Wednesday, July 29, 2015

Shitong Qiao on the Illegal "Small Property" in Shenzhen (Am J of Comp Law)

"Small Property, Big Market: A Focal Point Explanation"
Shitong Qiao
American Journal of Comparative Law
2015, Vol. 63, No. 1, pp. 197-238
Abstract: This article investigates the formation and operation of a market of informal real estate in China, referred to by the term “small property” (xiaochanquan), as their property rights are “smaller” (weaker) than those of the “big” (formal) property market. In the city of Shenzhen, which experienced exponential population growth from 300,000 to more than ten million between 1978 and 2010 as the first experimental site of China’s market reforms, almost half of the buildings are small-property constructions. These illegal buildings, which lack legal titles and are concentrated in 320 intra-city villages, house most of the 8 million migrant workers in Shenzhen and are the main source of livelihood of the more than 300,000 local villagers. 
     The underlying question is how to coordinate people’s behaviors in the absence of centralized law. A problem of coordination arises when players have to combine their actions in a certain way among multiple possibilities. In other words, coordination games have multiple equilibria, and therefore the payoffs alone do not determine the behavioral outcome. Instead, the final outcome depends on the specific social settings and individual participants involved, leaving room for less concrete variables, such as history and politics, to impact individuals’ choices. Nobel Laureate Thomas Schelling first observed that, in situations requiring coordination, anything that makes salient one behavioral means of coordinating tends to produce self-fulfilling expectations that then lead to the occurrence of that result. This salient solution is called a focal point. The essential idea of the focal point is that the intrinsic magnetism of particular outcomes makes them qualitatively differentiable from the continuum of possible alternatives. 
     Set against the backdrop and context of China’s market transition, this research discovers that the political, legal, and economic transition in Shenzhen made rural land development and transfer the focal point, despite its illegality. This focal point coordinates players’ expectations to converge on the same equilibrium in the formation and operation of the small-property market. I model the formation of the small-property market as an Assurance Game among social entrepreneurs in Shenzhen, the demolition risk as a Hawk-Dove Game between the Shenzhen government and farmers, and contract risk as a Hawk-Dove Game between a buyer and a seller. This research enriches our understanding of market institutions by applying up-to-date insights from coordination games and focal point theory. It also contributes a significant real world example to the theories of coordination games and focal points, most of which are based on laboratory experiments.  Click here to download the article from SSRN.

Tuesday, July 28, 2015

New Book: The Luxury Economy and Intellectual Property

The Luxury Economy and Intellectual Property: Critical Reflections
Editors: Haochen Sun, Barton Beebe and Madhavi Sunder
Oxford University Press
July 2015, 368 pp.
Description: Intellectual property law plays a pivotal role in ensuring that luxury goods companies can recoup their investments in the creation and dissemination of their copyrighted works, trademarked logos, and patented designs. In 2011, global sales for luxury goods reached about $250 billion, and consumers in East and Southeast Asia accounted for more than 50 percent of that figure. The rapid expansion of the market has prompted some retailers to wield intellectual property against the influx of imitators and counterfeiters. 
The Luxury Economy and Intellectual Property comprehensively explores the rise of the luxury goods economy and the growing role of intellectual property in creating, sustaining, and regulating this economy. Leading scholars across various disciplines critically consider the industry, its foundational intellectual property laws, and the public interest and social concerns arising from the intersection of economics and law. Topics covered include defining the concept of luxury, the social life of luxury goods, concerns about distributive justice in a world flooded by luxury goods and knockoffs, the globalization of luxury goods, and the economic, social, and political ramifications of the meteoric rise of the Asian luxury goods market.
Highlights:
  • Comprehensively explores the rise of the luxury goods economy and the growing role of intellectual property in creating, sustaining, and regulating this economy.
  • Critically considers the industry, its foundational intellectual property laws, and the public interest and social concerns arising from the intersection of economics and law
  • Covers important topics including defining the concept of luxury, and the social life and globalization of luxury goods
  • Considers the economic, social, and political ramifications of the Asian luxury goods market
Chapter 12, written by Haochen Sun, is entitled "The Ethical Responsibility of Luxury Companies and Consumers".

Monday, July 27, 2015

Jurisprudential Reflections on European (Dis)Integration (Scott Veitch)

in Johan van der Walt & Jeffrey Ellsworth, Constitutional Sovereignty and Social Solidarity in Europe (Germany: Nomos, 2015) 139-164
Abstract: Does it make any sense to talk about a common good in modern large-scale capitalist societies?  On the other hand, does it make any sense not to talk about a common good in such societies?  This is our dichotomy.  The idea of law being an instrument and expression of the common good is an ancient and influential one in the western legal tradition.  Yet it seems to have become jaded, if not suspect.  This chapter analyses different meanings of the common good, its legal connotations, and the competing reasons of the common good, its legal connotations, and the competing reasons for its valorization  or decline .  It considers these further in the context of the European Union and contemporary processes of legal integration in order to shed some light on that dichotomy which arguably exists at the heart of the European political and constitutional project.

Saturday, July 25, 2015

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

Vol. 5, No. 6: 24 July 2015
Table of Contents 

1. The Achievement of Constitutionalism in Asia: Moving Beyond 'Constitutions Without Constitutionalism'
Albert H. Y. Chen, The University of Hong Kong - Faculty of Law, University of Hong Kong - Faculty of Law

2. What Does Wukan Offer? Land-Taking, Law, and Dispute Resolution
Fu Hualing, The University of Hong Kong - Faculty of Law

3. The First Successful Climate Negligence Case: A Comment on Urgenda Foundation v. The State of the Netherlands
Jolene Lin, University of Hong Kong - Faculty of Law

4. Carbon Credits As EU Like It: Property, Immunity, TragiCO2medy?
Kelvin Low, Singapore Management University - School of Law
Jolene Lin, University of Hong Kong - Faculty of Law

Friday, July 24, 2015

Simon Young Interviewed on the Fishermen in Hong Kong's Political System (Associated Press)

Kelvin Chan
Associated Press
23 July 2015
Since China took control of Hong Kong from Britain in 1997, the city's billionaires have played a leading role in hewing the Asian financial center to Beijing's priorities. So too have a dwindling band of fishermen and farmers.
     The desire of China's communist leaders to enlist the tycoons' cooperation is understandable given the influence they have through their control of large swathes of the semiautonomous Chinese city's economy. Chinese President Xi Jinping last year summoned a group of them for an emergency meeting as political tensions in Hong Kong mounted.
    Less known outside Hong Kong, however, is the political role of fishermen and farmers, remnant industries in Hong Kong that form a large slice of the 1,200-member committee that selects the southern Chinese city's pro-Beijing leader. They also have their own representative in the territory's legislature.
     Fishing and farming make up less than 1 percent of Hong Kong's $274 billion economy but command 60 votes in the leadership committee, far more than groups or industries with much greater economic or social significance.
     Their outsized role is a source of discontent in a city that was rocked by pro-democracy protests over the past year as many Hong Kongers chafed against a rising tide of mainland Chinese influence...
     The quirky election system is a legacy of the British, who in the 1980s introduced legislative elections that gave seats to the business and interest groups, known as functional constituencies.
     The Chinese liked the system so much they kept it after realizing they could use it to exert influence and keep loyalists in power, said Simon Young, a Hong Kong University law school professor who wrote a book about the city's elections... Click here to read the full article.

Thursday, July 23, 2015

Papers from the China Law Doctoral Forum

This blog reported on the first China Law Doctoral Forum held at the University of Hong Kong from 23-24 October 2014.  The working papers from this event have recently been revised.  We are pleased to publish them here on the HKU Legal Scholarship Blog. The papers can be downloaded by clicking on the titles below.  The photos from the event can be found here.

Xiaojuan LIU, China University of Political Science and Law
Abstract: The thesis studies the amendment for the first time of the Administrative Litigation Law of China since its enforcement in 1989. It falls into four parts. The first part outlines the historical evolution of the Law from 1949, its initial enforcement and the status quo, before exploring the multiple factors prompting its amendment. The second part deals in depth the three rounds of revision and makes an all-round comparison of the original, the draft amendments and the 1st and 2nd version , encompassing the crucial topics, the functions, the scope of legal review, the standing, the structure of court system and judgment. The third part gives an account of progress made at different stages and the crucial factors at play, which are sorted by function. In conclusion, the author points out that despite the progress achieved, there are still outstanding issues. Since the function of Law is the decisive factor and prerequisite of this amendment, all of the rest elements should be addressed correspondingly, but the revision has shown much reluctance in this respect, leading to a structural inconsistency, which might be open to challenge in the future. 

Lei TANG, China University of Political Science and Law
Abstract: The administrative accountability system should not only function as punishment, but also guidance for government officials. The systematism of accountability procedure is surely the foundation, but it is also worth considering that how to promote the predictability of the result. China should construct the liability immunity system with good faith standard to offer government officials both legality and reasonableness standard. A liability immunity clause could function as guidance and protection in two circumstances, namely the circumstance of administrative decision making and when the rules are ambiguous.

WANG Heng-si, Law School, Dalian Maritime University, Dalian
Abstract: In the theory of “encumbrance” of common law, the establishment of seaman’s lien for wages mainly derives from the fact of “service to the ship”, while its legal basis is the claim for wages secured by the lien in the norms of the civil law. Accordingly, it is well-advised that Article 30 of Property Law of People’s Republic of China is applied to the establishment of seaman’s lien for wages, on the basis of the nature of seaman’s work which is factual act. In the view of comparative study, the transition of legal paradigm which is from the “encumbrance” to the “real right for security” should be accomplished in our current rules. 

Luping ZHANG, China University of Political Science and Law 
Abstract: The present study, based on Labov’s narrative theory, focuses on how witnesses’ involvement affects their narrative reconstruction of the criminal case. Witnesses’ involvement is first subcategorized and there are two circumstances concerning their involvements, one being single suspect versus victim(s) crime and the other multi-suspects versus victim(s) crime. The present study takes four witness statements from a single suspect malicious injury case as data to further analyze the effects exerted by different witness involvements on witness statements and their corresponding representations. Results of the analysis indicate that how witnesses are involved in the criminal event exert different effects on witness statements in three aspects: narrative structure, participant distribution, and language strategies. The results of this study further reveal that the more legal responsibility a witness is likely to take for the criminal event, the more transformations he would make in his narrative reconstruction of the crime. 

Yujie Zhang, Shanghai Jiao Tong University Law School and Macquarie Law School
Abstract: In recent years, there have risen many injustices in China. As I see, that’s because of the failure of the judicial system. The alienation of the leadership of the CCP, the deficiency of the independence and supervision inside judicial system, and the distortion of the relationship between judicature and people all lead to the neither existence of independence and supervision of the judicial power, which forms a pattern of injustices. Therefore, China needs on one hand change its theory of the operation of the judicial power, which should be taking the independence as the basic, taking the supervision as the check in order to cultivate the coexistence of the independence and supervision of the judicial power. On the other, China needs to reconstruct its judicial institution, which includes coexistence of the independence of the judicial branch and the supervision of the legislature branch, coexistence of the independence of the judging and prosecuting and the supervision inside the judicial system, coexistence of the independence of the judges and prosecutors and the supervision of the public voice, and the coexistence of the independence of the judicial procedure and the supervision of the CCP. With those developments could China totally cleans the soil cultivated injustices and promotes the smooth operation of the criminal judicature and realizes social justice.

Tuesday, July 21, 2015

Benny Tai on What's Missing from the Basic Law

"What is missing from the Basic Law?"
Benny Tai
EJ Insight
21 July 2015
In my article last week, I used the term “executive-oriented” to point out the first problem with the Basic Law.  Essentially, the problem is that some of the systems and principles originally intended in the Basic Law are unable to be implemented because the law itself simply can’t keep up with the changes of the political environment.
     The second problem with the Basic Law lies in the fact that it doesn’t have any clause that deals with political parties, nor did it take into serious account the role of political parties when laying down the framework for the relationship between the executive and legislative branches.
     I believe anybody who roughly understands the democratic system knows that political parties play a pivotal role in integrating the different forces that come to power through elections, and ensuring the smooth operation of the democratic system. 
     As long as there are elections, there will be political parties.  However, the reason why the Basic Law makes no reference to political parties whatsoever is because back in the days when the law was drafted, any mention of other political parties remained a taboo subject under the one-party dictatorship on the mainland.
    At that time, members of the drafting committee for the Basic Law probably believed naively that the chief executive would be able to achieve executive dominance even without support from political parties. This has proven to be unrealistic given what has happened after the handover. The Basic Law made no reference to political parties because it is a taboo, and it didn’t mention the role of ruling parties either because it is an even bigger taboo subject.... Click here to read the full article.

Monday, July 20, 2015

Hualing Fu on the Danger of China's National Security Law (FT Chinese Version)

"The Danger of an Overreaching National Security Concept in China's National Security Law"
Hualing Fu
Financial Times (Chinese Edition)
20 July 2015
Summary: National security is a vague concept that defies precise definition. This nature of vagueness poses a particular danger in an authoritarian state that lacks democratic participation, judicial independence, press freedom, and a vibrant civil society. China's National Security Law has the potential to further empower the already powerful security agencies.  Click here to read the full article in Chinese.

Sunday, July 19, 2015

Amanda Whitfort Interviewed on Cruel 'Puppy Mills' in Hong Kong (SCMP)

"Hong Kong's cruel 'puppy mills': breeding dogs like factory must end, calls activists"
Sarah Karacs
South China Morning Post
19 July 2015
It was a dog's life and worse for Cooper until he was rescued by an animal welfare activist and adopted by a loving couple in Pok Fu Lam.  The five-year-old crossbreed between an English sheepdog and husky is unrecognisable now compared to the abused and wretched animal he once was when caged and forced to mate without respite in a backstreet facility in the NewTerritories.
     The common and largely ignored plight of dogs like Cooper is currently a subject of debate as the Hong Kong government puts the finishing touches on an amendment to the animal trading law that will be put to the Legislative Council after its summer break.
     Under the new legislation, all dog breeders in the city will face inspections to make them more accountable for the animals in their care...
     Breeding facilities like these are not uncommon in Hong Kong, a city in which loopholes in animal trading legislation and lax enforcement allow unscrupulous breeders to churn out pedigree pups in the cruellest of conditions.
     "Breeders are interested in making money. Breeders are not interested in animal welfare," said Amanda Whitfort, an associate professor at the University of Hong Kong who is pushing to have the city's animal welfare laws updated. "They will keep the animals in cages, stacked one on top of another, usually in small flats with no opportunity to exercise. They'll be sitting in their own excrement."... Click here to read the full article.

Friday, July 17, 2015

Jolene Lin on the EU Carbon Credits Scheme

"Carbon Credits as EU Like It: Property, Immunity, TragiCO2medy?"
Kelvin Low and Jolene Lin
Journal of Environmental Law
Volume 27 (2015) Advance Access (July 2015)
Abstract: While there have been many legal studies of the European Union Emissions Trading Scheme (EU ETS), none seem to have considered the EU ETS from the perspective of private law, particularly the private law issues that stem from the ambiguous legal nature of the ‘carbon credit’. Such ambiguity translates into regulatory uncertainty and business risks of the sort that occurred in Armstrong DLW GmbH v Winnington Networks Ltd [2013] Ch 156, an English case involving fraud and ‘stolen’ European Union Allowances (EUAs). From an environmental law and policy perspective, uncertainty does not bode well for the EU ETS’s regulatory effectiveness and environmental integrity. From a property law perspective, the legal nature of the EUA begs for clarification in order to give holders of EUAs certainty of their rights and obligations, the absence of which led to the litigation in Armstrong v Winnington taking on an unduly convoluted complexion. The authors argue that one of the critical failures of the EU ETS lies in its failure to properly define the fundamental legal nature of the EUA. While this omission to define can be explained away by deference to the principle of subsidiarity, it can be argued that the omission stems also from a failure to appreciate the legal nature of intangible property as well as a misunderstanding of the way in which registers of rights operate. Handicapped by conceptual failings, the EU ETS exposes participants to unnecessary uncertainty that national courts will find difficult to resolve.  Click here to download the full article.

Wednesday, July 15, 2015

Hualing Fu Interviewed on Detention of Chinese Rights Lawyers (LA Times)

"Human rights lawyers, staffers detained in widespread crackdown across China"
Violet Law
LA Times
11 July 2015
More than 50 Chinese human rights lawyers and staffers have been detained in a roundup spanning nearly half of the country.
      Many of the lawyers were interrogated by police officers and national security officials after being detained Friday. By Saturday night, most had been released after receiving stern warnings, but some faced house arrest. Several remained incommunicado.
     “This is certainly a coordinated, organized crackdown, not ordinary law enforcement,” said Fu Hualing, a law professor at the University of Hong Kong. Fu counted several friends among the detainees.
      Rep. Chris Smith (R-N.J.), a member of the House Foreign Affairs committee, condemned the crackdown and warned of possible diplomatic fallout.
“The detentions come only two weeks after the end of the U.S.-China Strategic & Economic Dialogue and set an ugly tone for President Xi's (Jinping) U.S. visit in September,” Smith said in a statement Friday.
      The mass roundup began with the disappearance of Beijing lawyers Wang Yu and Zhou Shifeng, colleagues at the same law firm well-known for tackling high-profile cases. Zhou “disappeared” hours after he celebrated the release of client Zhang Miao, formerly a news assistant for Die Zeit, a German newsweekly, who was held since October for allegedly organizing activities in support of pro-democracy demonstrations in Hong Kong.... Click here to read the full article.

Puja Kapai Interviewed on Barriers to Education Faced by Refugee Claimants (SCMP)

"Lack of Hong Kong ID card means isolation and education limbo"
Raquel Carvlho
South China Morning Post
12 July 2015
Joyce, 20, is already the quietest of six siblings. But after she graduates from secondary school next year, the young woman expects to be even more socially isolated. Unlike her peers who will be making plans and choosing their university courses, Joyce is preparing herself to spend months, maybe years, in a walk-up flat in Mong Kok with her mother.
     "I'll have to stay at home. Doing nothing," she sighed. "I would like to go to university, but because I don't have an identity card, I know I can't."That is the state of limbo Joyce (not her real name) finds herself in, after more than 10 years of residency in Hong Kong.
     The family came from Angola in 2004, seeking refugee protection. Joyce's African passport expired a long time ago and, like her brothers, she holds only recognisance papers issued by the Immigration Department.
     If finding a primary school is a struggle to many refugee parents, the future beyond the school gates is like a ghost haunting both the parents and their children - who have neither the identity card nor the student visa to further their studies.
    According to Puja Kapai, professor of law at the University of Hong Kong and a former barrister at the High Court, "technically, if the student applicant meets the admission criteria for a particular course, they could attend university". However, Kapai noted that "the greater challenge would be obtaining a student visa on recognisance papers"... Click here to read the full article.

Clement Chen Interviewed on China's Draft Cyber Security Law (Tech in Asia)

"China to codify internet control measures"
Jennifer Zhang
Tech in Asia
12 July 2015
China has been eager to claim its “internet sovereignty” since the 18th party congress, with internet control naturally topping the central leadership’s agenda. The recently released cyber security law draft, while aiming to codify the previously scattered internet regulation policies and solidify Cyberspace Administration’s status as the leading internet governing body, has demonstrated the country’s determination to take a more effective and concentrated approach to make the cyberspace a “safe and harmonious” territory...
     The draft also duplicates the stringent requirements on the real identity registration system of the NPCSC’s 2012 Decision on Strengthening Network Information Protection, according to Clement Chen, a post-doctoral fellow at the Faculty of Law, HKU. Article 20 of the draft prescribes that network operators shall require users to provide real identity information when signing service agreements to ensure the traceability of the internet content. Where users do not provide real identify information, network operators must not provide them with relevant services. Chen adds that while the draft imposes obligations to protect privacy on the ISPs, it does not impose equally comprehensive obligations on public authorities in relation to their collection and processing of personal information within the broad scope of ‘internet security maintenance’...  Click here to read the full article.

Tuesday, July 14, 2015

Securities Litigation in China (New Article by Jin Sheng, AIIFL Fellow)

Jin Sheng (PhD 2010, AIIFL Honorary Fellow) 
Bond Law Review
2015, Volume 26, Issue 1, Article 4
Abstract: This article addresses remedies for defrauded public investors in the Chinese legal system and the passive attitude of China’s courts to private securities litigation. Despite the existing laws in China prohibiting securities fraud, the absence of an efficient enforcement regime leaves shareholders vulnerable to a wide range of abuses. Weak legal remedies for victims of securities fraud, especially poor law enforcement and judicial governance, have led to a waste of judicial resources. In particular, China’s courts have adopted a passive attitude to securities disputes (typically prior to 2003, when the courts were absent in dealing with private securities actions), although this situation is changing gradually. This article analyses procedural reforms such as shareholders’ derivative actions, class actions and shifting evidential proof for defendants. Judicial practices in securities fraud, including false statements, market manipulation and insider trading, are also addressed. This article then highlights the importance of establishing an active and independent system of legal enforcement for the protection of investors. In conclusion, it suggests introducing class actions, the inversion of the burden of proof and facilitating private remedies for individual shareholders by enhancing judicial review, judicial independence and judicial governance. Click here to download the article.

Saturday, July 11, 2015

Congratulations to New Associate Professors (HKU Law)

HKU adopts a rigorous process in deciding promotion and tenure of its professoriate staff.  The offer of tenure and promotion to Associate Professor is awarded to staff who have "demonstrated excellence and contribution in the three areas of teaching and learning, research and scholarship, and University and community service".  A minimum of six external assessments from assessors at arm's length is normally required for each candidate's application.  The entire process can take up to a year's time.  The offer is approved by the President and Vice-Chancellor, on recommendation of the University Selection and Promotion Committee, the Faculty Promotion and Tenure Panel, and the relevant Department.
     Congratulations to Ji Lian Yap (commercial law), Weixia Gu (arbitration, mediation), Cora Chan (public law, judicial review), Haochen Sun (intellectual property, legal theory), and Kelley Loper (refugee law, human rights).  For the recent scholarship of these new Associate Professors, click on their names in the right sidebar of this blog.

Friday, July 10, 2015

Congratulations to Douglas Arner on HK$6.2M ARC Grant on Digital Financial Services

Congratulations to Douglas Arner, who together with colleagues from the University of New South Wales, Ross Buckley and Colin Picker, and Tillman Bruett (of the UN Capital Development Fund), are the chief investigators of a new 2015 Linkage Project funded by the Australian Research Council (ARC).  The combined funding received from the ARC and UN Capital Development Fund is A$1,072,852 (HK$6.2M).  The project, funded from 2015 to 2018, aims to develop a regulatory regime for Australian digital financial services with implications for developing countries. The full description is as follows: 
This project aims to draw on regulatory developments abroad to develop an innovative, proportional, incremental regulatory regime for Australian digital financial services (DFS). DFS are set to grow rapidly in Australia, just as they have overseas. An effective and appropriate regulatory regime should result in a more competitive and efficient payments system that will lift productivity and economic growth. The project also intends to analyse and resolve regulatory roadblocks to the growth of DFS in developing countries to promote financial inclusion and economic growth, and thereby reduce poverty, in such countries.

Thursday, July 9, 2015

Hong Kong Family Court Practice, 2nd Edition (New Book by Keith Hotten et al)

Hong Kong Family Court Practice, 2nd edition
Keith Hotten, Azan Marwah, Shaphan Marwah
LexisNexis Butterworths
June 2015, 1,582 pp.
Description: Since its original publication in 2010, Hong Kong Family Court Practice has become required reading for all levels of lawyers and judges who are engaged in family practice in Hong Kong. It is a comprehensive, practical and critical account of the law, drafted from the viewpoint of experienced practitioners.
      The second edition expands the commentary on all areas of family law, including matrimonial, adoption and family proceedings in the Family Court; specialist High Court family proceedings such as wardship; and care and protection proceedings before the Juvenile Court. New content includes all-new chapters on costs, legal aid and alternative dispute resolution, as well as separate chapters on domestic violence and financial property injunctions.
     Hong Kong Family Court Practice remains the only one-stop comprehensive collection of reference materials in its field, containing not only primary sources (Ordinances, Practice Directions, and international law), but also practice and procedure checklists, key cases, useful websites and a guide to addressing judicial officers in family proceedings.

Wednesday, July 8, 2015

Constitutional Dialogue in Common Law Asia (New Book by Po Jen Yap)

Constitutional Dialogue in Common Law Asia
Po Jen Yap
Oxford University Press
July 2015, 272 pp.
About this book: In a comprehensive examination of the constitutional systems of Hong Kong, Malaysia, and Singapore, Po Jen Yap contributes to a field that has traditionally focussed on Western jurisdictions. Drawing on the history and constitutional framework of these Asian law systems, this book examines the political structures and traditions that were inherited from the British colonial government and the major constitutional developments since decolonization. 
    Yap examines the judicial crises that have occurred in each of the three jurisdictions and explores the development of sub-constitutional doctrines that allows the courts to preserve the right of the legislature to disagree with the courts' decisions using the ordinary political processes.
     The book focusses on how these novel judicial techniques have been applied to four core constitutional concerns: freedom of expression, freedom of religion, right to equality, and criminal due process rights. Each chapter examines one core topic and defends a model of dialogic judicial review that offers a compelling alternative to legislative or judicial supremacy.  Features:
  • Aids understanding of the particular issues facing the constitutional systems of Hong Kong, Malaysia, and Singapore through a comprehensive overview of the judicial techniques involved. 
  • Provides focused analysis of the leading caselaw in the key areas of freedom of expression, freedom of religion, the right to equality, and criminal due process rights. 
  • Includes a novel analysis of why the role of dialogic judicial review is important, offering academics, practitioners, and students a new perspective through which to debate the issue through their respective jurisdictions.

Tuesday, July 7, 2015

Karen Kong on Using Public Interest Litigation to Protect the Natural Environment

"The Uphill Battle for Sustainable Development: Can the Use of Public Interest Litigation Protect the Natural Environment in Hong Kong?"
2015, Vol. 23, No. 1, pp. 7-30
Abstract: This article reviews the development of recent environmental public interest litigation in Hong Kong. Despite substantive time and efforts spent on the litigation, the judicial challenges had limited success in yielding the desired outcome that environmental concern groups had hoped for. Reasons behind are complex, which involve litigation strategies, the state of Hong Kong law on environmental protection and sustainable development, and the courts’ attitude towards public interest cases. The article studies the courts’ reasoning and decisions, with a view to evaluating the use of public interest litigation as a tool of environmental advocacy under the current constitutional and administrative regime in Hong Kong. It argues that, despite its constraints, public interest litigation is an important tool to channel the public’s views on the protection of the environment. The article recommends principles to be used in future environmental judicial review, including a purposive approach to interpretation of environmental legislation, with reference to human rights in evaluating environmental issues. Further, litigation is not the sole solution and it needs to be complemented with more up-to-date legislation and environmental standards.  Full text can be download from Lexis.com.

Jolene Lin Comments on First Successful Climate Negligence Case

Jolene Lin
Climate Law
(2015), Volume 5, Issue 1 (forthcoming)
Abstract: On 24 June 2015, the Hague District Court issued the long-awaited judgment in the case of Urgenda Foundation v the State of the Netherlands. The decision has been heralded as a historical landmark ruling, and rightly so. The Urgenda decision marks the first time ever that a court has ordered a government of the day to curb a State’s greenhouse gas (GHG) emissions. Globally, it is also the first case in which the tort of negligence has been successfully used to hold a State liable for its failure to adequately mitigate climate change. This case commentary begins by briefly setting out some background on climate litigation. It then sets out the facts of the case and analyses key aspects of the decision. It concludes with some remarks about the significance of the decision.  Click here to download the case comment.

Monday, July 6, 2015

HKU Study on Children's Rights Education: Policy Implications for Hong Kong

Children's Rights Education: 
Hong Kong's Obligations Under the Convention on the Rights of the Child
Puja Kapai, John Bacon-Shone, Annelotte Walsh, Fay Wong
The University of Hong Kong
As a signatory to the United Nations Convention on the Rights of the Child (UNCRC), Hong Kong’s obligation under Article 42 “to make the principles and provisions of the Convention widely known by appropriate and active means, to adults and children alike” should have directly influenced both education policy and training and practice of educators. However, to date, Children’s Rights Education (CRE) is seldom incorporated as an element of teacher training, is not a significant part of the school curriculum and is not entirely part of the school ethos across most Hong Kong schools and educational institutions.  
     In the only comprehensive study of its kind in Hong Kong, a multidisciplinary team of scholars from the University of Hong Kong examined the extent to which the HKSAR Government has met its Article 42 obligations. In particular, the study explored the current state of CRE implementation in Hong Kong schools and compared the pedagogy, policy and practices in Hong Kong against international best practices identified through an extensive literature review and qualitative surveys. Drawing on the findings, the research team proposes recommendations for structural and substantive improvements to Hong Kong’s policies in relation to fulfilling its Article 42 obligations pertaining to CRE under the UNCRC. This policy brief provides an overview of the key research findings.  Click here to download the policy brief and here for the Executive Summary.

Puja Kapai Delivers Keynote Speeches at Youth Summit and Model UN Conference

Puja Kapai spoke on children's rights in her keynote address at the International Model United Nations Conference, St Paul's Coeducational College held on 1 July 2015.  The conference also focused on empowerment of women and the right to information (media freedom).  Other keynote speakers included Dr York Chow (Equal Opportunities Commission), Ms Anna Wu (Executive Council) and Mr George Chen (South China Morning Post).
Puja also delivered the keynote address at the Diversity Youth Summit organised by the United World College's Li Po Chun Ma On Shan School, held on 27 May 2015.  In her address, she spoke on minority rights and change through empowerment.  
     Puja Kapai is Associate Professor in the Faculty of Law, Director of the Centre for Comparative and Public Law and Director of the Social Justice Summer Internship.

Thursday, July 2, 2015

Congratulations to RGC Research Grant Awardees (Faculty of Law)

Congratulations to Shahla Ali, Antonio Da Roza, Peter Chau, Hualing Fu, Marco Wan and Richard Wu on their successful 2015-2016 General Research Fund grants awarded by Hong Kong's Research Grants Council.  A range of interesting projects are funded including projects on civil mediation reform, unrepresented civil litigants, criminal punishment philosophy, Chinese public interest lawyers, law and film in Hong Kong, and a comparative study in Asia of law students' perception of values.  This year's excellent results represent a success rate of 55 per cent and a total amount of funding of more than HK$3.6 million.

Wednesday, July 1, 2015

Michael Davis Q&A on World Politics Review

"Hong Kong Faces Another Barrier in Fight for Democracy"
The Editors
World Politics Review
30 June 2015
Earlier this month, Hong Kong’s legislature vetoed an election-reform package that was backed by mainland China but strongly criticized by pro-democracy lawmakers and activists. In an email interview, Michael C. Davis, professor at the University of Hong Kong Faculty of Law, discussed Hong Kong’s democracy movement.
WPR: What do democratic advocates in Hong Kong fear from China’s proposed electoral plan?
Michael C. Davis: China’s democratic reform proposal essentially provides for a vetted election for Hong Kong’s chief executive. Under the Aug. 31, 2014, Beijing decision and the Hong Kong legislative bill to carry it out, a heavily pro-Beijing 1,200-member nominating committee would select by majority vote three candidates to be presented to the voters. Democracy advocates view this as a fake election and fear it is part of a larger pattern of interference from Beijing that will ultimately undermine Hong Kong’s autonomy and, with it, the rule of law
     The Hong Kong Basic Law, the constitutional document of Hong Kong, makes a number of important promises that aim to preserve the character of Hong Kong as an open, rule-of-law-based society. Most relevant to the current debate, Article 45 states, “The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.” A similar commitment to universal suffrage is made in Article 68 for the Legislative Council. The human rights chapter of the Basic Law further guarantees the right to vote and stand for office, and incorporates the human rights guarantees of the International Covenant on Civil and Political Rights. The latter guarantees include the right to a free and fair election, including a free choice of candidates for electoral office. Hong Kong residents take these promises very seriously, as they are viewed as instrumental to preserving Hong Kong’s distinctive character and its basic freedoms. ... Click here to read the full interview.

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