Thursday, August 25, 2016

Call for Papers: Copyright in the Asian Pacific (HKU 21-22 Nov 2016)

APCA
Asian Pacific Copyright Association

in conjunction with the Law and Technology Centre, University of Hong Kong Faculty of Law, invites you to its forthcoming conference:

“Copyright in the Asian Pacific: the challenges and opportunities”.

at the University of Hong Kong Faculty of Law, Hong Kong, 21-22 November 2016

Confirmed keynote speakers:
Professor Peter Yu
Co-Director Centre for Law and Intellectual Property Texas A&M University School of Law
Dr Rebecca Giblin
Deputy Director, Monash JD and Monash Centre for Commercial Law and Regulatory Studies (leading Innovation and Intellectual Property) Monash University Faculty of Law

Co-convenors:
Associate Professor Susan Corbett 
General Secretary APCA
School of Accounting & Commercial Law Victoria University of Wellington
Associate Professor Haochen Sun
Director, LLM in Information Technology and Intellectual Property Law University of Hong Kong Faculty of Law

Call for Papers: Abstracts of approximately 350 words should be sent to Susan Corbett via email at susan.corbett@vuw.ac.nz by 10 October 2016. Each abstract submission should include the author’s name, title and affiliation. Abstracts will be approved on a rolling basis.  The Conference theme is: Copyright in the Asian Pacific: the challenges and opportunities.  At APCA’s inaugural conference in November 2015, Professor Adrian Sterling presented a draft Asian Pacific Copyright Code for discussion. As is usual for international legal instruments, the Code is drawn in broad terms, leaving much discretion to individual States. The theme of this Conference will address additional possibilities for the Code - should it for example include specific minimum standards and /or exceptions for the protection of indigenous culture; orphan works; Internet and other digital works; cultural heritage; education and libraries, etc. If so, what form should these minimum standards and/or exceptions take? Conversely, are there matters that should be omitted from the Code and left entirely to the legislatures of individual States? 
     Further details about the conference, including registration and accommodation options, will be available shortly on the APCA website.

Sunday, August 21, 2016

Amanda Whitfort on Puppy Mills in Hong Kong (SCMP)

"No more puppy mills: Tighter animal welfare laws will clamp down on unscrupulous breeders"
Sarah Karacs
South China Morning Post
20 August 2016
Hong Kong dog lovers can breathe more easy after a much campaigned for amendment to animal trading laws is set to be put in place.
     The campaign to close a legal loophole enabling puppy milling in the city has finally been put through, meaning unscrupulous pedigree breeders will face higher penalties and more stringent licensing laws.
     The city has seen a boom in the pedigree pup trade over the last two decades which has fueled a home-grown industry churning out puppies like products on a factory chain.
     With the amendment, traders who could formerly masquerade as ‘hobby breeders’ owing to outdated laws, will soon have to apply for licences and be subject to inspections when the law comes into effect.
     “We are over the moon ... regarding the amendment” campaigner Gary Chin said. His six-year-old husky-sheepdog cross, named Cooper, had been rescued after years of neglect and cruelty as a breeder dog.
...
But legal expert Amanda Whitfort, an associate professor at the University of Hong Kong’s law faculty who had spearheaded the campaign, said the amendment will only stop breeders who keep dogs in poor conditions.
     “For those breeders providing appropriate welfare conditions for their dogs, there will be no problem in obtaining a licence to continue,” she said, adding that she was “delighted” the amendment had finally gone through... Click here to read the full article.

Wednesday, August 17, 2016

Alexa Lam to Speak at the Strook Sovereign Wealth Forum (24 Aug 2016)

Alexa Lam will be speaking on a panel of "international experts and sovereign wealth fund managers from around the world" at the Stroock Public Forum on Sovereign Wealth on 24 August 2016, to be held at the Jackson Hole Center for the Arts in Jackson, Wyoming.  The forum will precede the Federal Reserve Bank of Kansas City's annual Jackson Hole Economic Policy Symposium.
      The University of Wyoming's website reports the following on the event: 
Sovereign wealth funds are government-owned funds invested in assets such as stocks, bonds, real estate and precious metals, or in alternative investments such as private equity funds or hedge funds. The Permanent Wyoming Mineral Trust Fund is an example of such a fund. 
Wyoming State Treasurer Mark Gordon says nations’ and states’ sovereign wealth funds are derived from a variety of sources and created for a variety of purposes. Those funded by revenues from fossil fuel production, such as Wyoming’s, have come under pressure in the past year as a result of declining prices and regulation. 
“We are excited to have a conversation among peers about how people are contending with these new circumstances, and the strategies they’re using to preserve purchasing power for future generations,” Gordon says. 
Other topics to be addressed include how large a sovereign wealth fund should be relative to the size of the population; the fundamentals of the economy and the role of the fund; and how the evolving global economy affects the rationale and expectations for sovereign wealth funds. 
     Professor Lam will speak on the experiences of Hong Kong and China.  In particular, she will present the following three main points from this experience:
1. While a good number of SWFs have clear mandates stating that they are to provide revenue during economic downturns and preserve and grow wealth for future generations, China's SWF (the China Investment Corporation) has a wider objective, ie, to complement the country's "Go Global" economic and geopolitical strategy.

2. China Investment Corporation holds Chinese banks and SOEs, and takes a nationally-integrated approach in outbound investments. Contrary to the regulatory philosophy of the Santiago Principles, political and economic considerations behind China's sovereign investments are intertwined. A new regulatory framework is probably needed to cope with this China model as it gains currency.

3. Hong Kong drew on its exchange fund when its US dollar-peg came under attack during the Asian Financial Crisis in 1998. Her experience shows that clear Fund objectives are crucial to the public's confidence in the government, especially at times when tough and unpopular decisions have to be made.
     Professor Lam will also be speaking on "Technology, Regulation and the Democratzation of Financial Services" at HKU on 7 September 2016, 12:30pm.

Tuesday, August 16, 2016

HKU Law Hosts International Conference on Surrogacy (8-9 Sept 2016)

The Centre for Medical Ethics & Law
of the University of Hong Kong
in conjunction with 
The Centre for Law, Medicine and Life Sciences, 
University of Cambridge
are pleased to announce a conference on

Eastern and Western Perspectives on Surrogacy


Friday & Saturday, 9-10 September 2016
Wang Gungwu Theatre
Graduate House
The University of Hong Kong

With the advances in artificial reproductive techniques, and an increasingly globalised world, surrogacy has gone from a niche practice to a global market, raising questions of parenthood, conflict of laws, and the commercialisation of the birth process. While there have been comparative studies undertaken concerning approaches to surrogacy from Europe and "Western" jurisdictions, there is gap in the literature with regard to the approach international surrogacy in Asia (and indeed Africa). As such, this conference will bring together academics from both Eastern and Western jurisdictions in order to provide a more comprehensive understanding of the confluences and tensions between the way in which surrogacy is approached in these two regions.

Topics: 
  • Comparative perspectives on surrogacy from experts from Australia, England, France, Germany, Hong Kong, India, Israel, Japan, New Zealand, Russia, Singapore, South Africa, South Korea, Taiwan, Thailand, USA 
  • The Process of Law Reform (Law Commissioner, England and Wales) 
  • Judicial perspectives from past and present judges from Australia, England and Germany 
Keynote Speakers: Sir Mark Hedley (retired High Court Judge, England and Wales), Chief Justice John Pascoe (Federal Court of Australia)

Speakers: Walter Pintens, Anatol Dutta, Frank Klinkhammer, Claire Fenton-Glynn, Mary Keyes, Debra Wilson, Debbie Horsten, Rhona Schuz, Olga Khazova, June Carbone, Prabha Kotiswaran, Daisy Cheung, Terry Kaan, Chih-Hsing Ho, Soraj Hongladarom, Shinichiro Hayakawa, Nick Hopkins

Moderators: Esther Farnos Amoros, Marcus Dearle, Matthew Jolley, Johannes Chan, Azan Marwah, Spencer Clarke, Jens M Scherpe

Project Leaders: Jens M Scherpe, Claire Fenton-Glynn and Terry Kaan

Information & Registration: +(852) 3917 1845; cmel@hku.hk.  Registration here


Saturday, August 13, 2016

Po Jen Yap on Originalism and Textualism in Singapore (new book chapter)

"Uncovering originalism and textualism in Singapore"
Po Jen Yap
in Jaclyn Neo (ed), Constitutional Interpretation in Singapore (Routledge 2016) chapter 5
Introduction: Our judges in Singapore, like many of their counterparts in the West, tend to present adjudication merely as a mechanical exercise of applying the law to the facts of a specific case. In so doing, it would appear that the law can truly be separated from politics and judges merely follow pre-determined rules and exercise little discretion when making decisions. 
     However, if we were to closely examine the prevailing theories of interpretation that our judges purport to rely upon when they resolve constitutional disputes, we may discover that these principles are often mere constitutional ‘fig leaves’ that cover their normative choices. In particular, two such interpretive modalities are flourishing in Singapore: originalism and textualism. 
     But, I must emphasise that that these fig leaves seek not to mislead anyone about what the courts are doing. As astutely observed by Professor Christopher Forsyth in his seminal article: 
The point about the fig-leaf metaphor (and why it is so apt) is that fig leaves do not deceive anyone as to what lies beneath them. The fig leaf, like the swimming costume on a crowded beach, is to preserve the decencies. It enables individuals to interact in an appropriate manner without threatening the social order.
Similarly, the use of fig leaves in Singapore demonstrates that our judges implic- itly accept the constitutional role that they are expected to play within our political system; and the truth is, our judges, on their own, can do very little. 
     The political reality is that, in Singapore, the state has been governed by the same ruling party, the People’s Action Party (PAP), since the nation’s independence, and will be so governed for the foreseeable future. When legislative and executive powers are consolidated by a semi-permanent party, the dominant political entity in question can display its disagreement by overriding a constitutional decision easily with a constitutional amendment. Our judges, operating in such a political system, would not be oblivious to this fact. More significantly, Singapore has experienced a judicial crisis, which arguably has cast a pall over the state of constitutional review. When the Court of Appeal ruled against them in 1989, for the first and last time on constitutional grounds, the Government swiftly overturned this decision via a series of constitutional and statutory amendments within a month of the judgment. In that seminal decision of Chng Suan Tze v Minister of Home Affairs, the Court of Appeal, after surveying a litany of Commonwealth precedents, quashed the preventive detention orders issued under the Internal Security Act (ISA) against alleged Marxist conspirators and also concluded in obiter that the ministerial discretion to detain personnel under the ISA would be subject to an ‘objective’ test of review by the courts as constitutionally required under Articles 96 and 127 of the Singapore Constitution. This decision proved to be disquieting to the Government, so much so that in the subsequent amendments, it restricted judicial review in ISA cases to only narrow procedural grounds. 
     Part II of this chapter begins by identifying and uncovering the judicial use of ‘originalism’ as an interpretive modality. Part III continues with a close exami- nation of the judicial reliance on ‘textualism’ as another preferred mode of con- stitutional interpretation. In essence, I shall seek to illustrate that the judicial decisions reached by our courts are neither mandated by the text nor the history of our Constitution, but are the consequence of normative choices made by our judges.

Friday, August 12, 2016

Marcelo Thompson on the Normative Responsibility of Internet Intermediaries (Vanderbilt JETL)

Marcelo Thompson
Vanderbilt Journal of Entertainment & Technology Law
Summer 2016, Vol. 18, Issue 4, pp 783-849
Abstract: This Article puts forward a normative approach to the responsibility of Internet intermediaries for third-party content they host. It argues that, in thinking about intermediary liability, the focus should be on intermediaries’ responsibility towards the reasoning processes in reaching decisions, rather than on the outcomes of intermediaries’ decisions. What is necessary is a framework that, while attaching responsibilities to such decisions, creates a cushioning system for their making, mitigating the hardship of honest mistakes. Within this framework, intermediaries must be seen not as mere keepers of gates, but as designers of artifacts whose use plans settle normative questions and play a vital role in the construction of our normative reality. Accordingly, an interpretive commitment must be required toward the integrity of such a reality. Every time intermediaries make a decision, as they always will and should—in all of this hidden jurisprudence—the integrity of our normative order and the values it reflects are at stake. This commitment to integrity must be seen as part of a broader concern with justice (both corrective and normative) in the internal life of the information environment. For the same reason, however, we should expect responsible efforts, not perfection, from intermediaries. Like journalists who are entitled to make mistakes, if only they seek responsibly to avoid the same (which is the idea of responsible communication in defamation), so it should be with Internet intermediaries. Understanding the above enables us to move away from outcomes-based approaches towards a more granular and fair system of intermediary liability.  Click here to download the article.

Thursday, August 11, 2016

Fry and Amesheva on the Relationship Between International Climate Change and International Health Laws (Fletcher Forum)

James D Fry and Inna Amesheva (PhD candidate)
The Fletcher Forum of World Affairs
Winter 2016, Vol. 40, Issue 1, pp 73-98
Abstract: Climate change is intertwined with global human health, and the corresponding branches of law simultaneously conflict with and complement each other. The authors take a comparative approach to the dynamic relationship between international climate change law and international health law, demonstrating their interaction as applied to integrated challenges such as climate change alleviation and the 2015 Paris Agreement.  Click here to download the article.


Wednesday, August 10, 2016

HKU Workshop: China's Identity in International Law (1-2 Sept 2016)

The University of Hong Kong’s
East Asian International Economic Law & Policy Programme,
Asian Institute of International Financial Law,
Centre For Chinese Law
The RGC GRANT SCHEME on
“The Impact Of Western International Law On The Disintegration Of The Late Qing Empire,
And The Continuing Consequences For East Asia In The 21st Century”
&
RGC Theme-based Research Scheme Project: 
“Enhancing Hong Kong’s Future as a Leading International Financial Centre”

An International Workshop on

CHINA’S IDENTITY IN INTERNATIONAL LAW

Co-Chaired by
Professors C. L. Lim & John Anthony Carty
University of Hong Kong Tsinghua University, Beijing

1st and 2nd of September 2016 (Thursday and Friday)
Programme commences at 9:30 a.m. on 1 September 2016

Academic Conference Room, 11/F Cheng Yu Tung Tower, The University of Hong Kong

China's history with international law as practiced on it by the West and Japan has left all its relations politically and militarily with its neighbours volatile and also its relations with the United States. However, too intense an emphasis has been given to the South China Sea issue. It risks neglect of a broader and deeper appraisal of China's international economic relationships and economic treaty arrangements, as well as the range of choices China faces in the WTO, in the sphere of regional trade arrangements, in China's investment treaty policy, in the field of international financial institutions and in the developmental field. After all, the main weight of China's recent strategy for relating to and integrating with the world currently relies upon economic development cooperation and even integration – trade, investment and financial - with important implications for how China perceives itself. Having said that, it appears since 2009 and maybe especially since 2012 that China also wants to deal more with that which has been left over from the past. We propose to take a holistic view of China's foreign economic treaties and initiatives, and the historical and territorial complexities it now faces. We do so by asking how China currently is perceived, and perceives itself, as a major actor in the international legal order. This interdisciplinary collaboration will be led by presentations on original diplomatic archival research and by international economic and financial law experts. 
      Programme to be distributed to attendees. The workshop is open to the public, although please note that seating is limited and registration is required. Please register online or email Flora Leung at fkleung@hku.hk to reserve a place.

Listen to Michael Davis' 4-Part Backstory on RTHK Radio 3

Professor Michael Davis was interviewed on Noreen Mir's 123 Show on RTHK Radio 3.  The interview was broadcast in four "Backstory" segments from 26 to 29 July 2016.  As a parting farewell to Hong Kong, the interview covers a wide range of topics over the course of Professor Davis' 30 years of scholarship and contributions to academic and public affairs in Hong Kong.  Click here to listen to the first segment (26 July 2016).

Tuesday, August 9, 2016

Amanda Whitfort on Tackling Animal Cruelty in China (APPS Policy Forum)

"Tackling animal cruelty in China"
Amanda Whitfort
Asia & The Pacific Policy Society Policy Forum
4 August 2016
On 2 July 2016, a long-anticipated amendment to China’s most important law protecting animals, the Wildlife Protection Law, was approved by the National People’s Congress. Since its promulgation in 1989, the law has been the subject of criticism by animal protection scholars, most seriously because it explicitly promotes the use of wildlife for human benefit. This has led to widespread farming of wild animals, including tigers and Asiatic black bears, both of which are used in traditional Chinese medicine. It has also permitted cruel practices such as the de-fanging, drugging and de-clawing of wild animals for performances and photographs with customers in zoos.
     On paper, the amendments to the law appear to provide some improvements: promoting conservation of wildlife habitats, and specifying that the purpose of breeding is for species protection, not profit. However, tiger and bear farms have long claimed they promote conservation, while the sale of products containing tiger bones, bear bile, and other derivatives is widespread. The bear bile industry alone is worth US$1.6 billion, and the amended law does not prohibit the continued sale of wild animal derivatives for human consumption.
     It also does not address the problem of cruel animal performances. In 2011 the Ministry of Housing and Urban Rural Development introduced an administrative ban (which is widely flouted) on live animal performances in zoos, but the amended national law continues to legitimise wild animal performances and provides the animals with no protection from cruelty. It will also not provide any cruelty protections for animals farmed and slaughtered for the fur trade, despite China being the world’s largest producer and processor of fur... Click here to read the full article.

Monday, August 8, 2016

HKU Law Faculty Comment on the Invalidation of Pro-Independence Candidates

Austin Ramzy and Alan Wong
The New York Times
3 August 2016
Moves by the government of Hong Kong to bar candidates from a coming legislative election over the issue of independence from China have raised worries in this semiautonomous city about the deterioration of political freedom and the potential for renewed conflict with Beijing.
     Since Saturday, Hong Kong election officers have blocked at least five candidates from the balloting, on Sept. 4, for seats on the city’s Legislative Council over questions about whether they acknowledge the city as an “inalienable part” of China.
     The disqualified candidates are mostly young people who became politically active during the Umbrella Movement protests in 2014, when demonstrators shut down several thoroughfares for more than two months to push for greater choice in elections for chief executive, the top political office in the city.
     The protests failed to elicit any concessions from the government. But they helped fan a “localist” movement, as it is often called, of activists seeking to strengthen Hong Kong’s identity in the face of growing cultural, linguistic and economic influence from mainland China.
     Edward Leung, who said he learned he was barred as a candidate on Tuesday, is a leader of the group Hong Kong Indigenous, which has proposed holding a referendum on whether Hong Kong should become independent...
     His ability to run in February but not in September has raised questions about why the government changed its mind. Some legal scholars and politicians have criticized the decision to strike candidates from the ballot, calling it bureaucratic overreach and an infringement on political freedoms.
     If a candidate is suspected of having made a false declaration, then that should be investigated by law enforcement, said Eric Cheung, a law lecturer at the University of Hong Kong.
     “This is not rule of law, it is rule of man,” he said. “You should never give such power to a particular civil servant, then have the civil servant bypass the procedures.”... Click here to read the full article.

Hong Kong Economic Journal
3 August 2016
Several law experts said Edward Leung Tin-kei (梁天琦), a prominent member of the localist group Hong Kong Indigenous, should not be deprived of his right to run in the Legislative Council election next month since he has met the new requirement set by the Electoral Affairs Commission (EAC) for candidates, the Hong Kong Economic Journal reports.
      Johannes Chan Man-mun, former law dean and now a law professor at the University of Hong Kong, told HKEJ that an electoral officer has no right to make her own judgment and question Leung’s stance after he signed a new confirmation form committing him to uphold the Basic Law and accept Beijing’s sovereignty over Hong Kong.
     In the first place, Chan said, the new requirement has no legal basis and Leung was not given a chance to defend himself before his disqualification.
     Chan said the electoral officer, in barring Leung from the Legco race, might have violated the Basic law, Hong Kong’s mini-constitution.
     Eric Cheung Tat-ming, principal lecturer at the HKU Department of Law, agreed with Chan, saying electoral officers should base their decision only on whether or not a candidate has fulfilled all the requirements for running in the election.
     A source in the government said returning officers base their decision not only on whether candidates have signed the new confirmation form but also on their words and actions in the past... Click here to read the full article.

Hualing Fu Interviewed on Chinese Lawyer's 7-Year Sentence (WSJ)

"Chinese Lawyer Sentenced to Seven Years in Prison"
Josh Chin
The Wall Street Journal
4 August 2016
A Chinese court sentenced a lawyer whose firm is known for taking on politically sensitive cases to seven years in prison, in what a former colleague said was an unexpectedly harsh sentence, signaling that Beijing intends to keep squeezing the already constricted space for dissent in the country.
     The lawyer, Zhou Shifeng, was a target in a government sweep a year ago in which roughly two dozen lawyers and activists were arrested and more than 300 others briefly detained or interrogated. That began an offensive against what was once a growing human-rights movement among Chinese lawyers.
     Appearing in court on Thursday in the city of Tianjin, Mr. Zhou was the first lawyer among those arrested to face trial. He was sentenced to seven years after he pleaded guilty to subverting state power, according to the official Xinhua News Agency... 
    Mr. Zhou’s sentence suggests other arrested lawyers will face similar punishment. It also indicates authorities’ concern over the influence of lawyers as Chinese President Xi Jinping pushes a broad crackdown aimed at stifling challenges to the Communist Party’s authority.
     “If you look at the landscape of resistance, you don’t see many other people left,” said Fu Hualing, a law professor at Hong Kong University. “Falun Gong is pretty much gone. The only ones that can stand up to the government are the lawyers. They have the organizing power, so they pose a threat.”... Click here to read the full article.

Thursday, August 4, 2016

Marcelo Thompson on Responsible Communications by Internet Intermediaries (LSE Blog)

"Responsible Communications by Internet Intermediaries"
Marcelo Thompson
LSE Media Policy Project Blog
8 July 2016
In debates concerning Internet intermediary liability, an often-expressed view is that intermediaries (such as Facebook and Google) shouldn’t be turned into adjudicators, who reason and decide about the legal or illegal nature of content they host, and thus about whether or not to take such content down. But is that a plausible view?
     Intermediaries, after all, necessarily must and will make such decisions in one way or another. Once notified of the existence of content that violates people’s privacy, reputation, or children’s rights, can intermediaries avoid weighing those rights against freedom of expression and vice-versa?
     Sure, we could compel intermediaries to defer everything to the courts. Yet, courts don’t work in Internet time, geography, or economy. The consequence would be that, with content remaining online, freedom of expression would always win, and other rights lose.
     But there is a second reason why we wouldn’t want to defer everything to courts. Isn’t it at the very core of any activity to make decisions that are central to it? And what is more central to being a host than making decisions about … hosting? Remove the reason element from any practice and we are left with a rather impoverished expression of it.
     The real problem with Internet intermediaries isn’t having private actors making legal decisions. We all make decisions about right and wrong all the time, and the law is, ultimately, a living expression of the multitude of these decisions. The real problem with Internet intermediaries is rather how, with what diligence, public spirit, and, indeed, responsibility they make the decisions they make.
     Yet, a concern with this ‘how’ is nowhere to be found in existing liability regimes. Rather, these regimes rely on arbitrary, outcomes-based approaches that entirely do away with reason. Their focus is placed on the – however wrongful – legally automatic tilting of the takedown scale to favour rights on one side or another, rather than on the reasoning processes through which the scale tilts... Click here to read the full article.

Tuesday, August 2, 2016

Sherif Elgebeily on the Hong Kong Election Confirmation Form Issue (SCMP)

Sherif Elgebeily
South China Morning Post
2 August 2016
Last weekend, the Electoral Affairs Commission decided to invalidate the candidacy of Hong Kong National Party member Chan Ho-tin for the upcoming Legislative Council election. The exact reasons behind this are unclear, but other candidates who also refused to sign a newly imposed declaration form have yet to receive notice on the validity of their candidacies, fuelling concern.
     The pledge to uphold the Basic Law is a fundamental part of the eligibility for candidacy, as outlined on the nomination form; it is for this reason that the ineligibility of Democratic Progressive Party of Hong Kong’s Yeung Ke-cheong – who refused to sign the nomination form itself – is legally valid.
     Should Chan have been disqualified?  On one level, the additional declaration form is obsolete, as it simply duplicates existing obligations. Worse, it also appears to contravene both the rule of law in Hong Kong and the Basic Law in its effect.
     First, there is no legal basis for the demand of an additional form, and the invalidation of candidacy on these grounds is beyond the powers of the commission. Any reference to such a form is absent in the law governing the election procedure; moreover, an exhaustive list of requirements for nomination is provided for under Section 40 of the Legislative Council Ordinance. Any legally enforceable declaration or criteria for the nomination of individuals would require amendments of the existing law, a path which has not been followed... Click here to read the full article.

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