Tuesday, May 31, 2016

Keith Hotten's Co-Authored 'Hong Kong Family Court Practice' Cited by the Court of First Instance

Congratulations to Keith Hotten whose co-authored practitioners' text, Hong Kong Family Court Practice, 2nd edn, was cited with approval by the Court of First Instance in the case, C v N (unreported, HCMP154/2016, 16 March 2016).  Madam Justice Au-Yeung cited the text for its statement of the modified principles of the Hague Convention on the Civil Aspects of International Child Abduction applicable to the case (see [15]).  The case concerned a mother who had taken her two children from Taiwan, where they resided with their father, to Hong Kong.  The father brought the application for custody and return of the children to Taiwan.  Dr Hotten's text was published in June 2015 by LexisNexis Butterworths.  More recently, the text was cited in DCB v AB (unreported, HCMP 2173/2014, 28 July 2017) fn 4.

Third Legal Scholarship Workshop @ HKU (LSW@HKU) (Report)

The Third Legal Scholarship Workshop @ HKU was held at the Faculty of Law on 26-27 May 2016. Eight current or recently graduated PhD candidates from Stanford University, University of Michigan, Oxford University, University College London, National University of Singapore, Peking University, University of British Columbia and HKU presented papers on a wide range of legal topics including comparative corporate governance, regulation of Chinese shadow banking, socio-legal studies of foreign lawyers in Myanmar, role of “social license to operate” in mining law, alternative legal resolution of territorial dispute over the Diaoyu/Senkaku islands, legal status of Air Defense Identification Zone, developments of common law constitutional rights, and legal theory of authoritative agency in constitution-making.
    The presenters, together with our students and invited participants from Queen Mary University of London, University of Wisconsin and Chinese University of Hong Kong, engaged in intensive, vibrant and earnest discussion on both the substance of the presented papers and stylistic aspect of the presentation. They also benefited tremendously from the keynote session by Professor Johannes Chan and Professor Hualing Fu who shared their vast experiences and insights on the academic hiring process. 
      The workshop is organized and conducted by Dr Chen Jianlin, with ample assistance from Dr Qiao Shitong (who incidentally was one of the presenters of the inaugural LSW@HKU in 2013).

Sunday, May 29, 2016

Dr Yahong Li Delivers CREATe Studio IP Lecture at Glasgow University

On 25 May 2016, Dr Yahong Li delivered a public lecture on user generated-content and fair use in Hong Kong in the CREATe Studio Spring/Summer 2016 Lecture Series at the University of Glasgow. The description of her lecture is as follows:
"Aiming at bringing Hong Kong’s copyright protection in line with the international trend, particularly with regard to copyright protection over Internet, Hong Kong government started copyright law amendment in 2006. 10 years have passed but the law is still unchanged. The Copyright (Amendment) Bill has been repeatedly dropped by Hong Kong Legislative Council (LegCo) due to pan-democratic lawmakers’ filibusters. Outside the LegCo, Hong Kong netizens used violence to protest the Bill. The legal issues such as whether the user-generated-content (UGC) should be treated as a fair use, and whether online copyright infringement should be criminalized have been escalated to a political issue of freedom of speech and press.
Why has the law reform encountered the unprecedented opposition from the public in Hong Kong (and the political party representing them)? What is the cultural, social and political backdrop that has influenced the amendment process? This talk will answer these questions by looking at not only the legal issues being debated, the respective positions taken by the Hong Kong government and the public, but also the complicated relationship between Hong Kong and the Mainland China, and the cultural and social changes caused by this relationship during the past 10 years. The talk will also shed some light on how Hong Kong government should move forward with respect to its copyright law reform, and why its copyright law reform should not only follow the international trend but also be watchful of the copyright law reform in the mainland China, particularly on UGC and fair use."
Dr Li was the second invited speaker in this lecture series.  CREATe is the RCUK Centre for Copyright and New Business Models in the Creative Economy based at the University of Glasgow. CREATe Studio is an "interdisciplinary reading group which encourages researchers from a variety of academic backgrounds to read new things, obtain feedback and meet with peers to share ideas".

Saturday, May 28, 2016

CCPL White Paper on Employer's Duty of Care for Employees Working Overseas

Farzana Aslam
Centre for Comparative and Public Law
May 2016
Abstract: This paper presents the findings of a study to identify the nature of health and safety risks faced by Hong Kong-based employees who are required to travel and work overseas, together with human resource policies and procedures that are used by Hong Kong employers to manage and respond to such risks. The first part of this Paper discusses the extent to which a Hong Kong-based employer’s duty of care for the health and safety of its employees has extra-territorial application by reference to legal duties imposed upon an employer at common law and by health and safety-related legislation, as well as broader obligations arising from principles of corporate social responsibility. The second part of this Paper presents the research findings from the study together with recommendations to inform best practice human resource policies and procedures with a view to improving the management of health and safety for employees required to travel and work overseas.  Click here to download the full paper.  To read more about this project, click here.  Farzana presented her paper at a HKU talk and panel discussion on 24 May 2016. 

Friday, May 27, 2016

Singapore International Commercial Court Issues First Judgment (ALB)

"SICC issues its first judgment on $800 mln dispute"
Ashima Ohri
Asian Legal Business
25 May 2016
The Singapore International Commercial Court (SICC) has issued its first written judgment on an $800 million dispute concerning parties from Indonesia and Australia, involving various claims related to the breaches of a joint venture agreement. 
     The three-judge panel comprising of presiding judge Quentin Loh from Singapore, and international judges Sir Vivian Ramsey from the UK and Anselmo Reyes from Hong Kong, ruled in the favour of the defendants, PT Bayan Resources and Bayan International. The full judgment can be found here... Click here to read the full article.

Thursday, May 26, 2016

Law Faculty Members Featured in HKU's Bulletin (May 2016)

This month's HKU Bulletin magazine (May 2016, Vol. 17, No. 2) features the accomplishments of several Faculty of Law colleagues: Douglas Arner (Cover Story, pp 8/9), Puja Kapai (Research, pp 32/33), Rick Glofcheski (Teaching and Learning, pp 40/41) and Eric Cheung and his team (Knowledge Exchange, pp 50/51).  Click here to read the latest issue of the Bulletin.  Congratulations to all of them.




Wednesday, May 25, 2016

Albert Chen on the Law and Politics of Hong Kong's Universal Suffrage Struggle (AsianJL&Society)

"The Law and Politics of the Struggle for Universal Suffrage in Hong Kong"
Albert HY Chen
Asian Journal of Law and Society
May 2016, Vol. 3, Issue 1, pp. 189-207
Abstract: Post-1997 Hong Kong under the constitutional framework of “One Country Two Systems” has a political system that may be characterized as a “semi-democracy.” Hong Kong’s constitutional instrument—the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China—provides that the ultimate goal of the evolution of Hong Kong’s political system is the election of its Chief Executive by universal suffrage. Since 2003, a democracy movement has developed in Hong Kong that campaigned for the speedy introduction of such universal suffrage. In 2007, the Chinese government announced that universal suffrage for the election of the Chief Executive of Hong Kong may be introduced in 2017. In 2014, the Chinese government announced further details of the electoral model. The model was rejected by Hong Kong’s Legislative Council in 2015, with the result that the election of the Chief Executive in 2017 would not materialize. This article seeks to tell this story of Hong Kong’s quest for democratization, focusing particularly on the context and background of the “Occupy Central” Movement that emerged in 2013 and its aftermath. It suggests that the struggle for universal suffrage in the election of Hong Kong’s Chief Executive in 2017 and the obstacles it faced reveal the underlying tensions behind, and the contradictions inherent in, the concept and practice of “One Country, Two Systems,” particularly the conflict between the Communist Party-led socialist political system in mainland China and the aspirations towards Western-style liberal democracy on the part of “pan-democrats” and their supporters in Hong Kong.  Click here to download the full article.

HKU Law Hosts Belt/Road Rule of Law International Conference (3 June 2016)





Conference
International Governance and Rule of Law in China under the One Belt One Road Initiative

Date: 3 June 2016 (Friday)
Venue: 11/F, Cheng Yu Tung Tower, The University of Hong Kong

Opening at: 9:00

Session 1 (9:15-10:45) 
Theme: Convergence of International Rules under the One Belt One Road Initiative
Moderator: Dr. Michael Ng, HKU

1. Does the OBOR Initiative Need a Legal Framework?
Prof. John Mo, Faculty of Law, University of Macau

2. OBOR and International Law: A Perspective from International Public Goods
Prof. Shi Jingxia, School of Law, University of International Business and Economics

3. The Integration of New Rules with Existing Rules in the One Belt and One Road Initiative
Prof. Zhao Jun, Guanghua Law School, Zhejiang University

4. One Belt, One Road, and Three Conceptions of Sovereignty
Dr. Samuli Seppänen, Faculty of Law, Chinese University of Hong Kong 

Session 2 (11:00-12:30)
Theme: International Trade Law and China
Moderator: Dr. Marcelo Thompson, HKU

1. “One Belt One Road” Initiative and the Jurisprudence of Trade Agreement
Prof. Jaemin Lee, School of Law, Seoul National University, Korea

2. “Belt & Road”-Related IPR Customs Enforcement: China-EAEU, China-EU Cooperation
Prof. Zhang Naigen, School of Law, Fudan University

3. Anti-Monopoly Law in China-The Latest Developments in Administrative and Private Enforcement
Ms. Sarah Wersberg, Julius-Maximilians-Universität Würzburg

4. China’s One Belt, One Road Initiative: Co-operation in Trade Liberalisation and Antitrust Enforcement
Mr. Kelvin Kwok, Faculty of Law, The University of Hong Kong 

Session 3 (13:30-14:45)
Theme: International Investment Law, Financial Law and China’s Contribution
Moderator: Ms. Ji Lian Yap, HKU

1. Is the One Belt One Road Initiative a New Bit to China’s BIT Law Regime?
Prof. Shen Wei, School of Law, Shandong University

2. ASEAN Financial Integration and ‘One Belt, One Road’: Legal Challenges and Opportunities to Chinese Banks in Southeast Asia
Dr. Christopher Chen Chao-hung, School of Law, Singapore Management University

3. A Prognostic View on the Applicable Law for AIIB’s Loan Agreements
Dr. Peng Yue, School of Law, Nanjing University 

Session 4 (15:00-16:15)
Theme: Development of Other International Laws: Labour, Environment and Space Cooperation
Moderator: Prof. Anne Cheung, HKU

1. Transnational Labour Governance and the Belt and Road Initiative
Dr. Chen Yifeng, School of Law, Peking University

2. The Role of Environmental Impact Assessment in the Governance of Nu-Salween River: A Comparative Study of the Chinese and Burmese Approaches
Prof. Bian Yongmin, School of Law, University of International Business and Economics

3. The Role of Regional Space Cooperation in Procuring Space Security in the Asia-Pacific Region: A Prospect for Future?
Prof. Zhao Yun, Faculty of Law, University of Hong Kong 

Session 5 (16:30-18:00)
Theme: Development of International Dispute Resolution
Moderator: Mr. Gary Meggitt, HKU

1. Is Arbitration a Legitimate Way to Resolve the South China Sea Dispute?: A Commentary on the Jurisdiction of the Sino-Philippine South China Sea Arbitration
Dr. Gu Junfeng, School of Law, Shantou University

2. Analysis of International Civil Dispute Resolution Model in East Asia
Dr. Chai Yuhong, School of Law, Lanzhou University

3. Public Policy and Harmonization in International Commercial Arbitration: The Asian Context under “One Belt, One Road”
Dr. Gu Weixia, Faculty of Law, University of Hong Kong

4. The Establishment of the International Trade Dispute Settlement Mechanism under the “One Belt One Road” Initiative
Mr. Jiang Shengli, School of International Law, East China University of Political Science and Law 

Closing at: 18:00 

ALL ARE WELCOME
Registration: www.law.hku.hk (Seminars & Conferences) or Click Here
Enquiries: Ms. Shelby Chan (shelbyc@hku.hk)

Tuesday, May 24, 2016

Second HKU-Vienna Workshop on IP and Prosumerism (Report)

Second HKU-Vienna Joint Workshop on Intellectual Property and Prosumerism
Following the success of the first joint workshop at the Vienna University of Economics and Business (WU Vienna) on 8 March 2016, the second joint workshop on IP and Prosumerism was held at HKU on 6 May 2016. The workshop invited officials of the Hong Kong Intellectual Property Department (HKIPD), Miss S.K. Lee and Jasmine Kun, to provide an overview of Hong Kong’s proposed copyright law amendment, which was followed by a roundtable discussion on prosumerism and Hong Kong copyright law, moderated by Professor Martin Winner of WU Vienna, and participated by Dr. Frank Wan, Mr. Geoffrey Lau and Mr. Ronald Yu. The second part of the workshop consisted of four excellent presentations by Dr. Jyh-An Lee (CUHK), Dr. Clemens Appl (WU Vienna), Dr. Wenwei Guan (CityU), and Mr. Stefan Holzweber (Wu Vienna) on the topics of Copyright Divisibility and the Anti-Commons, Multi-Authoring in User Innovation, Antitrust Enforcement of SEP’s FRAND Terms in TRIPS Context, and A Competition Law Perspective on Prosumerism, respectively, and were thoroughly commented by, inter alia, Dr. Haochen Sun (HKU) and Mr. Kelvin Kwok (HKU). The papers of the two workshops will be edited for publication in the near future. Written by Dr Li Yahong, co-organizer of the workshops.

Monday, May 23, 2016

New Book: Finance, Rule of Law and Development in Asia (Brill)

Finance, Rule of Law and Development in Asia
Edited by Jiaxiang Hu, Matthias Vanhullebusch and Andrew Harding
May 2016, Brill, 526 pp.
Description: The financial markets of Hong Kong and Singapore are leading examples in Asian financial development and regulation. Shanghai, which is developing its Free Trade Pilot Zone, is equally aiming to incorporate a sophisticated service market in order to upgrade, reform and reinvigorate the current economic model of development in China in the aftermath of the global financial and economic crisis. Streamlining administrative regulation is a precondition for its financial market to find root and play a central role in Asia and beyond. Finance, Rule of Law and Development in Asia offers a contextualized approach to the economic and political realities within Asian financial markets, especially in these three different jurisdictions. The volume adopts a comparative and precise account on the prospects and challenges in further developing these financial centres.

Chapter 3
"Hong Kong: Evolution and Future as a Leading International Financial Centre"
Abstract: By the beginning of the 21st century, Hong Kong had emerged as one of the world’s leading international financial centres, along with London, New York and Singapore. Its emergence as a major international financial centre is however relatively recent, dating only to the late 1980s. This chapter first considers Hong Kong’s evolution as an international financial centre from the 1800s to the global financial crisis of 2008. It then discusses Hong Kong’s regulatory system and structure before turning to changes to that regulatory system as a result of the global financial crisis. The chapter concludes with a discussion of current and future challenges for Hong Kong’s continuing role as a major international financial centre. 

Chapter 4
"Level Playing Field as an Institutional Challenge to China as a Socialist Market Economy"
Abstract: A new round of reform has been carried out since the Communist Party of China adopted its decision to promote comprehensive reforms for the country’s future development in 2013. However, there are daunting challenges ahead of the reform. In addition to the current economic downturn the ideological and political struggle in the course of further marketization and rule of law development may continue to subject the new campaign to a great deal of uncertainties. Given the imminent threat of the social, financial and ecological crises the party state is facing a dilemma to maintain its political legitimacy or make historical breakthroughs. 

Chapter 16
"Role of the Criminal Law in Maintaining Hong Kong as an International Financial Centre"
Abstract: While criminal law is an essential part of the legal environment used to maintain Hong Kong’s status as an international financial centre (IFC), its role is limited. Criminal law and processes are reserved for serious cases that involve the protection of property rights, economic interests, or the integrity of the financial system. Deterrent and remedial civil processes are increasingly being used as a more effective way to enforce law designed to maintain Hong Kong’s IFC status. 

Chapter 17
"Anti-corruption Law and Enforcement in Hong Kong: Keeping it clean"
Abstract: This paper will examine Hong Kong’s anti-corruption laws and their enforcement by the ICAC, Hong Kong’s dedicated anti-corruption law enforcement agency. The key offences and investigative powers which have enabled the ICAC to successfully prosecute and prevent public and private sector corruption in Hong Kong for 40 years will be outlined and critically assessed. Various lessons learned over the course of the ICAC’s forty years of operation will be reviewed, and some of the challenges confronting the ICAC as it enters its fifth decade of operations will be explored, including legitimacy issues and public trust issues.

Janos Barberis on FinTech in the FinServ Industry (LSE Business Review)

"Banks' cautious approach to financial startups has matured"
Janos Barberis (PhD Candidate)
LSE Business Review
17 May 2016
Financial Technology (FinTech) has been one of the fastest growing tech sectors during the past two years. Interest in the sector has led banks, investors, regulators and policymakers alike to interact with FinTech start-ups to better understand what drives their success. This has emerged as an on-going process – the difficulty comes from the fact that similarly to the Financial Services industry (FinServ) the FinTech sector is diverse and cannot be reduced to a specific silo or sub-sector (e.g. payments or alternative finance).
     It was argued, in The Evolution of FinTech A New Post-Crisis Paradigm, that the FinTech sector reflects more of an evolution than a revolution. Taking a historical approach allows one to appreciate that finance has regularly been using technology to deliver products and services. From an I.T. spending perspective (US$ 195 billion in 2015) compared to FinTech investments (US$ 19 billion in 2015), it’s clear that banks’ current inroads into the sector are mainly exploratory as most expenses still go towards maintaining previous I.T. systems developed in-house as opposed to start-ups.
     FinTech is an emerging trend and we are at the start of a longer-term cycle that will deepen the interactions between FinTech and FinServ participants, with the support of governments and regulators. Currently, the trend can be looked at through four different angles... Click here to read the full article.

Sunday, May 22, 2016

New Book: Personal Injury Tables Hong Kong 2016 (Sweet & Maxwell)

Neville Sarony, Wai-sum Chan, Felix WH Chan, Johnny SH Li
Sweet and Maxwell, April 2016
Description: Continually cited in Hong Kong Courts as the “Chan Tables”, Personal Injury Tables Hong Kong 2016 updates and revises the essential reference information for calculating damages in personal injury and fatal accident cases. The 2016 edition has been fully updated to take into account revised Hong Kong mortality projections by the Census and Statistics Department (Hong Kong Population Projections 2015–2064), under which there is an increase in life expectancy. Evaluating damages is no longer a time-consuming and challenging task. Its comprehensive contents include Hong Kong actuarial tables for the calculation of: 
  • Inflationary rates for adjusting PSLA
  • Wage statistics
  • Retail price indices
The law, like life, moves on. Fresh developments occur. With them, there arise new needs to be met. So the tools by which justice according to law is delivered effectively must be kept in good repair, and upgraded from time to time. That is why the latest edition of this publication has been brought out. This edition will, I am fully confident, continue to provide the valuable service rendered by the previous one. It is the product of a lot of hard work on the part of many persons. Readers will doubtless wish to join me in thanking them one and all.” 
      Kemal Bokhary, Non-Permanent Judge of the Court of Final Appeal, March 2016
About the Authors: Felix W H Chan is an associate professor in the Faculty of Law, the University of Hong Kong. Neville Sarony QC, SC is a respected and experienced personal injury practitioner in Hong Kong. Wai-Sum Chan is a Professor of Finance at the Chinese University of Hong Kong. Johnny SH Li holds the Fairfax Chair in Risk Management at the University of Waterloo, Canada.
   Click here to order the book. 

Saturday, May 21, 2016

Michael Davis Comments on Zhang Dejiang's Hong Kong Visit (Time)

"Tight Security Foils Hong Kong Protesters on Last Day of Top Chinese Official's Visit"
Nash Jenkins
Time
19 May 2016
A small group of prominent Hong Kong democracy activists attempted Thursday to halt the motorcade of top official Zhang Dejiang — the most senior Chinese official to have visited the territory since 2014’s Umbrella Revolution — as it approached a major thoroughfare, but were foiled by police.
     The activists spilled into the road at the northern egress of the Eastern Harbour Crossing tunnel, which connects Hong Kong Island to the rest of the territory, as Zhang and his security detail were about to pass through it. Police officers, who outnumbered the activists twofold, were quick to intervene.
...
     For those who support self-determination, the logic is simple: Hong Kong’s freedoms have gradually been eroded since Britain returned the former colony to China in 1997; to preserve them, Hong Kong must do away with the constitutional dynamic known as “one country, two systems” and divorce itself from the mainland altogether.
      It is an idea that Zhang firmly condemned at a banquet given in his honor on Wednesday night. He assured his audience that Hong Kong would not lose its distinct sociopolitical identity, but then called on the local judiciary to crack down on political dissenters — “fulfill the solemn duty to safeguard the rule of law,” as he put it, according to a report in the South China Morning Post.
      “This is not the ‘rule of law’ as we understand it in Hong Kong,” Michael Davis, an expert on Chinese and Hong Kong law at the University of Hong Kong, told TIME on Thursday. “He basically spoke to the mainland version of ‘rule of law’ — that is, the party makes the law and is above the law, and the obligation of the people is to follow this law.”
      In this case, Davis says, the law concerns “national security,” a sweeping term used by Chinese authorities to forbid and punish acts of speech that threaten the hegemony of one-party rule. A sweeping piece of legislation ratified by China’s rubber-stamp legislature last July — on the anniversary, incidentally, of Hong Kong’s return to China — signified an unprecedented crackdown... Click here to read the full article.

Friday, May 20, 2016

Katherine Lynch on Children's Dispute Resolution in Hong Kong (Cardozo J Conflict Resln)

"Reform of Family Justice: Children's Dispute Resolution in Hong Kong"
Katherine Lynch
Cardozo Journal of Conflict Resolution
Spring 2016, Vol. 17, Issue 3, pp. 909-936
The last twenty years have witnessed a transformation of family justice systems across the common law world, featuring particular emphasis on ensuring that the best interests of children are protected when resolving family disputes. The evolving paradigm has shifted away from resolving family disputes in formal courtrooms via a litigious process that is viewed as lengthy, slow, complex, expensive, and far too adversarial, particularly when children are involved. In response to these challenges, many family procedural reforms, such as modifying court rules to accommodate more informal and flexible processes and expanding judicial roles to provide greater case management and settlement facilitation, have been introduced within the global common law community. More non-adversarial approaches to dispute resolution have developed, with increased use of informal out-of-court dispute resolution--processes often referred to collectively as "alternative dispute resolution" or "ADR" processes. Increasingly, disputes involving children are being handled through more informal, non-adversarial processes like mediation and collaborative practice. Prevention and early resolution of disputes are said to reduce the detrimental effect of conflict on children. The need to protect the best interests of children is now an important feature of family justice reform. The central focus is on providing better, more effective ways of determining what is in the children's best interests and providing children with the opportunity to be heard and to participate in proceedings affecting them - either directly or through a representative... Click here to download the full article.

Thursday, May 19, 2016

Thomas Cheng on China's Anti-Monopoly Case Against Qualcomm (J Antitrust Enforcement)

"The PRC NDRC Case against Qualcomm: A Misguided Venture or Justified Enforcement of Competition Law?"
Thomas Cheng
Journal of Antitrust Enforcement
Vol. 4, Issue 2, published May 2016
Abstract: The Chinese Anti-Monopoly Law (AML) has attracted much attention in recent years. There have been accusations of protectionism and of the AML being used to target foreign companies. Against this backdrop, the investigation by the National Development and Reform Commission (NDRC) against Qualcomm over the latter’s licensing practices was especially controversial. This was particularly so because China has long complained about the high licensing fees its domestic manufacturers have to pay to foreign patentees. And Qualcomm is a major licensor of communications technologies and earns a very considerable amount of licensing revenue in China. Qualcomm was eventually slapped the largest fine in the history of Chinese AML enforcement and subject to a number of behavioural remedies. The question arises as to whether the NDRC decision was a poorly reasoned protectionist venture or was in fact consistent with sound competition law principles. This article attempts to answer this question by critically evaluating the reasoning of the decision. It finds that even though the NDRC reached the correct conclusion on some of the claims, the analysis and the reasoning leave much to be desired.

Wednesday, May 18, 2016

Life and Future of British Colonial Sexual Regulation in Asia (HKLJ Focus Section)

Preface by Lynette J Chua and Michael Hor.  This focus issue was inspired by recent developments on same-sex sexual regulation that has roots in British colonialism in present-day Asian jurisdictions.  In January 2014, the Indian Supreme Court reversed the lower court's decision and ruled that s 377 of the Penal Code was constitutional.  Ten months later, Singapore's final court of resort, the Court of Appeal, handed down its landmark decision upholding the constitutionality of s 377A of its Penal Code. 
     The judgments were deeply disappointing and troubling to us, the joint editors of this focus issue.  Whereas the struggles for sexual orientation and gender identity (SOGI) minorities in countries such as the United Kingdom and the United States have turned favourably towards the legal recognition of same-sex relationships and adoption, 42 out of 54 Commonwealth countries, most of which were British colonies, continue to struggle for the decriminalisation of same-sex sexual conduct... Published in Volume 46, Part 1, 2016, Hong Kong Law Journal.  The table of contents of the focus issue is as follows:
Focus: The Life and Future of British Colonial Sexual Regulation in Asia
Preface Lynette J Chua and Michael Hor1
Trans* Individuals and Normative Masculinity in British India and Contemporary Pakistan Shahnaz Khan9
The Wife as an Accomplice: Section 377 and the Regulation of Sodomy in Marriage in India Saptarshi Mandal31
The Limits of Liberty: The Crime of Male Same-Sex Conduct and the Rights to Life and Personal Liberty in Singapore Jack Tsen-Ta Lee47
Legacies of Exceptionalism and the Future of Gay Rights in Singapore Stewart Chang71
Pride or Prejudice? Sexual Orientation, Gender Identity and Religion in Post-Colonial Hong Kong Amy Barrow and Joy L Chia89
International Law and the Rights of Gay Men in Former British Colonies: Comparing Hong Kong and Singapore Carole J Petersen109
Towards the Elimination of Prescriptive Sexual Regulation in Family Law in Singapore Leong Wai Kum131
Asia and Oceania LGBTI Law Reform: Breaking the Log-Jam The Hon Michael Kirby AC CMG151
Articles are available on Westlaw.  Click here to read the abstracts.

Roda Mushkat Reviews Ray Yep's Book, Negotiating Autonomy in Greater China (HKLJ)

"The Politico-Economic Context of Special Regional Autonomy: International and Constitutional Law Meets the Hong Kong Predicament"
Roda Mushkat
Hong Kong Law Journal
2016, Vol. 46, Part 1, pp. 287-306
Abstract: However elastic the interpretation resorted to, the gap between norms embodied in legal instruments, international and domestic, and multi-level behavioural patterns crystallised in the course of their implementation may be sizeable. The potential for this divergence and the factors responsible for it have not received adequate theoretical attention in the literature, including regional autonomy, especially in the challenging and delicate Hong Kong environment. The book under review amounts to a possible quantum leap in this regard because of the authors’ willingness to cross the boundaries between formal and informal inquiry, engage researchers from several disciplines, conceptualise the problem in broad and complex terms, not to be rigidly constrained by static logic and embrace dynamic evolution as an inescapable reality. Some questions inevitably remain unanswered, but a solid foundation for a less reductionist and more fruitful line of academic investigation has been laid.

Deconstructing Sponsor Prospectus Liability (HKLJ)

"Deconstructing Sponsor Prospectus Liability"
Syren Johnstone, Antonio Da Roza and Nigel Davis
Hong Kong Law Journal
2016, Vol. 46, Part 1, pp. 255-286
Abstract: The question of whether a sponsor of an initial public offering (IPO) is subject to the criminal and civil liability provisions of Hong Kong’s prospectus law has been debated for over 15 years and remains untested in court. The interpretation of the law provided by the Securities and Futures Commission (SFC) in August 2014 is that sponsors are subject to prospectus liability because they are persons who authorize the issue of the prospectus, an interpretation based on certain non-statutory considerations to which sponsors are subject. To examine whether the SFC’s position is supported in law, this article considers three possible routes by which legal liability might be established: through the relationship between non-statutory regulations and law, the law on authority, and the legal, regulatory and commercial context of sponsor work. However, none of these routes provide clear support. An unexpected finding was that elements underlying the SFC’s position could potentially apply to underwriters of an IPO. While the SFC has significant powers over sponsors outside the scope of prospectus law, the position under prospectus law of private civil litigants vis-à-vis sponsors remains uncertain. The options for resolving the current disjunct between prospectus provisions originally introduced in the context of a largely unregulated market and expectations under current regulatory architecture are considered.

New Issue of Hong Kong Law Journal (Part 1 of 2016)

Hong Kong Law Journal
Vol. 46, Part 1 of 2016
Editor-in-Chief: Professor Rick Glofcheski
Associate Editor: Professor Albert Chen

Table of Contents
Focus: The Life and Future of British Colonial Sexual Regulation in Asia
Preface Lynette J Chua and Michael Hor1
Trans* Individuals and Normative Masculinity in British India and Contemporary Pakistan Shahnaz Khan9
The Wife as an Accomplice: Section 377 and the Regulation of Sodomy in Marriage in India Saptarshi Mandal31
The Limits of Liberty: The Crime of Male Same-Sex Conduct and the Rights to Life and Personal Liberty in Singapore Jack Tsen-Ta Lee47
Legacies of Exceptionalism and the Future of Gay Rights in Singapore Stewart Chang71
Pride or Prejudice? Sexual Orientation, Gender Identity and Religion in Post-Colonial Hong Kong Amy Barrow and Joy L Chia89
International Law and the Rights of Gay Men in Former British Colonies: Comparing Hong Kong and Singapore Carole J Petersen109
Towards the Elimination of Prescriptive Sexual Regulation in Family Law in Singapore Leong Wai Kum131
Asia and Oceania LGBTI Law Reform: Breaking the Log-Jam The Hon Michael Kirby AC CMG151
ANALYSIS
A Commentary on Jetstar Hong Kong Airways Decision before the Air Transport Licencing AuthorityJae Woon Lee and Michelle Dy175
ARTICLES
Interaction between International Standards and Domestic Constitutional Norms—A Case Study of the Chief Executive Election in Hong Kong Lin Feng193
The Illegality Defence in Corporate Law Claims Against Directors and Officers Wai Yee Wan225
Deconstructing Sponsor Prospectus Liability  Syren Johnstone, Antonio Da Roza and Nigel Davis255
REVIEW ARTICLE
The Politico-Economic Context of Special Regional Autonomy: International and Constitutional Law Meets the Hong Kong Predicament Roda Mushkat287
CHINA LAW
Practice and Theory of the Guiding Case System in China Yang Li307
Lame-Duck Bankruptcy Institutions under Government Intervention in Reorganisation of Listed Companies in China (Part 1) Zhao Huimiao339
BOOK REVIEWS
Board Accountability in Corporate Governance, Andrew Keay Lin Zhang
379

Tuesday, May 17, 2016

Michael Davis on the Demands, Evolution and Social Media of the Umbrella Movement (chapter in new CUP book)

"Promises to keep: the Basic Law, the 'Umbrella Movement,' and Democratic Reform in Hong Kong" in M Monshipouri (ed), Information Politics, Protests, and Human Rights in the Digital Age
 May 2016, Cambridge University Press, pp. 239-266
Abstract: In 2014 Hong Kong youth captured the global imagination in massive protests challenging China’s central government in Beijing over failed promises of democratic reform. Those promises, outlined in the 1984 Sino-British Joint Declaration, guaranteed Hong Kong all the ingredients of modern constitutionalism, democracy, human rights and the rule of law. Under “one country, two systems” there would be fifty years without change (or as Deng Xiaoping said, maybe more), a high degree of autonomy and Hong Kong people ruling Hong Kong. The 1990 Hong Kong Basic Law promised democratic reform and the ultimate aim of “universal suffrage.” In the summer of 2013 skeptical Hong Kong democracy activists, under the name “Occupy Central for Love and Peace,” promised to clog Hong Kong’s Central financial district with 10,000 occupying protesters if genuine democracy was not delivered. Instead, in the summer of 2014 Beijing issued a White Paper accusing Hong Kong people of a “confused and lopsided” view and the National People’s Congress Standing Committee issued a decision that turned “universal suffrage” into a Beijing-vetted election. Lead by student activists and the full panoply of tools for modern social movements, hundreds of thousands of protesters occupied the streets. Not a revolution, the social movement that followed demanded compliance with constitutional commitments already made. This chapter considers the demands, evolution and social media of the movement that became known world wide as the “umbrella movement.”  Contact the author regarding the chapter.  

Saturday, May 14, 2016

Kelley Loper Comments on the Treatment of Domestic Helpers in Hong Kong (HKEJ)

"Why domestic workers should be allowed to live out"
Manvel Keshishyan
Hong Kong Economic Journal
12 May 2016
Alisha stands apart from the other domestic helpers enjoying a Sunday afternoon in the park. She says she has been in Hong Kong for a few months and has not made many friends. She continually slides her thumb across the phone screen to check whether her sister is online so she can see her 17-month-old son back home in the Philippines.
     ”My sister takes care of my son. If I have free time, I immediately call him,” she says. “My biggest concern is when I go back home, my son will not recognize me and it hurts.”  Alisha, 40, wants to be known only by her first name.
     She must return to her employers’ home by 8:30 p.m. to make dinner and do chores until midnight. The normal workday lasts 17 hours made longer by the rude attitude of her employers.
     The grandmother is the hardest on her. “She is always telling me I am lazy, I am useless, and when it finally hurts me and I can’t keep my temper I say ‘tell this to your daughter and let me go home,’ I don’t care, I don’t want to come back to Hong Kong again,” Alisha says.
     Alisha’s plight is familiar to Hongkongers...
     Julie Ham, associate professor of criminology in the University of Hong Kong, supports efforts to terminate the ”live-in” requirement. Ham thinks scrapping the arrangement would give “greater flexibility and greater choice to both workers and employers”.
     Ham says domestic worker rights organizations should be involved in the process. ”Domestic workers and their activist networks have a keen sense of the most urgent changes that are required. It is crucial for them to be involved in any discussions about regulation,” Ham says.
     Kelley Loper, director of the human rights program in the faculty of law of the University of Hong Kong, thinks that domestic helpers’ working hours should be limited. Loper adds that living with the employer can increase opportunities of ”exploitation, sub-standard working and living conditions”.
     ”International human rights bodies have repeatedly called on the Hong Kong government to change their policies in this regard. If Hong Kong agreed to establish an independent human rights commission, it could take up this issue,” Loper says... Click here to read the full article.

Thursday, May 12, 2016

Haochen Sun on the Gucci Burnt Offerings Row in Hong Kong (SCMP)

Haochen Sun
South China Morning Post
12 May 2016
Much to everyone’s surprise, Gucci apologised last Friday to Hong Kong stores selling funeral paper offerings after sending out a warning letter accusing them of infringing its trademark right. It may seem this battle has ended with the poor “ants” (stores) triumphing over a rich “elephant” (Gucci). This sentiment will resonate with many people. But, in fact, neither of these parties is the real loser: rather, it is the general public.
     First, while Gucci rushed to apologise “to anyone [its staff] may have offended”, the ants-versus-elephants sentiment has encouraged law-breaking behaviour. Second, the public attention on the case has nevertheless failed to focus on the underlying social justice problems in Hong Kong and many other parts of the world.
     It is clear from the public response that few people gave serious consideration to whether Gucci’s trademark right was being infringed by sales of the paper offerings. Instead, Gucci was accused either of showing no respect to the Chinese tradition of burning paper offerings to the dead or of waging a war against small business owners on main street.
     Bear in mind that the paper replicas of Gucci handbags bore the intertwined “GG” logo, which Gucci has registered with the Hong Kong Intellectual Property Department. Lawyers who were asked by the media to comment on the case argued that the paper offerings did not infringe Gucci’s legal right to prevent consumer confusion under our trademark law. Surely, no reasonable consumer of luxury handbags would be misled into believing the paper replicas were Gucci-made handbags. The venue and price at which they were sold defy any second-guessing that Gucci had ventured into the funeral products market... Click here to read the full article.

Wednesday, May 11, 2016

Albert Chen Comments on Hong Kong's 2047 Issue (The Standard)

"Subversion law bid wanted in 2 years"
Kinling Lo
The Standard
11 May 2016
The controversial anti-subversion law that has to be enacted under Article 23 of the Basic Law should be put back on the government agenda within two years, said Basic Law Committee member Maria Tam Wai-chu.
     Speaking at a forum organized by the Democratic Alliance for the Betterment and Progress of Hong Kong yesterday, Tam said the chief executive and Legislative Council elections will be over by then, and the matter can be discussed in a calm and focused manner.
     In 2003, the government tried to push through legislation for Article 23 but the matter was dropped after nearly half a million people took to the streets on July 1 that year. The massive rally was followed by the resignations of financial secretary Antony Leung Kam-chung and security chief Regina Ip Lau Suk-yee.
     Tam also said that the one country, two systems principle, which guarantees no change in Hong Kong's way of life and economic system for 50 years, should continue beyond 2047. But she did not say if this was Beijing's intention.
     Ronny Tong Ka-wah, former Civic Party lawmaker and founder of think tank Path of Democracy, said many urgent problems need to be addressed, such as land and property contracts that will come to an end on June 30, 2047.
     "Without confirming the ownership of land after 2047, people will not come to Hong Kong to do business and will not make investments here," Tong said.
     But another member, University of Hong Kong law professor Albert Chen Hung-yee, said that a "2047 problem" does not exist.
     "Once a law is passed and if it does not carry an expiry date, it will remain unchanged until amendments are made or if it is abolished," Chen said.
     He said Beijing has never said that Hong Kong's way of life and privileges will not continue when the 50-year guarantee has passed.
     "It is too early to discuss what happens after 2047. Things change quickly and there can be no meaningful discussion until, perhaps, 10 years before that date," Chen said at the DAB forum.
     He also said independence for Hong Kong is not an option after 2047 as the sovereignty of the SAR was settled in the Sino-British Joint Declaration signed in 1984.

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