Thursday, December 21, 2017

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


Vol. 7, No. 10: Dec 19, 2017


1. Moving Forward on Listing Reform
Syren Johnstone, Department of Law, University of Hong Kong, Asian Institute of International Financial Law
Nigel Davis, University of Hong Kong
Douglas W. Arner, University of Hong Kong - Faculty of Law

2. Law School Productivity & Impact–Evidence from the Legal Scholarship Network
Ryan Whalen, The University of Hong Kong - Faculty of Law

3. The ICO Gold Rush: It's a Scam, It's a Bubble, It's a Super Challenge for Regulators
Dirk A. Zetzsche, ADA Chair in Financial Law / Inclusive Finance, University of Luxembourg, Heinrich Heine University Duesseldorf - Faculty of Law - Center for Business & Corporate Law (CBC)
Ross P. Buckley, University of New South Wales (UNSW) - Faculty of La
Douglas W. Arner, University of Hong Kong - Faculty of La
Linus Föhr, Research Assistant @ ADA Chair in Financial Law (inclusive finance)

4. 2016年香港立法会选举及宣誓风波法律评析———历史和比较法的视角 (A Legal Analysis of the 2016 Hong Kong Legislative Council Oath-Taking Controversy: A Historical and Comparative Perspective)
Han Zhu, Centre for Chinese Law, The University of Hong Kong Faculty of Law
Albert H. Y. Chen, The University of Hong Kong - Faculty of Law

5. The Developing Nature of Arbitration in Mainland China andIts Correlation with the Market: Institutional, Ad Hoc, and ForeignInstitutions Seated in Mainland China
Weixia Gu, University of Hong Kong - Faculty of Law

6. Judging in Europe: Do Legal Traditions Matter?
Angela Huyue Zhang, King's College London, The University of Hong Kong - Faculty of Law
Jingchen Liu, Columbia University
Nuno M. Garoupa, Texas A&M University School of Law, Catholic University of Portugal (UCP) - Católica Global School of Law

Wednesday, December 20, 2017

Vicci Lau Appointed Chairman of the Toys and Children's Products Safety Appeal Board Panel

Congratulations to Vicci Lau who has been appointed Chairman of the Toys and Children's Products Safety Appeal Board Panel. Another graduate of the HKU Law Faculty was appointed the Deputy Chairman, Ms Abigail Wong (LLB 2001, PCLL 2002).
     The Toys and Children's Products Safety Appeal Board Panel is established under section 15 of the Toys and Children's Products Safety Ordinance (Cap 424), which was enacted in 1993 to "provide for safety standards for children's toys and safety standards for specified chattels used in association with children, and to provide for other powers to enhance the safety of children" (long title). 
    The appointments will take effect on 1 January 2018, for a term of two years. Click here for the government's announcement.

Ryan Whalen on Common Law Evolution and Judicial Impact in the Age of Information (Elon L Rev)

"Common Law Evolution and Judicial Impact in the Age of Information"
Ryan Whalen, Brian Uzzi and Satyam Mukherjee
Elon Law Review
Vol. 9, Issue 1
May 2017, pp. 115-170
Abstract: All common law systems draw from the past. As judges draft opinions, they cite to relevant case law to guide their decision making. These citations provide a record of how new legal developments draw on previous holdings. This Article presents the first thorough data-driven analysis of how different patterns of drawing from precedent are related to the influence a judicial opinion has on the evolution of the law.
     We show that there are previously undiscovered patterns in the way that common law systems evolve. By focusing on two measures of the age of the references cited in a judicial opinion—reach (average age of cited works) and range (variance of ages cited)—we find that there is one type of citation behavior that is strikingly more likely to be used in highly influential opinions. Cases featuring low reach and high range are more than twice as likely as other types of cases to go on to be highly influential opinions. Evidence for these conclusions is based on three sets of judicial opinions that span a century of time and diverse jurisdictions— the U.S. Supreme Court, the Supreme Court of Canada, and the Supreme Court of India. While these three jurisdictions vary in the way they cite to precedent, the single referencing pattern found to exist behind especially influential cases suggests there is a nearly universal commonality in the evolution of the law.
     Our findings help us better understand how common law high courts draw from the past to support important legal holdings. In addition to our substantive findings, this article demonstrates the power of computational legal studies of large datasets to generate novel analyses and findings of previously undiscovered empirical legal patterns.  Click here to download the full article.

Monday, December 18, 2017

Richard Cullen on Hong Kong, the Chinese Anthem and the Basic Law (IPP Review)

"Hong Kong, the Chinese National Anthem and the Basic Law"
Richard Cullen
IPP Review
13 December 2017
Abstact: The history of the creation and use of the Chinese National Anthem is remarkable. Those who choose to direct scorn at the National Anthem when it is played at certain events in the Hong Kong likely have limited understanding, at best, of this intriguing history.
     The new National Anthem Law (NAL) will be applied in Hong Kong: (a) through reliance on Article 18 and Annex III of the Basic Law of the HKSAR; and (b) by local application. Although it is unlikely that the criminalizing provisions of new NAL will be applied retroactively in the Hong Kong, the exploration of that possibility shows how National People’s Congress Standing Committee laws properly added to Annex III for application in the HKSAR may enjoy a quasi-constitutional status in Hong Kong. The status of these Annex III laws within the HKSAR has, hitherto, been little researched.  Click here to read the full article.

Wednesday, December 13, 2017

Gu Weixia on Piercing the Veil of Arbitration Reform in China (Am J Comp L)

Gu Weixia
The American Journal of Comparative Law
Published on 8th December 2017
Abstract: The promulgation of the China Arbitration Law in 1994 largely reformed and gave shape to the modern Chinese arbitration regulatory framework. However, since then, there has been little legislative improvement in meeting the changing needs. Instead, judicial efforts by China’s Supreme People’s Court and institutional initiatives by Chinese arbitration commissions have further refined and internationalized the Chinese arbitration system. Recent years have witnessed many changes in the Chinese arbitration landscape, particularly the formation, expansion, and complication of the Chinese arbitration market. This Article first critically examines the current regulatory framework and special features of the Chinese arbitration system, many of which promised in the China Arbitration Law, and often referred to as “arbitration with Chinese characteristics.” It then analyzes comprehensively arbitral developments of the past decade in order to pierce the veil of arbitration reform in China, highlighting the pitfalls, patterns, prognoses, and prospects. Finally, this Article identifies the “essential” and “highly recommended” ingredients in prospective reform proposals and examines the extent to which such proposals can actually transform China into a favorable international arbitration forum.  Click here to read the full article.

Gu Weixia on The Developing Nature of Arbitration in Mainland China (Contemp Asia Arb J)

Gu Weixia
Contemporary Asia Arbitration Journal
Nov 2017, Volume 10, Issue 2, pp 257-291 (Special Issue on “Institutional and Ad Hoc Arbitration and Mediation”)
Abstract: In the process of developing arbitration in Mainland China, there are three important landmarks dividing the development into three phases. The Arbitration Law in Mainland China was promulgated in 1994 taking effect in 1995. As such, the first phase has been chronicled as between 1995 and 2006. This initial stage is characterized by the unitary system of institutional arbitration and the denial of ad hoc as well as foreign arbitration. 
     In the second phase which is between 2006 and 2015, the position has been pushed forward by some recent reforms. In particular, the operation of foreign arbitral institutions seated in Mainland China has been relaxed in two recent cases, i.e., the Duferco case in 2009 and the Longlide case in 2013. Moreover, the institutional arbitration market in Mainland China has been developed during this period as driven by not only the dramatic CIETAC split episode in 2013 but also the intensified competitions among local arbitration commissions in the past several years.
     The third phase is triggered by the issuance of the SPC Opinions on Providing Judicial Safeguard to the Construction of Free Trade Zones in 2016. The 2016 SPC Opinion is interpreted as limitedly granting validity of ad hoc arbitration and further promoting foreign institutional arbitration in Mainland China, both of which represent the latest development trend in the landscape of Mainland Chinese arbitration.
     Focusing on the development of institutional, ad hoc and foreign institutional arbitration in Mainland China, this Article takes a law and development perspective in analyzing the nature of Mainland Chinese arbitration, probes into the distinctions of development path and predicts into the future of development trajectory.  Click here to download the full paper.

Monday, December 11, 2017

New Book by Shitong Qiao: Chinese Small Property (CUP)

Chinese Small Property: The Co-Evolution of Law and Social Norms
Shitong Qiao
Cambridge University Press

October 2017, 230 pages
Description: Small property houses provide living space to about eight million migrant workers, office space for start-ups, grassroots police stations and public schools; their contribution to the economic growth and urbanization of a city is immense. The interaction between the small property sector and the formal legal order has a long history and small property has become an established engine of social and legal change. Chinese Small Property presents vivid stories about how institutional entrepreneurs worked together to create an impersonal market outside of the formal legal system to support millions of transactions. Qiao uses an eleven-month fieldwork project in Shenzhen - China's first special economic zone that has grown to a mega city with over fifteen million people - to demonstrate this. A thorough and detailed investigation into small property rights in China, Chinese Small Property is an invaluable source of new information for students and scholars of the field.
  • Investigates a market of informal but prevalent real estate in China known as 'small property', providing new information on this growing phenomenon for scholars and policymakers concerned with land reform and urbanization in developing countries
  • Presents a detailed explanation of law and market transition in China, based on the author's expertise in Chinese law, property law, and law and social norms, offering a unique case study for China scholars in law schools and wider disciplines
  • Proposes a theory of the co-evolution of law and social norms in which social norms bypass laws meaning the interaction mechanism between the fluid law and norms is the focus, which will appeal to property and legal theorists seeking new insights into successful economies such as China

Saturday, December 9, 2017

New Book by Yun Zhao & Michael Ng: Chinese Legal Reform and the Global Legal Order (CUP)

"Chinese Legal Reform and the Global Legal Order: Adoption and Adaptation"
Cambridge University Press
published in November, 2017, 312 pages
Description: This volume critically evaluates the latest legal reform of China, covering major areas such as trade and securities law, online privacy law, criminal law, human rights and international law. It represents a bold departure from the most recent works on Chinese legal reform by engaging the ideas of experts in contemporary Chinese law with the archival scholarship of Chinese legal historians. This unique interdisciplinary feature affords readers a more nuanced view of the complexities and specificities of how China has problematised legal reforms in various historical contexts when building a progressive yet sustainable legal system. This volume appraises the most current reform in Chinese law by considering China's engagement with globalisation, increasingly complicated domestic situation and historical legal transplantation experiences. It will be of huge interest to students, researchers and practitioners interested in Chinese law and policy, China and Asian studies and Chinese legal history.
  • Provides a critical evaluation of the latest reform in Chinese law and China's global interactions in law, politics and international relations
  • Explores ideas of contemporary Chinese law with historical perspectives that provides a unique insight into the developments of its legal system
  • Presents different perspectives to help readers gain a better understanding of the ongoing Chinese legal reform and a fuller picture of the developing Chinese legal system

Chinese Legal Reform and the Global Legal Order (Introduction)

"The Law, China and the World: An Introduction"
Yun Zhao & Michael Ng
in Chinese Legal Reform and the Global Legal Order: Adaption and Adoption, (Cambridge University Press, Nov 2017), pp. 1 - 12
Introductory paragraph:  China has undertaken a series of legal reforms of varying scales over the past century, borrowing models from a disparate range of countries.  Since the late Qing period, laws and legal concepts from Germany, France, Switzerland, Japan, the United Kingdom and United States, and the former Soviet Union, among other countries, have been transplanted into China at various times.  The latest wave of legal reforms originated in the office of Xi Jinping, who set the law as the central theme of the  Chinese Communist Party's Eighteenth Central Committee Plenary Session in October 2014.  Yet, despite these century-long efforts, as contributor Li Chen puts it, the reformed Chinese legal system often appears 'too foreign to the Chinese and too Chinese to foreigners'...

Michael Ng on Imaginaries of Chinese Legal Transplantation in Common Law (new book chapter)

"Judicial Orientalism: Imaginaries of Chinese Legal Transplantation in Common Law"
Michael Ng
in Chinese Legal Reform and the Global Legal Order: Adaption and Adoption, (Cambridge University Press, Nov 2017), pp. 211 - 237
Introduction: Hong Kong, a common law jurisdiction with a predominantly Chinese population of mainland ancestry, offers an ideal site in which to investigate the historical laws of China from a comparative perspective.   Since the early twentieth century, Hong Kong courts have accumulated more than one hundred years of experience dealing with cases of historical Chinese marriage that took place in Mainland China during the Republican era (1912-1949), forming a common law narrative of the historical changes that the law underwent from the imperial to modern legal systems.  Into the twenty-first century, a considerable number of family and succession law cases that touch upon the issues involved in these historical marriages continue to be brought before the courts of Hong Kong every year.  This chapter challenges the century-old approach to narrating how family law changed in Republican China and raises wider methodological concerns about the tendency of common law-trained judges to follow judicial precedents based on archaic documentary sources and to adopt abandoned historiography in their investigations of Chinese legal transplantation.
     In deciding how to ascertain the meaning of the law governing these matters, the Hong Kong court (and apparently also the court of Singapore) demarcates historical China by the effective dates of the various books of the Republican Civil Code transplanted from the West from 1929 to 1931.  Cases concerning matters that took place prior to 1929 (primarily those dating to the late Qing [mid-nineteenth century to 1911] and Beiyang [1912-1928, also known as warlords period] eras) are decided with reference to the Qing Code and Chinese custom, whereas those concerning matters that took place in the Nationalist era (1928-1949) are decided solely on the basis of transplanted legal codes modelled on European templates.  Hence, traditional Chinese law and custom are ignored.
     This conventional judicial practice of demarcating the Chinese legal past has gone largely unchallenged for the past hundred years in both common law courts and in legal scholarship in Hong Kong or other former British colonies in which Chinese law remains relevant to civil lawsuits.  However, this chapter argues, through a critique of a Hong Kong Court of Final Appeal (CFA) case important to understanding Chinese family law, that this century-old judicial approach is flawed and indeed Orientalist, particularly in its understanding of how historical legal transplantation took place in China.  Such an approach, if not corrected, will remain the authority in directing judges in deciding family law cases not only in Hong Kong but also in other former British colonies populated by indigenous Chinese such as Malaysia and Singapore.  More importantly, this chapter also argues that such a  judicial approach is but one example of the Orientalist knowledge system governing Chinese legal traditions and legal culture in general, family law and custom included, within common law.  Here, drawing on Teemu Rusko-la's work on legal Orientalism, judicial Orientalism is defined as an epistemological representation of traditional Chinese law and legal culture produced and recycled in the courtroom and common law knowledge system.  Such a representation for the past century distinguishes traditional Chinese jurisprudence from modern (by default Western) law, thereby 'othering' it.  The resulting knowledge system cements the cultural distance between the modern West and the traditional Orient in law, as this study shows.
      The case analysed here concerns two women who became concubines in Nationalist China.  The CFA imagines a binary division between pre-transplant customary Chinese law on the one hand, and post-transplant modern Chinese on the other, and presumes that traditional Chinese jurisprudence is irrelevant in understanding the legal meanings ascribed to the new legal codes imported from the West.  Such a simplistic presumption and binary division has produced incorrect judgments on statutory interpretation of the transplanted legal codes practised in Republican China, as well as huge injustices to litigants, as the following landmark 2001 CFA judgment on the status of the two Nationalist-era concubines, Suen Toi Lee v Yay Yee Ping, shows.
      The chapter begins with the story of two deceased women, Sung So Chun and Chu Lee, whom a man named Sung Chuen Pao took as concubines in Shanghai in 1933 and 1945, respectively, following his marriage in 1929.  Both Mr Sung's wife and other family members openly accepted and recognized the two women as his concubines.  In 1951, Mr Sung moved to Hong Kong, where Mrs Chu joined him in 1952.  Mrs Sung and Mr Sung's wife remained in Mainland China until their deaths in 1983 and 2000, respectively.  Mr Sung and Mrs Chu died in 1985 and 1987, respectively.
     The appeal before the CFA in 2001 concerned Mrs Chu's estate, with the court asked to determine who was entitled to it.  The appellant, Suen Toi Lee, was Mrs Sung's daughter by Mr Sung.  If both Mrs Sung and Mrs Chu had been Mr Sung's concubines, then the appellant was entitled to a share of Mrs Chu's estate as an 'issue' under the definitions provided by the Intestate Estate Ordinance of Hong Kong.  If neither woman had been a concubine, then none of Mr Sung's children were entitled to any of Mrs Chu's estate, which would instead remain in her own family.  Because she had no children herself, in this case her estate would pass to her siblings, whose interests in the case were looked after by Mrs Chu's niece, the respondent Yau Yee Ping.
      The two women's union with Mr Sung was openly accepted by the man's family, including his wife, and one of them bore him a number of children.  Yet, after their deaths, the women were rules by the CFA in 2001 to have, at best, enjoyed the status of mistress, thereby causing their issue to lose her right to succession within Sung's family under Hong Kong law.  The critical issue that the CFA had to consider in this case was whether, as a matter of historical fact, the Book of Family of the Republican Civil Code (Book of Family hereafter), which came into effect on 5 May 1931, abolished the system of concubinage in Mainland China, rendering any union of concubinage created after that date (such as that of Sung and Chu) unlawful or invalid.  The CFA judges ruled unanimously that the Book of Family had indeed abolished the system of concubinage, and therefore that it was unlawful for any union of concubinage to take place thereafter.  This deprived the two now-deceased women of their legal status as concubines. 
     The CFA's judgment was based on three lines of reasoning: first, that the express provision against bigamy in the Civil Code was meant to prohibit the taking of concubines; second, that the Civil Code had created a new institution known as the 'household' to replace the old institution of 'concubinage', and through such creation concubinage was meant to have been abolished; and, third, that a published statement by the law drafter pointed to his intention that the transplanted Civil Code be used to uphold gender equality and eliminate concubinage in China by no longer mentioning concubines in the code.  This view has become common law authority on the interpretation of the transplanted modern marriage law of Republican China, and will remain so until overruled by the CFA or a common law court of similar standing in the future.
     Drawing on the latest scholarship of historians of the marriage regime in Republican China (1912-1949) and archival materials, this chapter argues that such judicial representation not only does not stand up to historical scrutiny; it actually distorts the way in which the marriage law was intended, understood and practiced in the Republican era.  More importantly, it demonstrates that it was the Orientalist image of traditional Chinese law and custom that has been continuously produced and recycled in the common law knowledge system over the past century that contributed to the anomalies of the CFA judgment. In the following sections, the chapter rebuts each of the three lines of reasoning offered by the CFA in its ruling in Suen Toi Lee v Yau Yee Ping, before turning to a succinct history of the common law knowledge system on traditional Chinese law exhibited in a set of judicial decisions, colonial reports and publications on Chinese law and custom relied on by the courts, as well as in common law textbooks that are still in use in law schools today.  This analysis suggests the need for a revision of the judicial approach of Orientalising, and thus the neglecting of traditional Chinese jurisprudence in interpreting modern Chinese law.  This chapter argues for a 'thicker description' of the legal reform process in China and perhaps in other parts of Asia.  Such a description requires that imported legal codes and systems no longer be analysed as the simple displacement of old, traditional institutions by the implementation of Western-inspired and modern legal regimes.  Instead they ought to be understood as the outcome of a more complex interplay between indigenous and foreign legal ideas and the way in which those ideas were discussed, interpreted and practised in their historical context.  In that process, traditional ideas and practices were assimilated with the borrowed legal regime in a quest for legal modernity that fit particular political and societal needs.

Yun Zhao on Online Privacy and Personal Data Protection in China (new book chapter)

"Online Privacy Protection: A Legal Regime for Personal Data Protection in China"
Yun Zhao
in Chinese Legal Reform and the Global Legal Order: Adaption and Adoption, (Cambridge University Press, Nov 2017), pp. 156 - 178
Introduction: Privacy is an important right in modern society, but we lack a clear and universal definition of the concept of 'privacy'.  Generally speaking, privacy belongs to the set of human rights that protects individuals' private information from unlawful interference, use and disclosure.  Private information can include personal life, personal information and private communication.  The Electronic Privacy Information Center (EPIC) and Privacy International (PI) divide privacy into four categories: information privacy, bodily privacy, privacy of communications and territorial privacy.
     The cyberspace created by the Internet has brought the world closer than ever before; geographical boundaries are no longer important, as information can transcend national borders easily. Technological developments have rendered the easy collection, storage, analysis, instantaneous disclosure and wide dissemination of private information possible at low cost.  Such tools as cookies and web bugs are widely used for online information collection, which is often carried out without users' knowledge.  The online sharing culture and active netizen participation pose serious challenges to privacy protection online.  First, the scope of online privacy and information is expanding rapidly.  In addition to such traditional data as land line and mobile telephone numbers, the privacy of such online personal data as email addresses, user names and instant messaging information (e.g. QQ numbers) is receiving increasing attention from the public.  Second, online data are increasingly important to merchants.  Hence, online privacy and information should be understood in both personal and economic terms.  For example, personal data have become a valuable asset in transactions carried out online.  Information collected by online merchants is used to create personal profiles indicating consumer preferences, which subsequently helps merchants to devise tailored marketing strategies.  Privacy protection online is thus receiving unprecedented attention.  As far as the Internet is concerned, of the four categories identified by EPIC and PI, information privacy is the primary concern.  Discussions in this arena concern how best to ensure the legal and reasonable use of online information.  Accordingly, this chapter examines the protection of online information, or personal data protection, rather than other aspects of privacy in the context of China.
     China does not have a strong tradition of privacy protection.  As one scholar has correctly observed, the general population of China does not know what the concept of privacy is.  Chinese history presents a picture of non-respect for privacy protection, particularly during the country's successive dynasties and, more recently, the Cultural Revolution period.  The online censorship created by the Great Firewall of China is another example of the downplaying of privacy protection in China.  However, the situation is changing.  The Chinese government has realized the importance of online privacy protection and taken initiatives to improve the legal regime governing it.  Chinese citizens' awareness of the need for privacy is also rising along with serious threats to personal data.   Furthermore, an increasingly globalized marketplace requires the existence of a data protection regime on par with the standards of other jurisdictions for the promotion of economic activities.  
     This chapter starts the discussion against this backdrop.  Section 2 briefly examines the current situation of privacy protection at the international level, followed by a closer examination of the current legal regime for privacy protection in China in Section 3.  The discussion of the relevant laws and regulations in China is by no means exhaustive.  In recent years, the Chinese government has taken a number of important steps to protect personal data.  Section 4 discusses these new initiatives and confirms that we would be optimistic about future developments in the field in China.  Section 5 continues with analysis of the problems with the current legal regime in China and shows the possible ways ahead for personal data protection in the country in future.  The chapter concludes in the final section that China is moving steadily, though slowly, towards the construction of a fair legal regime for personal data protection.

Thursday, December 7, 2017

HKU Class of 2017 Graduates (Law PhD, SJD and MPhil.)


Congratulations to our 8 PhD, 2 SJD and 2 MPhil. graduates who had their degrees conferred upon them at the 198th Congregation on 6 December 2017 at the University of Hong Kong. The Congregation also saw the graduation of 595 other Faculty of Law students: 18 LLM, 21 LLM in Human Rights, 80 LLM in Corporate & Financial Law, 32 Master of Common Law, 24 LLM in Chinese Law, 14 LLM in Information Technology and Intellectual Property Law, 43 LLM in Arbitration and Dispute Resolution, 1 LLM in Compliance and Regulation, 27 JD and 335 LLB. The newest members of our RPg alumnae family include the following:

1. Dr Atcharawongchai Worrawong, The Criminal Enforcement of Copyright in Thailand. Supervisors: Dr Yahong Li and Mr Michael Jackson

2. Dr Buhi Jason Gerald, The Constitutional and Administrative History of Macau During the Era of Portuguese Jurisdiction, 1553-1999. Supervisors: Professor Hualing Fu and Professor Albert Chen


4. Dr Liu Jia, Global Justice: The Right to Life and the Global Community. Supervisor: Professor Scott Veitch

5. Dr Liu Junru, Towards Cultural-Rights-Based-Approaches to Reconciling Trade Liberalization and Cultural Diversity: The Role of the WTO in Governing Trade in Motion Pictures. Supervisor: Professor Xianchu Zhang

6. Dr Liu Yang, Necessity and the Law of State Responsibility: A Contextual Approach. Supervisor: Dr James Fry

7. Dr Xu Bijun, Re-examining the Discourse of the 19th Century International Law: A Case Study of the First Sino-Japanese War 1894-1895. Supervisors: Professor C. L. Lim and Professor Tony Carty

8. Dr Zhang Xiaoshi, The Sino-French controversy over Vietnam 1880-1885 : from tributary system to international legal system. Supervisors: Professor C. L. Lim and Professor Tony Carty

9. Dr Du Rong (SJD), Unifying Space Financing Through Space Assets Protocol to the Cape Town Convention: A Desirable Effort for the Space Sector?. Supervisor: Professor Yun Zhao

10. Dr Lam Kwan Nam (SJD), Confucian Values and Corporation Governance: a Comparative Analysis. Supervisor: Professor Say Goo

11. Mr Meggitt Gary, Mediation and ADR Privilege – the Existing Law and Potential Reforms. Supervisor: Ms Janice Brabyn.

12. Ms. Wang Yihan, An Empirical Study of US and Chinese Perspectives on Barriers and Possibilities for the Expansion of Online International Commercial Arbitration. Supervisor: Dr Shahla Ali


The Honourable Madam Justice Susan Kwan (LLB 1977, PCLL 1978), Justice of Appeal of the Court of Appeal, The High Court, delivered the keynote address.

Monday, December 4, 2017

Henry Litton on Judicial Review and Good Governance (HKU & Citizen News)

"Judicial review helps or hinders good governance?"
Henry Litton (Honorary Professor)
Speech delivered at the HKU Faculty of Law on 20 November 2017 and text published in Citizen News on 27 November 2017.

The Judge Over Your Shoulder
A manual published by the Department of Justice entitled "The Judge Over Your Shoulder: A Guide to Judicial Review for Administrators" says this: "It would not be right to consider judicial review a hindrance to good government. On the contrary, when the legal process is used responsibly and appropriately, it is conducive to raising and maintaining standards of government action, improving governance and decision-making, and upholding the rule of law".
     The "legal process" referred to in the manual refers to a disciplined process. It is laid down by statue: s.21K of the High Court Ordinance and Order 53 of the Rules of the High Court. The Rules ensure that the process is clear-cut and speedy, so that both the administrator and the citizen know where they stand. In the recent past there have been many instances where the process has not been used responsibly and appropriately. Lawyers have become bolder in their extravagance as discipline in the courts declined. The failure of Judges to stand firm, impose discipline and apply strictly the law has grievously impaired the rule of law.

A Disciplined Process
Order 53 r.3 mandates an application for leave to be ex parte. This means that the Judge who receives the papers - Form 86 - has the responsibility of determining, on his own, whether the applicant's ground of application are arguable. The proposed respondent to the application is not to be viewed with any process unless the Judge considers the matter to be arguable, and gives leave for proceedings to begin.
     Judicial review is concerned with decisions and actions by public authorities which have substantial legal consequences. It is not a portal for courts to examine government processes generally or to engage in unfocussed discussion of government policies and actions, as if the court were a coffee shop... Click here to read the full text of the speech.  Henry Litton's Reflections on Judicial Independence speech delivered at the Foreign Correspondent's Club on 15 November 2017 can be viewed here.

Sunday, December 3, 2017

Sir YK Pao Chair David Law Awarded Distinguished Paper Award for co-authored paper, "Constitutional Dissonance in China"

Congratulations to our Sir YK Pao Chair in Public Law, Professor David Law, and his co-author who will receive a Distinguished Paper Award from the East Asian Law and Society Section of The Association of American Law Schools (AALS) at the AALS Annual Meeting in January 2018.
     The award is for a piece entitled “Constitutional Dissonance in China” which Professor Law co-authored with Professor Wen-Chen Chang of National Taiwan University. The work explains why it is "highly beneficial for comparative constitutional scholars to study Chinese constitutionalism." The piece will be published as a book chapter in the forthcoming edited collection, Comparative Constitutional Theory (Edward Elgar 2018), edited by Gary Jacobsohn & Miguel Schor.  It can be downloaded from SSRN by clicking here.
     This year the AALS Section on East Asian Law and Society selected four papers to be honoured in the annual Call for Papers on Asian scholarship on law and society. The papers and awards will be presented at the AALS meeting in San Diego from 5-6 January 2018.  All papers receive offers of publication in the Asian Law Review (U Penn).  The selection committee members were Eric Feldman (Penn), Chulwoo Lee (Yonsei), Robert B Leflar (Arkansas, chair), Craig Martin (Washburn), and Teemu Ruskola (Emory). 

Puja Kapai Interviewed on Sexual Harassment in Hong Kong Sports (SCMP)

Su Xingqi, Raymond Yeung
South China Morning Post
2 December 2017
Hong Kong’s equality watchdog on Friday urged sports leaders to cooperate with a new sexual abuse survey it will conduct, and take it more seriously than a similar probe in 2015, after hurdling champion Vera Lui Lai-yiu revealed she had been sexually victimised by her coach.
     An Equal Opportunities Commission (EOC) spokesman criticised the sector for not taking a previous study seriously, even as more sexual abuse victims came forward to call hotlines to talk about how they were assaulted...
     Puja Kapai, an associate law professor specialised in women’s studies and anti-discrimination, said whether more people would come forward openly in the wake of Lui’s action depended on how much society could react in a supportive way instead of questioning and blaming the victims... Click here to read the full article.

Wednesday, November 29, 2017

Alex Schwartz on International Judges on Constitutional Courts: Cautionary Evidence from Post-Conflict Bosnia (Law & Social Inquiry)

"International Judges on Constitutional Courts: Cautionary Evidence from Post-Conflict Bosnia"
Alex Schwartz
Law & Social Inquiry
November 2017
Abstract: Hybrid constitutional courts are associated with deeply divided and post-conflict contexts where the impartiality of the domestic judiciary is suspect. Such courts enlist international (i.e., foreign) judges to create an ostensibly neutral counterbalance to the presumed political biases of local judges. This mixed-methods case study of the Constitutional Court of Bosnia-Herzegovina questions the value of these hybrid courts. Contrary to what might be expected, the results of multidimensional scaling indicate that Bosnia's foreign judges have not provided a reliable counterbalance to apparent ethno-national divisions on the Court. Furthermore, qualitative analysis suggests that the foreign judges have contributed to several strategic mistakes that have probably harmed the Court's tenuous authority. It is also suggested that the presence of international judges on constitutional courts may actually discourage the kind of strategic behavior that is needed to build and sustain judicial power, particularly in deeply divided and post-conflict contexts.

Monday, November 27, 2017

Puja Kapai Speaks on Sexual Harassment in the Workplace (RTHK)

"Court should be option in sex harassment cases"
RTHK Radio 3
27 Nov 2017
Summary: Legal expert Puja Kapai on Monday urged the government to give the equality watchdog more leeway to take sexual harassment cases straight to court, without necessarily going through a mandatory conciliation process first.  Speaking during a forum on sexual harassment in the workplace, the University of Hong Kong professor noted that at present, the Equal Opportunities Commission (EOC) can only offer legal assistance to alleged victims and represent them in court after conciliation efforts fail.
     While this is beneficial in some cases where the complainants don’t necessarily want to take their employers to court, Kapai warned that this approach can in certain cases be detrimental to the victim, saying the conciliation process could become another form of trauma.
     "Many of the victims in, particularly serious forms of sexual harassment, would not want to confront their perpetrators in context where they have no legal representation and they feel they already lack power," she said.
     “So rather than push them to go through the reconciliation process which inevitably is likely to fail or be settled prematurely or maybe settled at a very unfavourable amount, it’s probably better to recognize that this is not a suitable case and then to move on to other possibilities like having the EOC support them in bringing a claim in court”, Kapai added.  Click here to listen to the interview.

Thursday, November 23, 2017

Court Commends HKU Clinical Legal Education Centre in False Representation Case

The HKU Clinical Legal Education (CLE) Centre recently helped a client win his magistracy appeal (HCMA 259/2016) in the High Court on a charge of making a false statement. HKU's Communication and Public Affairs Office summarised the news reports as follows:
A man who had been convicted of making a false statement knowingly in an application for public housing was acquitted with the help of the Free Legal Advice Scheme on HKU Campus. HKU Law Principal Lecturer Mr Eric Cheung represented the man in court and argued that the man’s $1,440 income for two days’ part-time work should not be counted as part of his “current monthly salary”. The government’s Legal Aid Department had rejected the man’s legal aid application which was only granted after the scheme’s intervention. The judge commended the scheme, saying it had helped to clarify the rights and wrongs of the case for justice to be done. (Apple Daily, Ming Pao)​
HKU Legal Scholarship Blog interviewed Eric Cheung, director of the centre, about the case, which he argued in court.

1. What was the main issue in the case? 
Client was charged with having "knowingly made false statement on 2 Feb 2010 in respect of an application for a lease under the Housing Ordinance (or, in layman's terms, in his application for public housing) by declaring that his average monthly income was $12,830". The prosecution case was that apart from his fixed salary earned for that amount, he had also earned $1,440 while working as a part-time employee for RTHK on 21 and 26 Nov 2009 at a rate of $80 per hour, with payment made to him by bank transfer from RTHK into his bank account on 5 Jan 2010, but he did not declare the same. D's case at trial was that he did not know that the payment from RTHK was received on 5 Jan 2010 because he had not checked his passbook, and he did not realise at that time that he had to declare such payment as his current monthly income. The Magistrate disbelieved him and found that he had knowledge of such payment but knowingly concealed the same when declaring his monthly income as $12,830. The grounds of appeal were that: 1. What he made was not a false statement because this one-off income from RTHK in the past was not his current monthly income, as the evidence at trial showed that he no longer expected to do any further part-time work for RTHK since 26 Nov, and in particular after he had found a full-time job on 5 Dec 2009. 2. The Magistrate erred in finding that he knew that he had to declare the RTHK income and/or knew that he did receive the same on 5 Jan 2010.

2. How did the centre assist the client and court on the legal point? 
D's application for legal aid was initially refused for not passing the merits test. He sought legal advice from us under our FLAS scheme. With assistance from our students on research etc, we took the view that there was merits in the appeal, and we wrote to Department of Legal Aid (DLA) accordingly. Eventually, legal aid was granted and I was assigned by DLA to represent him. 

3.  Who was the judge and what did he say?
It is before Deputy Judge Anthony Kwok. He allowed the appeal on my first ground, and decided that he did not need to deal with the second ground. He commended the scheme (see the above press summary). One interesting point is that the Acting Senior Public Prosecutor (Ivan Cheung) representing the Respondent is our past CLE student. He also said in open court that he found the CLE course very meaningful.

4. How do you feel about the centre's involvement in this case? 
Very pleased to help rectify another miscarriage of justice. Very moved when I saw D's wife crying with relief and joy after the appeal was allowed. She said they had been under great emotional stress over the year (N.B. If the appeal failed, they were likely be evicted from the public housing). See also a comment I received from a first-year law student who attended the hearing:
"Thanks for your real-life teaching today and I really enjoyed it. I have witnessed how the judge changed his mind after hearing what you have got and looking at the evidence in detail. I realize how important to get well-prepared beforehand because you always have to be alert in court and point out inaccuracies in information that the judge and the prosecuting counsel have in mind. And most importantly, it's really a kind of special fulfillment that you can hardly find in doing commercial work when it comes to helping with the clients to fight against injustice. The clients were very emotional after the judgment and it touched me. That's what I have learnt from you and I like working as a barrister like you (though you are technically a solicitor).​"

Tuesday, November 21, 2017

HKU Law Faculty Launches New Website on Research Integrity

The University of Hong Kong adopts the highest standards of research integrity for its staff and students. The Faculty of Law is pleased to announce the launch of a new website to guide users on the rules, procedures and questions related to research integrity in the law school context. The website has many short articles on the principles of research integrity, good research practices and research misconduct. It also features case studies and video recordings of trainers who have spoken at the University of Hong Kong. The website will serve as a valuable resource for staff and students who are applying for research ethics approval or seeking guidance on important topics in research integrity such as accountability, honesty, objectivity, openness, due diligence, fairness in giving credit and nurturing students and early-career research colleagues. The website can be accessed at http://www.law.hku.hk/researchintegrity/.

New Book by Anselmo Reyes: The Practice of International Commercial Arbitration (Routledge)

Anselmo Reyes
October 2017, 211 pp.
Description: Focusing on practical principles or guidelines for arbitrators, this book covers everything a prospective international commercial arbitrator should know about conducting an arbitration in Hong Kong. Specifically geared to those interested in or starting work as an international commercial arbitrator in Hong Kong, the book takes readers step-by-step through the problems that are likely to arise in the conduct of a commercial arbitration and in the development of their careers as international commercial arbitrators.

Sunday, November 19, 2017

Michael Jackson on Determining Criminal Dishonesty, Implications of the UKSC's Ivey v Genting Casinos for Hong Kong

"Determining criminal ‘dishonesty’: a new challenge for our courts"
Michael Jackson
Boase Cohen & Collins Blog
16 November 2017
What makes a defendant ‘dishonest’ under Hong Kong’s criminal law? Uncertainty about this has been introduced into the criminal law of Hong Kong by the recent decision of the UK Supreme Court in Ivey v. Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 (hereafter ‘Ivey’). Ivey, a professional gambler, claimed to have ‘honestly’ relied on a sharp-eyed ‘edge-sorting’ technique while playing cards in a casino, leading to substantial winnings. Not so, ruled the Supreme Court, declaring that Ivey had taken positive steps to ‘hoodwink’ casino staff and facilitate edge-sorting, and thus acted dishonestly. In so doing, the Supreme Court considered and rejected the ‘second leg’ (as it is called) of the ‘Ghosh direction’ on ‘dishonesty’, formulated by the English Court of Appeal in 1982 (R v. Ghosh [1982] 1 QB 1053), which Ivey had relied on to deny ‘dishonesty’. According to this direction, a jury or other fact-finder tasked with determining whether a defendant acted ‘dishonestly’:
‘...must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.’
     Neither ‘dishonesty’ nor ‘dishonestly’ are statutorily defined in Hong Kong, save for the express exclusion of certain ‘beliefs’ in s.3 of the Theft Ordinance in relation only to theft (eg. D’s taking of another’s property is not to be regarded as ‘dishonest’, and thus not theft, if he took it ‘in the belief that he has in law the right to deprive the other of it’ or ‘in the belief that she would have the other’s consent if the other knew of the [taking] and the circumstances of it’). This left both a definitional gap in the criminal law, and also an analytical uncertainty, namely, does ‘dishonesty’ relate to and characterize the conduct element of dishonesty-based offences such as theft, or is it a separate mental element for such offences? Some jurisdictions have adopted the first analysis (eg. Canada), but the UK courts, in Ghosh, came down on the side of dishonesty being a mental element.
     In relation to the definitional gap, Ghosh did not actually define what had to be proved to establish this mental element. Instead, it directed fact-finders to apply their understanding of community standards of honesty and dishonesty to determine whether a defendant’s conduct falls the wrong side of the line, and then ask whether they can be sure the defendant ‘realised’ his or her conduct was ‘dishonest’ by those standards. The Ghosh direction was readily adopted in Hong Kong, and has been largely applied ever since, despite its somewhat open-ended and imprecise language. Its use was given the seal of approval by the Court of Final Appeal in Mo Yuk Ping ((2007) 10 HKCFAR 386). Importantly, the CFA in Mo affirmed that ‘dishonesty’ is a ‘state of mind’, even though Mo was charged with conspiracy to defraud at common law, necessitating proof of ‘dishonest means’, rather than just ‘dishonesty’. As to its meaning, Sir Anthony Mason NPJ, for the Court, stated (at para.48):
‘Although dishonesty in its ordinary sense does not lend itself to definition, it is not an arbitrary standard and a citizen should have little difficulty in appreciating what is dishonest judged by the ordinary standards of reasonable and honest people.’
     As the CFA affirmed, the first ‘leg’ of the Ghosh direction requires assessment of the defendant’s conduct (‘what was done’) against community standards of ‘honesty’ and ‘dishonesty’, and involves the application of an ‘objective’ test by fact-finders. In other words, the standard is fixed by the fact-finder, reflecting its intuitive sense of community standards, and is external to the defendant’s personal view about what amounts to dishonesty. But the second - or ‘subjective’ - leg directs attention to the defendant’s state of mind, and was intended to prevent conviction of a person acting with a state of mind which would negate a finding of dishonesty, or perhaps without sufficient understanding of the concept of honesty (eg. a person of low intelligence). So for example, a customer who leaves a shop without paying for an item, thereby acting in a manner which would prima facie be considered dishonest by ordinary standards, but who claims to have been distracted or absent-minded at the time, may pray in aid Ghosh’s second leg to prevent conviction, assuming that none of the three exclusions in s.3 of the Theft Ordinance apply (cf. someone who leaves the shop in the mistaken belief the item is a ‘free sample’, who could rely on either s.3(a) or (b)). Since s.3 applies only to the offence of theft, the second leg expands to encompass those same s.3 beliefs in relation to offences of dishonesty other than theft... Click here to read the full article.

Friday, November 17, 2017

Youth Civic Engagement in Hong Kong (new book chapter co-authored by Puja Kapai)

"Youth Civic Engagement in Hong Kong: A Glimpse into Two Systems Under One China"
Liz Jackson, Puja Kapai, Shiru Wang, and Ching Yin Leung
Citizenship Education in Comparative Perspective (Palgrave Macmillan US), ch 4
Introduction: This chapter examines youth perceptions regarding civic engagement during a tumultuous time in Hong Kong.  We begin by examining the historical context of Hong Kong, tracing changes in its political status and educational system in relation to civil attitudes and behaviors of its population over time, particularly as Hong Kong shifted from a colony of the British Empire to a Special Administrative Region (SAR) of the People's Republic of China towards the end of the twentieth century.  Next, the chapter discusses the findings of a study of Hong Kong youth perceptions of civic engagement, comparing the views of youth with two distinct prior experiences of civic education: university students in Hong Kong who were previously educated in Hong Kong or Mainland China.  The study reveals significant differences between these groups, with important implications for reforming civic education in Hong Kong. 

Thursday, November 16, 2017

Shahla Ali and Odysseas Repousis on Investor-State Mediation and the Rise of Transparency in International Investment Law (Denver J Int'l L & Pol'y)

"Investor-State Mediation and the Rise of Transparency in International Investment Law: Opportunity or Threat?"
Shahla F. Ali and Odysseas G. Repousis
Denver Journal of International Law and Policy
2017 winter, Vol. 45, p. 225
Introduction: Today, more than ever, the role of investor-state mediation cannot be appraised without regard to the mounting concerns against investor-state arbitration. Investment treaties typically protect nationals of one Contracting Party (natural persons or corporations) when realizing investments in the other Contracting Party State. The most common form of such treaties is the bilateral investment treaty (BIT). As of today, more than 2,800 BITs have been concluded, 2,100 of which are in force. To these treaties one may add regional free trade agreements that include investment chapters or regional investment treaties. One of the many examples is Chapter 11 of the North American Free Trade Agreement (NAFTA) that covers investments. All of these treaties provide for substantive rights and protections such as the prohibition against uncompensated expropriation and various non-discriminatory standards. However, investment treaties have [*226] attained their present recognition due to their dispute settlement provisions and particularly the investor-state arbitration clause almost mechanically inserted in the majority of such treaties. This arbitration clause enables investors to directly sue the host state for breaches of the investment treaty in an international arbitral tribunal typically comprised of three members. Investor-state arbitrations are either ad hoc or institutional, with the most well regarded institutional body being the International Centre for the Settlement of Investment Disputes (ICSID) established by the Washington 1965 Convention.
     Over the past three decades, investor-state arbitration proliferated with ICSID registering fifty cases per year and administering more than two hundred at any given time. The most frequent respondent states are Argentina (more than fifty cases), Venezuela, Czech Republic, Egypt, Canada, Mexico, Ecuador, India, Ukraine, Poland, and the United States. The increasing use of investor-state arbitration has also been met with opposition and a widespread consensus for the need of reform.  Over the past few years, Bolivia, Ecuador and Venezuela withdrew from the ICSID Convention and terminated a considerable number of BITs. More recently, South Africa and Indonesia have also filed notices to [*227] terminate BITs.
     The opposition towards investor-state arbitration stems, in many regards, from the characteristics of such contemporary dispute settlement procedures. In a nutshell, a significant number of investment arbitration cases involve investment in public service sectors and public utilities; investment claims arising out of emergency economic measures or civil unrest; and cases that revolve around issues of public health, environmental regulation, and human rights, in general. Moreover, investor-state cases often involve allegations of state misconduct and corruption, are costly dispute settlement procedures, and the payment of compensation in connection with any arising arbitration awards is borne by the taxpayers of the host state. All these factors are to the interest of the local population as the objectives of foreign investors, governments, and local populations are oftentimes conflicting. Investor-state arbitration has also been criticized for enabling the so-called "regulatory chill", which is a hesitancy to implement a higher degree of regulation in fear of investment arbitration claims.  [*228] As later discussed in this article, another source of concern for investor-state arbitration is the lack of transparency in such transnational proceedings. Finally, another concern that is frequently raised is the use of investor-state arbitration to circumvent national courts and the perceived bias of arbitrators, that act both as counsel and as arbitrator in related proceedings.
     The above concerns have influenced the drafting of contemporary investment treaties and have also led to initiatives seeking to reform some of the perceived deficiencies of international investment law. The most notable of such initiatives is the rise of transparency discussed in Part IV of this article.  Suffice however to say, that it should not be hard to see that greater transparency in investor-state arbitration is aimed at alleviating some of the concerns referred to above. Investor-state mediation is nevertheless a pre-arbitration dispute resolution method that, if successful, eliminates the need to pursue investor-state arbitration. However, as we will see, mediation in general and investor-state mediation in particular, is highly confidential. Would this then mean that investor-state mediation may be used in order to circumvent national courts without the need to adhere to the increasing standards of transparency and other public concerns that are sought to be addressed when it comes to investor-state arbitration? In other words, if the concerns raised with regard to investor-state arbitration have merit, why shouldn't they be applicable with respect to any investor-state dispute settlement proceeding? In addition to these questions, one should also take into account that the United Nations Commission on International Trade Law (UNCITRAL) is considering a multilateral convention on the enforcement of mediated settlements. If this treaty were to be concluded, would it mean that investor-state mediation would not only be a convenient method to avoid [*229] the high levels of transparency now paradigmatic to investor-state arbitration, but would also enjoy high levels of international enforceability?
     For now, these arguably legitimate concerns may be kept as a working hypothesis, or an issue to be determined after the apposition of three tenets. The first is the role of negotiation and pre-arbitration consultations in international investment law discussed in Part II of this article. With respect to this tenet, this article shows that investment treaties usually provide for negotiation and pre-arbitration consultation periods as a means to promote the amicable resolution of disputes between investors and host states. Given however that investor-state mediation is a distinct dispute resolution method, an examination of negotiation and pre-arbitration consultation periods is required in order to more fully detail the role and potential use of investor-state mediation. The second tenet is dealt with in Part II that focuses on the development and evolution of investor-state mediation as a distinct pre-arbitration dispute resolution procedure. Specific weight is given to two recent developments, the adoption by the International Bar Association (IBA) of a distinct set of rules for investor-state mediation that took place in 2012, and the appearance of distinct investor-state mediation provisions in recent investment treaties. Finally, the third tenet is the rise of transparency in investor-state arbitration that is discussed in Part III. In particular, this part lays out the main characteristics of the UNCITRAL Rule on Transparency and of the Mauritius Convention on Transparency in investor-state arbitration. With these three tenets in place, Part V, analyzes the implications of transparency in international investment law to the future role and importance of investor-state mediation.

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