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