Monday, December 28, 2015

Amanda Whitfort Interviewed on Animal Cruelty in Hong Kong (HKFP)

Karen Cheung
Hong Kong Free Press
26 December 2015
In 2013, hundreds of mistreated animals were found trapped in an 800 square foot Tai Kok Tsui flat filled with their urine and faeces. Mysterious dog poisonings along Bowen Road have baffled pet owners for over two decades. Hundreds of animals are tortured to death every year in Hong Kong and stray animals are routinely put down by the Agriculture, Fisheries and Conservation Department. Just last month a small cat was found abandoned in a cage in Sheung Shui, with duct tape tightly wrapped round its belly. 
      For a city that is quick to condemn instances of human rights abuse, the tolerance and indifference towards animal rights abuse in Hong Kong is alarming. For years, campaigners have decried the sorry state of animal rights in the city, but progress has been slow on all fronts. The majority of animal abuse cases in Hong Kong are unnoticed or, worse, ignored. Even when the cases are brought to court, the results are often disappointing. From the moment the case is reported to its final resolution in the courtroom, the current system is riddled with hurdles and hindrances. 
     Let us begin by looking at the law. In Hong Kong, animals are currently protected under the Prevention of Cruelty to Animals Ordinance. Amanda Whitfort, Associate Professor at the University of Hong Kong Faculty of Law, told HKFP that the problem with the law is that there is no minimum standard of care required for animals. “Hong Kong’s Prevention of Cruelty to Animals Ordinance was enacted in 1935 and has not been significantly updated since. It only punishes people who cause ‘unnecessary suffering’ to animals, and that requires overt cruelty.”
     “If you just keep a dog on a roof without companionship, or in a flat with no exercise, under the current law the police are unlikely to prosecute as there is no actual evidence the dog has suffered. Even if it is deprived of water, the courts have sometimes still found no evidence of animal abuse as suffering must be proved beyond all reasonable doubt, so the court would need evidence the dog was not only dehydrated but had actually suffered."... Click here to read the full article.

Sunday, December 27, 2015

CL Lim Interviewed on China's New Free Trade Agreements (CRI English)

"Panel Discussion: China's new FTA deals"
China Radio International English
25 December 2015
Description: Earlier in December, China launched new free trade agreements with Australia and South Korea.  The accords are widely seen as two of the most significant that China has reached with other countries, and could provide a boost to China's trade at a time of falling exports and imports. For more on this, Zheng Chenguang and Michael Butterworth talk to:  Chin Leng Lim, Professor of International Economic Law at the University of Hong Kong, and Cheng Dawei, Professor at the School of Economics and Renmin University of China.  Click here to listen to the interview.

Saturday, December 26, 2015

Maisie Ooi Interviewed on the Yung Kee Cross-Border Winding Up Decision (SCMP)

Jasmine Siu
South China Morning Post
20 December 2015
Hong Kong’s top court recently gave the go-ahead for the parent company of the famous Yung Kee roast goose restaurant in Central to be wound up, despite it being incorporated in the British Virgin Islands.
     The landmark ruling clarified local courts’ jurisdiction over foreign companies. Members of the legal fraternity are expecting more similar cases as the city develops into a dispute resolution hub, but questions are also being raised as to how the order will take effect.
     “This Court of Final Appeal judgment is instrumental to Hong Kong’s development as a dispute resolution centre,” William Wong Ming-fung SC told the Post. “This is very good for Hong Kong.”
     Wong, who specialises in company and insolvency law, said many firms initially incorporated offshore to evade local taxes and conceal identities and assets in tax havens like the BVI...
     Dr Maisie Ooi, a company law professor at the University of Hong Kong, said the judgment is “clearly very important” as it sheds light on a cross-border issue not judicially considered before in Hong Kong and elsewhere.
     “It is an important decision in a world where corporations and their transactions are increasingly crossing jurisdictional borders,” she said. “The Court of Final Appeal has by this decision clearly signalled that Hong Kong courts are prepared to wind up foreign companies in appropriate cases.”
     Ooi said shareholders and their lawyers may look quite keenly to Hong Kong courts to process their petitions. But she wondered how the order can take effect without the cooperation of BVI courts and authorities, when both the company and its sole asset are outside of Hong Kong... Click here to read the full article.

CCPL/Zubin Foundation Meet Chief Secretary Carrie Lam on the Status of Ethnic Minorities in Hong Kong

In a meeting on Thursday, 17 December 2015, CCPL Director Puja Kapai presented the key findings from her recently compiled Report, “The Status of Ethnic Minorities in Hong Kong 1997 – 2014” to Mrs Carrie Lam, the Chief Secretary of the Hong Kong SAR. The Report, published in September 2015, was commissioned by Shalini Mahtani, Founder of The Zubin Foundation (TZF), an NGO working on issues relating to ethnic minorities and non-Chinese speaking special education needs children in Hong Kong. Based on the research, Kapai and Mahtani co-presented four core recommendations for the Administration’s consideration to work towards improving the lives of ethnic minorities and more importantly, including the voices of ethnic minorities in decision making. The four recommendations are also separately being presented to the Chief Executive's office for consideration in the preparation of the Chief Executive 2016 Policy Address.

Recommendation 1
A statement to be made by Chief Executive, CY Leung in his Policy Address for 2016 to express that all Hong Kong people, regardless of ethnicity, are equally valued. To that end, the Administration ought to develop a policy for an inclusive/multicultural Hong Kong.

Recommendation 2
All policies and law to be developed ought to have a “diversity lens” applied to them to ensure that they are also considered from the viewpoint of and assessed for their impact on ethnic minorities in Hong Kong.

Recommendation 3
For government committees, extra effort ought to be made to ensure that for all positions to be filled, ethnic minority candidates are included in the list of potential candidates to be considered (as the government would do for women as part of its gender mainstreaming policy). To this end, the Zubin Foundation will launch the RACE FOR OPPORTUNITY: DIVERSITY LIST on 21 March 2016, which is a list of ethnic minority candidates who have the skills, capability and commitment to serve on government committees.

Recommendation 4
For special education needs (SEN) children who are non-Chinese speaking (NCS):
  1. Government to provide greater transparency by school (public and private) on types of support they provide and the severity of NCS SEN that they cater for.
  2. English Medium of Instruction (EMI) classrooms/streams be established for public sector special schools and Chinese Medium of Instruction (CMI) schools.
  3. Direct Subsidy Scheme (DSS) schools, private schools and international schools be approached to commit to accepting NCS SEN and providing appropriate support.
  4. Government to increase subsidies for SEN students in government schools (e.g. Macau provides 40,000-110,000 MOP per year per student to school compared with Hong Kong, which provides HK$13,000-26,000 per year per student). The subsidies ought to be extended to be made available to NCS SEN students who are not in government schools.
  5. Government to build another EMI special school given the critical shortage of available spaces for SEN NCS.
To download "The Status of Ethnic Minorities in Hong Kong 1997-2014 Report" in full, please click here.

Conference on Mainstream Schools for Hong Kong Ethnic Minorities (CCPL Report)

On 11 December 2015, the Centre for Comparative and Public Law (CCPL) and Hong Kong Unison organised a conference entitled ‘Receptivity and Responsibility: Are Mainstream Schools Prepared for Hong Kong’s Ethnic Minority Students?". The conference provided a platform that promoted a constructive and open dialogue between different stakeholders to discuss (a) the legal obligation to provide an inclusive and equitable education to ethnic minority children; (b) creating an inclusive learning environment that supports ethnic diversity in the mainstream setting; and (c) the effective use of the Learning Framework (and other measures). Speakers included educators, curriculum designers, academics, and representatives from the HKSAR Education Bureau. The keynote speech was delivered by the Honourable Ip Kin Yuen, Legislative Council member for the Functional Constituency of Education, who spoke about what the next steps are for Non-Chinese Students’ Chinese Language learning.
     To address some of the needs discussed in the conference, the Virtual Teaching and Learning Centre for Diversity and Inclusion (VTLC) was introduced at the conference. The VLTC aims to establish an online platform as a teaching and learning centre for the sharing of international, regional and local best practices on pedagogical approaches to enhancing inclusive education. Supported by Stanley Ho Alumni Challenge and presented by the 1984 Inclusion Fund as part of a grant from the University of Hong Kong’s Social Inclusion Fund that runs from January 2016 to July 2017, the VTLC is open to academic institutions, school principals, administrators and teachers, and ethnic minority parents and students to discuss curriculum and teaching approaches, strategies, policies and even to share curriculum models for effective teaching and learning for Ethnic Minority Students. Ten schools will be invited to participate at the start of the project and thirty teachers are sought to upload and share material and feedback, comment on the forum regularly, and participate in monthly meetings to facilitate collaboration. Benefits for those wishing to get involved include opportunities to share material and research, good practice models, ideas about pedagogy, and ideas for a diverse 21st century classroom.  If you are interested in being involved, kindly fill out the online form at https://goo.gl/iCXcpk.

Thursday, December 17, 2015

Richard Cullen Reflects on Life, Work and the Rise of China in the Asian Century

I was born in Colac, Victoria in 1948 and brought up in Echuca, Victoria, where I attended St. Joseph’s College. I began my legal career with Blake & Riggall in Melbourne in 1983, after completing my LLB at Melbourne Law School (MLS) in 1982. I was with Blakes for two years, first as an Articled Clerk, under Geoff Hone, and then as a junior solicitor. I commenced my PhD at Osgoode Hall in Toronto, Canada in early 1985. I am admitted to practise law in Australia, Hong Kong and England and Wales. Prior to entering MLS and completing my LLB, I worked as a manager with CSIRO in Australia.
     I enjoyed my time working with Blakes immensely. Notwithstanding the comparative newness of the premises high-up in the then BHP Building, the remarkable history of Blakes in Melbourne dating back to 1841, could be plainly felt. The intellectual atmosphere was demanding, in the best way. The opportunities to relax in fine company were excellent – not least the ad hoc meetings of the junior staff, “Escape Committee”. Tunnelling out of BHP House was never a serious option but it was a great way to keep a sense of balance – and fun – in the midst of all of those inevitable, early-career work pressures.
     The experience of completing my PhD in 1986 spurred what proved to be a long-term engagement with academic writing. Shortly after this, I decided, with some regret, to leave Blakes. I accepted a position as Senior Lecturer at Monash Law School, in Melbourne, in 1987. In late 1991, I moved to Hong Kong, to take up a position in the then new School of Law at the City University of Hong Kong. I returned to Monash University in 1999 as a Professor and Head of the Department of Business Law and Taxation. And I took early retirement from Monash in 2006.
     Since then I have been a Visiting Professor in the Faculty of Law at the University of Hong Kong (HKU). I am also, nowadays, an Adjunct Professor in the Faculty of Law at The University of Western Australia.  I have written and co-written several books and more than 160 articles, notes and commentaries and have supervised a number of PhD and MPhil theses...

The Asian century & the rise of China
The late, remarkable, Belgian-Australian Sinologist, Pierre Ryckmans (pen-name: Simon Leys) put the special position of China, in my view, better than anyone else (in, The Burning Forest, (Paladin,
London, 1988):
“From a western point of view, China is simply the other pole of the human mind. All the other great cultures are either dead (Egypt, pre-Columbian American and so on), or too exclusively absorbed by the problem of surviving in extreme conditions (primitive cultures), or too close to us (Islamist cultures, India) to present a contrast as total, a revelation as complete, an “otherness” as challenging, an originality as illuminating as China. It is only when we contemplate China that we can become exactly aware of our own identity and that we begin to perceive which part of our heritage truly pertains to universal humanity, and which part merely reflects Indo-European idiosyncrasies.”
China has plainly produced the World’s largest and most enduring, continuous Civilisation. It has also, more recently, constructed the World’s largest and most successful One Party State (OPS). That OPS has experienced dire upheavals and awful devastation, as it has developed, especially over the first 30 years after 1949. But that same OPS has been the architect of a near 20 fold increase in real GDP terms, in the PRC economy, across the three decades to 2011 (according to the US Congressional Research Service). A recent BBC report noted that the PRC has accounted for as much as the rest of the World combined in the striking progress made towards meeting certain Millennium Development Goals set down by the United Nations in 2000.
     There are immense challenges still facing China. But the revitalised China which is emerging is built upon this extraordinary Civilisation. This does not guarantee inevitable success, still less, a rise free of trauma and trouble. It does, however, help explain the immense positive potential – and remarkable achievements to date. Some US economists have argued that China has, since 1978, largely just joined-the-economic dots – no big deal. If this were so, however, why is it, that only China has managed such change on this remarkable scale?

Q. What’s the best advice that you’ve been given?
The fine British Essayist, Theodore Dalrymple (TD) made certain observations in 2011, which have stayed with me (TD is a great admirer of Simon Leys, as it happens).
“The population…has no doubt about the metaphysical origin of human rights: they are inscribed in the constitution of the universe.” … “Any form of correction, however mildly phrased or studiously restrained, is thus an assault on a person’s conception of himself as the Sun King of his own soul.”
The reason I have quoted TD is because the best advice I have had, from childhood onwards, runs almost directly counter to the individual life-imperatives just noted. Above all, I learned that you do have to take clear responsibility for yourself and your own actions.
     You build self-reliance and stabilise your wider perspectives, over time. You build in impulse control – which many studies show to be fundamental to enjoying a life well lived, whatever you do. You also become deeply grateful for the remarkable opportunities life has to offer. 
     The Ancient Greeks used to stress the key concepts of Truth, Beauty and Goodness. To these I would add, Engagement. Learning about deeper (and unselfish) engagement with others underpins all the best sort of relationships – and avoidance of the worst kind.
     Two decades of living in Asia has strengthened these convictions. My Chinese friends know as much about day to day squabbling as anyone. But they also are, typically, better at maintaining ongoing engagement. Chinese Civilisation has long held that “molecular” human engagement is pivotal for a successful Civilisation in a way which did not feature on the contemporaneous Ancient Greek (notably more individualistic) cultural-radar...
    Richard Cullen is Visiting Professor in the Faculty of Law.  This excerpted interview was prepared and published by the law firm Ashurst as part of its December 2015 Ashurst Alumni Newsletter, "Firm friends".  The full interview can be downloaded here.

Thomas Cheng Interviewed on Whether the New Competition Law will Trigger Bankruptcies

"Competition law fears: big retailers may ease out smaller rivals"
Hong Kong Economic Journal
14 December 2015
Hong Kong’s Competition Ordinance, which is being fully implemented from today, could lead to a spate of bankruptcies among small retailers, industry players said.
     While the new law is deemed beneficial to consumers as it will encourage businesses to lower their prices, bigger retailers can easily undercut their rivals and force them out of the market, the players said.
     In effect, the ordinance may hinder rather than help foster competition, Apple Daily reported on Wednesday.
     Over the weekend, major consumer electronic chains, including Broadway, Suning and Fortress, started lowering the prices of some of their mobile phones by more than HK$1,000 (US$129) each, while those of Apple Inc.’s latest iPhone 6S and 6S Plus were also cut by HK$200 to HK$300.
     A survey conducted by the newspaper among several phone shops in Sham Shui Po showed that certain handset models were cheaper by several hundred Hong Kong dollars in bigger outlets than in smaller shops.
     The ordinance, which was launched by Secretary for Commerce and Economic Development Gregory So on Sunday, seeks to put a stop to price fixing, big rigging and other anti-competitive practices...
     Thomas Cheng, an associate professor at the Faculty of Law of the University of Hong Kong and a member of the Competition Commission, said it is hard to determine if full implementation of the ordinance will trigger a wave of bankruptcies.... Click here to read the full article.

Wednesday, December 16, 2015

3rd Urban Law Conference (Call for Papers - 29 JUN 2016)

3rd ANNUAL INTERNATIONAL & 
COMPARATIVE URBAN LAW CONFERENCE

Call for Conference Participants
29 June 2016, Hong Kong

The Fordham Urban Law Center, in conjunction with the University of Hong Kong (HKU), is pleased to announce a call for participation in the 3rd Annual International and Comparative Urban Law Conference, to be held on Wednesday, June 29, 2016. The all-day Conference will be held at HKU in Pokfulam, Hong Kong.

TOPICS: The Conference will provide a dynamic forum for legal and other scholars to engage and generate diverse international, comparative, and interdisciplinary perspectives in the burgeoning field of urban law. The Conference will explore overlapping themes, tensions, and opportunities for deeper scholarly investigation and practice with a comparative perspective. The Conference is open to urban law topics across a broad spectrum, such as:
  • Structure and workings of local authority and autonomy
  • Urban and metropolitan governance and finance
  • Economic and community development
  • Housing and the built environment
  • Urban public health
  • Migration and citizenship
  • Urban equity and inclusion
  • Sustainability
The goal of the Conference is to facilitate an in-depth engagement across sub-specialties within the legal academy to help deepen our understanding of urban law in the twenty-first century.

PROPOSAL PAPER SUBMISSION PROCEDURE: Potential participants in Conference panels should submit a proposal (maximum 500 words) to Nisha Mistry, Director, Fordham Urban Law Center, at urbanlaw@law.fordham.edu. Please put "[name of proposed paper]" in the subject line of your email. If you have a draft paper, please include it with your proposal. Participants do not need to have prepared a formal paper in order to join the program. Please indicate the extent of your funding needs. Due to limited funds, the Center can only award a few partial travel grants for this Conference. Deadline for proposal submissions: January 18, 2016.

PUBLICATION: In 2016, the Urban Law Center will publish two volumes of a multi-year book series compiling cross-cutting global perspectives on law and urbanism, with a core focus on comparative enquiry. This Conference will serve as the basis for the next volume in this series, which will be published by Ashgate (as part of Juris Diversitas), following customary review and selection processes. If you are interested in potential publication, please indicate this interest at the time of your proposal submission.

ABOUT THE URBAN LAW CENTER: The Urban Law Center at Fordham Law School in New York City is committed to investigating the role of the law and legal systems in contemporary urbanism through scholarship, pedagogy, programming, and applied research partnerships. Please visit http://law.fordham.edu/urbanlawcenter.htm for more details about the Center.

ABOUT HKU: The University of Hong Kong is the oldest institution of higher education in the city. As Hong Kong settles into the "one country, two systems" model, the Centre for Chinese Law in HKU is in a prime position to develop an international approach to legal issues facing the governance of a metropolitan center.

FURTHER INFORMATION: Please visit http://www.hku.hk for more details about HKU.

Tuesday, December 15, 2015

Scott Veitch Reviews Joseph Chan's Confucian Perfectionism (HKLJ)

"Book Review of Confucian Perfectionism: A Political Philosophy for Modern Times, Joseph Chan"
Scott Veitch
Hong Kong Law Journal
Vol. 45, Part 3 of 2015, pp. 1023-1030
Joseph Chan, Professor in the Department of Politics and Public Administration at the University of Hong Kong, has written an impressive book that lawyers will benefit from reading.  The title might be daunting, but as a scholarly treatise the book is full of practical engagements with matters of institutional design, the framing of political debates and the contested roles of law and legal rights today.  It will stimulate thinking on a range of pressing contemporary issues, such as how democracy and the Rule of Law might be reconceptualised in light of an updated Confucian tradition, much of which could be helpful in understanding the conflicts over their meaning in Hong Kong, China and beyond...

Anna Koo on Institutionalising Mediation in Hong Kong (HKLJ)

"Institutionalising Mediation in Hong Kong"
Anna Koo
Hong Kong Law Journal
Vol. 45, Part 3 of 2015, pp. 769-794
Abstract: The development of mediation in Hong Kong is no longer in its infancy. Four decades after incorporating the process into the labour dispute resolution system, it is applicable in other specific fields and considered suitable for most types of contentious cases. This article examines the implementation and institutionalisation of mediation into the administrative and judicial systems. In so doing, it gauges the effectiveness and identifies major weaknesses of each stage of development. It concludes by proposing to expand the scope of application to consumer disputes and elder care issues, adopt an opt-out rather than opt-in triggering mechanism when time is ripe and fine-tune certain provisions of the Mediation Ordinance so as to impose quality control over mediators, remove legal uncertainty concerning applicability of the Ordinance and clarify the extent of statutory protection of mediation confidentiality.  

HKLJ Publishes Article on the Current Copyright Law Amendment Controversy

"Fair Dealing Doctrine Caught Between Parody and UGC Exceptions: Hong Kong's 2014 Copyright Amendment and Beyond"
Wenwei Guan (City University of Hong Kong)
Hong Kong Law Journal
Vol. 45, Part 3 of 2015, pp 719-742
Abstract: Learning from the failure of the previous attempt in 2012, Hong Kong’s Copyright (Amendment) Bill 2014 introduces parody exception to accommodate the public’s concerns about free speech, yet rejects the user-generated content (UGC) exception. By reference to practices and debates in other jurisdictions, the article offers a critical examination of Hong Kong’s bold yet conservative move in redefining copyright’s fair dealing doctrine. The article suggests that, caught between parody and UGC exceptions in the context of free speech, the 2014 Bill indicates an unfortunate confusion in applying the three-step test, which leads to its failure to achieve a balance between copyright holders and users in the era of the “participative web”. Extending the author’s exclusive derivative right to digital network environment with limited exception to works for parody purpose only, copyright protection, even after the 2014 Bill, continues to be the end rather than beginning of creation in the digital network environment. The article suggests that the success of the 2014 Bill depends on a careful revisiting of the fair dealing doctrine and accommodating new author-user dynamics in the digital age, rather than making unprincipled concessions to the rhetoric of free speech.

On the question, "Do I have a Hong Kong criminal record?" (SCMP)

"Confusion surrounds police records of criminal convictions"
South China Morning Post
15 December 2015
How do you know if you have a criminal record?  Say you were convicted of careless driving, do you have a criminal record? What if the conviction was for possessing unregistered Chinese medicines or tax evasion? Unfortunately the process used to decide these questions is neither clear nor satisfactory.
     Where a person has been convicted of an offence, the police have a discretionary power to retain the record of that offence and any other identifying particulars of the offender. The police, however, have a policy not to record every conviction. The problem is that the policy is not accessible on the Hong Kong Police Force website, even though it is routinely updated.
     The policy has significant implications as it determines what gets entered into the police records database known as PONICS. This database is used for processing certificate of no criminal conviction applications and sexual conviction record checks, and providing criminal record information to the judiciary for sentencing.
     From an access to information request, I obtained within a week the latest policy as of December 1st. This 2015 policy states that persons convicted of the “following offences by the courts of Hong Kong will be recorded by Police”, followed by more than five pages of listed recordable offences.
     In this policy, careless driving is not a recordable offence but possessing unregistered Chinese medicines and tax evasion are. It is not clear when tax evasion was added because it was not listed in a 2004 version of the policy, which appears to be the only internet-accessible version after legislators raised the matter in the security panel.
     If a person was convicted of tax evasion in 2006 and wanted to know if his conviction was “recorded”, he could only find out by asking the police, and, if told that it was, he might wonder whether the police were simply making it up after the fact, because without an official public statement of the policy at the time no one could know for sure when the offence was listed.
     There are other uncertainties about the policy. The 2004 version stated that if a person was sentenced to imprisonment, including a suspended sentence, the conviction would be recorded whether or not the offence was listed. The 2015 version omits this statement.
     Since 2004, many more offences have been added to the list and few have been delisted. There remain some glaring omissions such as torture, misconduct in public office, maintenance and champerty. The scope of a listed offence category is sometimes unclear, leaving one to guess what is meant by “serious offences only” or “all related offences”.
     Without knowing when minor offending is recorded by the police, one perpetually has difficulty answering the question “do you have a criminal record?” A scheme set in law would provide greater legal certainty and address the fear of retrospective criminal records.
FOLLOW-UP NOTE: In April 2016, the Honourable Mr Dennis Kwok raised this issue in the Legislative Council.  On 13 April 2016, the Secretary for Security, Mr Lai Tung-kwok, provided a written reply that shed more light on the police policy and practices of recording criminal convictions.  It was stated in the reply that newly added recorded offences do not have retrospective effect, but recorded convictions based on delisted recordable offences remain in place.  It was confirmed that where a person has been sentenced to imprisonment, included suspended sentences, whether or not the offence is on the list of recordable offences, the conviction will be recorded.   Importantly, the Secretary stated that the Hong Kong Police Force was currently reviewing the list of recordable offences and "the relevant information will be made available to the public upon completion of the review".  It is hoped that this means the full list of recordable offences and updates to that list will be uploaded promptly to the Hong Kong Police Force website for all to access at anytime.

Monday, December 14, 2015

HKU LLM (Human Rights) Student, Phila Siu, Wins Journalism Award

Jasmine Siu
South China Morning Post
12 December 2015
A South China Morning Post reporter has received the Chinese University Journalism Award for his coverage of Erwiana Sulistyaningsih's family and how her plight has affected Indonesia's policy of exporting domestic workers.
     News reporter Phila Siu [LLM(Human Rights) candidate] last night received a certificate of merit in the biannual award's feature or commentary group for newspapers and magazines.
     His award-winning entry features a collection of interviews with Indonesian government advisers and local labour groups, with the centrepiece being a profile feature on Erwiana's father, Rohmad Saputro.
     Erwiana became a global media sensation in January last year, when a fellow Indonesian who chanced upon her at Hong Kong's airport noticed her bruised appearance and reported it to police. Her then employer, Law Wan-tung, 44, was subsequently arrested, while Erwiana spent nearly a month in an Indonesian hospital.... Click here to read the full article.

Johannes Chan on Academic Freedom, Keynote for Human Rights Press Awards 2015

Professor Johannes Chan was the keynote speaker for this year's Human Rights Press Awards.  He spoke at the Foreign Correspondents Club on 10 December 2015 on the topic of academic freedom.  His speech was widely reported in the local media.  See SCMP, HKEJ and HKFP.
Source: Foreign Correspondents Club Hong Kong

Sunday, December 13, 2015

New Issue of Hong Kong Law Journal (Part 3 of 2015)

HONG KONG LAW JOURNAL
Vol. 45, Part 3 of 2015
Editor-in-Chief: Professor Rick Glofcheski
Associate Editor: Professor Albert Chen

Articles
Gay Marriage and the Common Law Conflict of Laws Rules: A Singapore Perspective KC Lye and Ervin Tan693
Fair Dealing Doctrine Caught between Parody and UGC Exceptions: Hong Kong’s 2014 Copyright Amendment and Beyond Wenwei Guan719
Non-Traditional Maritime Security and International Cooperation Jun Zhao743
Institutionalising Mediation in Hong Kong AKC Koo769
China Law
Electronic Recording of Custodial Interrogations with Chinese Characteristics: Tool for Transparency or Torture? Kuibin Zhu and David M. Siegel795
Emergence of a Dual Constitution in Transitional China  Shucheng Wang819
Toward a More Balanced Safe Harbour Protection System for Internet Service Providers in China Jia Wang851
Towards a Harmonised Definition of Terrorism in China: A Discussion Under “One-Country, Two Systems” Dr Li Zhe and Dr Sten Idris Verhoeven881
The Transformation of Chinese Law: Mark II Jianfu Chen911
What Happens to Embryos When the Would-Be Parents Die: The “Orphaned Embryos” Custody Dispute in China Ding Chunyan941
“Is Court Mediation Feasible?” Quantitative Research on the Attitudes of Legal Professionals in Southwest Grassroots Society of Chin Xiong Hao963
Why Does a Powerful Regulatory Regime Fail? An Examination of the Regulation of Prepaid Cards in China Pan Su987
Book Reviews
Confucian Perfectionism: A Political Philosophy for Modern Times, Joseph Chan Scott Veitch1023

Saturday, December 12, 2015

Regulating Working Hours in Hong Kong and Consistency with the ICESCR (CLWR)

"A matter of human rights, not grace or discretion: regulating working time in Hong Kong"
Kai Yeung Wong (SJD candidate)
Common Law World Review
Dec 2015, vol. 44(4), pp 262-275
Abstract: This article argues that China (on behalf of Hong Kong in the international arena) has been placed in breach of its obligations under the ICESCR for failing to protect employees from abuse and ensure that they work in just and favourable conditions which are reasonable in terms of working hours. Drawing upon treaties and jurisprudential materials emerging from the international and European organs whose task is to uphold socio-economic rights, the author delineates the content of the ‘minimum core obligations’ entailed by Article 7(d) of the ICESCR and the manner in which they have to be domestically implemented. The author then endeavours to underline the essential features a scheme regulating working hours in Hong Kong must include if it is to operate consistently with the ICESCR.

Friday, December 11, 2015

CL Lim Interviewed on the Next Global Trade War with China (Reuters)

"Trade rows brew as China helps home team tackle slowdown"
Michael Martina and Tom Miles
Reuters
11 December 2015
China is sowing the seeds of a global trade war as its smelters, refiners and manufacturers increasingly export goods they can't sell into a slowing domestic economy, prompting accusations of dumping and unfair subsidies from its trading partners.
     With China's exporters already gaining a competitive edge from its weakening currency, global metals producers are crying foul over Beijing's plans to cut export taxes, and the United States is complaining that a raft of government subsidy programmes disadvantage rival producers.
     Beijing hopes to gain market economy status under World Trade Organization rules a year from now, which would force trading partners to use China's domestic prices instead of a third party's to assess if it is exporting below market value, and it has warned that it will fight back if countries continue to resort to anti-dumping duties.
     Chin Leng Lim, a trade expert and professor of law at the University of Hong Kong, said a combination of factors could stoke trade tensions to a pitch not seen since the global financial crisis.
     "You've got a slowing economy in China, a huge push on exports, a pushback on the part of producers in the United States and an election looming, while there is a question hanging around some of the rules of the game. It's going to be exciting," Lim said.
     Growth in the world's second-largest economy has slowed to a 25-year low, hitting demand for industrial raw materials like steel and copper, so domestic producers are looking to sell their surplus on a saturated global market... Click here to read the full article.

Results of the First Oxford-HKU Des Voeux Chambers Fellowship

Professor Stefan Enchelmaier of Oxford University visited the HKU Faculty of Law as the first Des Voeux Chambers Oxford-HKU Visiting Fellow in September and October 2015.  He recently reported on his visit on the Oxford Faculty of Law website:
Professor Stefan Enchelmaier reports on his time at Hong Kong University as part of the Des Voeux Chambers Oxford-HKU Visiting Fellowship:
I spent four weeks in September and October 2015 at Hong Kong University's Faculty of Law. I delivered one lecture on comparative insolvency law, and one on comparative company law.
     I participated in a panel discussion, following a short presentation, on competition (antitrust) law. These lectures were attended by faculty and students, as well as by solicitors, barristers, and judges from Hong Kong.
     I also participated in a two-day colloquium on corporate law, organised by the faculty with contributors from Hong Kong, Singapore, China, Great Britain, Australia, New Zealand, and the USA.
     Together with an Oxford colleague, Professor Chen-Wishart, I offered a well-attended seminar to students of HKU on postgraduate law studies at Oxford.
     Finally, in my capacity as one of the articles editors of the Oxford Journal of Legal Studies, I discussed with around half a dozen Hong Kong University faculty colleagues their manuscripts at varying stages of completion, with an eye to publication in British journals (possibly, but not necessarily the OJLS).
     I started a research project on intellectual property and Chinese competition (antitrust) law with my HKU colleague, Dr Kelvin Kwok, who was also my permanent contact with Des Voeux Chambers. We intend to present the first results of our research at an international conference in the spring of 2016.
     Besides all this, I had numerous wide-ranging discussions on legal and other topics with faculty colleagues and with Oxford law alumni, and I got to enjoy the generous hospitality of Des Voeux Chambers. My month at Hong Kong University was an unforgettable experience all round.

Thursday, December 10, 2015

Ernest Lim on Contracting Out of Fiduciary Duties (CLWR)

"Contracting out fiduciary duties"
Ernest Lim
Common Law World Review
Dec 2015, Vol. 44(4), pp. 276-297
Abstract: A significant implication arising out of an increasingly influential view that fiduciary duties are terms expressed or implied into voluntary undertakings is that all express or implied fiduciary duties can be excluded. This article critiques this implication by advancing the argument that this implication is doctrinally unjustified and normatively questionable through an analysis of the circumstances in which directors’ fiduciary duties have been contracted out under English law.

Wednesday, December 9, 2015

Hualing Fu on the Irony of the Chinese Rural Legal Service

"Away from Grass-roots? The Irony of the Chinese Rural Legal Service"
Hualing Fu
Diogenes
2015, Vol. 60 (3-4), pp 116-132
Abstract: This paper is a modest attempt to study legal pluralism in rural China using rural legal services as a case study. The paper examines three factors that are driving and constraining the development of rural legal services delivery in China: geographic limitation, professional interest and political intervention. First of all, geography matters and rurality creates natural barriers for rural residents in limiting the access to legal services. There is an inherent spatial inequality for rural population when it comes to the distribution of legal service and the geographic isolation and remoteness nurture a particular type of legal culture among rural residents. Second, professionalism matters. There are strong ideological and economic forces which pull the rural legal service providers away from their grass-roots. The calling of an emerging legal professionalism (and the related financial incentives) demands a certain degree of legal knowledge and qualification, rules of procedures, code of conduct and regularity in legal practice. In order to survive in an increasingly competitive legal market, rural legal service providers have to run legal practices as a business, considering the “bottom line” and following the logic of a legal market. Finally, politics matters. To overcome geographic barriers and correct market failure, the government would need to steps-in to provide or supplement legal service in rural areas by introducing a public dimension of legal services. Politics may ameliorate where the legal service market fails.  Contact the author for a copy of the article.

Tuesday, December 8, 2015

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

Vol. 5, No. 10: 7 December 2015
Table of Contents

1. Beyond Gatekeeping: The Normative Responsibility of Internet Intermediaries 
Marcelo Thompson, The University of Hong Kong - Faculty of Law 

2. Google Book Search, Transformative Use, and Commercial Intermediation: An Economic Perspective 
Kelvin H. Kwok, The University of Hong Kong - Faculty of Law 

3. The Evolution of Fintech: A New Post-Crisis Paradigm? 
Douglas W. Arner, University of Hong Kong - Faculty of Law 
Janos Nathan Barberis, The University of Hong Kong - Faculty of Law 
Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law 

4. Building Judicial Integrity in China 
Fu Hualing, The University of Hong Kong - Faculty of Law

Saturday, December 5, 2015

Terry Kaan on the Regulation of Traditional, Complementary and Alternative Medicine

"Traditional, complementary, and alternative medicine"
Terry Kaan
in Yann Joly & Bartha Maria Knoppers (eds), Routledge Handbook on Medical Law and Ethics (New York, Routledge, 2015) pp 419-442.
Abstract: A survey of the role and impact of traditional, complementary and alternative systems of medicine around the world, with a particular focus on the example of Traditional Chinese Medicine, and the regulation of such systems of medicine in the context of national health regulatory systems largely predicated on the 'Western medicine' model.

Anna Koo on International Commercial Mediation in China and the UNCITRAL Model Law

"UNCITRAL and International Commercial Mediation in China"
Anna Koo
Comparative Law Journal of the Pacific
Special Issue, Vol XIX, 2015
In less than four years and after only four sessions, the Working Group on Arbitration and Conciliation came up with the UNCITRAL Model Law on International Commercial Conciliation of 2002 (the 'Model Law'), relying primarily on the Conciliation Rules of 1980 (the 'Conciliation Rules'). The Model Law is the first of its kind to encourage the use of conciliation as a dispute settlement method for cross-border commercial transactions. It provides uniform rules for some procedural aspects of conciliation, with a view to enhancing predictability and certainty in the use of the process. It applies to a wide range of international commercial disputes. Such disputes may arise from any legal relationships of a commercial nature, whether contractual or not. They satisfy the requirement of internationality if the parties of a conciliation agreement have their places of business in different States at the conclusion of that agreement. In addition, it happens when the State, in which either a substantial part of the obligations of the commercial relationship is to be performed, or with which the subject matter of the dispute is most closely connected differs from the State in which the parties have their places of business. Furthermore, 'conciliation' does not merely refer to a directive, advisory form of mediation. It is an umbrella term for all procedures in which a third party assists the parties to settle a dispute without imposing a binding decision, including mediation, neutral evaluation, mini-trial or similar proceedings.
      Rather surprisingly, the Model Law inspired only 14 countries to enact or amend domestic legislation on mediation over the past decade. Such responses were hardly comparable to those of the UNCITRAL Model Law on International Commercial Arbitration of 1985. Despite the fact that China, Fiji, India, Japan, Mexico, Singapore and Thailand participated in the drafting stage, none of the countries in the Asia-Pacific region have informed the UNCITRAL Secretariat of adopting statutes based on the principles of the Model Law thus far. On the other hand, both domestic and international mediation activities proliferated in this region. Disputants preferred modern sets of mediation rules developed by service providers or themselves instead of the Conciliation Rules. Governments endorsed the use of mediation as an adjunct to litigation and promulgated legislation specific to mediation without explicit reference to the Model Law. The key question, then, is whether the Conciliation Rules and the Model Law become obsolete or remain relevant in the Asia-Pacific context. This chapter identifies major challenges involved in international commercial mediation from the findings of three recent surveys. Focusing on mainland China and its two special administrative regions, it compares and explains the extent to which mediation rules and laws in these jurisdictions address the pressing issues of mediation. It argues that the policies underlying the UNCITRAL texts echo those of the Chinese regulatory and legal framework for international commercial mediation, but the Conciliation Rules and the Model Law face an urgent need for update if they intend to lead their harmonizing role in China... Click here to read the full article. 

Shahla Ali on Environmental Disaster-Related Disputes and the UNCITRAL Rules on Transparency

Shahla Ali
Comparative Law Journal of the Pacific
Special Issue, Vol. XIX, 2015
Under the backdrop of the Japanese Fukushima nuclear disaster, Chancellor Angela Merkel’s government decided to phase out rapidly nuclear energy in Germany with an amendment to the “Atomic Energy Act”.
     Previously, Merkel had decided to extend the usage of the nuclear reactors past their due phase-out date. Following Fukushima, such a decision was rendered politically unpalatable and untenable
      In 2009, Vattenfall arbitrated against the German government at the International Center for Settlement of Investment Disputes excessive imposition of water quality standards for a coal power plant, which rendered Vattenfall’s investment project “unviable”. The claim against Germany was about €1.4BN, but it was settled in 2011, with Germany agreeing to a more lenient water quality standard in favor of Vattenfall.
      In 2012, Vattenfall, a Swedish nuclear plant operator, sought compensation from the rapid exit from nuclear energy in Germany – “fair compensation” associated with the rapid phase-out of their two nuclear plants. Press reports in late 2011 put Vattenfall’s lost investments in nuclear power plants at €700MM. In 2012, the company estimated the damages from the nuclear phase-out actions at €1.18BN. However, the exact amount of Vattenfall’s compensation claim against Germany is unknown. 
      Vattenfall initiated arbitration proceedings by filing a Request for Arbitration at the International Center for Settlement of Investment Disputes in Washington D.C. Vattenfall was attempting to claim “compensation for the phasing out of nuclear energy” under the Energy Charter Treaty. The Energy Charter Treaty is a multilateral treaty that essentially protects foreign investors in the energy sector by allowing them to bypass the domestic courts of the host country and file a complaint to an ad hoc international tribunal to challenge proposed government regulations.
     Despite enormous public interest about the case, only minimal amounts of information have been made available to the public. The recent UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration might put pressure on the ICSID to be more transparent regarding the proceedings of the case... Click here to read the full article.

Wednesday, December 2, 2015

HKU Class of 2015 Graduates (Law PhD, SJD and MPhil)

Congratulations to our 7 PhD, 4 SJD and 1 MPhil graduates who will have their degrees conferred upon them at the 194th Congregation on 3 December 2015 at the University of Hong Kong. The newest members of our RPG alumnae family include the following:


2. Dr. Shan CHI (PhD).  Chinese inventiveness criteria and their impacts on industry : inspiration from bio-patents.  Supervisor: Yahong Li.  Examiners: Benjamin Liu (John Marshall Law School), Yun Zhao (HKU), Haochen Sun (HKU).

3. Dr. Li GAO (PhD).  Promoting the development of green technology in China : using patent law as an environmental instrument.  Supervisors: Yahong Li and Jolene Lin.  Examiners: Bryan Mercurio (CUHK), Michael Ng (HKU), Shahla Ali (HKU).

4.  Dr. Evan Corby GIBSON (PhD).  Managing financial stability and liquidity risks in Hong Kong's banking system : what is the optimum supervisory model?  Supervisors: Douglas Arner and Lee Aitken.  Examiners: Michael Taylor (Moody's), Berry Hsu (HKU), Emily Lee (HKU).

5. Dr. Peng HAN (PhD).  An analysis of the changing nature of law and social solidarity in contemporary China : the application of Durkheim's theory of solidarity to Chinese society. Supervisor: Scott Veitch.  Examiners: Zheng Ge (Shanghai Jiaotong), Albert Chen (HKU), Hualing Fu (HKU).

6.  Dr. Jieying LIANG (PhD).  Party autonomy in contractual conflict of laws: a Chinese perspective on the adjudication of the enforceability of choice of law clauses.  Supervisor: Michael Tilbury.  Examiners: Brian Opeskin (Macquarie), Anselmo Reyes (HKU), Xianchu Zhang (HKU).

7.  Dr. Herman Yung Sing TO (PhD).  Microfinance in China - the postal bank and credit cooperatives as key players.  Supervisor: Douglas Arner.  Examiners: Zhou Zhongfei (Shanghai University of Political Science and Law), Say Goo (HKU), Xianchu Zhang (HKU).

8.  Dr. Ida Kwan Lun MAK (SJD).  Institutionalizing the effective use of ADR for the resolution of shareholder disputes in Hong Kong.  Supervisors: Katherine Lynch and Shahla Ali.  Examiners: Kun Fan (CUHK), Yun Zhao (HKU), Anna Koo (HKU).

9.  Dr. Xiao PAN (SJD).  Private non-enterprise institutions in China in an era of charity law reform.  Supervisor: Say Goo.  Examiners: Wei Shen (Shanghai Jiaotong), Douglas Arner (HKU), Hualing Fu (HKU).

10.  Dr. Xue PENG (SJD).  Corporate governance of Chinese privately owned enterprises listed in Hong Kong : an empirical study of three levels of agency problems.  Supervisor: Douglas Arner.  Examiners: David Donald (CUHK), Say Goo (HKU), Xianchu Zhang (HKU).

11.  Dr. Zhongyi TAO (SJD).  Fair use regime in China : findings from an exploration into judicial experiences.   Supervisors: Yahong Li and Po Jen Yap.  Examiners: Irene Calboli (Marquette), Hualing Fu (HKU), Alice Lee (HKU)

12.  Ms Yuchen SONG (MPhil).  Exploring derivative action in Japan and China.  Supervisor: Guanghua Yu.  Examiners: Hui Huang (CUHK), Douglas Arner (HKU).

Tuesday, December 1, 2015

Report on Third Hong Kong Children's Issues Forum (Collaborative KE Project)

COLLABORATIVE KNOWLEDGE EXCHANGE: THIRD CHILDREN’S ISSUES FORUM

On November 13 and 14 the HKU Faculty of Law co-hosted the Third Children’s Issues Forum in collaboration with the Chinese University Faculty of Law, the Hong Kong Family Law Association, and the Law Society of Hong Kong (with support from the Hong Kong Bar Association). The purpose of this Forum (and the previous two) was to highlight the legal and related issues affecting children in Hong Kong and globally and to advocate for multidisciplinary reform of the law and policy on children and family justice generally. After a welcome from the Deans of the CUHK and HKU Law Faculties, Prof. Chris Gane and Prof. Michael Hor, The Hon. Chief Justice Mr. Geoffrey Ma Tao-li opened the Forum noting the importance of protecting the best interests of children, and the role of law in doing so, especially as they are often amongst the most vulnerable in our society.
     During the course of the Third Forum held at CUHK, a packed conference hall heard over 40 speakers address child related topics as diverse as child custody, the Family Court’s innovative Children Dispute Resolution procedure, perspectives on representing children in legal proceedings, frontline workers’ experiences of addressing children’s issues and the need for accurate and sustained data collection to inform the creation and implementation of effective policies on children’s issues.
     Speakers from Hong Kong included members of the Judiciary, barristers and solicitors, medical professionals, academics and also social workers, therapists and representatives from NGOs. Importantly for a conference on children’s issues, young people form Kids’ Dream, one of the first children-led NGOs in Hong Kong, also took part in various panels during the Forum. 
     Speakers from overseas included senior judiciary from England, Australia, Singapore, Macau and Canada; lawyers from the UK and the PRC; academics from Japan, Singapore, Norway and Israel; and the Asia regional representative of UNICEF. For more information on the programme and speakers, please go to www.cifhk.org.
     During the first panel of the Forum, the Secretary for Labour & Welfare, Mr. Matthew Cheung GBS JP announced - for the first time in public - the imminent publication of the long awaited Children’s Bill and the government’s commitment to set aside resources to ensure the successful implementation of the practical infrastructure necessary to support the legislative changes, for example, supervised contact centres. Mr. Cheung confirmed that the Children’s Bill will be released by the end of November. This reform is something which has been discussed and advocated at the previous two Children’s Issues Forums in 2009 and 2012 and so we were delighted that the Secretary chose to make this announcement at the Third Children’s Issues Forum in the presence of the HK media.
     We look forward now to receiving the Children’s Bill and to continuing the progress towards legislative and practical reforms, particularly the creation of a Children’s Commission, to ensure that Hong Kong children have the best child law possible.  Written by Katherine Lynch.

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