of Hong Kong, Faculty of Law, Students

3. Refugees’ Right to Work in Hong Kong – Or Lack Thereof: GA v Director of Immigration
Kar Yan Kong, The University of Hong Kong - Faculty of Law

4. Hong Kong's Umbrella Movement: Beijing's Broken Promises
Michael C. Davis, The University of Hong Kong - Faculty of Law

5. Human Rights Lawyering in Chinese Courtrooms
Fu Hualing, The University of Hong Kong - Faculty of Law

Haochen Sun on Trademark Protection of Luxury Brands

"The Diversity of Interests in the Trademark Protection of Luxury Brands"
Haochen Sun
in Irene Calboli & Srividhya Ragavan (eds), Diversity in Intellectual Property: Identities, Interests, and Intersections
Cambridge University Press, 2015
Introduction (excerpt): During the past two decades, the luxury industry rapidly developed and expanded its presence in many major cities around the world.  In 2013, global luxury goods sales reached approximately $300 billion.  Culturally, as status symbols, luxury goods function to define class, social distinction, and personal beliefs and values.
     Luxury companies utilize their trademarks as status-signaling symbols to market their products and services.  From this perspective, trademarks have become one of their most valuable assets...
     But should trademark law serve the interests of luxury companies and their rich consumers?  This chapter explores this issue through the lens of the recent litigation between two French luxury fashion companies: Christian Louboutin and Yves Saint Laurent. The former has made the red sole the iconic design feature of its footwear for women.  Christian Louboutin asserted that it should complete "territorial" control of the red sole, to be landmarked by flags of trademark protection.
Credit: Arroser 
    By focusing on this case, this chapter opens a perspective on the ramifications of the trademarkability of the red sole for the role of trademark law in distributing social resources and accommodating the diversity of interests of various stakeholders.  It argues that we should reconsider whether Louboutin's red sole mark is distinctive enough to warrant trademark protection.  The chapter proposes that this issue must be examined from the social justice perspective.  It contends that social justice should have the trumping power to deny trademark protection of the red sole mark even if it is adequately distinctive...

Sunday, May 24, 2015

Albert Chen Interviewed by Emily Lau on Political Reform (Cantonese)

Professor Albert Chen was interviewed by the Chairperson of the Democratic Party, the Honourable Ms Emily Lau on 22 May 2015 on the programme OurTV.hk.  In the 30 minute interview, Professor Chen elaborates on his latest idea of delaying the Legislative Council (LegCo) vote on political reform until after the LegCo elections in September 2016.  He said that this would enable the public to express their views in a meaningful way on whether legislators should accept the government's political reform proposal.  At present, a large majority of the public cannot voice out their thoughts. Since it is impracticable to hold a referendum, the 2016 LegCo Election would be the most effective platform for the voters to express their views. It would also buy time for all parties to try to reach an agreement on political reform.
     He anticipated that six months would be needed to go through the whole process of legislative amendments, nominating and electing the Chief Executive in 2017. He believed it was still feasible to undergo this process after the 2016 LegCo election, though it would mean delaying the CE election which is normally held in March.  Professor Chen stressed that it was the Chief Executive who was in the most advantageous position to influence the central government to accept a compromise on reform.

"Hong Kong Shaping up to Become the Next Fintech Hub"

Diana Ngo
The Cointelegraph
22 May 2015
Earlier this month in Hong Kong, the Office of the Hon Charles Mok, Legislative Councillor (IT), and the Office of the Hon Kenneth Leung, Legislative Councillor (Accountancy), joined hands and organized a seminar to discuss the opportunities and regulatory challenges that are surrounding financial innovation startups, or the so-called fintechs.
     The event, sponsored by KPMG and prominent startup and Internet organizations, was intended to gather actors from various niches composing the market and hear their insights regarding the overall fintech industry.
     The purpose was also to explore how Hong Kong's law and regulation needs to be shaped in order to meet with the city's latest ambition of becoming the next financial technology hub....
     Professor Douglas Arner from the Faculty of Law, HKU, a speaker at the seminar, believes that Hong Kong is a world leader in many fields, including infrastructure, payments and settlements, data and security, privacy policy and risk management, and regulation.
     According to many of the speakers, Hong Kong, a traditional financial center, has valuable resources and the capacity to "[become] Asia's fintech hub." However, the city lags behind when it comes to Internet finance and innovative fintech business models....  Click here to read the full article.

Saturday, May 23, 2015

Lusina Ho on Equitable Compensation

"Equitable compensation on the road to Damascus?"
Lusina Ho
Law Quarterly Review
(2015) 131 (April), pp. 213-218
In the controversial decision in Target Holdings v Redferns [1996] A.C. 421; [1995] 3 All E.R. 785, the House of Lords held that a doctrine of causation applied to the assessment of equitable compensation for misapplied trust funds, albeit it might not directly apply the rules of causation and remoteness at common law. Ever since then, powerful criticisms have been levelled against this approach, primarily on the ground that the beneficiary’s right to take common account and falsify an unauthorised disbursement is an exercise of their primary right—very much like an action for a liquidated sum—and hence the doctrine of causation is irrelevant... 
     Almost two decades had passed when the same issue reached the Supreme Court in AIB Group (UK) Plc v Mark Redler & Co [2014] UKSC 58; [2014] 3 W.L.R. 1367. Having taken cognisance of nearly 900 pages of academic writing submitted to it, the Supreme Court unanimously affirmed Target Holdings. Their Lordships considered it a "backward step" to rely on the "historical origin" of the remedy (at [138]) or "fairy tales" constructed about it (at [69]) to depart from the fundamental equitable principle that a defaulting trustee should only be required to restore the trust fund to the position it would have been in had the breach not occurred (at [63]–[64] and [134]–[135]).... 
     In fairness to the critics of Target Holdings, it must be recognised that the dichotomy between adhering to the nature of the accounting process and limiting compensation to loss attributable to the breach is a false one. The Supreme Court could have achieved justice and common sense in the present case within the historical parameters of the accounting process. Nonetheless, it is submitted that there is something to be said for parting with the artificial steps of falsification where the court is making a direct award of equitable compensation.... Full text available for download on Westlaw.

Friday, May 22, 2015

Malcolm Merry on Missing Title Deeds

"Victorian prescience about missing title deeds"
Malcolm Merry
The Conveyancer and Property Lawyer
[2015] 2, pp 176-183
Abstract: A tentative suggestion by a Lord Chancellor of the mid-Victorian era, Lord Campbell, as to the test for whether the absence of original title deeds means that a vendor of property cannot give a good title has been vindicated and elaborated upon by the Court of Final Appeal of Hong Kong (De Monsa Investments Ltd v Whole Win Management Fund Ltd (2013) 16 HKCFAR 419). The test to be applied is whether the deeds which are not produced cast any reasonable suspicion upon the title. Consequently it is possible, depending upon the circumstances, for a vendor to give good title even if the original deeds are missing and an adequate explanation for their absence cannot be given.  Full text article can be downloaded from Westlaw.

Tuesday, May 19, 2015

Albert Chen Interview in China Daily: "Checks on CE candidates needed"

Parker Zheng/China Daily
"Checks on CE candidates needed, says Albert Chen"
Kahon Chan
China Daily
19 May 2015
A vetting process for Chief Executive candidates prior to an election by universal suffrage was essential because the post is vested with key powers which concern the country’s security and sovereignty, Basic Law adviser Albert Chen Hung-yee said.
     Since 1997 the former dean of the University of Hong Kong’s faculty of law has served on the HKSAR Basic Law Committee, a statutory working group that advises the Standing Committee of the National People’s Congress (NPCSC). He is one of the two longest-serving committee members.
     The Basic Law provides that the Nominating Committee (NC) is an integral part of the proposed election by universal suffrage. After the election victory, the CE-elect must first secure appointment by the central government before taking office.
     In an exclusive interview Chen told China Daily that while the central government has the power to appoint the local CE, any veto of an appointment — rejecting the choice of the full electorate —could trigger political turmoil in Hong Kong... Click here to read the full article.

Susan Finder on Conducting Mainland Due Diligence

"Conducting due diligence is getting easier on mainland"
Susan Finder (Visiting Fellow, Centre for Chinese Law)
South China Morning Post
19 May 2015
Hong Kong businesses are increasingly finding themselves doing business with mainland companies and individuals and finding themselves required to "know their mainland customers" via a quick background check.
      Although overall transparency on the mainland remains limited, it has improved since the State Council adopted Regulations on Open Government Information (OGI), and particularly since the Communist Party Central Committee held its third and fourth plenums.
      The mainland government is making some "big data" available online, so it is easier to do some basic due diligence, free of charge and from your smartphone or computer. Knowledge of Chinese is required because English information is either incomplete or not available at all... Click here to read the full article.

Sunday, May 17, 2015

New Issue of Hong Kong Law Journal Published (Vol 45, Part 1 of 2015)

ANALYSIS
Public Entertainment and the Interpretive Dilemma in T v Commissioner of Police Po Jen Yap1
Enforcing Contracts for the Benefit of Third Parties: Recent Reform of the Doctrine of Privity Lee Mason13
Lecture
Vicarious Liability on the Move Lord Phillips of Worth Matravers29
ARTICLES
Relevant Lies Janice Brabyn45
Nullity or Merely Lost Priority? The Effect of Failure to Register a Document Concerning Land Malcolm Merry87
Taking Transgender Rights Seriously: A Rights-Based Model of Gender Recognition in Hong Kong Kai Yeung Wong109
Interests of Youth Suspects are at Risk: Implementing the Right to the Presence of Parent or Guardian and the Right to Legal Assistance at the Police Stations in the Case of Youth Suspects in Hong KongShum Ka Ching, Kelly127
REVIEW ARTICLE
A New Turning Point in the Study of International Legal Compliance, in China and Elsewhere Roda Mushkat157
Focus: Taiwan’s Sunflower Movement
Introduction Brian Christopher Jones189
Confrontational Contestation and Democratic Compromise: The Sunflower Movement and its AftermathBrian Christopher Jones and Yen Tu Su193
Searching for Constitutional Authority in the Sunflower Movement Chia Ming Chen211
Policing an Occupied Legislature: Symbolic Struggle over the Police Image in Taiwan’s Sunflower Movemen Jeffrey T Martin229
Connecting Gender and Trade: Gender Framing in the Anti-Cross-Strait Service Trade Agreement Movement Hsiaowei Kuan249
Dance with the Dragon: Closer Economic Integration with China and Deteriorating Democracy and Rule of Law in Taiwan and Hong Kong? Chien Huei Wu275
Peaceful but “Illegal” Assemblies? – Comparisons between Taiwan’s Constitution and the International Covenant on Civil and Political Rights Wen Chen Chang295
Marching Towards Civic Constitutionalism with Sunflowers Jiunn rong Yeh315
CHINA LAW
Legal Pluralism, Institutionalism and Judicial Recognition of Hong Kong–China Cross-Border Insolvency Judgments Emily Lee331
Declining Jurisdiction by Forum Non Conveniens in Chinese Courts Zheng Sophia Tang351
BOOK REVIEWS
Hong Kong Media Law: A Guide for Journalists and Media Professionals: Expanded Second Edition, Doreen Weisenhaus, with contributions by Rick Glofcheski and Yan Mei Ning Danny Gitting373

Saturday, May 16, 2015

New Scholarship from Bryane Michael (AIILF Fellow)

In an article published in the Hong Kong Economic Journal ("How would a China crisis affect Hong Kong?", 28 April 2015) Bryane Michael discusses the impact on Hong Kong's economy if China experiences "a banking crisis and sharp economic contraction in the next five years".  He also outlines what Hong Kong can do to protect itself now.   In the South China Morning Post, Bryane made the case for why "Hong Kong needs financial reform to weather future financial crises and regain its lost lustre" (14 April 2015).  On TaxProfBlog, Bryane contributed an op-ed entitled "Taxing Labor Like Capital Would Reduce Income Inequality and Promote Economic Growth" (24 March 2015).  In his video infographic series, "China/Global Big Law and I-Banks Study", Bryane addressed the question of what factors explain why certain financial centres get all the legal and financial mandates (click video below).  Later this month, Bryane will speak on regulation and Malta as an international financial services centre at the FinanceMalta 8th Annual Conference, 20-21 May 2015.  

Recent Publications by Roda Mushkat

"Political Economy of Regulating Competition in a Challenged Global Metropolis: The Hong Kong Blueprint"
Miron Mushkat & Roda Mushkat
North Carolina Journal of International Law & Commercial Regulation
Vol. 40, Issue 22, Winter 2015, pp 293-354
Introduction (excerpt): The original East Asia developmental states have now matured and have joined the ranks of industrial countries.46 Interest appears to have shifted to the BRICs (Brazil, Russia, India, and China) and their successors.47 This group does not constitute a homogeneous category, which is a disadvantage from a conceptual and policy perspective. Nevertheless, certain common features may be discerned. The countries that are currently attracting attention had long been at the interventionist end of the strategic continuum, but are presently liberalizing, albeit in a controlled fashion.48 They are also almost invariably large. An inference may be drawn that an institutional cocktail, featuring some optimal blend of spontaneous bottom-up and thoughtful top-down elements, may provide the ideal policy formula for sustaining a healthy economic expansion, and that size too greatly matters in this respect. 
     Without necessarily challenging the broad thrust of that argument, it is appropriate to note that it does not properly reflect the diversity of economic experience. Small countries, frequently less interventionist and more open than their large counterparts, often consistently outpace the titans. 49 Hong Kong, a former British colony and, since 1997, a special administrative region (HKSAR) of the People’s Republic of China (PRC), is a case in point. Despite its stellar economic record and distinct institutional features, it occupies a rather modest place in the literature on economic development and growth (the equally vibrant yet differently structured city-state of Singapore is also marginalized).50 The purpose of this paper is to put Hong Kong’s economic architecture back in the spotlight by describing and assessing its regulation of competition, a process that has recently culminated in the introduction of legislation to address the issue. However, the territory’s relevant economic and political characteristics must be outlined first. 
     Another preliminary step taken is an evaluation of Hong Kong’s overall regulatory regime. Specific measures taken to correct market failure need to be placed in a broad economic and political context because such contexts are key determinants of the particular nature of the measures, although this is not a one-way relationship. However, such mechanisms are often best understood as a component of a wider regulatory system, which may be tightly or loosely integrated, but which is seldom devoid of any internal coherence. Indeed, the conclusion drawn here is that the effectiveness of the emerging framework for regulating competition in Hong Kong must be judged in light of its fit with the economic, political, and overall micro-level governance regime in which it is embedded.... Click here to download the full article.  


"A New Turning Point in the Study of International Legal Compliance, in China and Elsewhere"
Hong Kong Law Journal
Vol. 45, Part 1 of 2015, pp 157-188
Abstract:Scholarly exploration of rule conformity in the global arena is a fast-growing and increasingly sophisticated enterprise which lies at the epicentre of positive international legal theory, a relatively young but burgeoning field of scientific inquiry, with a salient explanatory dimension and a distinct multidisciplinary, perhaps even interdisciplinary, orientation. Notwithstanding the scope, diversity and progress observed in this analytical domain, it is not devoid of flaws and gaps. Periodically, research is produced that shifts the whole edifice to a markedly higher plateau. The book under review arguably falls into this category by virtue of making a number of significant contributions to knowledge, the most notable being the author’s genuine and largely successful effort to combine and integrate insights derived from seemingly competing, but in fact often complementary, schools of thought.
     Professor Mushkat is Honorary Professor in the Faculty of Law and also currently Professor of International Law, Hopkins-Nanjing Centre, Paul H. Nitze School ofAdvanced International Studies, Johns Hopkins University, Nanjing, China.  Some of her recent publications are listed below:

Michael Ng on the Transplantation of English Bankruptcy Law Into Early Colonial Hong Kong

"Dirt of whitewashing: re-conceptualising debtors’ obligations in Chinese business by transplanting bankruptcy law to early British Hong Kong (1860s–1880s)"
Business History
13 May 2015, pp 1-29
Abstract: This article, drawing on a wide range of archived materials, and using one of the earliest sets of English business law imported to Hong Kong – the Bankruptcy Ordinance of 1864 – as a case study, argues that the transplantation of the English bankruptcy regime into early colonial Hong Kong was contrary to the business interests of both the European and Chinese communities and wrongfully displaced the traditional Chinese business norms and practices that had contributed to the health of the colonial economy prior to the regime's introduction. This article constitutes one of the first empirical studies to place English business law and its widely acknowledged contribution to the economy of early colonial Hong Kong under scrutiny. From the perspective of the relationship between English law and former British colonies’ development of business modernity, the findings presented herein contradict the readily accepted notion that English business law provided a solid legal infrastructure upon which colonial Hong Kong's prosperity and economic growth were built and call for more nuanced studies of the positive role of Chinese legal traditions in Hong Kong's development of business modernity in its early colonial period.  Click here to download the full article.

Thursday, May 14, 2015

Faculty Speak at Singapore's Occupy Central Workshop (14-15 May 2015)

The National University of Singapore (NUS)'s Centre for Asian Legal Studies is hosting a two-day conference entitled "Occupy Central for Universal Suffrage: Constitutional Development and Political Reform in Hong Kong" on 14-15 May 2015.  Four Faculty members will be speaking at this event.  Michael Davis will present on "The Beijing Decisions, the Umbrella Movement and the Rule of Law in Hong Kong".  Simon Young will address "The Process for Realizing Hong Kong Universal Suffrage: How Could We Have Done Better?"  Dr Po Jen Yap will present, "The NPCSC Decision of 31 August and Occupy Central: Doubts, Dilemmas, and Dangers".  Hualing Fu's paper is entitled "Civil Participation in Hong Kong and Constitutional Dialogue with Beijing".  The workshop features other speakers from Tsinghua University Law School, City University of Hong Kong Law School, Shanghai Jiaotong University Law School, Shenzhen University's Basic Law Centre, Academia Sinica, NUS and several media organisations.

Wednesday, May 13, 2015

Say Goo on China's Cross-Border Securitization Market

"Can China Develop a Viable Cross-Border Securitization Market?"
Jeffrey H Chen and Say Goo
Journal of Structured Finance
Spring 2015, Vol. 21, No. 1, pp 95-100
Abstract: The past year has seen a dramatic pick-up on domestic securitizations in the People’s Republic of China (PRC). This article provides an overview of the two main government-sponsored securitization schemes in the PRC—one administered by the China Bank Regulatory Commission (CBRC), the other administered by the China Securities Regulatory Commission (CSRC). The article mainly focuses on the legal, regulatory, constitutional, and other issues that must be addressed before a viable public cross-border securitization market out of China can be developed. As with many financial initiatives in China, the CBRC and CSRC schemes are fairly new, and as such untested or inadequately tested in PRC courts. Moreover, the CBRC and CSRC regulations are administrative regulations and not statutory law. Concepts such as legal isolation, commingling, and bankruptcy remoteness as they apply to securitizations are new to this market and untested in its courts. From a legal point of view, the single best thing that could happen for a securitization market to develop in China, for both domestic and cross-border transactions, is for the National People’s Congress (NPC) to enact a securitization statute as other civil law jurisdictions in Asia, such as Korea, have done.

Tony Carty on Hong Kong's Electoral Standoff

"Hong Kong's electoral standoff: the bigger picture"
Tony Carty
South China Morning Post
13 May 2015
Article 25 of the International Covenant on Civil and Political Rights provides that every citizen shall have the right to stand for election and to vote without unreasonable restrictions. In the case of Hong Kong, there is an original UK reservation to the applicability of the article to the territory, continued by Beijing.
     The arguments around the legal effectiveness of this reservation are well known and complex. What has still to be recalled is that international law, of which the covenant is a part, remains the law among sovereign states. It regulates the relations of states on a consensual basis.
     Generally, this law does not try to regulate the birth or constitution of states or their internal affairs, simply because this is beyond the physical capacity and also outside the interest of most states. At the same time, there is no international judicial authority or legal sanctioning framework, whereby states impose on one another legal duties with respect to one another's internal affairs...  Click here to read the full article.

Monday, May 11, 2015

Marcelo Thompson Cited by Brazil's Apex Court

Congratulations to Marcelo Thompson whose article ("The Democracy of FLOSS: Software Procurement under the Democratic Principle" (2008) 5 U. Ottawa L & Tech J 79) was cited with approval by the Brazilian Supreme Court ("Supremo Tribunal Federal"), the apex court in constitutional matters.  The case concerned the abstract judicial review of primary legislation from the state of Rio Grande do Sul establishing a system of preference for open source software (over "proprietary" software) in public procurement.  The Court upheld the constitutionality of the law which had been found unconstitutional in an interlocutory decision of the Court.  The decision forecloses the possibility of software companies imposing ex-ante designed end-user license agreements on the government.  The Court's judgment (dated 9 April 2015) in Portuguese can be downloaded here.

Sunday, May 10, 2015

Michael Davis Receives Merit Prize (Human Rights Press Award 2015)

Congratulations to Michael Davis who received this year's English Commentary Merit Award in the 19th Human Rights Press Awards organised by the Hong Kong Journalists Association.  The award was received for articles published in the South China Morning Post ("Broken Trust", 3 Sept 2014, and "Clear Distinction", 7 Nov 2014) concerning the Occupy movement and political reform.  These and other articles by Professor Davis can be found here on this blog. 

Thursday, May 7, 2015

Michael Davis Speaks on 25 Years of the Basic Law (Backchat - RTHK Radio 3)

Backchat, RTHK Radio 3
6 May 2015
It's 25 years since the mini constitution was promulgated. How is it faring? How do you interpret the current HK-Beijing relations?  The panelists were Michael Davis, Professor, Faculty of Law, University of Hong Kong, Peter Wong, NPC Delegate, and Joseph Cheng, Professor, Department of Public and Social Administration, City University; and Convenor, Alliance for True Democracy.  Click here to listen to the show.

Congratulations to Student Finalists in Law Reform Essay Competition 2015

Congratulations to the five law student finalists in this year's Law Reform Essay Competition organised by the Law Reform Commission of Hong Kong.  The topic was whether Hong Kong should legislate on cyber-bullying and, if so, how?  We are very pleased that four of the finalists are HKU students.  The five students are CHAU Ching Shing (HKU LLB4), CHOI Da Young (HKU LLB4), HUNG Stephanie (HKU PCLL), LAU Andrew (CUHK JD3), and TAM Kent Chung (HKU BBA(LAW)3).  All of their essays can be downloaded here.  The Law Reform Commission will normally hold a ceremony to honour the students later in the year.  This is the second year of the competition.

Wednesday, May 6, 2015

Douglas Arner to Speak at 2nd Symposium on EU-Asia Relations in Financial Services


27-29 May 2015, Hong Kong. The symposium on EU-Asian capital markets regulation provides a unique opportunity for global, European and Asian policy makers, high-level regulators, leading academics and industry representatives to meet and discuss important issues impacting the effective functioning of EU Asian trade, investment and capital markets. The cornerstone of the Annual Symposium on EU-Asia Relations in Financial Services is the candid, intimate exchange of ideas and dialogue between global financial counterparts. This dialogue takes place in small group discussions and plenary sessions, as well as in more informal sessions at meals. Keynote addresses and panel discussions also serve to initiate and enhance the interactive dialogue, which is conducted under Chatham House Rules in order to foster an open exchange of ideas. These discussions are synthesized and presented on the final day of the Symposium in a plenary session. Programme format: A three-day symposium off-the-record and closed to the media with keynote speeches, high-level cocktail and dinner, small group break-out sessions, panels and networking. Delegate profile: This event is by invitation only and limited to around 100 high-level regulators, policy makers, academics and sell-side and buy-side firm representatives.
     Professor Arner, who is also a member of the Hong Kong Financial Services Development Council, is scheduled to be a panelist on the internationalisation of the RMB and global economic implications scheduled for 29 May, 9-10:30am.  The Asian Institute of International Financial Law is a proud academic partner of this event.  Click here to download the full symposium programme.

Tuesday, May 5, 2015

Erick Komolo (PhD Student) Interviewed by Le Monde

PhD student, Mr Erick Komolo, was recently interviewed by the Paris newspaper Le Monde on his international law studies in the Faculty of Law under the supervision of Dr Shahla Ali. Mr Komolo was quoted as saying, 
"When I got here, most students saw a black man for the first time. They hardly knew anything about Africa and had in mind the images of violence, famine and poverty." Mr Komolo speaks about his childhood in Kenya and of his current work in helping underprivileged children in his home country. Mr Komolo was also profiled in the South China Morning Post in February this year. Click here to read the Le Monde article in French.

Saturday, May 2, 2015

Fu Hualing on Penal Populism in Chinese Capital Cases

"Between Deference and Defiance: Courts and Penal Populism in Chinese Capital Cases"
Fu Hualing
1 May 2015
SSRN Legal Scholarship Network
Abstract: Public opinion matters in different regime types, and an authoritarian state like China is as deeply concerned with opinions of their citizens just as democracies are. Popular opinion as reflected in victims’ petition and sympathy in social media is an influential force for Chinese courts to reckon with in making decisions. In the end, death penalty decisions require the broad support of the society and cannot be left merely for judges to decide. This article has argued that the Chinese penal populism occurs in a different cultural context. The Chinese penal populism challenges principally the perceived abuse of power and addresses the issue of social inequality with Chinese egalitarianism in the backdrop. This article also argues that what is passed in the name of public opinion in China is really the opinions taken by victims, defendants and their respective supporters who advocate for certain specific positions - either for lenience or harshness in sentencing and either pro or against the death penalty. Piercing the veils of public opinions in many sensational cases, one may quickly realise that public opinion may not be as spontaneous as it initially appears. Behind public agitation and outcry, victim families and their supporters actively mobilise and exploit the sympathy of the general public, tactically frame their tragedies, and aggressively “sell” a particular line with the explicit aim to bring public pressure to bear on decision-makers. There are professional middlemen for hire, who can fan public emotion and bring the case to a higher profile. The perfect storm would not have formed except through painstaking, persistent and aggressive organisation of public opinion. The storm can then shape the political agenda and override the judicial decision-making process.  Click here to download the paper.

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