Friday, March 25, 2016

Farzana Aslam on Whether Hong Kong Has Reached a Tipping Point (The Diplomat)

"Three Strikes: A Tipping Point for Hong Kong?"
Farzana Aslam
The Diplomat
24 March 2016
For the past few decades, Hong Kong’s business networks with mainland China and neighboring countries have positioned it advantageously for intraregional trade and investment activities. A low tax regime, a wealth of financial, logistics, legal, and accounting professionals, a transparent legal environment, and a commitment to the rule of law have enticed transnational companies to locate their headquarters in the territory, defining Hong Kong as the “Gateway to the East.” Confident in the longevity of this role, in 2001 Hong Kong designated itself as “Asia’s World City.” However, three recent events have marked a tipping point in the geopolitical relevance of Hong Kong.

Strike One: The TPP
The first of these events took place on February 4, 2016 with the signing of the Trans-Pacific Partnership. The 12 nations that are party to the TPP — Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam — have reached an ambitious new trade agreement. Significantly for Hong Kong, China is not a signatory. While the TPP will eliminate trade restrictions, tariffs, and barriers in order to facilitate trade and foreign direct investment between signatory states, it is also likely to disrupt existing patterns of trade and investment in Asia Pacific for non-signatory states in the region. As such, the TPP represents a strategic play by the U.S. government to assert its influence in the region by shifting flows of foreign direct investment and trade away from China.
     Part of TPP’s approach is to achieve its aims by raising labor standards across the Asia-Pacific region, rather than by taking advantage of a pool of cheap labor at the expense of minimal labor protections, as has been the net impact of many foreign trade agreements. In this way, TPP’s architects hope not only to avoid a “race to the bottom” by improving the conditions of workers in the Asia Pacific region, but also to level the playing field for American businesses... Click here to read the full article.

Thursday, March 24, 2016

HKU Teaching Excellence Awards 2015 - Law Faculty Wins Three Awards

Congratulations to Rick Glofcheski, Katherine Lynch and Marco Wan for winning University level teaching awards for 2015.  Here is an excerpt from the President, Professor Peter Mathieson's announcement:
"The Selection Panel was deeply impressed with the awardees’ dedication to teaching, their tireless and creative efforts to make learning enjoyable and challenging, and the impact that they have made on their students’ learning. Because of the eminent achievements of two candidates for the University Distinguished Teaching Award, the Panel decided unanimously to honour both of them. 
University Distinguished Teaching Award
Professor Joseph C.W. Chan, Department of Politics and Public Administration, Faculty of Social Sciences
Professor Rick A. Glofcheski, Department of Law, Faculty of Law [**Watch the video below demonstrating how Prof Glofcheski he has used the 'flipped classroom' method to advance teaching and learning at HKU. Click here to see and read more.]
Outstanding Teaching Award
Dr. Chun-kit Chui, Department of Computer Science, Faculty of Engineering
Ms. Katherine L. Lynch, Department of Law, Faculty of Law
Dr. Julian A. Tanner, School of Biomedical Sciences, Faculty of Medicine
Miss Nicole J. Tavares, Faculty of Education
Dr. Marco M.H. Wan, Department of Law, Faculty of Law 
Teaching Innovation Award
Dr. Michael G. Botelho, Faculty of Dentistry

The awardees will be honoured at a presentation ceremony on Monday May 9, 2016. Please do join us for that if you can. Their names will be posted on the Teaching Excellence Awards Honour Board."
At the Faculty level earlier this year, the following three colleagues were awarded Faculty of Law Outstanding Teaching Awards by the Dean in February 2016:

1. Dora Chan, Principal Lecturer, Department of Law
Dora is an exemplary teacher. She has helped junior-year students overcome the daunting task of acquiring legal skills that are crucial to their future success as a lawyer, designed a postgraduate JD course that suits the needs of the students, and taken up the shepherding role of Deputy Head (Student Affairs) in the Department of Law. 

2. Chen Jianlin, Assistant Professor, Department of Law
Jianlin is a dedicated, enthusiastic and gifted teacher. He has designed new courses and used innovative teaching methodology in his teaching. He has also taken the initiative to organize seminars and workshops to promote research and presentation skills among undergraduate and postgraduate students.

3. Nigel Davis, Principal Lecturer, Department of Professional Legal Education
Nigel is one of the e-learning pioneers in the Department of Professional Legal Education. As a member of two e-learning committees, he has reviewed and promoted e-learning initiatives including MOOCs. He has also designed and implemented a new elective for the Postgraduate Certificate in Laws.

New Book: Hong Kong Basic Law Bibliography, Second Edition (HKLJ Ltd)

Editors: Simon Young and Po Jen Yap
Hong Kong Law Journal Ltd
March 2016, 330 pp
When first published in 2006, The Hong Kong Basic Law Bibliography was the first full-length bibliography devoted to the literature surrounding the Basic Law, Hong Kong’s constitution, following the resumption of Chinese sovereignty in 1997.  It remains the only bibliography of its kind.  The second edition adds another 100 pages to the length of the first edition.  It continues to capture local and international, English and Chinese sources, and provides reference call numbers for those items found in Hong Kong’s public and university libraries. It also includes a selected bibliography on Macau’s Basic Law. It is a valuable research companion for students, teachers, practitioners, government officials, and scholars researching on Hong Kong’s Basic Law.  The book is a research output of the Centre for Comparative and Public Law.  Click here for ordering information.

Wednesday, March 23, 2016

Puja Kapai and Zubin Foundation Recognised in Speech by Chief Secretary, Carrie Lam, on Diversity List 2016

Good afternoon. It is indeed my great pleasure to join you all here today at the launching of the "Race for Opportunity: Diversity List", which is particularly meaningful as today is the International Day for the Elimination of Racial Discrimination.
     Last December, Shalini and Puja Kapai, Director of the University of Hong Kong's Centre for Comparative and Public Law, met with and presented to me the key findings of the report "The Status of Ethnic Minorities in Hong Kong 1997-2014". I should just say that access to the Chief Secretary for Administration for a meeting like this does not require any parental introduction or business networking.
     The email came through and I was very happy to meet with the two distinguished ladies. I was touched by their passion in improving the lives of ethnic minorities in Hong Kong. When they told me about their plan to compile a Diversity List, as a follow-up to one of the recommendations in the report that the Government should consider appointing more ethnic minorities to positions on government advisory boards and committees, I instantly expressed my support for the idea and subsequently accepted the invitation for today's launch event.
     It is gratifying for me to welcome and greet the first batch of 16 civic-minded individuals on the list, and I hope more will follow suit.
     During my meeting with Shalini and Puja, I reassured them that the Hong Kong SAR Government is very committed in promoting racial equality in Hong Kong. Almost a decade ago, in my then capacity as the Permanent Secretary for Home Affairs, I was responsible for introducing the Race Discrimination Bill despite some reservations amongst relevant government bureaux and departments on whether equal access to public services would bring about significant resources implications and operational difficulties. The Racial Discrimination Ordinance was finally enacted in 2008, and the Equal Opportunities Commission has since been ensuring its effective implementation.
     But tackling racial discrimination head-on is one thing; providing equal opportunities to ethnic minorities in a predominantly Chinese society calls for stronger government leadership and greater community efforts... Click here to read the rest of the Chief Secretary's speech delivered on 21 March 2016 in Hong Kong.

Monday, March 21, 2016

Albert Chen on Hong Kong-China Speed Train Immigration Arrangements (China Daily)

"Laws needed for co-location: Albert Chen"
Joseph Li
China Daily
18 March 2016
Albert Chen Hung-yee, a member of the HKSAR Basic Law Committee, says Hong Kong and the mainland may have to enact laws to implement co-location of immigration facilities at the West Kowloon Terminus of the high-speed rail link.
     Chen, who is also a law professor at the University of Hong Kong, told China Daily in an exclusive interview that the co-location arrangement is convenient to commuters and legally workable. He said people should not worry that the “One Country, Two Systems” principle would be compromised, as the opposition camp claimed. Similar co-location arrangements are in force in foreign countries - and also at Shenzhen Bay Control Point between Hong Kong and Shenzhen. Nobody opposed the Shenzhen Bay model in 2006, Chen added.
    He said the opposition should not bundle the HK$19.6 billion supplementary funding for construction of Guangzhou-Shenzhen-Hong Kong Express Rail Link with the co-location issue, as these two issues could be dealt with separately. The additional funding was approved by the Legislative Council Finance Committee last week.
     Recently in Beijing, Rao Geping, a mainland member of the Basic Law Committee, said that to implement co-location, Hong Kong and mainland authorities needed to reach an agreement, which could be endorsed by the Standing Committee of the National People’s Congress - the country’s highest legislature. Rao also said there was no need to include more national laws in Annex III of the Basic Law. The annex stipulates which national laws are applicable to Hong Kong.
     Referring to Rao’s proposal, Chen said it could not solve the problem completely. He said it was necessary for Hong Kong to enact a law, or for both the SAR and the mainland to enact laws, to implement co-location of facilities in Hong Kong.
     “It is (safer) to make laws in both places because the Hong Kong legislation alone cannot decide if local courts have jurisdiction over the mainland officers performing duties in Hong Kong,” Chen said.
    He said that under Hong Kong legislation, the powers of mainland officers performing immigration, customs and quarantine duties in designated areas of the West Kowloon Terminus would be specified.
     The officers should not have the power of arrest in Hong Kong although they can repatriate persons who are refused entry into the city. In case those persons apply for habeas corpus, Hong Kong courts shall have the power to accept or reject the application, Chen added.
      At the same time, a mainland law will be enacted to spell out which types of conduct of the mainland officers are within the jurisdiction of courts in Hong Kong and this law shall be incorporated into Annex III of the Basic Law. That will be similar to the Garrison Law that applies to the People’s Liberation Army Hong Kong Garrison.
     Chen said: “If the powers of the mainland officers performing duties in Hong Kong are clearly defined and limited by law, it will make Hong Kong residents feel more comfortable.
     “Yet those who oppose the Express Rail Link and co-location will oppose whatever form of co-location system,” he added... Click here to read the full article.

Friday, March 18, 2016

Michael Davis on the Survival of the Rule of Law in Hong Kong (SCMP)

Michael Davis
South China Morning Post
17 March 2016
Hong Kong is increasingly locked in a perception gap that has come to colour nearly every aspect of political life.
     National People’s Congress chairman Zhang Dejiang (張德江 ) and other Chinese leaders have taken to lecturing Hong Kong on maintaining the rule of law. We are told “street politics could tarnish Hong Kong’s image”. The implication is that protests are the primary threat to the rule of law.
     The reasoning involves a mainland version of constitutionalism and the associated rule of law that sees it primarily as the people and government carrying out the policies and directives of the Communist Party. This theory explains why the Beijing leaders are often quoted as supporting the constitution and yet have tended to jail people who support a more functional constitutionalism.
     In Hong Kong, this central government commitment to the rule of law is guided by the principle that Hong Kong people accept without question Beijing’s interpretations and directives concerning the Basic Law. Hong Kong resistance was said in the white paper on Hong Kong to reflect a “confused and lopsided” view.
     Hong Kong’s people and its courts adhere to a different version of the rule of law. This version has long held that top officials are bound by the same rules that govern the public at large. Under such a standard, nobody is above the law and everyone is subject to the law applied in the ordinary manner. The central and Hong Kong governments taking excessive liberty with the meaning of the Basic Law does not meet that standard. Such an approach elevates their expedient preferences over the reasonable meaning of the commitments expressed in the words of the Basic Law... Click here to read the full article.  Separately, Professor Davis was also interviewed by Time for the article published on 16 March 2016, "Students at Hong Kong's Oldest University are Calling for the City's Independence" by Simon Lewis.

Thursday, March 17, 2016

HKU's New LLM in Compliance & Regulation (Q&A with Prof Arner)

Prof D Arner, Prof Alexa Lam, Prof KC Chan, Dean Hor
The official ceremony launching HKU's new LLM in Compliance and Regulation was held on Monday, 14 March 2016, in the company of distinguished guests including the Secretary for Financial Services and the Treasury, Professor KC Chan. In the following interview, the Director of the LLM(CR), Professor Douglas Arner, explains the genesis, aims, scope and structure of the new programme, which begins in September 2016. 
     1. What inspired this new LLM? Does it exist anywhere else?  Over the past 20 years, in Hong Kong and around the world, financial regulation and compliance has been one of the faster growing areas. This programme is very much intended to meet a high and increasing demand among firms and market participants for a high quality degree in the area. The programme builds on existing Faculty strengths, in particular our world class Asian Institute of International Financial Law and LLM in Corporate and Financial Law, and related staff, research and teaching. In particular, the LLM in Corporate and Financial Law has seen a very large increase in applicants seeking a compliance related degree over the past 10 years. In the wake of the 2008 global financial crisis, we felt that now was the right time to create a new and focused programme.
     This is the first such programme in Hong Kong and the region. Other major universities elsewhere have also recently been launching or considering launching similar programmes for the same reasons as HKU. Given our existing strengths in the area, it is a very appropriate next stage for HKU's efforts.
Prof Arner
     2. How will this new LLM be different from the LLM in corporate and financial law and the other LLM offerings? The LLM in Compliance and Regulation is designed to focus on the needs of those working or intending to work in regulation and compliance areas. It is designed to provide them with an overall understanding of the major trends in the area as well as their expression in Hong Kong, Mainland China and the Asia Pacific region. It is thus a more focused programme than the LLM in Corporate and Financial Law, which is designed for those looking for greater understanding of key trends and issues in the transactional area. The LLM in Compliance and Regulation will focus not only on the content of international standards and local rules and regulations in the financial sector but also on developing professionalism and culture to support competitiveness not only in firms but also in the financial sector generally.
Dean Hor
     3. There are already many compliance training programmes offered in the marketplace. How will this one be distinctive and what is the target group?  This is the first university masters programme in the region. It is thus an academic programme rather than one focused on compliance training. Graduates will expect to have a broad understanding of the issues and trends as well as of the rule makers and the rules themselves. As a university, this is our advantage compared to a private sector training programme and one that fits with our mission of supporting both human capital and societal development. The programme will accept students with or without law degrees and will strongly consider related experience. We anticipate a balanced cohort of mid-career, senior and junior applicants from a wide variety of different academic and professional backgrounds.
    4. Based in a Faculty of Law setting, will this programme be highly academic and not sufficiently practical? What are the expected learning outcomes of the programme?  As a university, our advantage is building an integrated programme that builds wider understanding of key issues and trends, providing those completing the programme with the tools to address compliance and regulatory issues as they develop in future. The programme is built on a foundation course which will provide the necessary tools to understand the complex international and local regulatory systems. In addition, there are a wide range of specialised courses providing in-depth analysis of specific areas, such as anti-money laundering, securities regulation, listed companies compliance, privacy etc. The programme is topped with a series of capstone courses seeking to integrate understanding across specialised areas. Thus, those completing the programme should find themselves well placed for career advancement in the sector.
     At the same time, the teachers in the programme will be a mix of experienced academics as well as highly experienced professionals working in the area and seeking to share their knowledge and expertise.
     5. How is the programme related to the research programme of the HKU Faculty of Law?  Corporate and financial law and regulation forms one of the Faculty's core strategic research areas and areas of strength. We have been building in this area of almost 20 years, reflected in the fact that our Asian Institute of International Financial Law is now widely regarded as the leading corporate and financial law research centre in the Asia Pacific region. Likewise, our LLM in Corporate and Financial Law is highly competitive, with graduates working at all levels across the region and the world. Thus, the LLM in Compliance and Regulation very much builds on existing Faculty research strengths.
      For more information on applying to the programme, click here.

New Book: Financial Markets in Hong Kong, 2nd edn

Financial Markets in Hong Kong, 2nd edn
Douglas Arner, Berry Hsu, Say Goo, Syren Johnstone and Paul Lejot
Oxford University Press
March 2016, 672 pp.
Description: Since the publication of the first edition in 2006, financial regulation around the world has changed dramatically as a result of the 2008 global financial crisis. As one of the world’s leading financial centres, international regulatory reforms have had a significant impact on the legal and regulatory system in Hong Kong. This new second edition provides a comprehensive and authoritative single-volume guide to the main areas of financial regulation and financial law in Hong Kong. 
  • The most detailed work on Hong Kong financial law and regulation, covering all major areas in a single volume
  • Helpful explanations provide the necessary context to understand how Hong Kong's financial markets and regulation differ from those in other major financial centres
  • Written by leading academics and experienced practitioners in Hong Kong financial law
New to this edition
  • Fully revised, updated, and expanded to include all new developments in regulation and case law from 2006-2015, as well as the implications of these changes to future market development. 
  • Comprehensive coverage of post-crisis reforms and their implementation in Hong Kong, including Basel III, the new regulatory system for OTC derivatives, regulation of credit rating agencies, the deposit insurance and the proposed resolution framework, the incoming regulatory framework for insurance, and major developments in securities regulation, company law and listing rules
A 20% discount is now available.  Click here for more details.

Wednesday, March 16, 2016

The Scope of Legal Advice Privilege in Hong Kong (CLWR)

"The scope of legal advice privilege in Hong Kong"
Hin Ting Liu (LLB student) and Howard Wong
Common Law World Review
March 2016, Vol. 45, No. 1, 68-75
Abstract: This article considers the recent Hong Kong Court of Appeal decision of Citic Pacific Limited v Secretary for Justice and Commissioner of Police, concerning the scope of legal advice privilege. In departing from the UK position, it was held that all documents gathered or brought into existence for the dominant purpose of obtaining legal advice are protected by legal advice privilege. This is to be welcomed for three reasons. Firstly, the dominant purpose test sits in line with the normative rationale of legal advice privilege. Secondly, the UK position is flawed as a matter of authority. Thirdly, although the ‘dominant purpose’ test appears difficult to apply, it is preferable to the competing alternatives of the sole purpose test and the substantial purpose test. In terms of the practical application of the privilege, it is submitted that the Court of Appeal should have set out a list of guidelines to supplement the dominant purpose test.  

Tuesday, March 15, 2016

Report on Asia Launch of Global Health Risk Framework Recommendations

(From left) Mr Terry Kaan, Director of Centre for Medical Ethics and Law, HKU, Professor Gabriel Leung, Dean of Li Ka Shing Faculty of Medicine, HKU, Dr Donald Li, Chairman of Bauhinia Foundation Research Centre, Mr Lau Ming-wai, Commission Funder and Vice Chairman of Bauhinia Foundation Research Centre, Dr Victor Dzau, President of the U.S. National Academy of Medicine, Professor Peter Mathieson, President and Vice-Chancellor of HKU, Professor Tan Chorh Chuan, President of National University of Singapore, Professor Lawrence Gostin, Director of WHO Collaborating Centre on Public Health Law and Human Rights, Mr Peter Sands, Former Group CEO of Standard Chartered PLC and Professor Michael Hor, Dean of the Faculty of Law, HKU took a group photo at the Asia Launch cum Seminar of the Report Recommendations of the Commission on a Global Health Risk Framework for the Future.
In order to cope with the risk of major outbreak of infectious diseases around the globe, the Commission on a Global Health Risk Framework for the Future of the U.S. National Academy of Medicine released a report and recommended an investment of $4.5 billion per year to strengthen national public health systems, improve global response coordination and capabilities, and accelerate R&D. Professor Gabriel Leung, Commissioner and Dean of Li Ka Shing Faculty of Medicine, The University of Hong Kong (HKU), said, “Hong Kong and neighbouring Asian countries have experienced epidemics of infectious diseases, such as SARS, H1N1, H3N2, H7N9, etc. With the recent outbreak of seasonal influenza, both public and private medical services were overwhelmed due to the excessive demand for medical care, revealing deficiencies in global defenses against potential pandemics. It is most timely that we can have an in-depth discussion at this important occasion and offer recommendations to combat infectious diseases.”
     In collaboration with the Centre for Medical Ethics and Law of HKU, the U.S. National Academy of Medicine and Bauhinia Foundation Research Centre, the WHO Collaborating Centre for Infectious Disease Epidemiology and Control at the School of Public Health, Li Ka Shing Faculty of Medicine of HKU hosted the Asia Launch cum Seminar of the Report Recommendations of the Commission on a Global Health Risk Framework for the Future at HKU today (March 13, 2016) and presented the report in Asia for the first time... Click here to read the entire press release.

Saturday, March 12, 2016

Winners of the HKU Law Faculty Research Output Awards 2014-2015

Congratulations to Michael Ng who has been awarded HKU's Faculty Research Output Prize 2014-2015 for his book, Legal Transplantation in Early Twentieth-Century China, published 2014 by Routledge, 188 pages. 
     Endorsements by other scholars:
'This book provides a readable and clear account of the legal practices in the first three decades of the Republican era, which fills a gap in the legal history of China, and therefore much welcomed. Its archival research provides a new understanding of the period, by drawing attention to its process of assimilation of the traditional and Western legal systems.' —Song-Chuan CHEN, Assistant Professor, School of Humanities and Social Sciences, National Technological University, Singapore
Michael Ng's important study of the legal institutions of early twentieth century Beijing makes a major contribution to our knowledge of the legal order of Republican China. At the same time, it illuminates the complex interactions between the late imperial tradition, surviving in unexpected ways, and the transplanted institutions of liberal legal modernity.’ — Teemu Ruskola, Professor of Law, Emory University, U.S.A.
Three research output prizes were also awarded at the Faculty level for the following publications:


Friday, March 11, 2016

Arner & Barberis on FinTech in China: From the Shadows?

"FinTech in China: from the shadows?"
Douglas Arner and Janos Barberis
Journal of Financial Perspectives
Dec 2015, Vol. 3, Issue 3, pp 78-91
Abstract: In July 2015, China’s peer-to-peer (P2P) lending platforms 2,136, with settlements of about RMB82.5 billion transactions in that single month, making it the country with the most P2P platforms in the world. As the sector went from one platform in 2007 to more than an estimated 2,000 platforms currently, the P2P sector went from too-small-to-care to too-big-to-fail, attracting a new level of regulatory scrutiny. Ultimately, this systemic shift offers China a regulatory and market reform opportunity with profound consequences for the country and the developing world. Indeed, the Internet Finance Guidelines released in July 2015 indicate that the country is creating both a financial market infrastructure and a regulatory framework that is built with financial technology (FinTech) in mind. Click here to download the full article.

Thursday, March 10, 2016

Emily Lee on China's Shadow Banking System after the Global Financial Crisis (PekingULJ)

"Shadow Banking System in China after the Global Financial Crisis"
Emily Lee
Peking University Law Journal
March 2016, Vol. 3, Issue 2, pp 362-384
Abstract: This article first examines the composition of the shadow banking system in China and then critically analyses its interconnectivity with the traditional banking system and global capital markets. It argues that whilst shadow bank lending in China contributes to the country's economic growth, the normal functionality of capital markets could be impaired if shadow banks continue to operate on a high-risk/high-yield business model which could potentially pose a systemic risk. It also addresses the concerns arising from high-leverage shadow bank lending practice and cautions against shadow banks operating in a black hole area that enables them to escape from regulatory purview. The article suggests that future regulatory (law) reform should guide shadow banks towards consumer protection by establishing an effective internal control system, enabling sufficient risk controls and requiring material information disclosure; towards safeguarding capital markets; and towards reducing their high levels of leverage. Contact the author for a copy.

Wednesday, March 9, 2016

Puja Kapai Interviewed on Deregulating Birth Control in Hong Kong (HKFP)

Medhavi Arora
Hong Kong Free Press
8 March 2016
It is 2016 and we still don’t have fool-proof, non-permanent contraception. Regular birth control methods such as condoms and oral contraception are not 100 percent effective. However, if a condom breaks during intercourse and a woman does not want to become pregnant, there are options available. Emergency contraceptive pills (ECPs), often called “morning-after pills”, come to the rescue when regular methods fail or in cases where a couple had unprotected sex or a woman is a victim of rape.
     There are three to four different varieties of the pill available, depending on the hormone it contains. The pill is also highly time-sensitive and, depending on the variety, should be taken within three to five days after unprotected sex or contraceptive failure. Since its effectiveness decreases with time, easy and immediate access to the morning-after pill is essential to preventing unwanted pregnancy.
     There are also certain medical risks associated with the abuse and overuse of morning-after pills, and thus some medical practitioners advocate the requirement of a doctor’s prescription to procure the pill rather than have it available freely over the counter at pharmacies.
     After weighing up the costs and benefits, a number of countries have decided to make the morning-after pill available over the counter without prescription, knowing that unwanted pregnancy may carry greater risks for a woman than the pill does. A 2012 University of Hong Kong study notes that “most developed countries” make the pill available over the counter to “eliminate the barrier to access.”
     However, the morning-after pill cannot be bought over the counter in Hong Kong. Though illegal sales persist, it remains a prescription-only drug...
     It is debatable whether the fear of encouraging promiscuity, the lack of general knowledge among users, or concerns over misuse are legitimate reasons for the Hong Kong government to play the role of moral police and deny over-the-counter access to the pill.
     Puja Kapai, associate professor of law and equal opportunity adviser at HKU, has concerns about the policy.
     “For reasons of culture, age or other factors, those who find themselves in this position [in need of the morning-after pill] may be unable to or reluctant to seek the necessary and timely assistance and these barriers exacerbate the health implications, particularly for teenage girls and others who find themselves in this situation.”...
     Kapai is of the opinion that the availability of morning-after pills should be deregulated in Hong Kong and that the health needs of women need to be prioritised. “The restrictions imposed on the availability of emergency contraception not only violate fundamental human rights of women but are also an affront to the right to equality, non-discrimination, dignity and privacy,” she said... Click here to read the full article.

Michael Davis Comments on the Return of Two Hong Kong Booksellers (Time)

"Two Hong Kong Booksellers Return Under Dubious Circumstances"
Nash Jenkins
Time
7 March 2016
Two Hong Kong booksellers who disappeared last autumn returned to the territory over the weekend after months in the custody of mainland Chinese officials.
     Lui Por and Cheung Chi-ping are among the five affiliates of Mighty Current Media — a Hong Kong publishing house that specializes in tawdry texts about the supposed private exploits of Chinese communist officials — who went missing in the last months of 2015. Four of the five detained employees, including Lui and Cheung, have appeared on Chinese television to say that they had been detained for selling thousands of illegal books in the mainland.
     “The mainland legal system is built around an inquisitorial system — a system of confessions,” Michael Davis, an expert in Hong Kong and Chinese law at the University of Hong Kong, told TIME on Monday. “There’s severe pressure on defendants to confess. Their trial procedures don’t meet international standards — it’s a rights violation.”
     On Friday, Hong Kong police released a statement confirming that Lui had returned to the territory and that he had requested they terminate the investigation into his disappearance; a virtually identical notification came on Sunday upon Cheung’s return. Authorities offered no further comment, but past reports suggest the two men may have been let out on bail... Click here to read the full article.


Eric Cheung Comments on Hong Kong Suit Against Chinese Mayor of Jinan (SCMP)

"China Shanshui Cement subsidiaries sue mainland Chinese mayor and deputy for conspiracy in Hong Kong court"
Chris Lau and Sijia Jiang
South China Morning Post
8 March 2016
The mayor of Jinan (濟南) and his deputy from the northern province of Shandong (山東) have been sued in a Hong Kong court over an alleged conspiracy relating to ­assets belonging to the subsidiaries of a debt-laden mainland ­cement company. But the lack of local ties from the parties might suggest the rare case could end up being a publicity stunt rather than a legitimate legal battle.
     China Pioneer Cement (Hong Kong) Company and Shandong Shanshui Cement Group Company – subsidiaries of the Hong Kong-listed China Shanshui ­Cement Group – are suing Jinan mayor Yang Luyu and his deputy Su Shuwei over an alleged conspiracy with their former directors, according to a court writ filed on Friday.
     This essentially means that the plaintiffs are suing two mainland officials for allegations which took place on the mainland. One of the plaintiffs, Shandong Cement, is also a company incorporated across the border.
     This raised questions as to how court documents could be served and court decisions enforced across two jurisdictions, a lawyer and legal scholar noted...
     But in this case, the documents would have to be served to mainland residents.
     University of Hong Kong legal scholar Eric Cheung Tat-ming said the plaintiffs could either use an official channel, via the Hong Kong courts or assign their own mainland lawyers.
     The former, as stated in the Basic Law, involves the plaintiffs handing the documents over to the Hong Kong courts, which would then pass them to mainland courts for service .
     Cheung, who said the system was reliable, added: “I am not sure whether it would be another story serving [documents] to a mayor.”
     Cheung also said the plaintiffs had first to satisfy the local courts under High Court rules, before ­accessing the channel... Click here to read the full article.

Tuesday, March 8, 2016

New Book: CL Lim's Alternative Visions of the International Law on Foreign Investment (CUP)

Alternative Visions of the International Law on Foreign Investment: Essays in Honour of Muthucumaraswamy Sornarajah
CL Lim (editor)
Cambridge University Press
March 2016, 529 pp
Description: This book consisting of 16 essays is about the forces that are reshaping the international law on foreign investment today. It begins by explaining the liberal origins of contemporary investment treaties before addressing a current backlash against these treaties and the device of investment arbitration. The book describes a long-standing legal-intellectual resistance to a neo-liberal global economic agenda, and how tribunals have interpreted various treaty standards instead. It introduces our reader to the changes now taking place in the design of a range of familiar treaty clauses, and it describes how some of these changes are now driven not only by developing and emerging economies but also by the capital-exporting nations. Finally, it explores the life, career and writings of Muthucumaraswamy Sornarajah, a scholar whose work has been dedicated to the realisation of many of these changes, and his views about the hold global capital has over legal practice.  Professor Lim contributes three chapters to the volume: "The worm's view of history and the twailing machine" (Ch 1), "Is the umbrella clause not just another treaty clause?" (ch 13), "The many-headed hydra and laws which rage of gain, a chapter in conclusion" (ch 16).

Farzana Aslam Writes on the Value of Domestic Work on International Women's Day (SCMP)

"Women's quest for equality will remain out of reach until we begin to respect the value of domestic work"
Farzana Aslam
South China Morning Post
8 March 2016
In the lead-up to March 8, International Women’s Day, I have found myself humming one of Alicia Keys’ most memorable tunes and reflecting upon the line: “A real man just can’t deny a woman’s worth.” I have many friends who have fallen into patterns of domesticity that I associate with 1950s divisions of labour; namely, that the man of the household goes out to work while the woman gives up her career in order to look after the children and the running of the household.
      The fact that, when children come along, one partner may need to sacrifice his or her career in order to take primary responsibility for care-giving is perhaps inevitable; that it invariably falls to the woman is less so.
      But what is certainly not inevitable is the lack of value accorded to women once they do so. Some of my female friends express guilt or a sense of worthlessness for not making any financial contribution to the household.
     Others, who have been out of the workforce for some time, have lost confidence in their ability to rejoin the workforce. On the flip side, I have male friends who define their wives as “stay at home”, “a kept woman” or “not working”.
     Why do I have a problem with this? Well, because implicit in this discourse is that the running of a household and the care of young children are viewed as “non-work”. Women undertaking labour such as budgeting, shopping, cleaning, cooking, driving, care of children or other family members are regarded as dependents rather than “workers”. This is a misrepresentation of the contribution that women make to the economy and well-being of the family unit and society as a whole... Click here to read the full article.

Gabriele Spina Alì on Parody and Italian IP Law (EIPR)

"A Bay of Pigs Crisis in Southern Europe? Fan-dubbing and Parody in the Italian Peninsula"
Gabriele Spina Alì (PhD Candidate)
European Intellectual Property Review
2015, Vol 37, Issue 12, pp 756-764
Abstract: In the YouTube era overdubbing parodies, produced by juxtaposing new ironical auditory plot lines and screenplays on famous video motions, represent a noteworthy creative reality. In Italy, the lack of a legislative regulation of parodies causes ambiguities over the infringing status of overdubbing creations in respect to the copyright in the parodied work. This article shows how overdubbing practices exasperated the fragile construction on which Italian courts have upheld a general "freedom of parodying", while also urging Italian legislative bodies to take prompt action so that "freedom to operate" is guaranteed to parodists, whose contributions play a key-role in enriching our societies through the amusing, but in the meantime cathartically reflexive, instrument of laughter.

Saturday, March 5, 2016

Chief Justice of Canada to Speak at HKU (14 March 2016)

Centre for Comparative and Public Law
Faculty of Law, The University of Hong Kong
A Judicial Studies Programme Lecture

Equality and the Law: A Canadian Journey

The Right Honourable Beverley McLachlin, P.C.,
Chief Justice of Canada

Monday 14th March 2016, 16:30-18:00 
Large Moot Court, 2/F Cheng Yu Tung Tower
Centennial Campus, The University of Hong Kong

Credit: Roy Grogan, SCC (c)
The history of the right to equal treatment has taken Canada from an era where the law allowed pejorative discrimination, to broad prohibitions of discrimination in all its forms. The journey was marked by victory after victory, but Canadians have come to understand that to fully succeed on the road to equality, not only must the legal barriers be removed, social attitudes and expectations must also change. The lecture will trace some of Canada’s victories over the pernicious idea that people can be denied opportunity and benefits because of personal characteristics like their gender, their race or their sexual orientation.
     Chief Justice McLachlin spent her formative years in Pincher Creek, Alberta and was educated at the University of Alberta, where she received a B.A. (Honours) in Philosophy in 1965. She pursued her studies at the University of Alberta and, in 1968, received both an M.A. in Philosophy and an LL.B. She was called to the Alberta Bar in 1969 and to the British Columbia Bar in 1971 and practised law in Alberta and British Columbia. Commencing in 1974, she taught for seven years in the Faculty of Law at the University of British Columbia as a tenured Associate Professor. Her judicial career began in April 1981 when she was appointed to the Vancouver County Court. In September 1981, she was appointed to the Supreme Court of British Columbia. She was elevated to the British Columbia Court of Appeal in December of 1985 and was appointed Chief Justice of the Supreme Court of British Columbia in September 1988. Seven months later, in April 1989, she was sworn in as a Justice of the Supreme Court of Canada. On January 7, 2000, she was appointed Chief Justice of Canada. She is the first woman in Canada to hold this position. In addition to her judicial duties at the Supreme Court, the Chief Justice chairs the Canadian Judicial Council, the Advisory Council of the Order of Canada and the Board of Governors of the National Judicial Institute. The Chief Justice is the author of numerous articles and publications.
Please click here for online registration to reserve a place.
For inquiries, please email Joyce Fung at joycef@hku.hk
** ALL ARE WELCOME **

Friday, March 4, 2016

Felix Chan on Anti-Suit Injunctions and the Doctrine of Comity (MLR)

Modern Law Review
March 2016, Vol. 79, Issue 2, pp 341-354
Abstract: Hin-Pro International Logistics Limited v CSAV [2015] EWCA Civ 401 is an important case in the areas of anti-suit injunctions, contractual interpretation and private international law. Despite the ambiguities surrounding the jurisdiction clause contained in the bills of lading, the Court of Appeal construed the jurisdiction clause as ‘exclusive’ in the context of a ‘contractual background’, and affirmed the continuation of the anti-suit injunction granted by the Commercial Court. It is argued that the approach of applying the common law principles of contractual interpretation to a bill of lading is questionable. The approach used to apply English private international law is problematic in a number of ways. There are legitimate reasons for concern that the doctrine of comity in English private international law may become undermined as a result. 

Thursday, March 3, 2016

HKU Legal Clinic Helps 71-Year-Old Defendant Win His Appeal in Occupy Youth Assault Case (HKEJ)

"HKU Law Lecturer Wins Reversal of Occupy Assault Conviction"
HKEJ
2 March 2016
A 71-year-old man accused of attacking a student activist during the Occupy Movement in 2014, walked free on Tuesday after the High Court overturned his earlier conviction, Apple Daily reports.
     Man Ho-chun received free legal assistance from the Department of Law of the University of Hong Kong, where the pro-democracy protests to which he was opposed ironically started.
     Man had been charged with common assault after he allegedly attacked the 19-year-old student, surnamed Chan, forcibly removing his yellow ribbon – a symbol of the protest movement – and stabbing his neck with his fingers outside the Bank of China Tower in Admiralty on Oct. 13, 2014.
    Last year a magistrates’ court found him guilty and sentenced him to seven days in jail, although he was granted bail.
     Refusing to accept the ruling, Man decided to appeal and asked for help from the HKU Law Department under its free legal advice scheme.
     He was introduced to Eric Cheung Tat-ming, principal lecturer at the department, who promised to assist him in filing an appeal before the High Court free of charge.
     At the hearing, Cheung told Judge Mrs. Justice Judianna Barnes that the lower court failed to take into consideration Man’s testimony as well as the time, place and other facts of the case, Ming Pao Daily reports.
     Cheung noted that the student did not report the case to the police, athough he claimed the injury was serious and troubled him for days.
     He also said the plaintiff used as evidence a picture purportedly showing Man attacking the teenager, but did not present any witness to attest to the photo’s authenticity.
     The judge agreed that the student did not report to the police immediately after the alleged attack and the authenticity of the online photos provided by Chan had never been verified, thus rendering the previous ruling questionable.
     The judge then overturned the earlier decision and said Man could get a refund of the litigation fee. Man thanked Cheung for helping him clear his name.
     Cheung said HKU’s free legal advice scheme is available for all people regardless of their political persuasion or religious belief.  The HKU Clinical Legal Education Progamme was awarded the Faculty Knowledge Exchange Award 2015.

Wednesday, March 2, 2016

Report on 2016 Programme for Japanese and Korean Law Students at HKU

The Study Abroad Programme for Japanese and Korean Students 2016 was successfully held from 18-24 February 2016 at the Faculty of Law, University of Hong Kong.  This year law students from six universities in Japan and Korea participated including Chuo University, Hanyang University, Kyunghee University, Ewha Womans University, University of Seoul and KonKuk University.  
     Students attended seminars taught by HKU teachers on Hong Kong's legal system, anti-competition law in Asia, comparative constitutional law in Asia, contract law, arbitration law and practice, corporate governance, intellectual property law, the law of the sea, bribery and anti-corruption law, and financial law. The students prepared and delivered their own presentations and visited several law firms. One of the highlights of the programme was the opportunity to participate in a half-day conference on Dispute Resolution in Asia. The HKU co-ordinators of the programme are Say Goo and James Fry.

Asia-America Institute in Transnational Law 2016 (HKU-Duke)

Every summer 50-60 law students from around the world study transnational law at the Faculty of Law, University of Hong Kong (HKU) in a summer institute established in 1995 between Duke University and HKU.  From June 26 to July 26, 2016, students will have the opportunity to study courses on (i) comparative election law, (ii) cultural heritage and environmental law, (iii) entrepreneurship and the law, (iv) FinTech: legal issues and the new paradigm in financial services; (v) introduction to American law; and (vi) introduction to law and development, taught by distinguished local and international scholars.  Applications are now being accepted for the 2016 programme.  For more information about the programme, click here.  The HKU Co-Directors of the Asia-America Institute in Transnational Law are Douglas Arner and Simon Young.

Tuesday, March 1, 2016

Puja Kapai Interviewed on Hong Kong's Refugee Claim System (SCMP)

"Hong Kong's refugee claim system leaves many tough questions"
Raquel Carvalho
South China Morning Post
28 February 2016
Two years ago a new system was introduced to deal with people arriving in Hong Kong to seek refuge from what they say is persecution in their homeland. “The unified screening system will enhance implementation of our policy objective to process claims for non-refoulement protection … and at the same time prevent abuse by economic ­migrants who aim to protract their unlawful stay in Hong Kong,” said a government spokesman at the time. Fast-forward and the exact opposite appears to be the case.
      In fact, 24 months after the new system came into effect – following legal rulings by Hong Kong’s highest court – the system is subject to an official review. The available facts and evidence from people who know the system suggest the cure has made a bad situation worse. It has, they say, created a process that is open to abuse not only by bogus asylum seekers but employers, lawyers and people-smuggling gangs.
     For the government, blame lies predominantly with the very people the system was set up to benefit. Others paint a more nuanced picture of a slow, skewed and byzantine system, which at times looks like it was designed to fail.
     The bogus claimant blame game has gained traction in recent months with the government making public several cases linking people seeking refuge – formally known as “non-refoulement claimants” – to illegal work and other criminal activity...
      The security bureau is considering fresh visa restrictions, a tightening of the time frame for screening claims and enhanced Immigration Department powers to detain claimants. Lawyer Ho said these “are measures that erode the most basic human rights of some of the most vulnerable persons on our planet”.
      Puja Kapai, professor of law at the University of Hong Kong, ­said a change of mindset – not an enforcement clampdown – was the answer.
      “For as long as there’s the attitude that we need to keep certain people out, to block people ­because they are fake claimants or they just want to access our labour market pending the review of their claims, regardless of the system we have in place, invariably it will remain inefficient ,” she said.
     If the government was “intentional about achieving justice and fairness, we would have a more transparent system with clear criteria that signify the hallmarks of meeting the threshold for screening,” Kapai added... Click here to read the full article.

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