Friday, September 30, 2016

Glofcheski & Aslam's Employment Law and Practice in Hong Kong (2nd Edition)

Employment Law and Practice in Hong Kong, Second Edition
General Editors: Rick Glofcheski and Farzana Aslam
Sweet & Maxwell
Content highlights of the Second Edition: A string of ground-breaking Court of Final Appeal decisions in a number of important areas, including: (i) Trade union discrimination protections and an expanded interpretation of Employment Ordinance s 21B “activities of a trade union” (Blakeney-Williams v Cathay Pacific Airways, 2012); (ii) Restrictions on multiple concurrent employers (Chung Yuen Yee v Sam Woo Bore Pile Foundation, 2013); (iii) Reach of the Employment Ordinance’s statutory annual leave provisions (Kwan Siu Wa Becky v Cathay Pacific Airways Ltd, 2012); (iv) The extension of a contractor’s duty of care to subcontractor’s employees (Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming, 2011); and (v) Damages awards for failure to conduct contractually entitled disciplinary hearings (Blakeney-Williams v Cathay Pacific Airways, 2012). Important statutory developments examined in this edition including: (i) The introduction of the Minimum Wage Ordinance (2010); (ii) Criminalization of the failure to pay awards made by the Labour Tribunal and Minor Employment Claims Adjudication Board (2010); (iii) Expansion of the scope of the Protection of Wages on Insolvency Fund (2012); and (iv) The introduction of paternity leave and paternity leave pay (2015).

Thursday, September 29, 2016

Felix Chan on Assessing Personal Injury Liabilities in China (Asian J L & Eco)

Felix WH Chan, Wai-Sum Chan, and Johnny SH Li
Asian Journal of Law and Economics
Sept 2016, Ahead of Print
Abstract: In a tort-based legal system, when a party is injured as a consequence of another party’s negligence, the party should be provided with sufficient compensation so that he or she may live as fulfilling a life as possible after the injury. The moral objective underlying this supposition is intuitively appealing. It is not surprising, therefore, that this jurisprudential notion is favourably regarded and widely applied in various common law and civilian jurisdictions, despite differences in tradition and culture. Nonetheless, although the two bodies of law share a similar objective in this respect, there are a number of differences in the substantive content of the law and the configuration of the rules. The present authors argue, and provide empirical evidence to support, that there are signs of convergence as both legal systems are in fact applying the same multiplicand-multiplier approach in assessing the quantum of damages. Case studies in mainland China (concerning civil law) and in the United Kingdom and Hong Kong (regarding common law) are adopted as the research methodology to explore the broader implications of this convergence.

Wednesday, September 28, 2016

Discussion: Legal Quagmire and the Hong Kong Independence Issue (Video Available)

Legal Quagmire: Who is in Violation of the Law – Independence Advocates or Those who seek to have Them Barred from Standing for Election?

Wednesday 31st August 2016, 14:00-16:30 
Large Moot Court, 2/F Cheng Yu Tung Tower, Centennial Campus, The University of Hong Kong

Talk of the independence of Hong Kong from the People's Republic of China has triggered much discussion within the community as to the propriety and legality of such advocacy and the pursuit of independence and self-determination in Hong Kong. Two days prior to the commencement of the nomination period for candidates of the 2016 election to the Legislative Council, the Electoral Affairs Commission (EAC) announced the introduction of an additional eligibility criteria for nomination of candidates: the 'Confirmation Form', which stressed candidates' acceptance of Article 1 of the Hong Kong Basic Law on the inalienability of Hong Kong from China. Much legal debate has surrounded both the legality and legitimacy of the form itself, its enforceability, and the equality of treatment accorded to candidates who had or had not completed the form, among other questions. Critics have labelled the move as an attempt to suppress the pro-independence movement, prompting speculation as to the government's next steps to curb such calls, seen by Beijing loyalists and officials as fanning the flames of secession.
      More recently, the desire to prevent such a discourse from taking hold in Hong Kong's educational establishments, has led to the Education Bureau issuing a stern warning to teachers to ensure that they do not 'advocate' independence in schools and to urge them to responsibly 'tutor' students so that they can develop an 'appropriate' understanding and view of the topic. 
      This has thrown up numerous questions about the propriety and legality of discussing the independence of Hong Kong in various spheres and capacities in light of the rights to freedom of expression, freedom of assembly, political participation and the prospects for the application of China's national security legislation in Hong Kong. 
       This interactive discussion which took place on 31 August 2016 was aimed at engaging students and encouraging the development of critical thinking skills. Through a moderated discussion among expert panellists, led by a fellow student, followed by questions from the audience, the discussion led students through the process of assessing the validity of various arguments to help better understand the different points of view emerging in this ongoing debate.
Opening Remarks: Puja Kapai, CCPL Director and Associate Professor, Faculty of Law, HKU
Moderator: Brian Fan, Final Year, LLB Student, Faculty of Law, HKU
  • Simon NM Young, Professor and Associate Dean (Research), Faculty of Law, HKU
  • Benny Tai, Associate Professor, Faculty of Law, HKU
  • Eric Cheung, Principal Lecturer and Director of Clinical Legal Education, Faculty of Law, HKU
  • Carole Petersen, Professor and Director, Spark M. Matsunaga Institute for Peace and Conflict Resolution, School of Law, University of Hawaii
  • Michael Davis, Senior Fellow, CCPL, Faculty of Law, HKU

Dean Hor Co-Authors New Book on Criminal Law in Myanmar (LexisNexis)

Criminal Law in Myanmar
Chan Wing Cheong, Michael Hor, Mark McBride, Neil Morgan and Stanley Yeo
2016, LexisNexis, 587 pp
Description: The first of its kind, this commentary on the Myanmar Penal Code describes and critically evaluates the general principles of criminal responsibility contained in the Code with a view to assisting the application of the law. The major offences against the person and property are examined. Leading cases from Myanmar, India, Malaysia and Singapore are considered along with relevant cases from other jurisdictions. Given the antiquity of the Penal Code, this commentary engages with a law reform exercise for each topic covered. The end product is a “General Part” for inclusion in the Penal Code, comprising precise and comprehensible provisions reflecting contemporary views about criminal responsibility. Key Features - Comprehensive analysis of the general principles of criminal responsibility in Myanmar. - Analysis of the major offences against the person and property in light of the general principles of criminal responsibility. - Review of all major relevant cases from Myanmar, India, Malaysia and Singapore. - Placing the law in a historical and theoretical context pointing to its strengths and weaknesses, and suggesting potential reform to bring the law into the 21st Century.

Tuesday, September 27, 2016

Yun Zhao on China's Future Participation in the Space Protocol (new book chapter)

2016, Springer, pp 67-79
Abstract: After more than 10 years of work, the UNIDROIT finally adopted the Space Protocol to the Cape Town Convention in 2012. This protocol is meaningful in dealing with the issue of international interests in financing space assets. It is expected to create a predictable legal regime for the space financing industry. China, an important space power in the world, has great stake in the success of the space financing industry. China has been actively involved in the negotiation process for the Space Protocol and has already acceded to the Air Protocol to the Cape Town Convention. It would thus be necessary to examine possible impact of this third protocol on space financing industry in China. This article will further investigate the possibility of China’s accession to the protocol.

Monday, September 26, 2016

Scott Veitch Comments on Hans Lindahl's Fault Lines of Globalization (Jurisprudence)

"A comment on Hans Lindahl, Fault Lines of Globalization: Legal Order and the Politics of A-Legality"
Scott Veitch
2016, Vol. 7, Issue 2, pp 409-418
In his book about ‘Who owns Scotland and how they got it’, Andy Wightman tells the story of a miner walking home one night with a couple of pheasants in his jacket when he gets stopped by the landowner. ‘This is my land’, the laird tells him, ‘and my pheasants, so hand them back’. The miner says, ‘Your land—how did you get it?’ ‘I inherited it from my father’, says the laird. ‘And who did he get it from?’ ‘From his father; this land has been in our family for four hundred years.’ ‘And how did they get it then, four hundred years ago?’ ‘Well’, says the laird, ‘they fought for it’. ‘Fine’, replies the miner. ‘Take your jacket off and I’ll fight you for it now.’
     Sometimes situations or events rupture the routine expectations we have and which we behave in accordance with. In doing so they can expose the grounds on which these expectations rest, and they may force us to consider in a new light what has been extensively taken for granted. In responding to such an experience it is sometimes a matter of re-adjusting, of shifting the cognitive framework, of re-interpreting. Other times, the jolt is more serious and cannot be readily assimilated. In the shock it produces, there is a sense of unease, a sense of strangeness—which is sometimes registered in uneasy laughter—that will not easily go away. The story of the miner and the landowner might work in this way. Landholding is not something we take our jackets off and fight for. It is regulated by the laws of property, inheritance, title registration and the like. Except, that at some point it isn’t, or wasn’t. That property in land is gained, at some time in the past, by violence or theft is not likely to be disputed; but it does commonly have to be forgotten. This goes as much for continents—Australia in 1788, for example—as it does for landed estates (and the birds that just happen to live on them). To be too-reminded of this however provokes a sense of disorientation. And precisely because of this, it feels like something must be done about it by way of response. But what exactly? Even that greatest of philosophers of consistency, Immanuel Kant, in noting the same problem about theft and property, was forced to respond in a most unphilosophical way: ‘Best not to dwell on it’, he said, ‘just start from where we are and what we’ve got now’. (Perhaps someone should have asked Mr Kant to take his jacket off … )
     Where exactly the boundary between property and theft is drawn—between what is a legal gain and what an illegal one—seems to have a degree of contingency to it. But that there is such a boundary, which must be established if we are to have settled—or ordered—ways of acting with respect to each other and things in our society, appears however, to be necessary. Yet this very necessity seems, in turn, to have something of the contingent about it—in the origins of landed property, a taking, say, that is, from the perspective of the order it brings into being, itself neither legal nor illegal: in Australia, a non-justiciable act of sovereignty that ‘founds’ the nation and its law; or in the case of the laird’s ancestor, the founding of right on the basis of might...

Dan Matthews on Plasticity, Jurisdiction, and the Interruption of Sovereignty (Law & Literature)

Daniel Matthews
Law & Literature
Aug 2016, pp. 1-22
Abstract: In a series of recent interventions Catherine Malabou, the contemporary French philosophy of “plasticity,” argues that celebrated “deconstructions” of sovereignty have failed to transcend the concept's constitutive division between “symbolic” and “biological” life. Malabou's argument conspicuously fails to address the role of the juridical in giving form to sovereignty, an omission that is addressed here through an assessment of “jurisdiction.” This turn to the juridical opens a space for further critical reflection on Malabou's thinking. Through a reading of José Saramago's novel Seeing we can displace Malabou's insistence on the centrality of cerebral “life” in her effort to deconstruct the symbolic/biological binary and instead gesture towards a collectiveand affective “life” that remains refractory in relation to the juridical forms that sovereignty seeks to impose. Pointing to important tensions inherent in Saramago's text, the article brings critical pressure to bear on the position, articulated by Michel Foucault and endorsed by Malabou, that we need to transcend sovereignty tout court.

Sunday, September 25, 2016

Wilson Chow & Michael Ng on Using E-Simulation Platforms in PCLL (EJLT)

Wilson Chow & Michael Ng
European Journal of Law and Technology
2016, Vol. 7, No. 1, pp. 1-21
Abstract: Education has been undergoing significant changes in the past decade. Some universities have been taking advantage of information technology in order to enhance the interactivity and the degree of realism in their experiential learning environment. More recent legal education and training reviews and current scholarship, including the latest discourse on disintermediation of legal education, readily assume the tech-enablement of students’ learning experience via the use of technology. This article argues, through a reflective and empirical study of the adoption and adaptation of an e-learning platform by the Department of Professional Legal Education of the University of Hong Kong (HKU) in its Postgraduate Certificate in Laws programme (“HKUPCLL”), that the use of technology can possibly turn out to be another unwelcomed intermediary in the disintermediation process if it is not adaptive to the students’ needs and expectations which may be shaped by their evolving e-behaviour, different background and cultural particularities. It further proposes to modify the disintermediation discourse by embracing this possibility of inhibition, so that it can become a suitable model to assess the effectiveness of use of technology in legal education.  Click here to download the full article.

Saturday, September 24, 2016

Thomas Cheng on Antitrust Treatment of No Challenge Clauses (new article)

"Antitrust Treatment of the No Challenge Clause"
Thomas Cheng
NYU Journal of Intellectual Property & Entertainment Law
2016, Vol. 5, Issue 2, pp. 437-512
Abstract: This Article examines a patent licensing practice that has hitherto escaped the attention of U.S. antitrust law: the no challenge clauses. Under these clauses, a patent licensee is prohibited from challenging the validity of the licensed patent. These clauses have so far only been examined under patent law in terms of enforceability. This oversight by antitrust law is unfortunate, as no challenge clauses can create consumer harm by protecting an otherwise invalid patent from challenges and artificially extending the exclusive period granted by the patent law. This means that consumers have to bear supra-competitive prices for longer than necessary. A number of factors are relevant to the analysis of the legality of no challenge clauses, such as market power, patent validity, and market structure at the licensee level. This Article proposes a framework based on the Rule of Reason that incorporates all of these relevant factors and structures them in a way that renders the framework easy to apply. Lastly, the Article rejects a number of justifications that have been offered to argue for the legality of these clauses across the board.  Click here to download the full article.  This article was nominated and shortlisted for the Concurrences Antitrust Writing Awards 2017 (intellectual property category).

Thomas Cheng on Antitrust Issues in China's Pharmaceutical Sector (new book chapter)

"Antitrust Issues in the Pharmaceutical Sector in China"
Thomas Cheng
in Eleanor Fox et al (eds), Antitrust in Emerging and Developing Countries, Second Edition
2016, Concurrences Review, pp. 59-84
Introduction: Since the adoption of the Anti-Monopoly Law (“AML”) in 2007, a number of industries have received particular attention from the enforcement authorities from the People’s Republic of China (“PRC”). The most notable is probably the automotive industry, which has been subject to multiple enforcement actions. The PRC’s enforcement authorities are in the process of drafting specific guidelines for this sector. Other sectors which have been subject to the scrutiny of the enforcement authorities have included baby formula, contact lens, Chinese spirits, and telecommunications. One industry that has been noticeably absent from the news is pharmaceuticals. With the exception of one exclusive dealing/price fixing case and three abuse of administrative monopoly cases, the pharmaceutical industry has largely escaped the attention of the enforcement authorities. This is doubly surprising as the pharmaceutical industry has borne the brunt of much enforcement activity in other jurisdictions, such as the United States and the EU, in recent years. One reason that competition issues have not arisen in the industry thus far may be because drugs have been subject to direct price control by the Chinese authorities over the years. Therefore, the scope for using anticompetitive or exclusionary practices to raise prices was reduced. All this is about to change as the Chinese government recently lifted price control over a majority of drugs. The liberalization of drug prices may present pharmaceutical companies with the opportunity to raise their profits by way of anticompetitive practices. Moreover, the Chinese pharmaceutical market is set to grow in the future, as the Chinese population undergoes rapid aging and the middle class continues to grow. The ever-expanding middle class will be able to afford more expensive treatment, which will render the Chinese pharmaceutical market more lucrative. All this means that the hitherto lack of attention to the industry under the AML is set to change. Now would be a good time to take stock of the development of the industry, to examine how recent regulatory reforms will change the landscape, and to look ahead to possible future enforcement in the industry.

Friday, September 23, 2016

Anne Cheung on Microbloggers' Battle for Legal Justice in China (new book chapter)

"Microbloggers' Battle for Legal Justice in China"
Anne Cheung
in Jacques deLisle, Avery Goldstein & Guobin Yang (eds), The Internet, Social Media, and a Changing China (University of Pennsylvania Press 2016)
pp 129-149
The relationship between courts and the media is not an easy one in many countries, and China is no exception. While trial by media is often frowned upon in the West, its close variation—known as “public opinion supervision”—has been embraced in China. The latter term was coined by the Chinese Communist Party (the Party) in the 1980s to describe the mobilization of citizen awareness and public opinion by the media to check deleterious forces within the state under the guidance and supervision of the Party. The objects of scrutiny by public opinion supervision have included the courts, with the media acting as a state agent between the authorities and the citizenry. 
     By the dawn of the twenty-first century, Web 2.0 had changed this dynamic. Armed with the Internet, public opinion has become a powerful force. Free from Party supervision and seemingly holding the potential to provide genuine monitoring, this “public opinion monitoring” differs from public opinion supervision. It is an independent force arising from the citizenry and seeking to hold the government accountable, to prevent abuses of power, and to bring justice and fairness to society. The Internet has played an indispensable and prominent role in fostering this form of citizen monitoring. As Guobin Yang points out, the Internet in China is an arena of intense struggle, full of complex dynamics and participatory and contentious in nature. This struggle is also being played out in legal disputes, posing new challenges to the judiciary... Click here to read further.

Thursday, September 22, 2016

Danny Gittings' Introduction to the Hong Kong Basic Law, 2nd Edition (HKU Press)

Introduction to the Hong Kong Basic Law, Second Edition
Danny Gittings (PhD Candidate)
2016, HKU Press, 460 pp.
Description: The Hong Kong Basic Law is the constitutional document which sets out the general policies and system of government for Hong Kong under the “one country, two systems” formula. It promises Hong Kong a high degree of autonomy, seeks to preserve a separate common law system with an independent judiciary, and guarantees a long list of rights and freedoms.
      The only introductory text on this topic, Introduction to the Hong Kong Basic Law provides a highly readable starting point to understanding the important issues shaping Hong Kong’s future. This book traces the origins of the Hong Kong Basic Law and analyses its content, especially in relation to Hong Kong’s political system, the judiciary, and human rights. It is required reading for students on a wide range of courses in law, politics, and other disciplines, from sub-degree through to undergraduate and postgraduate level as well as professional examinations. The book also appeals to a wider audience, enabling general interest readers with no prior knowledge of the subject to easily understand how Hong Kong is being run under Chinese sovereignty.
      The second edition has been updated thoroughly to discuss important new developments, including the implications of the mass street protests known as the Umbrella Movement, and adds a new concluding chapter on the future of “one country, two systems”.
“Danny Gittings’s Introduction to the Hong Kong Basic Law makes a significant contribution to an important subject. It is expressed in reader-friendly terms. My favourable opinion of the first edition of this book is vindicated by the fact that it has gone into a second edition. The latest edition picks up on what has occurred since the previous one, including the worrying matters which have made it necessary to give the concluding chapter a wholly new orientation.”
—The Hon. Mr. Justice Kemal Bokhary, Permanent Judge of the Hong Kong Court of Final Appeal (1997–2012), Non-Permanent Judge (2012–)
“This well-researched and very readable introduction is suitable for a wide range of readers. Building on the success of the book’s first edition, this new edition offers fresh insights into the long-term impact of Hong Kong’s constitutional developments that have recently captured worldwide attention. Students of Hong Kong law at all levels and anyone interested in how Hong Kong’s future may unfold will find it essential reading.”
—Professor Fu Hualing, Faculty of Law, University of Hong Kong

Wednesday, September 21, 2016

Farzana Aslam on Balancing Global Concerns with Local Issues (SCMP)

South China Morning Post
19 September 2016
With six “localists” among winners of the Legislative Council election in Hong Kong, following on the heels of Brexit, the nomination of Donald Trump as the Republican candidate for US president, and the rise of populist politics across Europe, it is tempting to think that the era of globalisation is coming to an end, or is at least facing an alarming backlash.
     Hong Kong “localists” are outspoken over the question of autonomy, but the political platform upon which they have garnered support is a protest against the establishment and its failure to address the pressing social issues that affect Hong Kong as a community – namely, rising inequality, the lack of affordable housing and the public’s perception that government is serving the interests of big business at the expense of the increasing ranks of the poor. It is a common thread that runs through all political shifts occurring around the globe.
      Outside of Hong Kong, the rhetoric has been squarely directed against globalisation, specifically international trade and open borders allowing the free flow of capital and people. This, however, is to equate the forces of globalisation with the forces that drive inequality, the stagnation of real incomes, the erosion of job security and of welfare services provided by the state.
      Politicians worldwide have been too ready to invoke globalisation as the cause of their domestic woes, when the reality is that the decline in the prosperity and social well-being of the average citizen of these nations has been the result of deliberate domestic policies promoted under the banner of globalisation... Click here to read the full article.

Tuesday, September 20, 2016

Yash Ghai on Equality and Equity, the Foundations of Kenyan State and Society (The Star)

"Equality and Equity: Foundations of Kenyan state and society"
Yash Ghai
19 September 2016
The Star
The constitution establishes various values and principles to guide the conduct of the government and, to a considerable extent, society. Kenyans easily understand the concept of equality but less so that of equity. Equity as an idea is closely connected to fairness, and is a way to ensure real equality. It may mean favourable treatment to those who are disadvantaged. It is a comment on the deep inequalities in Kenya that to secure equality we sometimes have to make major adjustments in the allocation of resources so that the most disadvantaged groups are given preference in access to basic needs, including education, employment and electoral representation.
     These groups include people with disability, women, children, youth, members of minority or marginalised communities, and members of particular ethnic, religious or cultural communities. These special measures are temporary (“with regard to prevailing circumstances”), until all these groups have achieved equality with the more advantaged.
     For instance, Article 43 gives every person the right to highest attainable standards of health, adequate housing, reasonable standards of sanitation, freedom from hunger, clean and safe water in adequate quantities, social security and education. We know that there are big differences in the access of different groups to those facilities—such as between the rich and poor, between and within ethnic groups, between civil servants, private sector workers and jua kali workers. In allocating resources for Article 43 entitlements, the state must have regard to “prevailing circumstances, including the vulnerability of particular groups or individuals” (Article 20).
     The constitution makes clear that the call for equality and equity is not merely rhetoric. It sets out explicitly the requirements and sometimes techniques of equal and fair treatment in state and private sectors. Unlike previous practice, all citizens are given equal rights. Part three of the human rights chapter gives an excellent account of the needs and entitlements of children, persons with disability, youth, minorities and marginalised groups, and older members of society.
     A major theme is equitable treatment of specified groups, for example women and disabled or disadvantaged groups through direct representation in elected and executive bodies, at the national and county levels. Political parties must respect the right of all persons, including minorities and marginalised groups, to participate in the political process, without religious, ethnic, racial, gender or regional bias. The state must ensure that the recruitment of its services, including the national executive, civil service and security, reflects the “diversity of the Kenyan people in equitable proportions”... Click here to read the full article.

Issa Shivji's Essay in Honour of Professor Yash Ghai

An Intellectual Journey with my Teachers: Essay in Honour of Professor Yash Pal Ghai
Issa G Shivji
2016, Strathmore University Press, Nairobi, Kenya
Excerpt: Professor Yash Pal Ghai was my teacher.  He took some classes, I believe in Constitutional Law and Legal Systems of East Africa, in my first year at the University College, Dar es Salaam, which was then one of the three constituent colleges of the University of East Africa. Writing an essay in honour of your teacher is humbling.  I come from a tradition in which teachers command great respect.  In the hierarchy of status and obeisance, teachers are next to parents who are next to God.  I thus take this opportunity to honour all my teachers, some of whose memory I recall in this essay.
     We were the first post-Arusha generation at the University.  The University College was established in July 1961, only five months before Independence, with a batch of 13 law students.  The first teacher to walk into the lecture room to deliver a lecture was William Twining, son of Tanganyika's last but one Governor.  He never taught me nor was he there when I joined the University  but he is fondly remembered and therefore I came across his name long before I met him...
      The pre-Arusha University and the Faculty were run more or less on Oxbridge lines.  Nonetheless, a University in a country with a fervently nationalist leader with intellectual credentials attracted many young expatriates, mainly British but also Americans, fresh from graduate schools.  Among them were my teachers, some of whom I will have occasion to mention in the course of this essay.  Ghai, a Kenyan, spent some eight years (1963-1971) at the University rising very fast from the position of a lecturer to Professor and Dean. He was the first East African Dean of the Faculty...
      I remember once Ghai asking me rhetorically: Do you always write long papers?  The way he said it, it was meant to be a complement.  That happened as Ghai was coming down the library staircase during lunch hour, carrying volumes of books in both his arms.  His feet were typically clad in kanda-mbili (flip-flops). That image of Ghai is permanently etched in my memory as an example of a prodigious, yet humble scholar wholly committed to research and writing.
      While memories last, I should perhaps record another pleasant encounter with Yash while I was still a student.  I believe I was in my second year when Yash asked me if I could help him to check the footnotes of his co-authored book Public Law and Political Change in Kenya.  He had just received the galleys.  It was a massive book, a magnum opus of his and Patrick McAuslan's.  I readily agreed.  My library research to verify footnotes introduced me to all kinds of literature which I had not come across before as a law student nor did I know existed in our library.  I believe I did the work meticulously, for which Yash apologetically offered me shs.100/=. For me it was a lot of money, one-fourth of my yearly book allowance.  It fetched me five good Penguin books... The full essay can be downloaded here.

Monday, September 19, 2016

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

Vol. 6, No. 4: 26 Aug 2016
Table of Contents

1. A Public Law Conception of Integrity in the Criminal Process
Simon N. M. Young, The University of Hong Kong - Faculty of Law

2. A Red Flag for Hong Kong Credit Ratings
Syren Johnstone, Faculty of Law, University of Hong Kong, Asian Institute of International Financial Law

3. Re-Examining Criminal Process Through the Lens of Integrity
Paul Roberts, University of Nottingham, University of New South Wales (UNSW) - Faculty of Law, China University of Political Science and Law
Jill Hunter, University of New South Wales (UNSW)
Simon N. M. Young, The University of Hong Kong - Faculty of Law
David Dixon, University of New South Wales (UNSW) - Faculty of Law

4. Voice and Exit as Accountability Mechanisms: Can Foot-Voting Be Made Safe for the Chinese Communist Party?
Roderick M. Hills, Jr., New York University School of Law
Shitong Qiao, University of Hong Kong Faculty of Law

Vol. 6, No. 3: 26 July 2016
Table of Contents

1. Bringing Politics Back In: Access to Justice and Labor Dispute Resolution in China
Fu Hualing, The University of Hong Kong - Faculty of Law

2. Interlocutory Injunction, Freedom of the Press and Public Interest: The University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd and ORS.
Anne S. Y. Cheung, The University of Hong Kong - Faculty of Law

Vol. 6, No. 2: 16 June 2016
Table of Contents

1. Live Migration in Emerging Cloud Paradigms
Massimo Ficco, Second University of Naples
Christian Esposito, University of Salerno
Henry Chang, The University of Hong Kong - Law and Technology Centre
Kim-Kwang Raymond Choo, The University of Texas at San Antonio

2. The Chinese Approach to Transfer Pricing: Problems Faced and Paths to Improvement
Jingyi Wang, The University of Hong Kong

3. Disproportionality in Asset Recovery: Recent Cases in the United Kingdom and Hong Kong
Simon N. M. Young, The University of Hong Kong - Faculty of Law

Sunday, September 18, 2016

CL Lim to Deliver Keynote at 2016 IBA Conference in Washington (21 Sept)

Professor CL Lim will be delivering a keynote speech at this year's International Bar Association's annual conference in Washington DC, from 18 to 23 September 2016. The session is titled "Lessons learned and looking ahead: 30 years of investment arbitration in Asia". The programme describes the session as follows:
This year’s Asia Pacific Arbitration Group session focuses on investment arbitration. It is 30 years since the first investment arbitration under a bilateral investment treaty (BIT) was initiated against Sri Lanka in 1987. During that time the international law protections offered to foreign investors under BITs and multilateral conventions have become both an important policy tool for host states in attracting investment, while also raising domestic political concerns about the preferential treatment of foreign investors and the impact of claims in response to governmental regulation of domestic economies. The speakers on this panel will share their views and advice on the experience of different Asia Pacific countries facing investor-state claims and look ahead to the future of investment arbitration in the region in light of the recently concluded Trans- Pacific Partnership.
Following the speech, a panel of speakers including Kap-You (Kevin) Kim (South Korea), Pallavi Shroff (India) and May Tai (Hong Kong) will discuss the issues.

Alice Lee on Land Registration in Hong Kong and Problems of Statutory Interpretation (HKLJ)

"Land Registration: Validity, Priority and Statutory Interpretation"
Alice Lee
Hong Kong Law Journal
2016, Vol. 46, Part 2, pp 415-444
Abstract: The Land Registration Ordinance (Cap 128) was enacted at the inception of the Colony to provide for the registration of deeds as opposed to the registration of titles. The registration system that it has established is still operating well after all these years. Its success is attributable in no small part to the statutory incentives for registration. While s 3(1) provides that registered instruments shall have priority according to the order in which they are registered, s 3(2) imposes a severe penalty on those who fail to register — an unregistered instrument shall, as against any subsequent bona fide purchaser or mortgagee for valuable consideration, be absolutely null and void to all intents and purposes. Most of the time, the sub-sections are simply applied without much discussion on the meaning of “priority” or “null and void”. Yet some recent cases have triggered a debate on the interpretation of s 3(2) and whether its wording is consistent with the overall scheme of deeds registration, which is said to be concerned with priority rather than validity. It is time that we examined the Ordinance under the Bennion lens. This article seeks to demystify the key provisions of the Ordinance and reveals the intricacy of statutory interpretation.

Meggitt and Somji on the Regulation of Mediators and Lessons for Hong Kong (HKLJ)

"The Regulation of Mediators in England and Wales, the United States and Australia - Lessons for Hong Kong"
Gary Meggitt and Hussain Somji (LLM Arb & DR)
Hong Kong Law Journal
2016, Vol. 46, Part 2, pp 445-476
Abstract: Hong Kong, after some delay, has followed the international fashion in seeking to develop alternatives to the traditional methods of resolving legal disputes. Mediation, in particular, is being encouraged by the territory’s government and judiciary as a way of avoiding what is perceived to be costly and lengthy litigation. Those serving as mediators will be crucial to the success of these endeavours. As yet, however, the accreditation, training and supervision of mediators are in their infancy. This article looks at the regulation of mediators in those common law jurisdictions closest to Hong Kong in their form and substance and considers what — if any — lessons the territory may draw from their experiences.

Saturday, September 17, 2016

New Issue of Hong Kong Law Journal (Part 2 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
A Critical Evaluation of the Draft Children Proceedings (Parental Responsibility) Bill Anne Scully-Hill387
Second Chances for Unsuccessful Prosecutions: The Questionable Review Procedure over Acquittals in Magistrates’ Court Kai Yeung Wong405
Land Registration: Validity, Priority and Statutory Interpretation Alice Lee415
The Regulation of Mediators in England and Wales, The United States and Australia — Lessons for Hong Kong Gary Meggitt and Hussain Somji445
The Anatomy of Dual Class Share Structures: A Comparative Perspective Shen Junzheng477
Rethinking the Constitutional Jurisdiction of Hong Kong Courts over Acts of the National People’s Congress in Light of the Auto-Limitation Theory Lam Hingchau and Qin Jing511
The Courts in Qatar Financial Centre and Dubai International Financial Centre: A Comparative Analysis Zain Al Abdin Sharar and Mohammed Al Khulaifi529
China Law
The Treatment of the Law of Homicide in (Selected) Ming Fiction Geoffrey MacCormack557
Banking Consumer Protection Regulation in China Shuying Wen599
Is Australia’s “Twin Peaks” System of Financial Regulation A Model for China? (Part 1) Andrew Godwin, Guo Li and Ian Ramsay621
The Making of a Competition Law with Chinese Characteristics: Cooperation, Conflict and Compromise Lei Kuang647
Ascertaining the Notion of Board Accountability in Chinese Listed Companies  Andrew Keay and Jingchen Zhao671
Lame-Duck Bankruptcy Institutions under Government Intervention in Reorganisation of Listed Companies in China (Part 2) Zhao Huimiao709
Book Reviews
Private International Law in China, Guangjian Tu Matthias Vanhullebusch745
Adaptation to Climate Change: ASEAN and Comparative Experiences, Koh Kheng-Lian (Editor-in-Chief) Tinashe Madebwe

Junzheng Shen on Comparative Dual Class Share Structures (HKLJ)

"The Anatomy of Dual Class Share Structures: A Comparative Perspective"
Shen Junzheng (PhD Candidate)
Hong Kong Law Journal
2016, Vol. 46, Part 2, pp 477-510
Abstract: To delineate the merits and demerits of dual class share structures, we should compare them to dispersed ownership structures with control contestability, concentrated ownership structures and other control-enhancing mechanisms. Dual class structures facilitate long-term business strategies, firm-specific investments, equity financing and risk-taking, and they are simple, transparent and stable; but they insulate corporate controllers from shareholder monitoring, proxy contests and hostile takeovers, exacerbate tunnelling and shirking problems and enable corporate controllers to achieve an extreme voting-cash flow rights divergence and to infringe existing shareholders’ voting rights. The law can deal with most disadvantages of dual class structures, except shirking problems. Policymakers should ensure that the law provides shareholders with sufficient protection and then make a choice between dual class structures’ benefits and constraints on shirking derived from concentrated corporate ownership.

Kai Yeung Wong on the Hong Kong's Magistrates' Power to Review their own Acquittals (HKLJ)

"Second Chances for Unsuccessful Prosecutions: The Questionable Review Procedure over Acquittals in Magistrates' Court"
Kai Yeung Wong (SJD Candidate)
Hong Kong Law Journal
2016, Vol 46, Part 2, pp 405-414
Abstract: The review jurisdiction provided by s 104 of the Magistrates Ordinance (Cap 227) ostensibly enables a magistrate, having acquitted a defendant, to reverse the acquittal on its merits on review. Such is what occurred in HKSAR v Leung Kwok Hung, which was been upheld by the Court of First Instance. By reference to decided cases in both Hong Kong and the United Kingdom, and having regard to the constitutional and human rights implications, this article argues that s 104, properly construed, cannot be so applied.

Friday, September 16, 2016

Barberis and Arner on FinTech in China: From Shadow Banking to P2P Lending (new book chapter)

"FinTech in China: From Shadow Banking to P2P Lending"
Janos Barberis (PhD candidate) and Douglas Arner
in P Tasca, T Aste, L Pelizzon & N Perony (eds), Banking Beyond Banks and Money (Springer 2016) 69-96
Abstract: In 1978 China Financial sector has began a gradual reform process. Within 40 years the country went from a mono-bank model to one composed of hundreds of wholly-owned State banks and joint stock commercial banks. Yet this diversification has the banking landscape has not resolves credit allocation inefficiency. Indeed, whilst SME represent 80 % of the economic output of the country, it is only receiving 20 % of the credit originated by banks. This has spurred the development of shadow banking, an informal and unregulated network of lenders and borrowers. The emergence of Financial Technology has allowed for this activity digitized itself in the form of Peer-to-peer lending channel. The combination of and unregulated market and large credit gap has lead to the emergence of a sector that had only one platform in 2007 and over 2000 in 2015. Therefore the author submit that the emergence of the P2P sector in China is neither new, nor unexpected. Ultimately, this systemic shift caused by the P2P sector offers China a regulatory and market reform opportunity as the shadow has been brought to the light.

Thursday, September 15, 2016

HKU Symposium on Big Data and Data Governance 2016 (14-15 Oct 2016)

Symposium on Big Data and Data Governance 2016
October 14 - 15, 2016
Academic Conference Room, 11/F Cheng Yu Tung Tower, The University of Hong Kong

Big data has become a buzz word in business planning, government regulation and academic research. Its potentials, and pitfalls are gradually making its impacts on various sectors and in our daily lives. This Symposium addresses challenges posed by the power of big data, and explores the approaches of data governance so as to ensure its fair use. We bring together international and local experts from the academics, industries, and regulatory authority to discuss algorithm decision making, code, and data-driven surveillance. They will also review the transformation of regulatory regimes and protective techniques, such as consent and encryption. A Keynote Dialogue, in the format of a special round table, will be held to exchange ideas and insights on the legal and policy concerns related to big data governance. Furthermore, a Young Scholars Forum will be held to spark collaborations and debate among graduate students and young researchers in Hong Kong and Germany.
     The Symposium continues the discussion initiated by the Big Data and Privacy Workshop that was successfully held in 2015. The two events are part of the RGC (Germany-Hong Kong)-DAAD Joint Research Project conducted by Professor Anne Cheung, Faculty of Law HKU, and Professor Wolfgang Schulz, Hans Bredow Institute, University of Hamburg, and UNESCO Chair for Freedom of Communication and Information.
      For more information, please visit:  All are welcome. Registration is open on a first-come first-served basis: Inquiries: Ms. Grace Chan ( / 3917-4727)

Wednesday, September 14, 2016

Eric Cheung and HKU Legal Clinic Helps to Free Police Informant (SCMP)

"Police informant incorrectly jailed for 33 months walks free"
Chris Lau
South China Morning Post
5 September 2016
“A” was a police informant and, more importantly, a free man before he was framed by the very person he was instructed to spy on by authorities. After serving 33 months behind bars for a crime he did not commit, A has finally been released thanks to the solicitor advocates’ scheme and the efforts of University of Hong Kong legal scholar Eric Cheung Tat-ming.
     A, whose identity could not be revealed for safety reasons, was arrested in 2012 for conspiring with Lam Hing to rob four people on various occasions in 2011. He was supposed to be spying on Lam for the police. But after Lam was arrested and pleaded guilty, the burglar then turned around and counter-accused A of being his accomplice.
     A was found guilty and received an eight-and-a-half-year jail term for his involvement in the crimes. Lam received five years. Cheung, a principal lecturer at HKU who obtained the higher rights of audience in 2013, said the inmate came to the university’s free legal advice scheme after failing to secure funds to appeal his case from the Legal Aid Department where he was turned down for a lack of merit.
      “But there is a huge non-disclosure problem,” Cheung said, recalling the moment he took the case. After changing the department’s mind, Cheung decided to represent the innocent man in the Court of Appeal last year... Click here to read the full article.

New Book: Law and Justice in Hong Kong, Second Edition (Eric Ip)

Law and Justice in Hong Kong, 2nd Edition
Eric C Ip
Sweet & Maxwell
2016, 458 pp
Professor Ip’s impressive work should help to enthuse those seeking to practice law in Hong Kong, or already doing so, with that devotion to the rule of law that will lead them, in due course, to agree to play their part as judges in making sure that it continues to flourish in Hong Kong.”  Lord Philips of Worth Matravers KG PC
Abstract: The Hong Kong Special Administrative Region of the People’s Republic of China presents a most anomalous case study for students and scholars of comparative law: it combines free markets, a vibrant civil society and independent judicial review with oversight by a Party-state internationally known for its antipathy towards constitutional government and the separation of powers. Any observer is bound to be amazed by the unavoidable strains between East Asia’s only common law jurisdiction and the world’s largest officially Socialist civilian law system, and simultaneously intrigued by the stability offered by Hong Kong’s world-famous regulatory infrastructure and fiercely independent judiciary notwithstanding political and economic challenges. It is thus unsurprising to note that the legal system of Hong Kong is no less “fast-moving” than as was stated in the preface of the first edition, published just two years ago in summer 2014. A decision of the Standing Committee of the National People’s Congress issued on 31 August 2014, which affirmed the Party state’s de facto control over candidate nominations in any future election conducted by universal suffrage, as well as the historic “Umbrella Movement” that it triggered, sparked off a society-wide debate on what the rule of law — long regarded as Hong Kong’s defining ideology — really meant. The arrests and prosecutions associated with this and other mass movements have led many to question the appropriate limits of police and prosecutorial authority, which were not especially controversial in the memorable past. 
     Important developments also occurred in other dimensions of the legal system. The Administration of Justice (Miscellaneous Provisions) Ordinance 2014 permanently abolished “as of right” civil appeals to the Court of Final Appeal on the basis of an arbitrary financial limit, thereby vesting great discretion in that Court to manage its own docket. The Court’s divided decision in T v Commissioner of Police (2014) 17 HKCFAR 593, a statutory interpretation case with constitutional implications, exposed the potential conflict between purposivists and textualists tendencies amongst Hong Kong judges in construing legislation. In January 2015, Hong Kong became a host country for the proceedings of the Permanent Court of Arbitration, an intergovernmental organisation that specialises in alternative dispute resolution between sovereign states, not just private parties. In December of the same year, the Competition Tribunal entered into full operation as a nascent superior court of record, ushering lasting structural changes to the judiciary. Three months later, limited liability partnership was introduced for the first time into Hong Kong as a new model of law firm governance. 
     Law and Justice in Hong Kong was written for students, practitioners and scholars from law and other fields, as well as general readers who wish to understand the core dimensions of Hong Kong law and how these evolve over time. Special care has been taken to ensure that it squared with the syllabi of most courses and examinations on such subjects as Hong Kong Legal System, Hong Kong Business Law, Legal Methods, and Principles of the Common Law. Its twelve chapters are organised around three themes. The first, comprising Chapters 1–4, is the nature of Hong Kong law: its history, elements, and differences from the other legal systems of the world. The second, compassing Chapters 5–10, is the key personnel of the legal system, and how they administer law and justice. The third, spanning Chapters 11–12, is the interplay between Hong Kong law and the outside world. It is hoped that these chapters, undergirded by extracts from key judicial decisions and by examples drawn from up-to-date current affairs, may relieve teachers and students of the pressures of collecting and synthesising widely scattered materials, so that they can focus their energies on the analysis and debate of important legal issues in a more informed and effective manner. 
     The second edition benefitted immensely from feedback from this diverse audience on the first edition. It is fully up-to-date and rewritten to reflect latest developments in the law. Each chapter has been expanded to engage with the latest legal developments and cutting edge scholarship to illustrate the most fundamental principles of law that are occasionally difficult to beginners of legal studies and sometimes overlooked by experienced scholars and practitioners. Much effort has been paid to incorporate selected findings and insights from the author’s own recent research on Hong Kong and Chinese law into various parts of this edition, so as to make them more accessible to the general reader. More real world examples have been included to bring doctrines from the abstract to the concrete level. Visual aids, such as charts and tables, have been enhanced and updated to facilitate the consumption of complex information. New to this edition are comprehensive reference lists at the end of each chapter which provide readers with reliable guidance on further reading on topics of interest.  Click here for more information about the book.

Tuesday, September 13, 2016

Matthews & Veitch's Review Article on the Limits of Critique and the Forces of Law (Law & Critique)

"The Limits of Critique and the Forces of Law"
Dan Matthews and Scott Veitch
Law and Critique
Aug 2017, Vol 27, Online First
Abstract: Three recent publications evidence a growing interest in critical jurisprudence with materiality, technology, affect and atmosphere. These approaches pose fundamental challenges to existing traditions within legal critique, spurning a focus on the ideology of legal reasoning and exploring instead the unique practices through which the law binds subjects through material, affective and atmospheric manipulations. Through either Andreas Philippopoulos-Mihalopoulos’s ‘lawscape’ or Kyle McGee’s ‘jurimorphs’ these innovative theoretical projects pluralise the ‘forces’ which account for the law’s normativity, disavowing the notion that such forces can be reduced either to a transcendental form (like sovereignty) or to notions of structural or symbolic violence. These approaches address a ‘democratic deficit’ in legal philosophy that has generally excluded the realm of the material in its theorising and allows us to attend to the multiple forms that allow for the passage of law.

Monday, September 12, 2016

Roda Mushkat's Review Essay of ASEAN as an Actor in International Fora (Melbourne JIL)

"'Loose' Regionalism and Global Governance: The Association of Southeast Asian Nations (ASEAN) Factor"
Roda Mushkat
Melbourne Journal of International Law
2016, Vol. 17, Issue 1
Abstract: The international regulatory structure is heavily skewed in favour of a handful of industrialised countries operating as a ‘club’. This undermines its efficiency and legitimacy. An in-depth and sophisticated study, part of a large-scale and multidisciplinary research initiative by the Centre for International Law at the National University of Singapore, convincingly and elegantly demonstrates that insufficiently cohesive groupings such as ASEAN lack the will and capacity to ameliorate the situation. However, because of the narrow theoretical path trodden by the authors, the picture that emerges is incomplete and needs to be augmented with insights derived from complementary paradigmatic sources.  Click here to download the essay.

Fry and Chong on International Water Law and China's International Rivers (Boston College Int'l & Comp L Rev)

"International Water Law and China's Management of its International Rivers"
James Fry and Agnes Chong (PhD candidate)
Boston College International and Comparative Law Review
2016, Vol. 39, Issue 2, pp. 227-266
Abstract: This Article explores China’s management of its international rivers. China has various domestic pieces of legislation, including the Water Law of 2002, to regulate the uses and protection of its international rivers. It is clear that international water law influenced China inasmuch as there are similarities between the 1997 Watercourses Convention and the Water Law of 2002, and even China has recognized the influence of international law in the formation of its Water Law of 2002. This runs contrary to the widespread belief among Western commentators that China generally does not engage in these types of matters with international water law in mind. As evidence, these commentators point to China’s objection to signing the 1997 Watercourses Convention and its refusal to join any river-basin commissions for any of its international rivers. This Article, however, shows how China has been strongly influenced by the international water-law regime and has engaged with other states in the management of its international rivers, albeit with a limited number of states. This Article posits that China can further benefit from en-gaging in international fora when trying to manage its domestic water issues.  Click here to download the article.