Wednesday, April 26, 2017

Yahong Li and Graham Greenleaf on China's Copyright Public Domain in Comparison with Australia (new article)

"China's Copyright Public Domain: A Comparison with Australia"
Yahong Li and Graham Greenleaf
Australian Intellectual Property Journal 
2017, Vol. 27, Part 3, p 147
Abstract: A definition of the public domain by Greenleaf and Bond, based on the question “what can users do with works, without obtaining the permission of a copyright owner” and an analysis of it as being comprised by 15 distinct categories of “public rights”, has previously been proposed as necessary and sufficient to describe Australia’s copyright public domain. This article uses this approach to compare Australia’s copyright public domain with that of the very different social and legal system of the People’s Republic of China, and discovered that, compared with Australia, China’s public domain appears rather narrow, at least when only formal legal sources are compared. Out of the eight categories where the two countries differ significantly, Australia’s public domain is stronger in five. The public domain in modern Chinese copyright law is, not unexpectedly, somewhat different from that found in a “western” country such as Australia, but not in the radical way that could be naively expected to stem from arguments concerning China’s traditional philosophy, or its socialist modern history. The harmonising effects of international treaties and the pressures of international trade are the most obvious reasons for the relatively high degree of homogeneity. This comparison also suggests that the definition of the copyright public domain used requires modification in order to include China’s opt-out provisions in relation to free-use exceptions and collective licences. However, the comparison does not suggest that any new public domain categories are needed.

Hualing Fu Comments on Ideological Purge Hitting China Universities with Western Ties (FT)

"Ideological purge hits China universities with western ties"
Emily Feng
Financial Times
25 April 2017
China is stepping up pressure on educational institutions, including many that run joint programmes with leading western universities, as President Xi Jinping’s ideologically infused anti-corruption campaign takes aim at the country’s intellectual establishment. 
     Teams of agents from the Communist party’s Central Commission for Discipline Inspection arrived on the campuses of China’s 29 top universities in the middle of March and will remain there to carry out inspections until the start of May. University presidents and senior administration staff have been told to remain on campus and cancel all travel plans, according to two people familiar with the situation...
     Political security is the predominant concern, and key sources of threat that have been identified are universities, lawyers and civil society groups. We know what has happened to lawyers and NGOs [non-governmental organisations]. Universities are a more recent target,” says Fu Hualing, a law professor at the University of Hong Kong... Click here to read the full article.

Tuesday, April 25, 2017

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

Vol. 7 No. 2: 14 April 2017
Table of Contents

Bryane Michael, University of Hong Kong Faculty of Law, University of Oxford
Say Hak Goo, The University of Hong Kong - Faculty of Law

Ernest Lim, University of Hong Kong - Faculty of Law

Hugo Ho-Ting Chu, The University of Hong Kong - Asian Institute of International Financial Law, The University of Hong Kong - Faculty of Law, University College Dublin (UCD) - Michael Smurfit Graduate School of Business, Hong Kong Polytechnic University - Department of Applied Social Sciences

Douglas W. Arner, University of Hong Kong - Faculty of Law
Emilios Avgouleas, University of Edinburgh - School of Law
Evan Gibson, The University of Hong Kong - Asian Institute of International Financial Law

Thomas K. Cheng, The University of Hong Kong - Faculty of Law

Monday, April 24, 2017

Ross Smith on Pensions Clauses in Double Taxation Agreements (AIIFL Paper)

Ross Smith (PhD Candidate)
AIIFL TLRP Tax Comments - Working Paper Series
TTC Working Paper No 1
March 2017
Abstract: Pension accruals for retirement funding are included in domestic assets, then are subject to tax in International transfer transactions, which should not be in the scope of transnational tax avoidance issues. Existing Double Taxation Agreements (DTA) only have a single objective of tax rights, which unfortunately conflicts with the needs of overseas mobile citizens to enable adequate funding of pension retirement income streams, that should function with the ‘Sole Purpose Test’ in respect of SISA1 Legislation under the Australian Constitution’s ‘Pension Powers’ (S51xxiii). An actuarial model may suggest that a funded CPI indexed pension commencing at 66% of pre-retirement salary, should obviate a Government’s liability in the provision of old-age pensions. 
     Regrettably in Australian public administration, there appears to be a co-existence conflict when its taxation regime eliminated its 1946 national pensions scheme that left the Government’s liability unfunded for the provision of old-age pensions. 
     Changing jobs between tax jurisdictions several times before retirement causes pension payments to be taxed and paid out, which is also an opportunity cost to primary capital markets and causes a serious shortage of long duration capital for large scale investment projects. 
    As a partial solution to co-existence conflict, this paper advocates that a ‘Preservation and Portability’ Instrument should be included in Article 17 Pensions Clause in DTAs that preserves pension accruals until retirement age, allows for the tax-free portability transactions between respective tax jurisdictions, supports adequate funding of pensions in retirement, and adds significant economic value to primary capital markets with higher volume, long duration capital formation retention. The retention generates tax revenue as a secondary derivative to successful funding arrangement in the first instance.  Click here to download the full paper.

Syren Johnstone on Hong Kong and the EU Credit Rating Regime (SSRN Paper)

Syren Johnstone
SSRN HKU Faculty of Law Research Paper No 2017/
April 2017
Abstract: Credit ratings issued by credit rating agencies regulated in Hong Kong are serviceable in the European Union (EU) because Hong Kong is recognized for these purposes as an equivalent jurisdiction. The perimeter of Hong Kong’s credit rating regime has recently come under the scrutiny of the Securities and Futures Appeals Tribunal, which has established important boundary lines impacting on the authorization, supervision and enforcement of the credit rating industry in Hong Kong. This article analyzes the case and identifies four elements central to it, namely, the information-based, document-based and act-based perimeters of the Hong Kong regime as well as its primary regulatory objective. It is suggested that the Tribunal’s approach to these elements may represent a material departure of Hong Kong’s legal and supervisory framework from the regime in the EU that could adversely affect Hong Kong’s standing as an equivalent jurisdiction.  Click here to download the full paper.

Sunday, April 23, 2017

Puja Kapai Interviewed in Amnesty International Magazine (Spring 2017)

Puja Kapai was interviewed in Amnesty International Hong Kong's Human Rights Magazine (Spring 2017, Issue 21) on the Right of Ethnic Minorities to Education.  Click here to read the full interview.

Sunday, April 9, 2017

Terry Kaan Urges Caution on Launching Opt-Out Organ Donation Scheme in Hong Kong (SCMP)

"Hong Kong urged to clarify legal issues before launching opt-out organ donation scheme"
Elizabeth Cheung
South China Morning Post
9 April 2017
Hong Kong is not yet ready for an opt-out organ donation scheme as legal issues and further medical matters need to clarified, an expert in the field says.
     Terry Kaan Sheung-hung, co-director of the University of Hong Kong’s Centre for Medical Ethics and Law, issued the caution as health minister Dr Ko Wing-man revealed that the government was thinking about introducing an opt-out scheme to increase the transplant rate.
     Under such a system a person would be considered a willing donor upon their death unless stating an objection in advance.
     The organ donation rate in Hong Kong is among the lowest in the world, with only 5.8 in every million people donating in 2015, compared with 39.7 in Spain. By the end of March more than 248,000 people had registered at the centralised organ donation register.
     Kaan said the city should first legislate the definition of brain death, a condition in which a person’s brain no longer functioned but the heart might continue to beat with the support of a ventilator... Click here to read the full article.

Thursday, April 6, 2017

Proceedings of CCPL's Article 23 Roundtable (Aug 2016) Now Available

In August 2016, the Centre for Comparative and Public Law of the Faculty of Law of The University of Hong Kong organised a closed-door academic roundtable on Article 23 of Hong Kong’s Basic Law, the provision that requires the Hong Kong Government to enact national security legislation. This roundtable is one of the few major academic events on the subject since the Government’s failed attempt to implement the provision in 2003.
     The written proceedings, video recording, participants’ brief, and written submissions are now available here.  The speakers included:
Ms Amy Barrow, The Chinese University of Hong Kong
Ms Cora Chan, The University of Hong Kong
Professor Albert Chen, The University of Hong Kong
Mr Eric Cheung, The University of Hong Kong
Ms Surabhi Chopra, The Chinese University of Hong Kong
Professor Michael Davis, Centre for Comparative and Public Law, The University of Hong Kong
Professor Fiona de Londras, University of Birmingham
Professor Fu Hualing, The University of Hong Kong
Mr Danny Gittings, HKU School of Professional and Continuing Education
Dr Denis Halis, University of Macau
Dr Eric Ip, University of Hong Kong
Dr Huang Mingtao, Wuhan University
Dr Margaret Ng, Barrister-at-Law, Hong Kong
Mr Malik Imtiaz Sarwar, Malik Imtiaz Sarwar Advocates & Solicitors, Malaysia
Ms Puja Kapai, The University of Hong Kong
Professor Lin Feng, City University of Hong Kong
Dr Lo Pui Yin, Barrister-at-Law, Hong Kong
Professor Carole Petersen, University of Hawaii
Mr Benny Tai, The University of Hong Kong
Ms Doreen Weisenhaus, The University of Hong Kong
Professor Simon Young, The University of Hong Kong

Tuesday, April 4, 2017

Farzana Aslam Reflects on Hong Kong's Education System on Children's Day (SCMP)

Farzana Aslam
South China Morning Post
4 April 2017
April 4 marks Children’s Day in Hong Kong, a time for reflection on whether we as a society are doing enough to ensure the well-being of our children.
     There has been much attention on the intense pressure faced by children in the local school system. In order to keep up with the demands of continuous assessment, children have hours of homework to complete daily, at the expense of sleep and play, both of which are fundamental to their growth.
     As a result, education reform is high on the political agenda. Recent calls for the government to scrap the Territory-wide System Assessment (TSA) for Primary Three pupils resulted only in a move to replace it with a Basic Competency Assessment that the government says is much improved... Click here to read the full article.

Saturday, April 1, 2017

Felix Chan Comments on PST Energy 7 Shipping LLC v OW Bunker Malta LImited [2016] UKSC 23 (Int'l Comp Comm L Rev)

"Rights to consume bunkers before payment: neither as a bailee nor as an owner"
Felix WH Chan
International Company and Commercial Law Review
2017, Vol. 28, Issue 3, pp 104-106
Abstract: In PST Energy 7 Shipping LLC and another v O W Bunker Malta Limited and another [2016] UKSC 23, the Supreme Court was called upon to determine whether the contract for the supply of bunkers was a contract of sale of goods between the bunker supplier and the shipowners under s. 2 of the Sale of Goods Act. Despite all the hallmarks of being a contract of sale of goods, the Supreme Court concluded that the agreement was not a contract of sale of goods. The implications behind the reasoning of the “nanosecond” argument are examined.  Contact the author for a copy of the comment.

Friday, March 31, 2017

Richard Cullen and Kevin Tso, Critical Reconsideration of Commercial Free Speech (Austr J Asian L)

"Commercial Free Speech - a Critical Reconsideration"
Richard Cullen and Kevin KS Tso
Australian Journal of Asian Law
2016, Vol. 17, No. 2, article 2
Abstract: In this article we argue that, in the interests of protecting rights of political free speech, it is of central importance that the distinction between such speech and commercial free speech is maintained. The article combines a clear focus on the commercial speech doctrine as developed (using a categorisation approach) by the US Supreme Court with a review of the proportionality approach used in Canada and the European Union (EU). It was in the US that commercial speech was first protected and the case law there related to this area is both extensive and detailed. That jurisprudence continues to exert a substantial influence internationally. The case law in the EU and Canada is also significant not least because it offers an important alternative mode of reasoning when claims for constitutional protection for commercial speech are advanced These are the two dominant analytical methods deployed, internationally, to address the issue of the constitutional protection of commercial speech. Due to the unfortunate but manifest incoherence of the US commercial speech doctrine, as it has evolved, the US approach should not, now, be followed in Hong Kong. The Canadian and EU alternative approaches, however, offer a more coherent framework for reviewing when, and to what extent, commercial speech may deserve protection. Ultimately we take the view that, in the case of Hong Kong, it makes sense for the courts to develop their own view (drawing on relevant international jurisprudence) on the degree to which commercial speech may attract constitutional protection. Courts elsewhere in Asia (and beyond) should also carefully consider their own best way forward in addressing this important issue.  Click here to read the full article.

Guanghua Yu on Open Access Order and Institutional Development in India (Austr J Asian L)

Guanghua Yu
Australian Journal of Asian Law
2016, Vol. 17, No. 2, article 11
Abstract: This article uses the case of India to suggest that the explanations of North and his colleagues of open access orders do not fit well with contemporary developing countries. The political system of India after independence was mainly based on the British model, with influences from the US and French models. Despite India’s practice of Western style of democracy, its economic and human development record remained poor, until at least the late 1970s. In the 1980s, however, India started to liberalise the economy. Focusing on open access to economic organisations and activities has led to better institution building. While India still has a long way to go in terms of institutional development, it has now devoted more resources to the development of institutions in the areas of property rights protection and contract enforcement, the financial market, the rule of law, and human resource accumulation. This study of India argues that if a developing country has difficulty in achieving open access to both political organisations and activities and economic organisations and activities, prioritising open access to economic organisations and activities is likely to produce better economic and human development consequences.  Click here to read the full article.

Grenville Cross Reviews Gittings' Introduction to the Hong Kong Basic Law, 2nd Edition (Austr J Asian L)

"Book Review: Introduction to the Hong Kong Basic Law"
I Grenville Cross (Honorary Professor)
Australian Journal of Asian Law
2016, Vol. 17, No. 2, article 13
If, as Harold Wilson once said, ‘a week is a long time in politics’, three years in the life of the Basic Law of the Hong Kong Special Administrative Region must rank as an eternity. Much has happened since the publication of Danny Gittings’ acclaimed Introduction to the Hong Kong Basic Law in 2013, and the arrival of the second edition is welcome. As Hong Kong has become more polarised, so the search for answers has led people back to the Basic Law, with the mini-constitution being widely debated in legal and political circles, as well as within the wider population. This, of course, is no bad thing, provided the discussion is informed, which is where Gittings comes in. At the outset, Gittings indicates that, although his text is intended to help students, its reach is actually ‘far wider’. He has provided not only a helpful guide to the Basic Law but also an incisive analysis of the many issues it has generated. Anyone wishing to understand how Hong Kong operates these days would be well advised to consult it. Gittings comprehensively traverses legal, political and governmental questions, with nothing of relevance left untouched. It is a huge bonus that the text can also be readily understood by the man in the street and anyone unfamiliar with the subject... Click here to read the full review.

Thursday, March 30, 2017

CCPL's Judicial Studies Programme Featured in HKU Bulletin (March 2017)

Professor Anselmo Reyes served as a High Court judge for nine years before joining HKU in 2012, after 14 years as a barrister. He is also a sitting judge of the Singapore International Commercial Court. These experiences have all given him an empathy for the challenges facing judges today – and a concern for where judiciaries, especially in Asia, are heading.
     “The demands on today’s judiciaries are such that one cannot expect judges, even those who had extensive legal practice before being appointed judges, to be able to deal with the whole range of cases that are likely to come before the courts,” he said.
     “Even in civil law jurisdictions, where judges receive training as they advance up the judicial ladder, judges will handle increasingly complicated cases and will likely handle cases with an international or global element. Where is the guarantee that a judge has the experience and capacity to decide such cases with sensitivity and perception? It is not a good idea for judges to learn new law at the expense of litigants.”
     That insight inspired the Faculty of Law to found the Judicial Studies Programme (JSP) in 2013. The JSP aims to help build capacity among judges in Asia and elsewhere to deal with the complexities of contemporary life, and to provide workshops and public talks on matters pertaining to the judiciary and what judges do... Click here to read the full article.

Gender Research and Puja Kapai Featured in HKU Bulletin (March 2017)

The Women’s Studies Research Centre (WSRC) and its scholar-members have deep ties to gender issues in Hong Kong. In the 1990s, they provided advice and input on the drafting of anti-discrimination legislation and the setting up of Hong Kong’s Equal Opportunities Commission. “We really do see the birth of Hong Kong awareness of equal opportunities as coinciding with our own development,” Convenor Ms Puja Kapai said.
     That development has gone through ups and downs. Until recently, the WSRC was fairly low-profile, despite organising academic events every year for International Women’s Day, a spring workshop to bring together academics and NGOs, and other events peppered throughout the year.
     Its fortunes started to change when HKU’s President, Professor Peter Mathieson, committed the University to the UN Women’s HeForShe initiative in 2015. The WSRC had the interest and expertise and so it was asked to provide support and expertise on gender issues. It was also invited to join a team producing a short online course on sexual harassment for new students.
     Moreover, it received funding from the University in December, 2016 to support its work as a platform for gender issues. Previously, it was entirely self-funded through a small private donation.
     Its activities in recent months have included co-organising talks on such topics as the gender gap in examination results and women in Hong Kong politics, and helping to organise and promote the HeForShe Reading Group and the ‘Gender Plus Series’ of interdisciplinary seminars. Under the latter, for example, the ‘Gender Plus Law’ subset hosted visits by two Canadian Supreme Court justices, including its first female Chief Justice, the Right Honourable Beverley McLachlin... Click here to read the full article.

Friday, March 24, 2017

Richard Cullen's Australian Perspective on Brexit (SCMP)

Richard Cullen
South China Morning Post
23 March 2017
The claimed consequences of Brexit, good and bad, have been the subject of much debate. In fact, guidance from more than four decades ago on how outcomes may unfold after a major resetting of the macro-economic framework may be drawn from the repercussions of “Brentry”. Britain entered the forerunner to the EU, the European Economic Community, in 1973. That decision was ratified in a UK referendum in 1975.
     At the time of “Brentry”, Australia had a significant manufacturing sector, which made everything from textiles, toasters and motor vehicles to trains and agricultural equipment. This sector operated behind high tariff walls and other protectionist measures. Meanwhile, as a commonwealth country, Australian primary produce enjoyed favourable access to the UK market.
     Those preferences were swept aside with “Brentry”. Australian butter exports to the UK plunged by around 90 per cent and apple exports declined by over 60 per cent in the years following 1973. The paramount initial experience of “Brentry” in Australia combined cultural and economic shock with a mood of deep concern about the future... Click here to read the full article, which provides a synopsis of a longer essay entitled "Lessons From Brentry". This essay can be downloaded here. It explores the issues in more depth and addresses questions not dealt with in the SCMP article - but which arise from it.

Thursday, March 23, 2017

Congratulations to Douglas Arner, Kerry Holdings Endowed Professor in Law

Congratulations to Professor Douglas Arner who has been appointed to the Kerry Holdings Endowed Professorship in Law at the University of Hong Kong.  Professor Arner is an internationally recognised scholar in economic and financial law, regulation and development.  His recent scholarship on FinTech and RegTech has gained international attention in both academic and non-academic communities.  He is one of the top scholars in the SSRN Top 3000 Law Authors (ranked #13 in March 2017).  He has coordinated the HK$15.4 million Theme-based Research Scheme project on "Enhancing Hong Kong's Future as a Leading Financial Centre" since 2012/2013.  His recent speech at the London School of Economics' China Development Forum (11 Feb 2017) was reported on in the Financial Times (Chinese Edition) where Professor Arner pointed out that China's shadow banking system is the third largest and second fastest growing in the world.  Professor Arner has been a visiting professor at several leading law schools around the world including Duke Law School, Melbourne Law School, McGill Law School and the National University of Singapore Faculty of Law.  The Kerry Holdings Professorship in Law was established in 2007, and the first holder was Professor Michael Tilbury.  In establishing the professorship, the donor, Kerry Holdings Limited, stated "It is our shared vision that this Endowed Professorship will enrich the resources available at the Faculty of Law and help uphold its high standards of scholarship, research and education."

Monday, March 20, 2017

Puja Kapai Interviewed on Exclusion of Ethnic Minorities from Political Discourse in Hong Kong (HKFP)

"Off the agenda? Ethnic minorities feel shut out of Hong Kong's political conversation"
Ellie Ng
Hong Kong Free Press
19 March 2017
Philip Khan, a 54-year-old businessman, has few options in the fight against the injustices facing Hong Kong’s ethnic minorities – a cause he has pursued for years.
     His family came to the city from what is now Pakistan more than a century ago. He said his two uncles defended the former British colony against the Japanese during the Second World War, with one killed and the other seriously injured. Born in Hong Kong, Khan grew up in a public housing estate and attended local schools, where he learned fluent Cantonese...
     The language barrier is a common concern. In her 2015 report on the status of ethnic minorities, law professor Puja Kapai of the University of Hong Kong said the lack of Chinese language skills deprives ethnic minorities of access to information, thereby limiting their exercise of the right to full and equal participation in political life.
    “We often hear that the real news is in the Chinese media,” Kapai told HKFP. “Non-Chinese people are often told that our understanding of what’s happening in politics is either delayed or distorted, because our access to the press is [limited].”
    She also warned that limited access to information renders ethnic minorities susceptible to manipulation by political groups... Click here to read the full article.

Sunday, March 19, 2017

Lessons from Two Decades of Banking Crises (new paper by Arner, Avgouleas & Gibson)

"Overstating Moral Hazard: Lessons from Two Decades of Banking Crises"
Douglas Arner, Emilios Avgouleas and Evan Gibson (PhD 2015)
University of Hong Kong Faculty of Law Research Paper No 2017/003
March 2017, 76 pp
Abstract: Over the past two decades a variety of banking system rescue approaches have been used, including in the 1997 Asian financial crisis, the 2008 global financial crisis, and the 2010 European debt crisis. By analysing the resolution of these crises as well as the approach to addressing bad loans in the People’s Republic of China, this paper provides a new perspective on the common belief that bailouts are invariably harmful to public funds or excessively conducive to moral hazard. Depending on the form of bailout, bank restructuring, and fiscal backstop, resolutions can be an effective means to restore a banking system. This paper argues that in a systemic financial crisis, a combination of balance sheet restructuring and the use of asset management companies to deal with non-performing loans is often the best choice. However, a fully-fledged resolution that triggers the bail-in procedure remains the best approach for non-systemically important financial institution failures which take place outside of systemic crises, namely when the failure is idiosyncratic.  Click here to download the full paper.

Thursday, March 16, 2017

Michael Jackson Comments on Hong Kong's Joint Criminal Enterprise Decision (HK Lawyer)

"HKSAR v Chan Kam Shing: CFA Finds 'No Wrong Turning'"
Michael Jackson
Hong Kong Lawyer
March 2017
Late in 2016, the Court of Final Appeal (“CFA”) in HKSAR v Chan Kam Shing, FACC 5/2016 confirmed that joint enterprise liability remains part of Hong Kong criminal law. In so ruling, the CFA upheld the 1985 decision of the Privy Council (on appeal from Hong Kong) in R v Chan Wing Siu [1985] AC 168 (PC), in which Sir Robin Cooke formulated a broader basis for the imposition of secondary liability on the parties to a joint criminal enterprise than had previously been clearly established (the “wide principle”).
     In re-affirming Chan Wing Siu and the wide principle, the CFA declined to follow the lead of the UK Supreme Court in R v Jogee, R v Ruddock [2016] 2 WLR 681 (“Jogee”) earlier in 2016. In Jogee, the UK Supreme Court (“UKSC”) had somewhat surprisingly concluded, more than 20 years after the wide principle was unequivocally adopted in the criminal law of the UK, that Chan Wing Siu had “taken a wrong turning at law”. The UKSC concluded that the wide principle involved a misunderstanding of the prior case law dealing with the liability of participants in a common criminal purpose. “Foresight” of what the parties to a common purpose might do beyond their agreed purpose while carrying out that purpose had been wrongly elevated into a principle of secondary liability, rather than serving at best as an evidential foundation for liability. Having identified this “wrong turning”, the UKSC in Jogee unblinkingly abolished joint enterprise liability as a separate basis of secondary party liability. Rather, the UKSC held that the liability of participants in a common purpose must instead be established using traditional accessory principles of liability, based on assisting or encouraging, with intention (or at least conditional intent) to assist or encourage the commission of the relevant offence and knowledge of all essential matters relating to that offence. Foresight in a joint judgment is only relevant as evidence of intention and not as a basis for establishing complicity... Click here to read the full article.

Sunday, March 12, 2017

Thomas Cheng on Tackling the Conglomerate Dominance Problem in Emerging and Small Economies (new article)

March 2017, Vol. 37, No. 1, pp 35-105
Abstract: This article explores a competition problem that has been long neglected in the two major competition law jurisdictions, the United States and the European Union, conglomerate dominance or aggregate concentration. With their continental scale, the U.S. or the EU economies are unlikely to be dominated by conglomerates. However, conglomerates have been found to be common in small economies and emerging economies. Conglomerates no doubt have their advantages. Yet they also pose some serious economic power issues and distort competition in a variety of ways, the latter of which has been relatively unexplored in the literature. This article catalogs these issues and distortions and proposes two sets of responses to them: direct regulation of conglomerates and competition law enforcement. These two sets of solutions to some extent alleviate the detrimental effects of conglomerates. However, they do not get to the root of the problem, domination of an economy by large conglomerates. Using Hong Kong as an example, this article illustrates the application of these two sets of solutions and their limitations.  Click here to download the full article.

Friday, March 10, 2017

Haochen Sun Interviewed on the TRUMP Trademark Registration in China (LA Times)

Jessica Meyers
Los Angeles Times
6 March 2017
It took a few lines on a Chinese website to end one fight over President Trump’s right to his name and begin another.
   China’s government last month granted the “Trump” brand trademark protections in the construction industry, concluding a decadelong battle that, until last summer, the American businessman looked unlikely to ever win.
     The notice finalized a decision in November, before Trump became president. But it ignited condemnation from U.S. ethics lawyers and Democratic lawmakers, including Sen. Dianne Feinstein (D-Calif.), who question whether the president violated the Constitution by accepting special favors from a foreign government.
     An otherwise formulaic approval has escalated into a key example of the challenges — in perception and potential conflicts of interest — when a businessman with ties to a global portfolio also runs the country.
...
     The move followed a December ruling that blocked sportswear company Qiaodan Sports from using the Chinese version of Michael Jordan’s name. And in January, the Supreme People’s Court released guidelines that prohibited trademarks for names of public figures in fields such as politics and culture.
     Decisions like these “may be read as a tendency to give better protection to foreign celebrity interests in China,” said Haochen Sun, director of the Law and Technology Center at the University of Hong Kong and a specialist in intellectual property law.
     The State Administration for Industry and Commerce, which oversees the trademark office, directed questions to the agency. It did not answer calls... Click here to read the full article.

Simon Young Interviewed on Foreign Judges in Hong Kong (SCMP)

"Beijing throws the book at Hong Kong's foreign judges"
Eddie Lee
South China Morning Post
10 March 2017
In her book Justice without Fear or Favour published in 1999, former magistrate Marjorie Chui, the first Chinese woman on the bench in Hong Kong, launched a thinly veiled attack on the judiciary’s then heads, who were said to have allowed expatriates to continue to dominate the upper echelons of the court system despite the city’s imminent return to Chinese rule in 1997.
     Almost two decades on, while similar sentiments occasionally surface in postcolonial Hong Kong, they have been eclipsed by a recent outpouring of grievances from across the border against the purportedly slow pace of localisation of judges here.
     The hostile rhetoric, coinciding with Beijing’s assertion of its tough stance against the former British colony during the annual “two sessions” – meetings of the Chinese People’s Political Consultative Conference and National People’s Congress – contrasts with some regional rivals’ pronounced openness to enlisting the help of top judicial minds from other countries in order to advance their justice systems.
...
     Professor Simon Young Ngai-man, of the University of Hong Kong’s law faculty, said the presence of foreign judges could reinforce the independence of courts in the city.
     He cited the composition of the Court of Final Appeal and said the expatriate judges of the city’s top court were the most senior and experienced judges from the common law world.
      “They bring their knowledge and expertise to the Hong Kong court. Their valuable insights could enhance the Hong Kong courts,” Young said... Click here to read the full article.

Thursday, March 2, 2017

New Book: Alternative Dispute Resolution: Hong Kong and International Perspectives (K Lynch & Ida Mak)

Alternative Dispute Resolution: Hong Kong and International Perspectives
Editors: Katherine Lynch and Ida Mak
2017, 287 pp.
Faculty of Law, University of Hong Kong
Description: This Special Collection of University of Hong Kong Faculty of Law student research essays on alternative dispute resolution originates from the dispute resolution research and teaching curriculum in the HKU Faculty of Law. This inaugural collection presents undergraduate and postgraduate student research essays written on a variety of dispute resolution issues of relevance for Hong Kong and internationally. The aim of publishing this collection of student essays is to showcase excellent student research work in dispute resolution and to contribute to the developing body of research literature in Hong Kong on alternative forms of dispute resolution. It also seeks to contribute to knowledge sharing and knowledge exchange between Law Faculty students and the general public and broader community of Hong Kong – the aim is to encourage students to produce high quality research on important practical and policy issues for Hong Kong and then exchange and share this research through publication and law students as future academics, legal professionals and policy makers in Hong Kong with important research contributions to make to the community at large. This supports the University’s vision to produce distinguished graduates “committed to lifelong learning, and professionalism, capable of being responsive leaders and communicators in the field”.

Table of Contents
1. Development of dispute resolution curriculum at the University of Hong Kong … 1
Katherine Lynch

2. The hidden costs of alternative dispute resolution: why governments should be concerned about the privatization of justice … 15
Andrew Frobes

3. A comparative analysis of negotiation models … 35
Michael Ladovico Testori

4. A tailor-made prescription for family mediation in Hong Kong … 58
Crystal Chan Nim-Tung

5. MED-ARB: an Emerging Development in Hong Kong … 78
Pooja Shahani

6. One step further for our next generation: introducing victim-offender mediation to juvenile crimes in Hong Kong … 102
Sarah Law

7. Dispute review boards: emerging ADR process … 122
Josha Samuel Strub

8. Application of alternative dispute resolution in land use planning in Hong Kong … 142
Ava Tse Suk-Ying

9. The Hong Kong ombudsman: an Evaluation of its Contemporary role … 164
Chaminade Lam

10. Collaborative law and practice in medical-legal context … 192
Danny Lee Wai-Hung

11. New innovative dispute resolution mechanism for investor-state settlement: using MED-ARB to resolve investor-state disputes … 207
Ida Mak Kwan-Lun

12. Financial dispute resolution in Hong Kong … 225
Chan Man-yee

13. Third party funding, champerty and maintenance and arbitration … 244
Sean Hotung

14. The financial dispute resolution centre mediation scheme: Power imbalance in consumer financial services disputes … 261
Minos Lau Chun-Hin

Monday, February 27, 2017

Statement of Public Interest Principles for Copyright Protection under the Regional Comprehensive Partnership (LTC)

The University of Hong Kong's Law and Technology Centre (LTC) is spearheading a global signature campaign to express concern with the copyright protection standards proposed in the Regional Comprehensive Economic Partnership (RCEP), a major trading agreement involving Australia, China, India, Japan, New Zealand, South Korea and ASEAN states.  So far more than 60 scholars around the world have signed the Statement of Public Interest Principles for Copyright Protection under the RCEP, a statement drafted by LTC Director Dr Haochen Sun, Associate Professor in the Faculty of Law, The University of Hong Kong.  The Introduction to the Statement is excerpted below.
Introduction 
The Regional Comprehensive Economic Partnership (RCEP) aims to conclude a comprehensive agreement that promotes free trade and investment among Australia, China, India, Japan, New Zealand, South Korea and member states of the Association of Southeast Asian Nations (ASEAN). As a hallmark of this proposed agreement, the RCEP Intellectual Property (IP) Chapter will set out a host of minimum standards for IP protection in the sixteen participating countries. 
     We are deeply concerned about the copyright protection standards proposed for the RCEP IP Chapter. They may cause unintended effects of stifling creativity, free speech, and economic growth. We urge that the new rounds of RCEP negotiations reconsider those standards by applying the following three principles:
  1. Integrate the public interest as a core value for copyright negotiations. 
  2. Increase transparency of negotiations for the public interest. 
  3. Institute changes in copyright provisions for the public interest. 
Guided by these three principles, RCEP negotiations would produce the largest mega-regional free trade agreement to procedurally and substantially protect the public interest in copyrighted works. The RCEP copyright provisions, therefore, stand to benefit nearly 50% of the world’s population, who live in the sixteen RCEP participating countries.
To view the full Statement and the names of those who have signed it, click here.  To sign the Statement, click here.

New Scholarship from Bryane Michael (AIIFL Fellow)

1. The Optimal Design of the Qianhai Special Economic Zone
This paper discusses changes to Qianhai's and Hong Kong's regulations necessary to make Qianhai a pre-eminent financial centre. We conduct econometric analyses which show that regulatory reform could increase innovative companies' profits by a factor of 10 over the long-term.

2. Hong Kong's Corporate Governance Rules, Lessons from the Panama Papers and Hong Kong's effect on Changing China's Corporate Governance
This paper describes the changes to Hong Kong's law needed to improve profitable corporate governance reform at home and on the Mainland. We show that the adoption of these standards could increase market valuations by 7%. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2914865

3. The Problems and Prospects for an IGAD Development Bank
The IGAD region, covering most of East Africa, represents a challenging area for investment in the best of times. The paper argues for a new design for multi-lateral development financial institutions -- one which focuses on securitisation and less sovereign involvement.

4. A Theory of Compliance Regulation
This paper looks at the way financial institutions should organise their compliance functions. We create a database of legal complexity of banking regulations around the world and show that increased regulation may promote banking productivity.

5. Regulations Determine an M&A Centre's Success
Legal complexity can actually help a financial centre attract more M&A business from places like China. This paper shows the extent to which international law firms and financial advisors have benefited (or not) from their jurisdictions' legal rules.

6. SCMP's Letter of the Law
Abstract legal theory can be used in the real world. Roughly each month, I look at the deep legal principles driving law enforcement and business in Hong Kong.

7. Law and Economics Video Series
Are you too lazy to read academic papers? This YouTube Channel presents the main ideas from legal theory and practice in Hong Kong -- in a graphic and common language way.

8. The Law and Economics Podcast
Too busy to watch a video? Why not subscribe to the podcast version? As new videos about legal theory and practice appear, this podcast makes the content available to anyone with a iPod.

Sunday, February 26, 2017

Shitong Qiao and Frank Upham on China's Changing Property Law Landscape (new book chapter)

"China's changing property law landscape"
Shitong Qiao and Frank K Upham
in Michele Graziadei and Lionel Smith (eds), Comparative Property Law Global Perspectives (Edward Elgar 2017) ch 14
Abstract: This chapter provides an outline of the changing Chinese land regime, including the past, present, and future of land expropriation, small or informal property rights, and rural land reform. We argue that the evolution of Chinese land law exhibits three characteristics. First, law serves as the final confirmation of policy reforms, rather than the precondition of the reform. Second, there is no individual land ownership, and public land ownership (including both state land ownership in the urban area and collective land ownership in the rural area) still matters. Third, due to the rapidly changing nature of the Chinese economy and society, property rights in action are often a pale shadow of what their legal entitlements would indicate in theory. As a result of these three characteristics, Chinese land law poses two related challenges to conventional property theory. First is one of the rarely questioned verities of economic theory: that clear, secure, and judicially enforceable property rights are an essential – perhaps the most essential – prerequisite to economic growth. The second question grows directly out of the first. China’s growth has come through voluntary market exchange on a massive scale, and in this sense fully vindicates economic theory. The challenge is to understand how these markets – in our case, the real estate market – operate without the legal framework considered necessary for Coasian bargaining. We propose a relational property theory as one explanation of what has enabled the market, without any legal rules or judicial enforcement, to thrive on a literally global scale. Relational property emphasizes the determinative role of social relations in the construction of property. The most important normative implication is that relational property can function without the full and faithful implementation of formal property law; but property law cannot function without embedding itself in social relations.

Yahong Li on the French-Chinese Dispute over Feiyue Sneakers (SCMP)

Lucy Christie
South China Morning Post
24 February 2017
When it comes to the sincerest form of flattery – imitation – Chinese companies are often considered to be the champions. From popular luxury handbags and Rolls-Royce cars to smartphones and even KFC fast food, there is little they won’t duplicate. Additionally, Chinese transliterations for famous Western brand names are trademarked in China, putting the original innovators in a bind when they want to sell in China.
     Now, the tables may be turning, with one French business finding inspiration in a Chinese product and giving the design a sophisticated makeover. And not everyone in China is happy with the turn of events.
...
    Dr Li Yahong, an associate professor at the University of Hong Kong who specialises in intellectual property law, says that from a legal perspective a trademark is protected territorially, and on a first-to-file basis.
     “As long as the Chinese company has not registered its Feiyue mark in France, the French company can register it in France without getting anyone’s approval, and its registered mark is protected in France,” she says... Click here to read the full article.

Friday, February 24, 2017

HKU International Conference on "Who Owns Your Body?" (6-7 April 2017)

The Centre for Medical Ethics & Law of the University of Hong Kong

in collaboration with
The Centre for Law, Medicine & Life Sciences of The University of Cambridge
and

The Centre of Genomics and Policy of the McGill University
are pleased to announce

A conference on Property Rights in Human Bodies, Tissue and Data, and on Human Organ Transplantation

entitled


"Who Owns Your Body?”

Thursday & Friday, 6–7 April 2017
Large Moot Court, 2/F, Cheng Yu Tung Tower, Centennial Campus,
The University of Hong Kong
Theme
How does the law govern the ownership of your body? And of its parts, and things derived from it? What are the fundamental legal principles governing claims to ownership, possession and other rights in the human body? And what are the ethical, legal and social impact of applications of materials taken from the human body, particularly in the context of human organ transplantation and the responses arising therefrom? This 2-day conference aims to explore these fundamental questions from ethical, legal, medical, religious and social perspectives. It will also identify gaps and inconsistencies in current law and practice; discuss the current tensions between the imperatives of clinical and research use for tissue and information and that of the privacy of the individual and suggest how these tensions may be best bridged to mutual benefit.

Speakers and Roundtable Panelists:
Professor King L. Chow, The Hong Kong University of Science & Technology
Professor Leonardo de Castro, University of the Philippines
Dr Imogen Goold, University of Oxford
Professor Guang Xing, Centre of Buddhist Studies, The University of Hong Kong
Ms Alison Hall, PHG Foundation
Dr Calvin Ho, National University of Singapore
Dr Chih-hsing Ho, Academia Sinica, Taiwan
Professor Terry Kaan, The University of Hong Kong
Professor Bartha Maria Knoppers, McGill Centre of Genomics & Policy, McGill University
Mr Alex Lam, Hong Kong Patients’ Voices
Professor Tohru Masui, Center for Medical Genetics, School of Medicine, Keio University
Mr Colm McGrath, University of Cambridge
Dr Jeff Skopek, University of Cambridge
Dato Dr Zahari Noor, Consultant Forensic Pathologist, Government of Malaysia
Dr Ron Zimmern, PHG Foundation

Details: http://www.cmel.hku.hk/events/who-owns-your-body/
Registration:
Please click the following link :
https://hkuems1.hku.hk/hkuems/ec_hdetail.aspx?guest=Y&ueid= 48384

Your kind assistance in encouraging your colleague/friend participation would be highly appreciated.
If you no longer wish to receive further news and updates from the Faculty of Law, HKU, please click here to unsubscribe. 若閣下日後不想收到有關香港大學法律學院的消息,請按此。

Thursday, February 23, 2017

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

Vol. 6, No. 6: 23 December 2016
Table of Contents

1.A Principles-Based Response to the Proposed Reform of the Governance Structure for Listing Regulation in Hong Kong
Syren Johnstone, Faculty 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. The Limits of Critique and the Forces of Law
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law
Scott Veitch, The University of Hong Kong - Faculty of Law

3. Plasticity, Jurisdiction and the Interruption of Sovereignty: A Response to Catherine Malabou Via José Saramago's Seeing
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

4. Narrative, Space and Atmosphere: A Nomospheric Inquiry into Hong Kong's Pro-Democracy 'Umbrella Movement'
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

5. The Nomos of Hong Kong's Umbrella Movement
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

6. A Spirit of the Common: Re-Imagining 'The Common Law' with Jean-Luc Nancy
Daniel Charles Matthews, The University of Hong Kong - Faculty of Law


Vol. 7, No. 1: 17 February 2017
Table of Contents

1. 'All for Some' or 'Some for All'? Assessing the Realisation of the Right to Social Welfare in the Retirement Protection Reform in Hong Kong 
Karen Kong, The University of Hong Kong - Faculty of Law 

2. Legal Origin and Corporate Governance for Chinese Family Business: Evidence in Hong Kong, Taiwan and Mainland China 
Hugo Ho-Ting Chu, The University of Hong Kong - Asian Institute of International Financial Law, The University of Hong Kong - Faculty of Law, University College Dublin (UCD) - Michael Smurfit Graduate School of Business, Hong Kong Polytechnic University - Department of Applied Social Sciences 

3. The Emergence of Transnational Environmental Law in the Anthropocene 
Jolene Lin, University of Hong Kong - Faculty of Law 

4. Towards Peer Presence in Post Disaster Governance: An Empirical Study 
Shahla F. Ali, Deputy Director, Program in Arbitration & Dispute Resolution, University of Hong Kong, Faculty of Law

Wednesday, February 22, 2017

Africa Journal of Comparative Constitutional Law and the Recovery of Corruption Proceeds in Kenya

Congratulations to Dr Tom Kabau (PhD 2013) and his two fellow co-editors on the publication of the inaugural issue of the Africa Journal of Comparative Constitutional Law published by Juta Law of South Africa.  News of this inaugural issue was published on the I-CONnect Blog.  Members of the international advisory board include Shahla Ali and Yash Ghai.  Dr Kabau contributed an article on the recovery of corruption assets in Kenya, in which he drew upon the experiences of Hong Kong and Hong Kong's anti-corruption agency the Independent Commission Against Corruption.  The details of his article are as follows:

"Constitutional dilemmas in the recovery of corruptly acquired assets in Kenya: Strengthening judicial assault on corruption"
Tom Kabau
2016, Issue 1, pp 23-57
Abstract: Despite widespread incidences of corruption in Kenya, obtaining evidence for the prosecution of offences relating to the vice is highly problematic. As a response to such challenges, the possession of unexplained assets, which is categorised as illicit enrichment in international legal instruments, creates a presumption of corrupt conduct by virtue of section 55 of the Anti-Corruption and Economic Crimes Act (ACECA). On that basis, ACECA shifts the burden of proof to the subject person, requiring him to demonstrate that the property was obtained lawfully. Whilst section 55 of ACECA provides that such court proceedings are of a civil nature, their linkage with criminal prosecution is extremely high, a fact that Kenyan courts seem to take into account while interpreting the scope of the right to a fair trial in such cases. 
     Unexplained assets recovery proceedings are often challenged in court on allegations of violation of the constitutional right to a fair trial, especially the presumption of innocence, and the right against self-incrimination, which are categorised as absolute entitlement under the Constitution. However, widespread corruption erodes accountability, undermines the rule of law and, therefore, establishes conditions in which even the right to a fair trial cannot be realised. It is on that basis that the article posits the view that courts should interpret the reversal of burden of proof in unexplained assets recovery proceedings, and the utilisation of the evidence obtained in subsequent criminal prosecution for corruption, as operating within the parameters of the right to a fair trial. Such an interpretative approach may facilitate institutionalisation of accountability in public institutions, including in the Judiciary, and therefore guarantee all Kenyans the right to a fair trial.

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