Thursday, August 17, 2017

Herbert Loja on the Legal Status of the Airspace over an Indeterminate Territory: The Case of the Spratly Islands (J Territorial & Maritime Studies)

"Legal Status of the Airspace Over an Indeterminate Territory: The Case of the Spratly Islands" 
Herbert Aclan Loja (PhD Candidate)
Summer/Fall 2017, Volume 4, Number 2, pp 7-31
Abstract: This paper proposes an alternative approach in addressing the legal status of the Spratly Islands and its superjacent airspace. The paper adopts the conceptual framework of territorial sovereignty indeterminacy first articulated in the case of Eritrea v. Yemen (1998) in determining the legal status of the Spratly Islands. Relevant provisions of the 1951 San Francisco Peace Treaty and pertinent United States of America (U.S.) archival records will be examined. The proposition that the Spratly Islands may have the status of an indeterminate territory possessed of an indeterminate territorial airspace finds strong support from the terms of Article 2(f) of the San Francisco Peace Treaty and from the behavior of the states parties particularly of the U.S. before, during, and after the conclusion of the treaty. The paper invites a reassessment of the foundation of the claimant states' territorial claims to the Spratly Islands based on ancient or historic title and res nullius. It advocates for a less adversarial way of pressing for the claims. This is the first instance where the concept of indeterminate territory is applied in examining the legal status of the Spratly Islands and its airspace.

Wednesday, August 16, 2017

Emily Lee on Financial Inclusion, FinTech, RegTech & AML (J Business Law)

2017, Issue 6, published, pp 473-498
Abstract: This article evaluates the claim that FinTech—a portmanteau of finance and technology, including blockchain and automated suspicious transaction monitoring technology systems—has the ability to revolutionise financial inclusion, and examines whether regulatory technology (RegTech) can be used by regulators for tracking and monitoring AML/CFT compliance activities.
     Introduction: Financial inclusion denotes banks’ provision of basic financial services at affordable costs to those that need and qualify for them. Financial inclusion has strong social and economic implications. Access to basic financial services has been recognised as a basic civil right by the European Accessibility Act. The opposite is financial exclusion, which is when banks deny financial services to customers that they consider as posing high risks for money laundering and terrorist financing, giving rise to the term “de-risking”. 
     A litany of financial exclusion reports impelled the Hong Kong Money Authority (HKMA), the territory’s banking regulator, on 8 September 2016, to issue a circular to banks warning against the practice of de-risking, excluding customers from the financial system as the territory’s banks attempt to meet the anti-money laundering/countering the financing of terrorism (AML/CFT) requirements. Financial exclusion is driven by increasingly stringent documentary requirements and/or banks’ fear of regulatory reprisals if customers cannot prove the legality of their income or source of funds to their banks’ satisfaction. In over-compensating, banks have refused to approve account opening applications from some customer groups, with small and medium-sized enterprises (SMEs) and start-up companies (start-ups) being most affected... 
     This article addresses the following key issues: (1) the importance of financial inclusion since it has strong social and economic implications; (2) the claim that FinTech enables financial inclusion; (3) the problem of financial exclusion, which is linked to AML/CFT requirements; and consequently considers (4) whether the AML/CFT requirements are suitable to be put into a regulatory sandbox, a new regulatory approach whereby innovative FinTech products or services will be provided with regulatory flexibility for them to be introduced and tested in the market, and, if not, whether there is an alternative approach to grant regulatory flexibility so as to make financial services more accessible—the essence of financial inclusion...  Download the full paper here

Tuesday, August 15, 2017

FinTech and RegTech in a Nutshell, and the Future in a Sandbox (CFA Institute)

"FinTech and RegTech in a Nutshell, and the Future in a Sandbox"
Douglas W. Arner, Jànos Barberis, and Ross P. Buckley
July 2017, Volume 3, Issue 4, pp 1-20
Abstract: The 2008 global financial crisis represented a pivotal moment that separated prior phases of the development of financial technology (FinTech) and regulatory technology (RegTech) from the current paradigm. Today, FinTech has entered a phase of rapid development marked by the proliferation of startups and other new entrants, such as IT and ecommerce firms that have fragmented the financial services market. This new era presents fresh challenges for regulators and highlights why the evolution of FinTech necessitates a parallel development of RegTech. In particular, regulators must develop a robust new framework that promotes innovation and market confidence, aided by the use of regulatory "sandboxes." Certain RegTech developments today are highlighting the path toward another paradigm shift, which will be marked by a reconceptualization of the nature of financial regulation.  Click here for the full text.

Monday, August 14, 2017

Felix Chan on Enforcing Inconsistent Foreign Judgments (J Int'l Maritime L)

"Inconsistent Foreign Judgments on Exclusivity of Jurisdiction: Comity and Judicial Deference"
Felix Chan
The Journal of International Maritime Law 
2017, published, Vol.32, Issue 2, pp 91-95
Abstract: A domestic common law court is faced with an application to enforce a judgment issued by foreign court X. However, the judgment issued by court X is apparently inconsistent with another judgment previously rendered by foreign court Y. In addition, the action of court X in issuing the judgment may involve a breach of comity towards court Y. What should the domestic enforcing court do? What factors should the enforcing court consider when deciding whether the enforcement of the judgment rendered by court X is contrary to public policy on grounds of comity? In CompaniaSud Americana De Vapores SA v Hin-Pro International Logistics Ltd [2016] HKCFA 79, Lord Phillips of Worth Matravers sitting in the Hong Kong Court of Final Appeal articulated important principles and guidelines in these areas of private international law and the doctrine of comity. He identified the key factors the enforcing court should consider when evaluating whether the enforcement of a judgment rendered by foreign court X is contrary to public policy on grounds of comity, and whether the judgment of court X is in conflict with another judgment previously issued by foreign court Y on the same issue. Several aspects of Lord Phillips’ reasoning warrant further discussion and elucidation. 

Saturday, August 12, 2017

HKU Law's New Executive Director of the LLM Compliance & Regulation Programme

Syren Johnstone has been appointed Principal Lecturer and Executive Director of the Faculty of Law's LLM Compliance & Regulation Programme. 
     He is a Member of the Fintech Advisory Group of the Securities and Futures Commission (SFC), and a Consultant and Examiner to the Hong Kong Securities and Investment Institute (HKSI) for the Licensing Examinations for securities and futures intermediaries, the industry benchmark examination recognized by the SFC. Formerly a solicitor with Linklaters (London, Tokyo, Hong Kong), he moved into investment banking where he undertook senior management and responsible officer roles where he was regulated by the SFC and The Stock Exchange of Hong Kong Limited. 
     In 2016 he co-authored Financial Markets in Hong Kong: Law and Practice (OUP). His academic works have been referenced in Hong Kong’s Legislative Council and the Court of Appeal. Syren’s areas of expertise encompasses regulation of the securities industry, financial services law, listed companies, compliance processes, Fintech, corporate finance, mergers and acquisitions, joint ventures. 
     He holds two masters degrees, in science and law, from Oxford and London universities respectively.

Say Goo's Economic Efficiency Approach to Reforming Corporate Governance (Asian J L & Soc)

Say Goo
Asian Journal of Law and Society
July 2017, published online, pp 1-18
Abstract: This paper points out the problems of the current law on directors’ duties that forces directors to ignore stakeholder interests, with the unintended consequences of misallocation of resources and the weaknesses of a traditional legal approach to law reform, and uses multiple stakeholder boards as an example to demonstrate how an economic efficiency approach to law reform, adopting economic principles, could avoid some of the unintended consequences of a legal approach to law reform and help design better rules that promote allocative efficiency for the benefit of society as a whole. It argues that international organizations should take the lead in promoting the use of stakeholder directors in the board of directors of multinational corporations that have a history of corporate abuses for corporate decisions that have an impact on all stakeholders.

Thursday, August 10, 2017

Kai Yeung Wong Comments on the HKU Injunction Case (Civil Justice Quarterly)

"A missed opportunity to align the law of interlocutory injunctions with freedom of expression: University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd."
Kai Yeung Wong, SJD candidate 
Civil Justice Quarterly
2017, Vol. 36, Issue 3, pp 302-315
Abstract: Evaluates the Hong Kong Court of First Instance judgment in University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd on whether an interlocutory injunction restraining the press from publishing the leaked transcripts of private meetings of the university's Council on the appointment of its new Pro-Vice Chancellor should be lifted to protect the right to freedom of expression as the information was in the public interest.  See also Anne Cheung's commentary on the same case.

Belinda Law (JD 2016) Examines if Taxpayer Privacy is being Compromised in Hong Kong (Bulletin for International Taxation)

Belinda Law, JD 2016
June 2017, Volume 71, No 7
Summary: This article examines the protection of privacy for Hong Kong taxpayers and the extent to which taxpayer privacy is being compromised as financial institutions are forced to comply with the US Foreign Account Tax Compliance Act and, more recently, the Standard for Automatic Exchange of Financial Account Information in Tax Matters.

Friday, August 4, 2017

New Book on Civil Unrest and Governance in Hong Kong (Michael Ng and John Wong)

Michael Ng and John Wong (eds)
2017, Routledge, 220 pp
Description: This book examines important social movements in Hong Kong from the perspectives of historical and cultural studies. Conventionally regarded as one of the most politically stable cities in Asia, Hong Kong has yet witnessed many demonstrations and struggles against the colonial and post-colonial governments during the past one hundred years. Many of these movements were brought about in the name of justice and unfolded against the context of global unrest. Focusing on the local developments yet mindful of the international backdrop, this volume explores the imaginaries of law and order that these movements engendered, revealing a complex interplay among evolving notions of justice, governance, law and order and cultural creations throughout the under-explored history of instability in Hong Kong. Underscoring the apparently contrasting discourses on the relationship among the rule of law, law and order and social movements in Hong Kong, the contributors emphasise the need to re-examine the conventional juxtaposition of the law and civil unrest. Readers who have an interest in Asian studies, socio-political studies, legal studies, cultural studies and history would welcome this volume of unique interdisciplinarity.  Faculty chapter contributions by Michael Ng, Albert Chen, Benny Tai and Marco Wan.

Michael Ng on Rule of Law and Hong Kong's Student Umbrella Movement of 1919 (new book chapter)

"Rule of Law in Hong Kong History Demythologised: Student Umbrella Movement of 1919"
Michael Ng
in Michael Ng & John Wong (eds), Civil Unrest and Governance in Hong Kong: Law and Order from Historical and Cultural Perspectives (Routledge, 2017), pp 11 - 25
Introduction: In the 2005 Common Law Lecture, a prestigious annual seminar in which distinguished jurists address senior lawyers and law academics in Hong Kong, Sir Anthony Mason, former Chief Justice of the High Court of Australia and then Non-Permanent Judge of the Hong Kong Court of Final Appeal, spoke about the role of common law in Hong Kong:
     The common law also stands for a set of concepts, interests and values which it has protected during the course of its long history. They include the rule of law, the independence of the judiciary, access to the courts, the separation of the powers of government, liberty of the individual, freedom of expression, freedom of association … These values have both generated and informed legal principles including the rules of statutory interpretation. The common law supports the rule of law. Under the rule of law, the law is supreme, so that everyone, including those who exercise power, must conform to the law, a concept memorably captured in the celebrated aphorism ‘a government of laws, and not of men’… The common law stands both as a symbol and as link between Hong Kong’s past, its present and its future.
     English law is central to the history of colonial Hong Kong. Traditional colonial historians conceptualize it as a gift to the colonized, and it is still widely acknowledged by Hong Kong citizens today as a core contributing factor to the city’s continued growth and prosperity. The traditional narrative, which Sir Anthony reproduces above, is that the rule of law, which embraces the principles of judicial independence and offers such safeguards of individual liberty as freedom of expression, is the most important legacy of British colonial rule in Hong Kong, a legacy that is very often cited to distinguish the legal and societal development of Hong Kong from that of its neighbor across the border, mainland China. This chapter challenges this widely accepted narrative, thereby severing Sir Anthony’s link between common law’s legal past and present in Hong Kong. It argues that the traditional narrative simply does not stand up to scrutiny of the archival research. On the contrary, that scrutiny casts serious doubt on the weight afforded such liberal notions as the separation of powers, independence of the judiciary, and assurance of individual freedom of expression and association in the common law legal system practiced in Hong Kong in the pre-Second World War twentieth century, particularly in trial hearings in the Magistrates’ Courts, the courts that heard the majority of criminal cases in colonial Hong Kong.
     Through discussion of a widely reported court case concerning students’ anti-Japan movement in 1919, the chapter further argues that the common law system practiced in early twentieth-century played a more important role in reinforcing an authoritarian form of colonial law and order to achieve the British Empire’s strategic aim of maintaining its overseas territorial and economic possessions than in safeguarding individual liberty and the impartiality of the judicial process.
     Only a very limited number of scholarly works have addressed the prevalence of anti-Chinese legislation in nineteenth-and early twentieth-century Hong Kong, and no work to date has questioned the operation of the highly famed rule of law in the trial process of the latter period. This chapter thus constitutes a first attempt to demythologize the well-rehearsed history of common law in Hong Kong told by Sir Anthony Mason and like-minded historians through a close reading of trial hearing record. Owing to space limitations, only the aforementioned 1919 trial case, which was widely reported in both Hong Kong and overseas newspaper of the day, is used to make the case for the foregoing arguments. However, it should be emphasized that it is not the sole such case in the legal history of early twentieth-century Hong Kong (or at lease up to the outbreak of the Second World War as far as my current research is concerned). Many similar judicial cases have been recorded in my ongoing research project, the output of which will be published in due course.

Albert Chen on Social Movements and the Law: The Case of Hong Kong (new book chapter)

"Social Movements and the Law: The Case of Hong Kong"
Introduction: The relationship between social movements and the law in the Western world has been well studied. With regard to social movements in America, it has been pointed out that ‘legal norms, discourses, and practices in each case were an important constitutive element of evolving movement understandings, aspirations and strategic action. In Hong Kong, particularly since the handover in 1997, social movements have flourished, and the law has become an increasingly social movements and the law in post-colonial Hong Kong? Are theories developed in the West useful in understanding social movements and the law in Hong Kong? It is the purpose of this chapter to explore these questions.
     Our inquiry will proceed in the following stages. The first section of the chapter introduces theories developed in the Western world on social movements and their relationship with the law in order to provide a general theoretical foundation for the subsequent parts. The second section reviews the development of social movements in Hong Kong since the colonial era. The third section considers the development of Hong Kong’s legal system, and discuss several dimensions of law and social movements in post-colonial Hong Kong. Finally, the fourth section provides some concluding reflections.

Benny Tai on Civil Disobedience and the Rule of Law (new book chapter)

"Civil Disobedience and the Rule of Law"
Introduction: What is the relationship between civil disobedience and the rule of law? Is civil disobedience an inroad into the rule of law? Is it a legitimate consideration for the court in determining whether an offender is guilty and what the penalty should be? Does a citizen have a right to civil disobedience? Is civil disobedience momentous to advancement of the rule of law? These questions were hotly debated during the Occupy Central movement in Hong Kong. During a 79-day period between September and December 2014, thousands of Hong Kong citizens occupied the main streets of several busy districts to demonstrate against the territory’s undemocratic election system. 
     Peaceful protesters in Hong Kong advocate the view that the Occupy action, although illegal, was based on the spirit of civil disobedience. The aim of the civil disobedience movement was to bring constitutional and political change to the governance system of Hong Kong, making it more just. The protesters assert that their action is consistent with the rule of law because the ultimate goal of the law under the rule of law should be the achievement of justice. Albeit paradoxical, the purpose of breaking the law is to make the law better. 
     In the opening ceremony of the 2015 legal year, prominent figures in the Hong Kong legal community tried to answer the above questions, and presented differing views on the ‘proper’ relationship between civil disobedience and the rule of law. 
     Hong Kong Secretary for Justice Rimsky Yuen, criticised the ‘unlawful’ Occupy movement as a blatant challenge to the rule of law. To him, the rule of law is all about obedience to the law or acting in accordance with it. Yuen believes that resorting to unlawful means for the purpose of pursuing democratic change can never be justified. Doing so can only erode the rule of law. 
     Paul Shieh, then Chairman of the Hong Kong Bar Association, in contrast, ridiculed the government’s overemphasis on the ‘obeying the law’ aspect of the rule of law, dubbing it a hallmark of a regime that is keen on using the law as a tool to constrain the governed rather than as a means of constraining the way it governs. Shieh agreed there are historical examples of civil disobedience bringing about political or social change. However, he pointed out, there are limits to civil disobedience action: those engaged in it must not cause excessive damage or inconvenience. Shieh then expressed the belief that the conduct of some protesters during the ‘occupation’ may have overstepped these legitimate limits. 
     Geoffrey Ma, Chief Justice of the Hong Kong Court of Final Appeal, averred that most people had demonstrated respect for the rule of law during the protests. Ma’s understanding of the rule of law is broader than Yuen’s, and more akin to Shieh’s. Equality before the law, fidelity to the law and its spirit, and judicial independence are fundamentals of the rule of law in his eyes. As a judge, it is natural for Ma to emphasise this particular aspect of the rule of law. He repeatedly stressed that the administration of justice by the courts must not be affected by extraneous factors, including political factors. 
     An incident that took place during the Occupy movement serves to illustrate the three men’s sharply conflicting views on the relationship between the rule of law and civil disobedience. A taxi driver association applied to the court for injunction orders prohibiting any person from continuing to obstruct sections of specified roads in the occupied areas. It asserted that the business of its members had been seriously affected by the obstruction caused by the protesters. Injunction orders were granted on the grounds that the obstruction constituted a form of public nuisance. Taxi drivers were entitled to have the specified sections of the roads cleared, and bailiffs were sent to assist the plaintiff in doing so. However, some protesters refused to leave. The police who were there to provide support to the bailiffs arrested them. The charge was criminal contempt of court for failing to comply with the orders of the court.
     Yuen would consider the protesters to be acting unlawfully and that their actions could not be justified in any circumstances. Shieh might recognise their actions as civil disobedience. However, he could not accept any non-compliance with a court order properly issued, and would see the protesters as having crossed the legitimate limits of such disobedience. Finally, Ma would view the injunction orders as having been issued and implemented in accordance with his list of requirements for the rule of law. Hence, he would expect the court orders to be accepted and respected by all members of the community.
     Yuen, Shieh and Ma are all legal professionals, and their concerns are naturally concentrated on the administration of justice in the courts. The peaceful protesters, in contrast, perceive the law as going beyond the letter of legal rules. Although the requirements for the rule of law include an orientation towards respecting the law by obeying it on the part of the people, that orientation can hardly be the main component of the rule of law. The rule of law cannot demand that citizens obey the law unconditionally and unreflectively.
    To the peaceful protesters, the rule of law is more about limiting the powers of the government and ensuring adequate protection for the fundamental rights of the people. Justice means more than legal justice that can only be reached in court. An independent judiciary is surely one of the main pillars of the rule of law, as it can impose the necessary limitations on all public powers. However, independent courts under the rule of law still encounter constraints in achieving justice. Judges cannot go beyond the legal issues tabled before them to address the systemic injustices that caused so many people to leave the safety of their homes to fight for their fundamental rights in the streets. Under special circumstances and conditions, people may be justified in resorting to unlawful means to achieve justice, and even to act against a court order issued by an independent court, if justice cannot be done through the courts. 
     The contrasting views of the peaceful protesters and those of Yuen, Shieh and Ma reflect the complexity of the relationship between civil disobedience and the rule of law. Their differences may be caused by their limited understanding of civil disobedience or divergent understandings of the rule of law. I am not asserting that civil disobedience is not unlawful. The real issue is whether that unlawfulness can be justified and, if so, justified by what. 
     The aim of this chapter is to establish a thesis: civil disobedience is justified by the rule of law. To establish this thesis, I have to illustrate that the goal that civil disobedience claims to achieve is also the goal that the rule of law pursues and to demonstrate that civil disobedience is an effective way of securing the attainment of this common goal, at least in the long run, by creating a climate within which other means can be used to achieve that goal. 
     Civil disobedience is first defined in Part I by showing that its goal is to do justice. Part II advances a level approach to the rule of law, which integrates different understandings of the concept and necessitates a more substantive goal for the rule of law, i.e. achieving justice. In Part III, I argue that civil disobedience plays a pivotal role in the development of the rule of law in attaining its substantive goal of achieving justice. Finally, in Part IV, I conclude the chapter by proposing a developmental model of the rule of law that provides justification for civil disobedience within the framework of the rule of law.

Marco Wan on the Artwork of Hong Kong's Occupy Central Movement (new book chapter)

Marco Wan
in Michael Ng and John wong (eds), Civil Unrest and Governance in Hong Kong: Law and Order from Historical and Cultural Perspectives (Routledge, June 2017), pp. 179-195
Introduction: Hong Kong’s Occupy Central movement, or the Umbrella Revolution as it became known in the international media, was an event that changed the city’s cultural fabric. From its origins as a peaceful protest against the package of electoral reforms imposed on the city by Beijing, as well as against the city’s slow pace of democratization more generally, it turned into an event that divided Hong Kong society in an unprecedented way, exposing divisions between people of different generations, political persuasions and aspirations. As the title of this volume indicates, any form of civil unrest has implications for the maintenance of law and order, and much of the local discussion of Occupy Central has focused on its legal dimension. For instance, there have been lively debates about whether it constituted a form of civil disobedience, as its organizers claimed, or whether it was merely a form of reckless public disorder for which they should have been punished. There have also been concerns about the abuse of police powers and whether the authorities used an inordinate amount of force to contain the protesters.
     Another strand of the discussion around Occupy Central has focused on its artwork. As one online art magazine noted during the movement, ‘colors abound [on] the streets […] as protesters create public art and turn occupied areas into surreal exhibition spaces. Arguably the most iconic artwork was the ten-foot-tall wooden statue of the Umbrella Man by the artist Milk. This towering figure with an outstretched hand holding the symbolic umbrella of protest became an artistic focal point for the movement. However, the street art produced during Occupy Central extends far beyond the Umbrella Man, encompassing a plethora of hand-drawn pictures, printed images and graffiti. There was keen awareness that once the government cleared the streets, much of this artwork would be lost. The Umbrella Movement Art Preservation project, or UMAP, was established as a way of archiving and preserving these images, although at the time of writing its digital archive is still under construction.
     This chapter moves beyond discussions of Occupy Central’s legality to explore the cultural significance of some of the images that this momentous event generated. Civil unrest cannot be understood in isolation from the societal forces that produced it, and the artwork of Occupy Central provides one medium for understanding such forces. This chapter therefore focuses on the movement’s aesthetic, rather than political or legal, dimension. It argues that its street art provides a point of entry into questions of identity in Hong Kong. In other words, the images can be interpreted as reflections of the ways in which Occupy Central perceived itself, as well as the ways in which some Hong Kongers imagined their own sense of self. These images suggest that Occupy Central was an event that did not have a unitary or unambiguous notion of itself, and that this multifaceted self-conception may be tied to the complex sense of self amongst many Hong Kongers in the early part of the twenty first century. 

Monday, July 31, 2017

Hualing Fu on China's Striking Anticorruption Adventure (new book chapter)

Hualing Fu
in Weitseng Chen (ed), The Beijing Consensus? How China Has Changed Western Ideas of Law and Economic Development (Cambridge University Press, April 2017),  pp. 249-274
Introduction: China is a high-corruption country and the ruling Communist Party (“the Party”) has made anticorruption enforcement a top priority. China is also well known for her authoritarian decisiveness in policy making and her effectiveness in policy implementation with a centralized political control contrasting sharply with a decentralized economic policy. This chapter examines two key aspects of this formulation. First, how has the authoritarian characteristic affected China’s anticorruption enforcement; and second, how is China different from other countries, authoritarian or otherwise, in this regard? 
     There has been an ongoing debate between a “convergence theory” and a “divergence theory” on China’s political-legal development. According to the convergence story, nations different in their level of legal development largely because of the different levels of economic growth. China is significantly different from high-income countries because China, as a middle-income country, lacks resources and capacity to support an advanced system. But as China progresses economically, social and legal changes are bound to follow. Consequently, gaps in the legal system will be filled, and the distance between a mature legal system and an emerging legal system will be narrowed. Substantive convergence is the destination of all legal systems even though it may appear in different forms. There is an incremental trajectory along which nations develop their legal system, in a thin sense, and while sequencing in a certain sense may be important, all nations can achieve that trajectory once the necessary conditions are present. In the anticorruption field, the Party proves to be resolute and innovative in designing anticorruption strategies and has demonstrated both the will and ability to put corruption under effective control by resorting to measures that are not fundamentally different from international best practices. 
     While the divergence theory has a long spectrum of arguments, its central argument is that China has a unique system that renders convergence impossible. In Minxin Pei’s cynical formulation of a “trap thesis”, China’s political model suffers from fatal flaws and is not self-correcting. Following a liberal line of conceptualization, Pei argues that, without meaningful political competition, separation of powers, independent legal institutions and active participation from the civil society, China is unlikely to overcome its corruption problem that is inherent in the authoritarian system. As a result, the regime becomes increasingly fragile structurally as it sinks deeper into a trap. Any incremental reform, which may prolong regime survival, cannot lead to a fundamental political transformation. Consequently, Pei provides a provocative and dim view of political corruption in China. He concludes that corruption will continue to entrench itself and the anticorruption mechanisms that rely on the Party’s internal disciplinary framework, without the support of law and legal institutions, will not be able to stop the further spread of the trend. As a result, the regime must collapse on tis own weight before any transformation can occur. Pei’s trap thesis has been shared by many others who, in various ways, present a China-collapse thesis. 
     Others have turned Pei’s thesis on its head and argued that what appears to be fatal for Pei is precisely where China’s strength lies and contributes to China’s authoritarian resilience. Striking a positive note, many have argued that, instead of converging into a Western political model, China may have discovered a distinct development model based on its effective and decisive political leadership or communitarian social structure. China’s anticorruption efforts deliver precisely because it is led and controlled by the Party at the macro-level. This anticorruption model is legitimate and effective because it is embedded within the Chinese reality and the cultural milieu. Seen from this perspective, China’s political system, including its anti-corruption regime works effectively in these Chinese circumstances. 
     This chapter discusses China’s anticorruption enforcement within the context of the convergence/divergence debate and examines the degree to which the Chinese anticorruption model converges or diverges from the prevailing “international best practice” that is commonly observed in the high-income/low-corruption countries. Specifically this chapter will also discuss whether China could develop an anticorruption system that operates within a rule-based legal framework. The principal argument is that China’s anticorruption practice manifests certain core features that may be unique to the Chinese political context and those features show most strikingly at the height of an anticorruption campaign. But if we look beyond an exceptional “strike-hard campaign” that targets the “tigers”, shift the focus to the more routine enforcement against “files” and in particular, observe China’s anticorruption enforcement for a longer time span, it becomes clearer that China does not operate an anticorruption model sui generis. As the anticorruption storm dies down (as it will naturally occur), the enforcement will become more routine, regularized, and institutional. When that happens, the Chinese anticorruption model, if any, will appear no different from models elsewhere. 
     This chapter is divided into five parts. Following this introduction, Part II introduces, in broad strokes, the core features of the internal disciplinary inspection committee (jiwei) of the Party. Jiwei has come to political prominence in the Xi government and is becoming the most powerful force in the Party apparatus. This part explains the political meaning of Party discipline and the core institutional design that renders the mechanism effective. Yet, despite the ostensible politicization of anti-corruption, the jiwei mechanism, shares some core characteristics with the most successful anticorruption stories in other authoritarian systems that one may observe in Hong Kong or Singapore. Part III then moves beyond jiwei to study the much marginalized and neglected legal anticorruption system in China and its interaction with jiwei. While fundamental differences between the two systems remain, they have, over the years, moved closer to one another and have the potential to replicate each other’s structure and modus operandi. Part VI examines the anticorruption mechanism from a historical perspective and offers insights on the degree to which law is relevant to anticorruption enforcement. Part V concludes this chapter... Click here to download the chapter from SSRN.

Friday, July 28, 2017

Albert Chen on Constitutions, Constitutional Practice and Constitutionalism in East Asia (Routledge Handbook of Asian Law)

"Constitutions, Constitutional Practice and Constitutionalism in East Asia"
Albert Chen
in Christoph Antons (ed), Routledge Handbook of Asian Law (Routledge, Nov 2016), pp 75-93.
Abstract: The constitutions and constitutional practices of states in East and Southeast Asia (hereafter 'East Asia') provide worthwhile case studies for scholars of comparative constitutional law, constitutional theory and politics. This chapter seeks to provide a conceptual framework for such comparative studies and discuss some key components of the existing literature on the subject. It is hope that the chapter can serve as a point of departure or guide for further research into the topic. Given space limitations, the treatment in this chapter is necessarily selective and incomplete, in terms of both the countries and the literature included in the discussion. 

Wednesday, July 26, 2017

Yahong Li Comments on Hong Kong's High Speed Railway Patent Infringement Case (new book chapter)

in Kung-Chung LIU (eds), Annotated Leading Patent Cases in Major Asian Jurisdictions (City University of Hong Kong Press, 2017), pp 69-83. 
Summary: This is a recent patent infringement case in Hong Kong (SNE Engineering Co Ltd v Hsin Chong Construction Co Ltd [2014] 2 HKLRD 822 (CFI)), which involves a short term patent, Patent No. 1150416 for a construction method for extracting building piles from the ground. The plaintiff claimed that its short term patent was infringed by the defendant, while the defendant raised the defense of patent invalidly due to lack of sufficient disclosure and lack of novelty and inventive steps. The High Court invalidated the patent, and dismissed the claim of infringement. However, its reasoning leaves room for improvement, and implicates the need for future reform of Hong Kong’s short-term patent system but not the court system.

Monday, July 24, 2017

Richard Wu's Study of Ethical Values of Law Students in Beijing, Taipei and Hong Kong (J Comp Law)

"A Comparative and Empirical Study of Ethical Values of Law Students in Beijing, Taipei and Hong Kong: Implications for Legal Education and Law Schools in Mainland China"
April 2017, Volume 11, Issue 2, pp 258-282 
Abstract: This article investigates empirically the ethical values of law students in the Greater China Region in their final two years of legal education by surveying 1,027 students in Hong Kong, Beijing and Taipei. It first compares the demographics of law students in these three Chinese cities before examining their responses to different ethical dilemmas. Our data revealed a feminization of legal education in that women are dominating the law student population in Mainland China. It also appears that a new generation of lawyers emerging in Mainland China who attach more importance to the value of 'work-life balance'. On balance of the findings, this article argues that Chinese law schools should cultivate virtues like honesty, perspectives and fairness among their students to help them encounter ethical dilemmas. They should also nurture professionalism among law students in their 'ethics of duties', 'ethics of aspirations', and 'personal conscience'. Finally our data did not reveal any negative impact of law school experience on the ethical values of law students in Mainland China, which findings contradict the argument that legal education has diminished law students' values as suggested in some existing literature. 

Thursday, July 20, 2017

Richard Wu's Empirical Study of Hong Kong Law Students' Ethical Values (J of Legal Ethics)

Journal of Legal Ethics
Mar 2017, published online, pp 1-26
Abstract: This article investigates empirically the ethical values of law students in Hong Kong in their final two years of legal education. It first analyses the demographics of these law students before examining their responses to different ethical dilemmas. The findings suggest that feminisation has taken place in Hong Kong law schools. The study also found that a new generation of law students is emerging in Hong Kong that put more emphasis on the value of work-life balance. Finally, the article argues that common law education has enhanced the professionalism of law students in Hong Kong and has contributed to their development of such professional values as ‘professional integrity’, ‘obedience to the law’ and ‘civil duty’.

Wednesday, July 19, 2017

Guide to Legislative Interpretation in China (Prof Hualing Fu)

In this short guide, I examine legislative interpretation by the Standing Committee of the National People’s Congress (NPC). I make two related points: 
   (1) It may not be possible to distinguish legislative interpretation from legislative amendment. While they are conceptually distinct, it is a distinction without differences as a matter of legislative practice; and 
 (2) Because of the fuzziness between interpretation and amendment, legislative interpretation, unless otherwise stated, does not have retrospective effect. 
     According to the Decision on Legal Interpretation Work, promulgated by the NPC Standing Committee in 1981, where a law or decision that has been promulgated by the NPC needs further clarification or supplementary regulations, the NPC Standing Committee may give interpretations or make regulations through decisions.
     Although the Decision on Legal Interpretation Work refers to both clarification (明确界限) and supplementary regulation (补充规定), it is not clearly stated whether an interpretation is limited to clarification of a legal provision (and supplementation can only be done through a new enactment) or a legal interpretation can both clarify and supplement a legal provision. 
     The uncertainty in the 1981 Decision may have contributed in a commonly held view that, in the Chinese legal system, a legislative interpretation may both clarify and supplement a legal provision. The Constitution 1982 specifies the law-making powers of the NPC and that of its Standing Committee. The Constitution refers to three ways through which the Standing Committee may act in relation to a law that has been promulgated by the NPC. 
     Article 67 (3) states that the Standing Committee can “supplement and amend” laws that have been promulgated by the NPC; and Article 67 (4) states that the Standing Committee has the power interpret law.
     While Standing Committee 67 (3) may supplement and amend laws on the condition that the supplementation and amendment do not violate the basic principles of the legal provisions to be supplemented and amended, there is no such condition imposed on interpretation, implicitly because interpretation, being different from supplementation and amendment, is limited to the clarification of the meaning of law which it already has.
     The Constitution does not delineate the boundaries between supplementation and amendment on one hand and interpretation on the other, but it says clearly that interpretation, conceptually, is not supplementation. 
      It is the Legislation Law that finally sets a clear perimeter for legislative interpretation. Under the Legislation Law, legislative interpretation has two meanings: 1) further clarification of a legal provision, and 2) the application of an existing legal provision to a new situation.  But is this a real distinction between interpretation and supplementation, or a distinction with a difference, as the Court of Appeal in Chief Executive v President of the Legislative Council [2017] 1 HKLRD 460, [55] doubted?  I have looked at the matter and I regret I cannot answer the question with any confidence. 
     There are to date over 10 Legislative Interpretations by the Standing Committee on China’s Criminal Law and most of the Interpretations, in form, aim to clarify the meaning of terms or provisions. 
     The 1st interpretation, given by the Standing Committee on April 2002, related to the circumstances in which members of the Village Committee, a statutory authority exercising self-governing power within a village, are deemed to be civil servants and subject to China’s anti-corruption law. There were different legal views on the applicability of anti-corruption law on members of village villages and the 2002 Interpretation specifies the circumstances in which the law applies to Village Committee members. Under the Interpretation, village committee members are deemed to be civil servants and punishable under the anti-corruption law when they exercise a number of enumerated public functions on behalf of the government.  Most of the legislative interpretation thus “explains” the meaning of a legal term in similar ways. 
     Another 2002 Interpretation, for example, clarifies the meaning of misappropriating public funds for “personal use” by giving three examples which should be regarded as “personal use”. Under the Interpretation, “for personal use” is given a broad interpretation to include a personal decision to allow the fund of one organisation to be used by another, even though the relevant decision-maker did not personally use the fund as such. 
     Yet another 2002 Interpretation on persons with capacity to commit an offence of dereliction of duty, stating that anyone who is entrusted by the state to perform public services can be charged with the offence regardless of whether that person concerned is a properly enlisted state functionary. 
     A 2004 Interpretation tries to clarify the meaning of credit card within the meaning of criminal law. According to the Interpretation, credit card “refers to the electronic payment cards issued by the commercial banks or other financial institutions, which possesses all or some of the functions of consumption payment, receiving loans, transfer account settlement, cash deposit or withdrawal.” Effectively, credit card within the meaning of Criminal Law includes debit cards and other bank cards.
     A 2005 Interpretation clarifies the meaning of “other invoices for tax rebate or tax offset” and defines them as “any receipt, payment voucher or tax payment voucher that are not the special invoices for value-added tax but may be used for tax rebates or tax offset.” 
     Clarification of law can go into great detail that would otherwise, in the Mainland legal tradition, have been left to the Supreme People’s Court (SPC) and the Supreme People’s Procuratorate (SPP). Those questions are returned to the Standing Committee for clarification largely because of the failure on the part of the SPC and SPP to achieve a consensus, which is often required in the Chinese criminal process. 
     The Interpretation of Article 313 of the Criminal Law is a good example. Article 313 relates to the enforcement of a court order and punishes anyone who is able to but refuses to comply with such an order. The Standing Committee provides a list of the types of decisions that will be deemed as court orders, including mediation agreement that is legally effective and arbitral award. The Interpretation further provides a long list of circumstances, which can be regarded as satisfying the test of being able to comply with a court order but refusing to do so. That seems clearly a function that should have done by the SPC, but in the Mainland case where a competent judiciary is occasionally absent, the legislature has to step in to fill the vacuum. 
      Legislative interpretation thus provides a dispute resolution function and a coordination function. The disagreement on the definition of organised crime between the SPC and the SPP is illustrative. The SPC was of the view, as expressed through its own judicial interpretation, that, as an element of the offence of organised crime, there must be the existence of the so-called “protective umbrella”, that is illegal protection of a criminal organisation by government officials, making the crime hard to prove. The police and prosecution disagreed and their disagreement escalated and finally reached the Standing Committee, as the 1981 Decision demanded. In a 2002 Interpretation, the Standing Committee clarified Article 294 of the criminal law to the effect that a “protective umbrella” is one of sufficient conditions for organised crime. But it is not a necessary condition. 
     The meaning of “new situation” in the second limb of the Legislative Law is not clear. It may be “new” in the sense that a new type of criminal activities has emerged and it is uncertain whether the existing criminal law can be extended to punish those new offences. Local practices vary, disagreement abounds and an authoritative determination is needed, often on an urgent basis. An interpretation by the Standing Committee is needed to confirm whether an existing criminal provision can be extended to the new situation. Are “fossils of ancient vertebrates and ancient humans of scientific significance” “cultural relics” within the meaning of provisions of the Criminal Law? A number of articles in the criminal law punish any person who smuggles, steals, damages, sells or illegally transfers cultural relics. Without any elaboration, the Standing Committee says relevant article protecting cultural relics cover “fossils of ancient vertebrates and ancient humans of scientific significance”. Can the criminal offence of defrauding public and private property be used against the newly emerged offence of cheating on social security schemes? The Standing Committee issued an Interpretation in 2014 and answered the question in the positive. More crimes are being committed in the name of a corporation, an organisation or otherwise a work unit. Should corporate liability, which exists as a general principle, be extended to a specific offence which does not expressly allow corporate liability? The Standing Committee said "no" in a 2014 Interpretation excluding corporate liability unless it is specifically provided for in relation to a particular offence. 
     It may be “new” in the sense that legal change elsewhere has taken place and is having an impact on criminal law and an interpretation is needed to reflect the change. Criminal offences in relation to companies are subject to legal requirements in other legislation pertinent on company registration and operation. Legal changes in the Company Law would cause corresponding changes in the Criminal law and an interpretation may be needed to reflect that “new situation.” Thus, according to a 2014 Interpretation “company” within the meaning of Articles 158 and 159 of the Criminal Law refers only to companies that are subject to a paid-in capital requirement for company registration. Before 2014, Chinese company law required a certain amount of capital to be properly deposited before a company could be properly registered and Articles 158 and 159 of the criminal law punishes, inter alia, the offence of falsifying paid-in capital. That interpretation was made in response to the change in the Company Law, which waived the paid-in capital requirement for most companies. 
     So far so good. But the difficulty is this: there is no reasoning in these interpretations to distinguish an interpretation from a supplementation. When the Standing Committee decides that credit card includes debit card, cultural relic includes fossils of ancient vertebrates, and court order includes a mediation agreement, it, in its typical manner, does not offer explanations. It tells what it is but not why it is. Without adequate reasoning, it is impossible to second-guess where an interpretation ends and where a supplementation begins, and it is difficult to say the formal distinction between interpretation and supplementation has much substance in Chinese law. 
     Chinese law does have a design to curb any potential interpretative excess and abuse, however. That is to disallow any retrospective impact of an interpretation and treat an interpretation as legislation. While the Standing Committee has never stated explicitly and clearly whether a legal interpretation has retrospective effect, the SPC, with clear endorsement from the Standing Committee, has enacted Several Provisions on the Work of Judicial Interpretation in 2007. Article 25 (2) states that a legal interpretation takes effect on the day of its promulgation, unless the legal interpretation states otherwise. Legal interpretation is an integral entity and governed by the same rules. The interpretation rules of the SPC, I submit, apply to all legal interpretation in China, and, therefore, legislative interpretation does not have retrospective effect under Chinese law unless the Standing Committee of the NPC explicitly states the contrary.  Written by Professor Hualing Fu.

HKU Law Faculty Members Comment on the Disqualification of Four Hong Kong Legislators

Cheng Chan Lan Yue Professor in Constitutional Law, Professor Albert Chen, write an article published in Ming Pao on 18 July 2017 calling for discretionary treatment on issues of legal costs and disgorgement of salaries and benefits in respect of the four legislators who were recently disqualified for failing properly to take their oath of office.

On 14 July, the Court of First Instance of the High Court of Hong Kong decided the case brought by the government questioning the qualification of four members of the Legislative Council (LegCo), for they declining or neglecting to take the LegCo Oath. The court ruled that the four members failed to meet the statutory requirements of the oath taking before assume office of the LegCo.
     It is noteworthy that, although this case and Leung and Yau’s case in last year are both about the oath taking and disqualification of membership, the legal bases the court rules upon in the two proceedings are not the same.
     In the case of Leung and Yau, the Honourable Justice Au, Judge of the Court of First Instance of the High Court, points out that even if the court does not refer to the Interpretation made by the Standing Committee of the National People's Congress in November last year (NPCSC Interpretation), the two members should still be disqualified for their denial of oath according to Hong Kong local laws (such as the Oaths and Declarations Ordinance and the relevant provisions of the Basic Law). The main issue is not whether the words and deeds of the two members constitute a denial of oath, the focus of the debate lies in whether the court has the power and should intervene in the "internal business" of the LegCo or the decision made by the President of the LegCo is amenable to judicial review.
     However, in the present judgment concerning the four LegCo members, the same Honourable Justice Au, grounds the ruling on the NPCSC Interpretation and precedents of other Hong Kong courts, as well as the Basic Law and local ordinance. From the judgment, we can see that the NPCSC Interpretation made in last November is one of the important legal bases of the decision. The ruling has also dealt with the legal issues about the retrospective effect of the NPCSC Interpretation and when should it come into force... Click here to read the article in full in Chinese.  Professor Chen was also interviewed in Cantonese on Cable TV news, click here to view.

Kimmy Chung, Ng Kang-chung, Ajay Singh
South China Morning Post
18 July 2017
Legal experts warn that more Hong Kong pan-democratic lawmakers face the same fate as their six colleagues barred over improper oath-taking in the Legislative Council. One legal scholar has even proposed allowing a judge to ­administer oath-taking to avoid similar troubles in future.  At least nine more lawmakers who shouted political slogans or tore up documents during their swearing-in last October may be in a “highly risky” position.
     These lawmakers are currently facing, or have faced judicial reviews: Raymond Chan Chi-chuen of People Power, Cheng Chung-tai of Civic Passion, non-affiliated localist Shiu Ka-chun, social activist Eddie Chu Hoi-dick, Democrats Andrew Wan Siu-kin, Lam Cheuk-ting, Helena Wong Pik-wan, and Roy Kwong Chun-yu, and the Labour Party’s Dr Fernando Cheung Chiu-hung.
...
     Professor Simon Young, of the faculty of law at the University of Hong Kong, said: “All of [the nine pan-democrats] are liable to be unseated because their oath-taking lacked sufficient ­sincerity or solemnity or was ­otherwise defective in form.
     “This is the consequence of the ­judgment. We must now seriously ­consider whether the system should be reformed such that High Court judges will administer oaths directly.”
     However, Albert Chen Hung-yee, a member of the Basic Law Committee, did not believe a judge was needed for such a task...  Click here to read the full article.

Chris Lau, Julia Hollingsworth, Tony Cheung
South China Morning Post
15 July 2017
The far-reaching judgment disqualifying four lawmakers from Hong Kong’s legislature strongly leaned on Beijing’s interpretation of the oath-taking rules and has “changed the rules of the game” in the Legislative Council, lawyers said.er
     In unseating the lawmakers on Friday, Mr Justice Thomas Au Hing-cheung extended the scope of the rules governing swearing-in ceremonies to include statements made before and after legislators’ oaths, meaning their pledges could now be deemed invalid even if they read the oath itself correctly.
     Previously, the rules had only been applied to the oath itself – not statements made either side of it, University of Hong Kong principal law lecturer Eric Cheung Tat-ming said.
     “It changes the rules of the game,” he said... Click here to read the full article.

Po Jen Yap on New Democracies and Novel Remedies (Public Law)

"New Democracies and Novel Remedies"
Public Law
Abstract: Discusses the novel constitutional remedies adopted by courts in emerging democracies to ensure the Government's observance of the law. Reviews, with reference to case law, the approach of courts in South Africa, India and Hong Kong to: (1) the granting of engagement orders; (2) the making of suspension orders with "bite"; and (3) the making of judicial directives in response to political incompetence or intransigence.

Scott Veitch on Law in the Risk Society, Challenging Legal Concepts (new book chapter)

"Law in the Risk Society: Challenging Legal Concepts"
in Ubaldus de Vries and John Fanning (eds), Law in the Risk Society (Eleven International Publishing, 2017) pp 39-60.
Introduction: Ulrich Beck's seminal contribution to sociological enquiry lies in the development of his theory of "risk society". In this essay I outline several keys aspects of this, and make specific some implications for the role of law and legal institutions. I then proceed to consider three examples whereby the theory of risk society may be further enhanced, albeit with some caution. These examples refer to the implications of 'virtue risk society'; the question of competing modernities (with reference to China) and the politics of the commons today. I conclude with some reflections on the matter of legal responses to the condition Beck describes.

Friday, July 14, 2017

Michael Ng on Press Censorship and Rule of Law in Hong Kong 1850s to 1940s (Law & Literature)

Law & Literature
July 2017, published online, pp 1-32
Abstract: This article constitutes the first in-depth study of press censorship in British Hong Kong during the first century of colonial rule. By revealing how the press, the Chinese press in particular, was continuously and systematically monitored and pervasively censored through the collaborative efforts of executive actions, legislative provisions and judicial decisions, this article further posits that the common law system practiced in British Hong Kong during the period under study was complicit in the imposition of an authoritarian form of law and order, and was more interested in preserving the British Empire's overseas territorial and economic possessions and managing the power equation in the region than in safeguarding individual liberties in Hong Kong. Hong Kong is often praised for its rule-of-law colonial legacy, but this article argues that such narrative does not stand up to the scrutiny of archival study. The English law in Hong Kong history, rather than constituting a lens through which one can witness Hong Kong's quest for modernity, is more akin to a mirror reflecting an ongoing cycle of coercion and resistance through law. Drawing on unexplored archival sources, the article first discusses how the colonial government used libel lawsuits to punish the press for criticism of the government in the 19th century, before turning to describing in detail the daily mandatory vetting of Chinese newspapers by colonial censors under the office of the Secretary for Chinese Affairs and related prosecution cases in the early 20th century. The paper concludes with an exploration of the tension between the notion of a free press and the governance fears of the British Empire in the Far East revealed by this history of silencing the press in Hong Kong.  

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