Thursday, June 30, 2016

RGC Awards $4 Million in Research Grant Funding to HKU Faculty of Law

The Research Grants Council awarded more than $4 million in funding to seven of the Faculty of Law's General Research Fund projects 2016-2017.  The projects cover a wide range of topics: director and shareholder accountability, competition law, cyberbullying and privacy, med-arb in China, trusts for mentally incapacitated persons, personal injury compensation reform, and regulation of trade in endangered wild animals.  Congratulations to the following colleagues:
  • Ernest Lim, Rethinking Directorial and Shareholder Accountability, $352,500.
  • Kelvin Kwok (with Thomas Cheng as Co-I), Buyer Power under Competition Law: A Theoretical Examination and a Case Study of Hong Kong, $508,496.
  • Anne Cheung, Tackling Cyberbullying by Enhancing Privacy Protection: A Comparative and an Interdisciplinary Study, $1,072,190.
  • Gu Weixia (with Anselmo Reyes as Co-I), When Local Meets International: The Delicate Art of Med-Arb in China and Its Prospective Reform in a Comparative Context in Asia, $460,000.
  • Rebecca Lee (with Lusina Ho as Co-I), Special Needs Trusts for Mentally Incapacitated Persons in Hong Kong: A Proposed Framework, $825,800.
  • Felix Chan, Further Reforms in Hong Kong’s Personal Injury Compensation: An Inquisitive Perspective, $590,500. 
  • Amanda Whitfort,  A Comparative Evaluation of Hong Kong's Legislative Powers to Regulate Trade in Endangered Wild Animals, $370,500.


Wednesday, June 29, 2016

Yash Ghai Writes 101 Things About the Kenyan Police (The Star)

"101 things you wanted to know about police but were too afraid to ask"
Patrick Vidija
The Star
28 June 2016
A report by former constitutional review chair Yash Ghai details 101 things Kenyans have never asked police, probably out of fear.
      Ghai says beliefs about police officers have strained the relationship between citizens and members of the police service. He points out that public opinion polls put police at the top of the list of the most corrupt state institutions.
      "Police are regarded as extremely corrupt, especially in extracting money from the less well-off," he says in the preface of the published report.
     "The uniformed men and women are however viewed by the public as suppressing them in order to promote the interests of the rich and the powerful."
     Ghai says the report is meant to streamline the relationship citizens have with police. He raises questions on whether the public knows policing is a full-time job and that officers should generally not be involved in trade or business outside of the occupation.
     "If any officer wishes to be involved in any trade or business they must get permission from the National Police Service only if there is no conflict of interest," he notes... Click here to read the full article and to download the pocketbook.

Friday, June 24, 2016

New Issue of Asia-Pacific Journal on Human Rights and the Law - Special Section on Viet Nam

Editors-in-Chief: Simon NM Young and Kelley Loper
Publisher: Brill, Leiden

Special Section on Viet Nam
Introduction 1
Rhona K.M. Smith

The Impact of the Rule of Law on Protection of Human Rights in Viet Nam 11
Do Minh Khoi 

Enhancing Mechanism for Protection of Constitutional Rights in Viet Nam Today: The Case of the Right to Environment 28
Van Nghia Hoang

Business and Human Rights in Viet Nam: The Human Rights Implication of Involuntary Resettlements for Hydro Power Dams 42
Nguyen Thi Thanh Hai

The Suspect’s Right to Silence in Viet Nam 54
Lam Tien Dung

The Rights of Victims in Viet Nam 70
Dinh Thi Mai

Rights of Child Victims and Child Witnesses in Criminal Justice in Viet Nam 88
Le Thi Nga 

The Process of Viet Nam’s Preparation of the National Report under the United Nations Human Rights Council’s Universal Periodic Review 102
Nguyen Thi Kim Ngan 

Articles
Juvenile (In)justice: Children in Conflict with the Law in Indonesia 119
Sharyn Graham Davies and Jasmin Robson 

Human Trafficking and China: Challenges of Domestic Criminalisation and Interpretation 148
Bonny Ling

Thursday, June 23, 2016

Ernest Lim Writes a Case Study on the Illegality Defence (J Business Law)

"Tensions in Private Law Judicial-Making: A Case Study on the Illegality Defence"
Ernest Lim
Journal of Business Law
2016, Issue 4, pp 325-334
Abstract: This article explores a recurring tension in judicial decision-making, thrown into sharp relief by recent jurisprudence—between the need for certainty and clarity in the law, and thus the need for clear articulation and enforcement of rules, with the equally important desire to achieve a fair and just result in each case, and thus the need to ensure that the rules are not uncritically applied—through the lens of illegality defence, a crucial, outstanding issue in private law.  Available on Westlaw or contact the author.

Wednesday, June 22, 2016

Comparative Study of the General Anti-Avoidance Rules of China and Hong Kong (Bulletin Int'l Tax)

Yating Yang (MCL 2016)
Bulletin for International Taxation
July 2016, Vol. 70, No. 7
Abstract: In this article, the author discusses the interpretation and application of general anti-avoidance rules (GAARs) in Mainland China and Hong Kong. In particular, the author argues that GAARs in Mainland China are effective in countering tax avoidance, but that this is not so in the case of Hong Kong.  

Tuesday, June 21, 2016

HKU Hosts IBA Law Students' Committee Conference 2016 on Financial and Corporate Law in Asia (16-17 July 2016)

The International Bar Association’s Law Students’ Committee is hosting a conference in partnership with the Law Society of Hong Kong and the Asian Institute of International Financial Law of the University of Hong Kong from 16-17 July 2016. This two-day conference will focus on the dynamics, development and topical issues of financial and corporate law in Asia. Discussions will be led by global legal experts and specialists in related fields in a series of lectures, panels and workshops.
    Delegates will be able to network with speakers, lawyers and other delegates during the reception at Lily & Bloom, the buffet lunches, and the coffee and tea breaks.

Conference Information
The lectures, panels and workshops will examine a series of topics, including: 
  • Post-financial crisis banking regulation
  • Tax avoidance and fraud 
  • Competition law
  • Corporate social responsibility
  • Technology in the legal landscape
  • Islamic finance
  • International arbitration
  • International qualifications 
There will also be a debating competition for law students only. 

Delegate Profile
Students interested in finance and corporate law (not only for law students), business students, academics and practitioners (including trainee solicitors and pupil barristers). Solicitors and trainee solicitors will be able to apply for CPD/CLE points.
     Please visit our website at http://www.ibanet.org/Conferences/conf749.aspx to register for the conference and to see our list of speakers.   Deadline for early bird registrations: 1 July 2016.

Armed Conflict and State Succession in Investor-State Arbitration (Columbia J Eur L)

"Armed Conflict and State Succession in Investor-State Arbitration"
Odysseas G Repousis (PhD Candidate) and James Fry
Columbia Journal of European Law
Summer 2016, Vol. 22, Issue 3, pp. 421-449
Abstract: The topics of armed conflict and annexation have to date not attracted much attention when it comes to international investment law and investor-state arbitration. However, a series of recent events, ranging from investment claims under Soviet and Yugoslav investment treaties to claims against Russia for investments in Crimea, has drastically altered the importance of the law of state succession in investor-state arbitration. Furthermore, the Ukrainian crisis of 2014, also provides the medium for an examination of the impact of armed conflict on international investment law. As of the writing of this article, eight claims have been filed by Ukrainian investors against Russia under the Russia- Ukraine bilateral investment treaty (BIT), over the alleged breach of their investments in Crimea. For its part, Russia has decided not to participate in the proceedings. Regardless, these claims bring about significant questions with respect to the law of state succession in general and the application of Russian investment treaties to Crimea in particular. Furthermore, it has to be examined whether armed conflicts can affect the operation of investment treaties, and in particular, whether the conflict in Crimea left the operation of Russian and Ukrainian investment treaties intact or suspended the operation of such treaties. Setting out from these questions, this article provides the foundational elements on the importance of the impact of armed conflict and the law on state succession on investor-state arbitration.  Accessible on LexisNexis or contact the authors.

Thursday, June 16, 2016

Johannes Chan Interviewed on the 2047 Question (INYT)

"Expiration Date on China's Promises Stokes Unease in Hong Kong Housing"
Didi Kirsten Tatlow
International New York Times
16 June 2016
To buy a tiny but coveted apartment in the vertiginous towers of South Horizons, a middle-class housing development overlooking the South China Sea in the world’s most expensive real estate market, would cost a family about a million United States dollars.
     These modest homes on Ap Lei Chau, Cantonese for Duck Tongue Island, are a reason that a seemingly far-off date — July 1, 2047 — is in fact pressingly close in Hong Kong. Under the Sino-British Joint Declaration governing the British colony’s return to Chinese rule on July 1, 1997, China agreed that Hong Kong would retain a high degree of autonomy, and its capitalist financial and legal system, for 50 years.
     “The current social and economic systems in Hong Kong will remain unchanged, and so will the lifestyle,” the Joint Declaration said.
     A simple calculation shows the problem: After July 1, 2017, a 30-year home mortgage cannot be paid off before July 1, 2047, when the declaration runs out and China’s promises expire along with it.
...
“History repeats itself,” said Johannes Chan, a law professor at the University of Hong Kong. “In the 1980s, the banks were a prime driver for a solution.”
     That demand for financial certainty led to the Joint Declaration and the legal framework, known as the Basic Law, that Britain and China agreed to for post-handover Hong Kong, which described the city’s rights for 50 years after 1997.
      The Joint Declaration was the basis for the recovery of China’s sovereignty, and “it clearly stated that the Chinese policy was to let things go on for 50 years,” Mr. Chan said. “There is no promise for beyond 50 years. Thereafter it will relapse, because sovereignty has already been resumed.”... Click here to read the full article.

Wednesday, June 15, 2016

Reflections on Maverick Legislator Longhair (The Hon Mr Leung Kwok Hung)

“I fight, therefore I am” - Leung Kwok Hung’s 20 Years of Legal Battles in the Court
Editors: Melody Chan, Kristine Chan, Gardenia Kwok, Raphael Wong, Daniel Tam 
June 2016, Up Publications Limited, 254 pp.
Description: In the past twenty years, Leung Kwok Hung (Longhair) was involved in one new lawsuit every year on average. Some are judicial reviews, some are criminal appeals. In many of these cases, he did not hire any lawyer. He even defended himself in the Court of Final Appeal against charges under the Public Order Ordinance. He won numerous cases that brought about legislative changes and compelled the government to withdraw unconstitutional policies. The cases cover all topics: democracy, human rights and livelihood, which all have far-reaching impacts.

"Leung Kwok Hung (Longhair)’s contribution to public law"
Professor Johannes MM Chan SC (Hon)
You may think you know Mr. Leung Kwok Hung (Longhair) well enough, but his name means something else to legal scholars – Leung Kwok Hung is the name for a series of cases. Over the years he challenged the government by judicial means. His challenges clarified grey areas in the law and reiterated some core legal values. His contribution is undeniable. He was involved in, broadly speaking, two types of cases: (1) judicial reviews where he was the applicant, and (2) criminal prosecutions where he was the defendant. His judicial review cases cover different areas of law, some relate to the challenges against the political system, and some concern fundamental human rights and freedoms. The criminal prosecutions he faced mostly related to the Public Order Ordinance...

"Occupy Central, Umbrella and Long Hair" 
"Occupy Central" and "Umbrella Movement" are by far the most impactful moments in the history of Hong Kong's Democratic movement. "Occupy Central" and "Umbrella" are interrelated, yet not the same. "Occupy Central" involved long and complex strategic planning, while the "Umbrella Movement" was a reactive and spontaneous movement sparked by the police’s decision to fire tear gas at demonstrators. Although both emphasised non-violence civil disobedience, the form of disobedience is different. The "Occupy Central" was passive and strategic-driven, whereas the "Umbrella Movement" was proactive and drive by individual protestors that acted on their own beliefs. Nevertheless, be it "Occupy Central" or "Umbrella Movement", one could clearly see the presence and thoughts of ‘Long Hair’ throughout the movements.
     Leung Kwok Hung, better known as Long Hair, has always been at the frontline of Hong Kong's social movements. Long Hair’s beliefs remain the same throughout the years: from the early days when he charged the police cordon line carrying a coffin (an action not accepted by the public then) to his becoming the "King of Votes" in the New Territories East constituency election, securing a seat in the Legislative Council. It was Hong Kong people that had changed, they have become more familiar with social movements. With the intensified social differences and the lack of progress in the political system reform, Long Hair's beliefs, which he acted on, became the core ingredients of today’s social movements, despite initially not recognised by many.
     Whether one agrees with Long Hair's protest strategies or not, no one who has genuinely participated in Hong Kong's democratic and social movement can deny Long Hair's contributions. All participants have been, to a certain degree, influenced by Long Hair, be it little or huge, willingly or unwillingly, aware or unaware, actively or pessimistically, positively or negatively. It is foreseeable that Long Hair will continue to have an impact on Hong Kong's democratic and political development in the 10 years to come, if not longer... 

"Social Activism Through the Courts: The Case of Leung Kwok Hung"
As a Canadian lawyer who became a Hong Kong legal academic in 2001, the idea of using courts to achieve socio-political ends was familiar. Ian Brodie describes the Canadian experience in these terms: 
Since the 1970s, the Supreme Court and other Canadian courts have seen a new kind of interest group activity—not sporadic efforts by loosely organized communities or ad hoc coalitions, but systematic, planned litigation campaigns by groups organized to wage long-term battles in the courts. (Ian Brodie, Friends of the court: privileging of interest group litigants in Canada (Albany: State University of New York Press, 2002) xiv.)
Working for the Ministry of the Attorney General for Ontario, I experienced the role of a government lawyer in helping to shape the development of the law in human rights cases. From this background, I observed with great interest and from different perspectives, the Honourable Mr Leung Kwok Hung’s own long-term battles in the Hong Kong courts.
     In various capacities but all for the opposing government side, I was involved in four of Mr Leung’s early cases. All four cases were concerned with weighty questions of constitutional law, and the judgments in those cases remain important precedents on the respective issues...

Click here for more information or contact Ms Gardenia Kwok at kwokgardenia@gmail.com.

Tuesday, June 14, 2016

HKU Law Hosts Journal of Financial Regulation 2016 Annual Conference (24-25 June)

Integration and Interconnectedness in Global Finance

Journal of Financial Regulation 2016 Annual Conference
Jointly organized with Asian Institute of International Financial Law, University of Hong Kong Centre for Banking and Finance Law, National University of Singapore Centre for Cross-Border Commercial Law in Asia, Singapore Management University Faculty of Law, Chinese University of Hong Kong Institute of Comparative Law, University of Paris 2 Pantheon Assas School of Law, City University of Hong Kong and RGC Theme-based Research Scheme Project: “Enhancing Hong Kong’s Future as a Leading International Financial Centre”
24 – 25 June 2016 (Friday and Saturday)
Academic Conference Room, 11/F Cheng Yu Tung Tower
Faculty of Law, The University of Hong Kong


This conference will seek to explore a broad range of topics on “Integration and Interconnectedness in Global Finance” including, but not limited to: 
  • emerging risks to financial stability stemming from increasing integration and interconnectedness, particularly in Europe, Asia, and emerging markets; 
  • the evolving role of international financial institutions, in particular the International Monetary Fund as international lenders of last resort; 
  • the development, role, and effectiveness of regional institutions such as the European Systemic Risk Board, European Banking Union, and ASEAN in promoting financial stability; 
  • the role of the Financial Stability Board, Basel Committee on Banking Supervision, and other international institutions in designing frameworks and promoting regulatory reform with the objective of promoting global financial stability; 
  • the potential role, influence and political importance of the newly created Asian Infrastructure Investment Bank and New Development Bank; 
  • the potential impact of the internationalization of the Renminbi; 
  • how national authorities are approaching the challenges created by increasing integration and interconnectedness; and 
  • the nature and structure of cooperation between national authorities responsible for financial regulation. 
Click here to access the draft programme. If you are interested to attend, please register online or via www.AIIFL.com to reserve a place. Enquiry: Flora Leung at fkleung@hku.hk.

Richard Cullen on Real Estate Price Inflation - Lessons from Hong Kong

"Real Estate Price Inflation: Lessons from Hong Kong"
Richard Cullen
TLRP Tax Comments, No 3
June 2016
Abstract: The primary purpose of this TLRP Tax Comment is to review the ways in which behavior-modifying fiscal measures – in particular Stamp Duty (or any like impost) – can be deployed to help bring the problem of excessive home-price inflation under greater control. 
     In cities across the developed-world, especially (today) in jurisdictions popular with Mainland Chinese immigrants, there have been deep concerns expressed about rapid, residential real estate price inflation. It is argued that such inflation is putting home ownership beyond the reach of increasing numbers of younger, local residents seeking to buy their first home. In early May, 2016, it was reported that the benchmark price for a house in the Vancouver Region was C$1.41 million (around HK$8.35 million) – up 30.1% in one year. 
     Although the lessons offered by Hong Kong potentially have quite wide application, the principal comparative focus in this essay is on Vancouver, in view of the stand-out nature of the price inflation problem in that city. The essay briefly reviews certain related issues which are associated with this public policy challenge. There also is a short discussion on why the recent innovative use of Stamp Duties in the HKSAR remains compliant with the Basic Law of the HKSAR (BL).
     There is no “magic wand” fix for this set of problems. Hong Kong has, however, done more than most, in an effective way, to bring the problem under a level of control. There is, Richard Cullen argues, much that Vancouver (and other like-affected cities) could learn from the HKSAR.
     Richard Cullen is a Director of the Taxation Law Research Programme (TLRP) within the Asian Institute of International Financial Law (AIIFL) and a Visiting Professor in the Faculty of Law at The University of Hong Kong. He is also an Adjunct Professor in the Faculty of Law at The University of Western Australia.  Please download the essay from here or at http://www.law.hku.hk/aiifl/taxation-law-research-programme-tlrp/.

Monday, June 13, 2016

New Book by Shahla Ali: Governing Disasters (CUP)

Governing Disasters: Engaging Local Populations in Humanitarian Relief
Shahla Ali
Cambridge University Press
June 2016, 240 pp.
Description: With growing awareness of the devastation caused by major natural disasters, alongside integration of governance and technology networks, the parameters of humanitarian aid are becoming more global. At the same time, humanitarian instruments are increasingly recognizing the centrality of local participation. Drawing on six case studies and a survey of 69 members of the relief sector, this book suggests that the key to the efficacy of post-disaster recovery is the primacy given to local actors in the management, direction and design of relief programs. Where local partnership and knowledge generation and application is ongoing, cohesive, meaningful and inclusive, disaster relief efforts are more targeted, cost-effective, efficient and timely. Governing Disasters: Engaging Local Populations in Humanitarian Relief examines the interplay between law, governance and collaborative decision making with international, state, private sector and community actors in order to understand the dynamics of a global decentralized yet coordinated process of post-disaster humanitarian assistance.
  • Provides a comprehensive review of community engagement with international, state and private entities in responding to natural disasters
  • Identifies best practices in locally-engaged disaster governance through comparative analysis of survey data and disaster recovery case studies in six jurisdictions
  • Synthesizes findings in the form of law and policy recommendations
Reviews & endorsements:
"Elegantly weaving theory with rich contextual studies, Professor Shahla Ali's Governing Disasters elevates the study of law and disasters [by] setting agendas both for scholarship and policy."
  David D. Caron, King's College London

"Community involvement and public-private partnership are sometimes written off as popular buzzwords. This important and carefully documented book shows, however, that they can make a major difference in the effectiveness of disaster relief."
   Daniel Farber, University of California, Berkeley 
"In drawing on the new governance literature to explore the role of local actors in post-disaster humanitarian relief, Professor Ali generates important insights into the careful equilibrium of decentralization and coordination that is necessary for successful multi-level governance."
  Robert B. Ahdieh, Emory University, Atlanta 
"Offers a rich and comparative analysis of local participation in disaster response and recovery in six recent disasters. At a time when the international humanitarian community is stretched thin by multiple large-scale disasters, and the twin forces of conflict and larger natural disasters place millions in need of humanitarian assistance globally, there has never been a more apt time to consider seriously how best to support and enhance the capacities of local communities to respond to and manage disaster response. Governments, scholars and humanitarian and development practitioners will benefit enormously from reviewing the actual experience of local community participation in disaster recovery expertly examined in this work."
  Vincenzo Bollettino, Harvard Humanitarian Initiative

Sunday, June 12, 2016

Puja Kapai Interviewed on Human Trafficking Victims in Hong Kong (SCMP)

Raquel Carvalho
South China Morning Post
12 June 2016
The government has dismissed the need to introduce an anti-trafficking law and said such crime is not common in the city, even though legal experts say victims are criminalised instead of being protected and the issue is affecting Hong Kong’s international image.
     Despite critical reports which describe Hong Kong as a destination, transit point and source of human trafficking and point out serious flaws in the government’s approach, a spokeswoman for the Security Bureau said that the occurrence of human trafficking in the city was “rare”. The bureau noted that “solid and proven” legal frameworks were already in place.
      Enhanced measures were introduced in the past year, “in particular regarding victim identification and referral, and in the protection of foreign domestic helpers,” a spokeswoman said in a written response.
     Police and the Immigration Department are also planning to revise in the coming months “their victim identification guidelines ,” the spokeswoman noted, without elaborating on the details of the review.
      International groups as well as local legal experts and NGO workers have urged the government to improve protection for victims and introduce an anti-trafficking law.
...
      “Victims of human trafficking face an adversarial legal system through and through,” Puja Kapai, associate professor of law at the University of Hong Kong, said, noting that the number of identified victims underestimated the extent of the problem.
     “In general, there’s no balance of power – from immigration procedures, language barriers to a lack of sympathy from frontline law enforcement officers inclined to use aggressive tactics to have victims admit transgressions,” the High Court barrister said.
      The legal expert has no doubt that the prevalence of labour trafficking in Hong Kong is an issue that is affecting the city’s international image... Click here to read the full article.

Thursday, June 9, 2016

New Article on Oil Pollution, International Environmental Law and the Law of the Sea (Georgetown J Int'l L)

James D Fry and Inna Amesheva (PhD candidate)
Georgetown Journal of International Law
Spring 2016, Vol 47, Issue 3, p. 1001
Abstract: This Article examines the relationship between international environmental law and the law of the sea in the context of trying to address the problem of oil pollution in a coherent manner. Both of these branches of international law share a common goal, yet their relationship is inherently complex. Starting with a brief synopsis of international environmental law and the law of the sea, this Article then explores the ways these two branches interact in a dynamic manner. The Article demonstrates that they do not operate in isolation, but rather help shape one another. The authors then identify the situations where international environmental law and the law of the sea conflict, primarily in the provisions contained in international and regional conventions, which leads to a multifaceted legal framework that is difficult to follow in a coherent manner. In these cases, pursuing the rules of one regime could mean breaching provisions and goals of the other. The Article concludes with a case study on oil-spill pollution, which demonstrates how the two branches of international environmental law and the law of the sea simultaneously conflict and complement each other. The main take-away point of this Article is the fact that the unity-versus-fragmentation debate regarding the law of the sea and international environmental law should serve as a reminder that coordination of these two legal regimes is needed in order to effectively adopt measures that protect the global commons.  Accessible on LexisNexis.

Monday, June 6, 2016

Amanda Whitfort Interviewed on Animal Law in China (Knowing Animals Podcast)

Knowing Animals
Episode 22 Podcast, 6 June 2016, 20 mins
Amanda Whitfort was recently interviewed by Dr Siobhan O'Sullivan, a political scientist from the University of New South Wales, about her research into animal protection laws in China. The interview has been published in the podcast "Knowing Animals", sponsored by the Australasian Animal Studies Association. In the interview Assoc Prof Whitfort discusses the reasons behind the growing call, within China, to introduce new laws to protect animals, the nature of the draft law submitted to the National People's Congress  and the implications for animals in the region, if the law is passed in its current state.  Click here to listen to the podcast.

Thursday, June 2, 2016

Odysseas Repousis on Standing in International Investment Law and the 'Foreign Control' Test (Tulane J Int'l & Comp L)

Odysseas G Repousis (PhD Candidate)
Tulane Journal of International & Comparative Law
Spring 2016, Vol. 24, Issue 2, pp 327-349
Abstract: Under customary international law, a state's ability to espouse the claims of its nationals and subsequently file a suit against another state is limited by the rule of incorporation. This has been clear at least since the seminal decision of the International Court of Justice in Barcelona Traction, where it was decided that Belgium could not seek recourse against Spain by espousing the claims of Belgian stockholders in Barcelona Traction, a Canadian company. Equally, claims by locally incorporated entities against the host state are not possible under customary international law. The strict incorporation test has nevertheless become obsolete, if not thrust aside, by the emergence of investment treaties. In fact, the unprecedented and drastic change brought about by investment treaties is all the more evident when considering the whole new array of nationality rules they have solidified. Investment treaties allow for shareholder claims explicitly or by reference to shareholding as one of the covered forms of investment. Some investment treaties go a step further by allowing locally incorporated entities to directly File a claim against the host state, provided that such entities are controlled by nationals or legal entities of the other Contracting Party. Claims by locally incorporated entities are also provided for under the International Centre for Settlement of Investment Disputes Convention ("ICSID Convention"). However, the ICSID Convention, unlike investment treaties, allows for such claims by reference to a "foreign control" test. Setting out from this premise, this Article does not intend to touch upon all of the nationality rules encountered in modem international investment law. Rather, it focuses on the standing of locally incorporated entities. In particular, it asks whether locally incorporated entities controlled by nationals of the host state qualify as covered investors, and if so, whether there is a difference between ICSID and non-ICSID claims. In a nutshell, this Article establishes that when a locally incorporated entity files a claim against the host state (the state of its incorporation), the operation of the foreign control test under the ICSID Convention enables an investment tribunal to unlimitedly pierce the corporate veil and assess whether the locally incorporated entity is ultimately controlled by nationals of the host state. In this case, an ICSID tribunal will have to deny the vesting of its jurisdiction because the locally incorporated entity cannot satisfy the foreign control test. This principle was first introduced in 2008 by the tribunal in TSA Spectrum v. Argentina and has recently solidified in the rulings of Burimi v. Albania and National Gas v. Egypt. On the contrary, when nationals of the host state ultimately control a locally incorporated entity but decide to file a claim against the host state through an intermediate company, incorporated in the other Contracting State, the locally incorporated entity is treated as an investment of the intermediate entity. In this case, an ICSID tribunal cannot pierce the corporate veil and assess whether the intermediate company is ultimately controlled by nationals of the host state.

Wednesday, June 1, 2016

Richard Cullen on Looking to Hong Kong for Lessons in Cooling Property Prices (SCMP)

Richard Cullen
South China Morning Post
1 June 2016
In cities across the developed world, especially in jurisdictions popular with Chinese immigrants, there are deep concerns about rapid, residential property price inflation. It is argued that this is putting ownership beyond the reach of increasing numbers of local residents seeking to buy their first home.
     The media in Melbourne and Sydney, in Australia, for example, carry almost daily stories on this theme. It would seem, though, that the global “leader” in this regard may be Vancouver, Canada. Early in May, it was reported that the benchmark price for a house in the Vancouver region was C$1.41 million (HK$8.4 million) – up 30.1 per cent in one year. (In fact, Vancouver’s problems with excess offshore-sourced demand date back over 30 years to the time of the first major, Hong Kong Chinese immigration wave.)
     In all three cities just noted – and in most of the cities feeling this pressure (including Hong Kong) – there is a fundamental, underlying problem of demand exceeding supply. Limits on land supply, planning controls (and related complexities) and increases in building cost explain much of the supply-side problem. In all such cities, immigration is driving populations up, year after year, intensifying the demand. These cities are attractive in a number of ways, often in terms of providing good, comparatively lower-cost educational opportunities... Click here to read the full article.

Farzana Aslam on Proper Care for Overseas Employees (China Daily)

"Employees working overseas must be properly cared for"
Farzana Aslam
China Daily
31 May 2016
With the impact of globalization resulting in increased transnational business opportunities, Hong Kong-based companies are faced with an ever-increasing requirement to send their employees abroad on business-related activities.
     Many employees are expected and required to be mobile, flexible and ready to travel at short notice in pursuit of business opportunities, or to manage operations, personnel or crises overseas. Others are required to spend longer periods of time on assignment or secondment in a foreign jurisdiction as part of their training, knowledge exchange or career development.
     While many employees welcome the prospect of overseas travel and assignments, employees traveling and working overseas may be exposed to a number of risks that fall outside of the scope of risks contemplated by health and safety management systems applicable to workplaces in Hong Kong. For instance, employees who contract an illness or pandemic disease may, in countries with weak healthcare infrastructure, be exposed to an increased level of risk. As borders open and markets emerge in areas that are politically, socially or economically unstable, risks related to personal safety and security present themselves alongside more readily assumed health-related risks.
     From a legal perspective there is a duty of care on employers to ensure the health and safety of their employees at work. The duty of care is a personal, non-delegable duty. It is thus no defense for an employer to say he has delegated his responsibility to the employee himself or to another company to which the employee is assigned, even if the workplace is located overseas. An employer’s breach of this duty will give an employee a right to bring a claim to recover damages for losses suffered as a result of the breach, for example for the pain and suffering of any personal injuries and for loss of earnings for any period of time which the employee was unable to work as a result of such injuries... Click here to read the full article.

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