Saturday, June 17, 2017

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

Vol. 7, No. 3: 7 June 2017
Table of Contents

Syren Johnstone, Faculty of Law, University of Hong Kong, Asian Institute of International Financial Law

Anne S. Y. Cheung, The University of Hong Kong - Faculty of Law

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 Law
Douglas W. Arner, University of Hong Kong - Faculty of Law
Janos Nathan Barberis, The University of Hong Kong - Faculty of Law

Wen-Chen Chang, National Taiwan University College of Law
David S. Law, Washington University in St. Louis - School of Law, The University of Hong Kong - Faculty of Law, Washington University in St. Louis - Department of Political Science

Thursday, June 15, 2017

Lusina Ho on Causation in the Restoration of a Misapplied Trust Fund (new book chapter)

"Causation in the Restoration of a Misapplied Trust Fund: Fundamental Norm or Red Herring?"
in S Degeling & JNE Varuhas (eds), Equitable Compensation and Disgorgement of Profit (Hart Publishing, 2017) ch 8
Introduction: When a beneficiary seeks relief for misapplied trust assets, the emerging if not prevailing view amongst commentators is that he is but exercising his primary right to performance of the trust. The beneficiary is not seeking compensation for the factual detriment caused by the breach. Thus, whether the claim assumes the form of taking a common account or equitable compensation (an unfortunate misnomer in this context), the substance of the ultimate monetary award is essentially one for an ‘equitable debt’, for which issues of breach or causation – whether factual or legal – are irrelevant. 
     The United Kingdom Supreme Court in AIB Group (UK) Plc v Mark Redler & Co, however, was not swayed by these advocacies. The Court subsumed substitutive performance and reparative compensation under a unitary principle that it considered fundamental to all remedies, namely that: ‘the basic purpose of any remedy [is] to put the beneficiary in the same position as if the breach had not occurred. It held that ‘but for’ causation applies to the accounting of misapplied trust funds. Lord Toulson dismissed arguments based on the orthodox accounting procedure as ‘fairy tales’. Lord Reed, in a more forward-looking approach, preferred to fashion remedies to reflect the characteristics of the particular obligation breached rather than its historical origin, albeit his Lordship did not explain how this was to be done. The reasoning in AIB Group has drawn considerable criticism, predictably from commentators who consider that the debt characterization self-evidently demonstrates the irrelevance of but-for causation. 
     Unfortunately, the impasse between the UK Supreme Court and its critics is due, in great part, to the failure to address the policy justification of the orthodox position. On the one hand, the switching of the label of the claim from account to equitable compensation has confusingly misled the Supreme Court into compensatory thinking. On the other hand, even if there is a grain of truth in analogizing the traditional accounting remedy with debt and specific performance, it does not prohibit fashioning equitable compensation to ameliorate any potential hardship and injustice that may be brought by a strict adherence to the analogy. 
     The chapter seeks therefore to reinforce the underlying policy justifications of the orthodox position, and at the same time investigate possible situations where modification of the orthodox position is called for. To achieve this task, the chapter will, first, examine the historical approaches in common accounts, whereby it observes that amongst the plethora of earlier cases cited by critics of the compensation view, only a few expressly pronounce on the irrelevance of but-for causation; but, notwithstanding the dearth of direct authority on causation, it is well established that the nature of falsification is performance of the trustee’s fundamental duty to account rather than compensation. Secondly, to bolster arguments based on the nature of the remedy as debt or specific performance, the chapter will take up Lord Reed’s appeal to fashion remedies based on the justification of the duties breached; such a line of inquiry will show the orthodox position to be fully justified, at least as a default rule. The chapter will also explore situations where these underlying policies justify modifying the orthodox position. Lastly, the chapter examines how the decision in AIB Group may be reconciled with existing orthodox rules that permit beneficiaries to adopt or ratify the breaches of defaulting trustees, albeit it could also have provided the occasion for modifying the orthodox rules.

Wednesday, June 14, 2017

Essays on the Hong Kong Umbrella and Taiwan Sunflower Movements (new book chapters)

Brian C Jones (ed)
2017, Routledge, 236 pp
4. "The Law and Politics of Constitutional Reform and Democratization in Hong Kong"
Albert HY Chen
Introduction: A few weeks after China’s National People’s Congress Standing Committee (NPCSC) promulgated its Decision of 31 August 2014 on the model for the election by universal suffrage of Hong Kong’s Chief Executive in 2017, the “Occupy Central” Movement – also known as the “Umbrella Movement” -- engulfed several key government and business districts in Hong Kong. As in the case of the “Sunflower” Movement in Taipei earlier in the same year, students played a very important role in the Hong Kong movement. Whereas the movement in Taipei was in protest against the ruling regime’s policy of economic cooperation with Beijing, the movement in Hong Kong was a popular protest against Beijing’s policy towards, or restrictions on, democratization in Hong Kong. 
     Beijing’s policy on Hong Kong’s democratization was purportedly based on the provisions of the Basic Law of the Hong Kong Special Administrative Region (HKSAR), which was enacted by the National People’s Congress (NPC) in 1990 and came into force when Hong Kong’s status changed from that of a British colony to a Special Administrative Region (SAR) of the People’s Republic of China (PRC) on 1 July 1997. Ironically, so were the demands of the protestors, who alleged that the NPCSC Decision of 31 August 2014 constituted a breach of Beijing’s promise to the people of Hong Kong that the democratic election of the Chief Executive (CE) of the HKSAR by universal suffrage would be introduced – a promise enshrined in the text of the Basic Law itself. In this sense, the “Occupy” Movement in Hong Kong can be considered a social movement that drew on legal norms as an important component of its strategy of mass mobilization. How then could both the legitimacy of the NPCSC Decision of 31 August 2014 and the claims of the protestors be simultaneously based on the Basic Law – the constitutional instrument of the HKSAR? This chapter seeks to answer this question by reviewing the evolution of Hong Kong’s political system and investigating into the different understanding and interpretations of the Basic Law on the part of the Chinese regime and on the part of democracy activists in Hong Kong. 
     This chapter consists of the following parts, apart from this Introduction. First it examines the development of Hong Kong’s political system since colonial times, and the provisions of the Basic Law governing the political order of the HKSAR. It then briefly reviews the movements towards democratization that took place since the establishment of the HKSAR in 1997. Next it considers developments since early 2013, when the “Occupy Central” campaign was launched to struggle for the realization of “genuine universal suffrage” in the election of the CE of the HKSAR. Finally, it concludes by reflecting on the contradictions and tensions inherent in the project of “One Country, Two Systems” that were revealed by the failure of the “Occupy” Movement in realizing its democratic aspirations, particularly the conflict between the Communist Party-led socialist political system in mainland China and the aspirations towards Western-style liberal democracy on the part of democracy activists in Hong Kong.

5. "Political Protest in High-Income Societies: The Case of the Occupy Central Movement in Hong Kong"
Introduction: Hong Kong is a metropolitan city that enjoys prosperity, freedom and the rule of law. It is also a city that recently (1997) came under China’s authoritarian rule. The tension in Hong Kong’s political system is manifested in the continued struggle to reconcile with its new political master and the corresponding demand for democratic advancement. As a “semi-democracy”, Hong Kong is constitutionally committed to universal suffrage, and there is a deeply felt passion and aspiration among residents in the city for liberal constitutional democracy. But the commitment to democracy is ironically made by a Communist Party authoritarian state that is fearful of, if not hostile to, the very concept. The fight for democracy in the sub-national unit within an authoritarian regime has defined and continues to define Hong Kong’s political landscape. 
     Hong Kong has been a difficult place for China to govern. Its political freedom and openness, independent and powerful legal system, and vibrant and challenging civil society are alien to the Central Authorities in Beijing. For them, Hong Kong remains uncharted water in many fundamental aspects. Yet as difficult and costly as it has been, China has grown confident in its ability to govern Hong Kong with a degree of effectiveness, and increasingly has resorted to constitutional rules and legal process in shaping Hong Kong’s political future. The Decision of the National People’s Congress Standing Committee on 31 August 2014, as discussed below, is the most recent example of how China suffocates Hong Kong’s democratic impulses through legal interpretation. But China’s rule of law concept is an authoritarian one. Will it prove effective in deflecting and silencing resistance from political and legal institutions in Hong Kong and in limiting Hong Kong’s constitutional options? 
    Deeply concerned with a real decline in Hong Kong’s way of life, frustrated by the authoritarian rule of law that the Central Authorities impose on Hong Kong, and desperate for the lack of democratic mandate that may entrench Hong Kong’s value and institutions, various groups in the city decided to make their political demands outside the established political and legal routes, launching the largest civil disobedience movement to date by occupying main streets at the heart of the city to protest against the 31 August Decision (the movement was referred to as the Occupying Central Movement, hereafter OCM). In doing so, Hong Kong residents took the constitution into their hands, insisting on their own alternative constitutional interpretation. 
    While the pursuit of democratic value through civic participation and the rule of law are both close to the heart of the Hong Kong people, the OCM, as the largest civil disobedience movement to date, reveals a rare moment of a clear tension between the ideals of democracy and the rule of law. The OCM clearly demonstrated Hong Kong’s democratic passion and resilience. For a brief period, the movement gathered so much momentum that the students appeared to be unstoppable. However, with the prolonged nature of the OCM, the movement started to show its adverse social and economic impact, leading to a split in the community which initially showed a high degree of support and solidarity. The democratic potential of civil disobedience for the OCM began to decline and diminish, and its potential instability started to come to the forefront. As time progressed, the OCM was associated more with frustration, fatigue and disorder, and even became linked with political conspiracy and a continued threat to Hong Kong’s rule of law. When pro-OCT activists struggled to cope with internal conflicts, anti-OCM forces were mobilized and brought the occupiers to courts to account. Ironically, it was a court order that drove a fatal wedge into the OCM, dividing the supporter community and undermining the moral of the occupiers. It was the authority of the court and the willingness of the people in the city to obey the rule of law that effectively suppressed citizens’ democratic impulses. 
    With the peaceful ending of the OCM, Hong Kong’s struggle for democracy has turned a new page. The two-and-a-half month display of mass civil disobedience was unprecedented in its scale, epic in its manifestation, and potentially lasting in its impact on Hong Kong’s constitutional development; but it was also highly controversial and divisive. There was the expectation that when all the dust settles, Hong Kong will have to do some serious soul-searching to rediscover its core values, redefine its identity, and locate itself within China. Unfortunately, the OCM has not brought political antagonism to an end. The OCM is much a reflection of divisive society as a catalyzer of a more radical movement, one that may spin Hong Kong out of control.

6.  "The Nomos of Hong Kong's Umbrella Movement"
Abstract: My claim here is that the great success of Hong Kong's pro-democracy "Umbrella Movement" was that it temporarily ruptured the background ordering of the city that we – as legal scholars – so often take for granted. This interruption of the existing normative order or nomos of the city re-posed the questions belonging and by paying due attention to the interruption that the movement enacted ​we can see its enduring significance for Hong Kong’s legal and political settlement. The argument proceeds by first setting out the shift that I propose to take: away from “law” and towards the “nomos”, a term that, as will become clear, opens our thinking to a broader and more dynamic sense of normative ordering than that afforded by a strictly legalistic lens. I then turn to two distinct senses of the “nomos” that I will discuss in relation to the Umbrella Movement. The first, inspired by the German jurist Carl Schmitt, foregrounds the normative force of spatial ordering and the second, inspired by sociologist Peter Berger and the legal theorist and historian Robert Cover, assesses the discursive dimension to normativity, stressing how shared normative commitments are central to the formation of community and a common identity. My claim is that, beyond raising technical, constitutional issues concerning voting rights, the Umbrella Movement’s interruption of the city’s existing spatio-normative distribution posed fundamental questions about the nature of identity and belonging in the territory that goes to the heart of its political significance.

Tuesday, June 13, 2017

Cora Chan Elected to Governing Council of the International Society of Public Law

Congratulations to Cora Chan who has been elected a member of the Governing Council of the International Society of Public Law (known as ICON-S), one of the largest and most prestigious academic associations in public law in the world. The post is an honorary position of “high distinction which entails responsibility for the intellectual guidance, advice and representation of the Society.” Twenty-six candidates ran for eight vacancies. Voting was open to the entire Society membership of more than a 1000 members. Three hundred and ninety members from around the world cast their votes from 21-31 May 2017. Cora received the 4th highest number of votes. More details about the election can be found here. Earlier this year, Cora was appointed to the Scientific Advisory Board of the International Journal of Constitutional Law.

Cora Chan Evaluates Hong Kong's Attempt at Democratization (new article)

Election Law Journal
May 2017, Ahead of Print
Abstract: In 1997, China resumed sovereignty over Hong Kong, promising in the latter's mini-constitution the eventual election of its top executive post and legislature by universal suffrage. Yet, two decades on, Hong Kong's election system is still a long way from meeting that promise. The sluggish pace of democratic reform prompted the 2014 Umbrella Movement and has even spawned calls for the territory's independence. This article evaluates Hong Kong's 2014–2015 attempt at democratic reform. It will make two main points. First, while the reform package proposed in that period would have widened the franchise for the chief executive (CE) election, its acceptance would have made it harder for Hong Kong to negotiate for a genuinely equal and universal system in the future. Hence, it was right for the legislature to veto it. Second, the Hong Kong government, being a key institutional player, should have, but failed to, fully utilize the constitutional space available to it for reform.

Sunday, June 11, 2017

Wen-Chen Chang & David Law on Chinese Constitutionalism (SSRN)

"Chinese Constitutionalism: An Oxymoron?"
Wen-Chen Chang and David S Law
Washington University in St Louis Legal Studies Research Paper
No. 17-03-03
June 2017
Abstract: Chinese law and comparative constitutional law are both thriving fields, but the comparative study of Chinese constitutional law remains rare. Part of the explanation may lie in skepticism on the part of comparative constitutional scholars as to whether China can be said either to possess a genuine constitution or to practice constitutionalism, due to its lack of judicial review and disregard for civil and political rights. This chapter seeks to explain why it is not only appropriate, but also highly beneficial for comparative constitutional scholars to study Chinese constitutionalism. 
First, we argue that “Chinese constitutionalism” is not an oxymoron, and that definitional objections to the study of Chinese constitutionalism are therefore misplaced. We articulate a pluralistic framework for defining the terms “constitution” and “constitutionalism” that incorporates three types of criteria: regime goals, regime characteristics, and regime performance. The result is a rich matrix of definitional possibilities, many of which are capable of encompassing China and other authoritarian regimes without either implying approval of their practices or conflating them with liberal democracies.
     Second, we explain why the study of Chinese constitutionalism would affirmatively benefit both the field of comparative constitutional law and the development of constitutionalism in China. Not only is scholarly engagement with China more likely to promote constitutional development than scholarly indifference, but it also provides an opportunity to broaden and enrich the discipline of comparative constitutional law by focusing our attention on important and recurring constitutional phenomena other than judicial review. 
     Prominent features of the Chinese constitutional experience that render China a valuable case study for comparative constitutional scholars include: 
(1) the use of quasi-constitutional statutes that shape the powers of the administration and the courts;
(2) the articulation and enforcement of constitutional norms by political means, such as popular movements;
(3) the role of transnational law in supplementing constitutional law; and
(4) the phenomenon of dissonant constitutionalism, wherein a constitution is blatantly violated yet at the same time commands too much normative authority to be simply ignored. In such situations, the constitution may function as a constructive irritant: in the best-case scenario, the unresolved contradiction generates genuine constitutional discourse that in turn fuels the development of the constitutional order.
Click here to download the paper.

Saturday, June 10, 2017

Douglas Arner Appointed to London's CFTE Academic Board

"CFTE Announces Five New Board Members to Join Edtech Project"
6 June 2017, London - The Centre for Finance, Technology and Entrepreneurship (CFTE) is building the future of online education in finance with an Edtech platform that aims to help finance professionals adapt to a rapidly changing industry.
Today, CFTE announces the nomination of five new board members, all with outstanding credentials who are world-renowned experts in their fields. Gillian Cribbs and Sylvain Kalache join the advisory board, while Prof Andrei Kirilenko, Prof Douglas Arner and Prof Karim Lakhani join the academic board. As a collective, the board will enhance CFTE’s capabilities to deliver on its mission to provide professionals with a lifelong education in finance. 
     On today’s board announcement’s, Tram Anh Nguyen, CFTE’s Co-founder, said “our new board members are exceptional people from diverse backgrounds, and they all share a common belief that people need to acquire the right skills for a rapidly changing world. We are very honoured and grateful that they’re joining CFTE.” Huy Nguyen Trieu, Co-founder of CFTE and CEO of The Disruptive Group added, “We are building a global platform to help finance professionals adapt to Finance 2.0. This has never been done before, and having the views of world-class experts from Hong Kong to London to Boston to the Silicon Valley will be extremely valuable to CFTE.”... Click here to read the full press release.

Say Goo Appointed to Hong Kong's Insurance Appeals Tribunal

Congratulations to Say Goo on his appointment by the Secretary for Financial Services and the Treasury as a panel member of the Insurance Appeals Tribunal for a term of two years from July 2017 to July 2019.  The Insurance Appeals Tribunal is an independent quasi-judicial body established to review specified decisions of the Insurance Authority (IA), a new independent body that will take over the statutory functions of the Office of the Commissioner of Insurance on 26 June 2017 and eventually take over the regulation of insurance intermediaries.  The Tribunal is chaired by Douglas Lam SC and currently has 23 panel members.

Friday, June 9, 2017

Yahong Li Interviewed on Patent Rights and New Drug Approvals in China (S&P Global)

"China's patent linkage system fosters innovation, keeps generic makers in fold"
Lisa Anne Cam
S&P Global Market Intelligence
24 May 2017
While the recent decision to implement a patent linkage system in China seeks to encourage innovation in the pharmaceutical industry, manufacturers of generics could also stand to gain from it. 
     The Chinese Food and Drug Administration said May 12 that it plans to link the application process for new drug approval to patent rights, and that pharma companies seeking market approval for new drugs will have to declare whether their products violate intellectual property rights. 
     Yahong Li, associate professor at the University of Hong Kong's law department, said in an interview that there are terms in the policy draft which, if not clarified in the final policy, could be interpreted by generic drug manufacturers to their advantage. 
     For example, how do you define who is an innovator?  "The policy states its purpose is to protect innovators' rights, but who are these innovators? Would a company developing a drug based on an existing product be considered an innovator as well?" Li, who specializes in intellectual property law, said... Click here to read the full article.

Puja Kapai Interviewed on Crimes Committed by Asylum Seekers in Hong Kong (SCMP)

Harminder Singh and Clifford Lo
South China Morning Post
30 May 2017
There used to be a time when gang violence and street brawls in Hong Kong were the exclusive ­domain of Chinese triad ­gangsters.
     Now, 20 years since the transfer of sovereignty to China, the landscape has changed to the extent that ethnic minorities – South Asians in particular – have become visible in such public ­displays of lawlessness.
     On the night of April 29, at a playground in one of the city’s poorest districts, it was all-out war between two gangs of Indian men. Around 40 were involved in the fracas, wielding knives, golf clubs and glass bottles, as the ­battle spilled out of a playground and into the streets over what police said was a trivial ­matter.
...
     University of Hong Kong academic Puja Kapai, a campaigner for ethnic minority rights, cautioned that outbreaks of gang violence created a misleading perception not backed by statistics.
     “If you put it into context, the number of crimes committed by [ethnic] Chinese Hongkongers or others do not compare with the very minuscule number in which asylum seekers find themselves involved,” she said.
    Kapai warned against using asylum seekers as scapegoats for systemic and administrative problems in processing their torture and persecution claims...  Click here to read the full article.

Rick Glofcheski Interviewed on Criminal Liability for Construction Site Deaths (SCMP)

Phila Siu
South China Morning Post
5 June 2017
Only one person has ever been given a jail sentence – and that was suspended – since incarceration was included in the industrial safety law in 1989, even though hundreds of workers have been killed while transforming Hong Kong into a modern city.
     The confirmation by the Labour Department prompted calls from labour activists for Hong Kong to learn from Britain and make the HK$500,000 maximum fine in the Factories and Industrial Undertakings Ordinance unlimited.
     Such a change, they said, would force construction companies and contractors to ensure their workers performed their duties in a safe environment.
     “[It is] very hard to pin criminal responsibility on any one individual, though it can be done,” University of Hong Kong labour law expert Professor Rick Glofcheski said.
     The academic, who is author of the book Employment Law and Practice in Hong Kong, said more inspectors should be sent to construction sites. He also said projects or even businesses which flouted safety regulations should be shut down... Click here to read the full article.

Thursday, June 8, 2017

Fourth Legal Scholarship Workshop @ HKU (LSW@HKU) (Report)

The Fourth Legal Scholarship Workshop @ HKU (4th LSW@HKU) was held at the Faculty of Law on 1-2 June 2017. Eight current PhD candidates from Yale University, University of Chicago, Cambridge University, Queens Mary University of London, Victoria University of Wellington, National University of Singapore, University of Cape Town and HKU presented papers on a wide range of legal topics including private regulatory responses to maritime piracy; how non-state actors may unilaterally create international law obligations; empirical testing on how arbitrators’ reputation shaped their decisions; field work on gender and judicial appointments in Africa; international law responses to domestic rape; law reform to tackle novel technologies; critical analysis of communitarianism as a jurisprudential basis for constitutional order; and, clashing sovereigns in law and religion. 
   The presenters, together with our students and invited participants from Yale University, Tsinghua University and Chinese University of Hong Kong, engaged in intensive, vibrant and earnest discussion on both the substance of the presented papers and stylistic aspect of the presentation. They also benefited tremendously from the keynote session by Professor Lusina Ho and Professor John Lowry who shared their vast experiences and insights on the academic hiring process. 
     The workshop was organized and conducted by Dr Chen Jianlin.

Kelvin Kwok on Bilateral Antitrust Cooperation Between Hong Kong and Mainland China (new article)

Asian Journal of Comparative Law
May 2017, First View
Abstract: This article argues that effective co-operation between the antitrust authorities of Mainland China and Hong Kong in antitrust enforcement and the removal of anti-competitive state restraints is essential to the promotion of market competition in, as well as free trade and economic integration between, the two regions. This entails the careful design and conclusion of a bilateral co-operation agreement embracing not only comity co-operation in antitrust enforcement, but also the adoption of a diplomatic solution of mutual self-restraint for the removal of anti-competitive state restraints at the Mainland China-Hong Kong interface. This would also require the co-operation of Mainland Chinese and Hong Kong government authorities. Only with such bilateral cooperation can anti-competitive business practices and state restraints obstructing free trade and economic integration between the two regions be eliminated.

Thomas Cheng Receives Award for Antitrust Scholarship (American Antitrust Institute)

Congratulations to Thomas Cheng who has been awarded the Best Antitrust and Intellectual Property Article by the American Antitrust Institute for his sole authored article, "Antitrust Treatment of the No Challenge Clause" (2016) 5 N.Y.U.J. of Intell. Prop. & Ent. Law 437.  The article was selected by the committee for the 15th annual Jerry S Cohen Memorial Fund Writing Award for antitrust scholarship.  The committee considered over 150 antitrust articles and books published in 2016.  The Jerry S Cohen writing award was established in memory of a former law partner at the law firm Cohen Milstein Sellers & Toll PLLC.  An award ceremony will be held at the American Antitrust Institute's annual conference on 21 June 2017 in Washington DC.  The article made a distinct contribution to antitrust literature by examining the harmful consequences of 'no challenge clauses' (clauses that prohibit patent licensees from challenging the validity of the licensed patent).  It was also shortlisted for the Antitrust Writing Awards 2017.

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