Tuesday, October 31, 2017

Richard Cullen on The Credibility of Far East Political Reporting (IPP Review)

"The Credibility of Far East Political Reporting"
Richard Cullen
IPP Review
published on Oct 24, 2017 online
Introduction: Imagine a well-organized group of young British political activists, demanding greater input into governance decisions, taking over the House of Commons and occupying it for around four weeks — closing down all parliamentary operations — and also taking over key offices in Whitehall for a time. Next, imagine a similarly focused group of activists, later the same year, staging very large, mass political reform demonstrations — running for around three months — occupying key public thoroughfares in Central London, including Piccadilly Circus, Marble Arch and Whitehall, shutting down virtually all vehicular transit as they demand “true democracy” and the Prime Minister’s resignation.
     How would the mainstream media in the UK, including, for example, the BBC and The Guardian, respond? In these circumstances, would they pay little attention to the pretexts for the protests and their proportionality? Would their coverage be dominated by a retelling of the narratives supplied by the protesters and intense coverage of all perceived lapses in official and police reactions — accompanied by a steady degree of support for the protestors?
     It is hard to imagine that this would be so — that the coverage would be so tilted. Yet this is a fair summary of the way that much of the media from the UK covered the “Sunflower Movement” in Taiwan in early 2014 and the “Occupy Central Movement” (OCM) — also known as the “Umbrella Movement” — in Hong Kong later that year...  Click here to read the full article.

Monday, October 30, 2017

Lusina Ho's Account of Accounts (Singapore Academy of Law Journal)

"An Account of Accounts"
Lusina Ho
Singapore Academy of Law Journal
2016, Volume 28, pp 849-883 (Special Issue on Remedies)
Abstract: The equitable accounting rules are notorious for being ancient and technical, and hence hinder the development of the rules governing compensating claims against trustees. The present article seeks to overcome these difficulties by conducting a historical survey of the traditional accounting rules in order to identify their governing principle. It argues that equity acts on a principle different from common law, in that the purpose of accounting is to restore the beneficiaries or the trust fund, as from the time when the trustee departed from his duty, to the position they would have been in had the trustee performed his duty. This way, equity achieves exact justice so that the beneficiaries will not be kept out of their rights from the time when performance was due to the time when it is actually obtained. To do so, equity adopts the legal fiction of treating the unauthorised disbursement as having never been made and the property as having already been obtained. The article argues that this fundamental norm should also be applicable to equitable compensation, and proposes analysing this remedy on the basis of the duties breached, rather than the type of breach as in traditional accounting rules. It then uses this new framework to propose detailed remedial rules for various breaches of duty by the trustee.  Click here to download the full article.

HKU to Host Major International Public Law Conference in June 2018 (ICON-S) - CALL FOR PAPERS (Deadline: 31 Jan 2018)

HKU is proud to be hosting the International Society of Public Law's annual conference from 25-27 June 2018.  This major international event will commence the series of activities to celebrate the Faculty of Law's 50th anniversary in 2019.  For more information on the ICON-S 2018 conference, click here.

Final Call: ICON-S 2018 Conference in Hong Kong

We are delighted to invite submissions to the 2018 Annual Conference of the International Society of Public Law (“ICON-S”), which will take place at the University of Hong Kong on June 25-27, 2018, under the auspices of the University of Hong Kong’s Faculty of Law and its Centre for Comparative and Public Law. The event will also mark the beginning of the celebration of the 50th anniversary of the Faculty of Law of the University of Hong Kong. The theme of the conference is “Identity, Security, Democracy: Challenges for Public Law”.
     ICON-S (http://icon-society.org/) currently has 1,200 members; its annual conferences have attracted hundreds of participants from around the world, including distinguished scholars, jurists and policy-makers, younger researchers and graduate students, in all areas of public law -- including administrative law, constitutional law, international law, criminal law, immigration and citizenship law and human rights. The 2017 conference in Copenhagen was attended by nearly 900 participants. The upcoming conference in Hong Kong will feature an exciting plenary programme that can be found here: https://www.icon-society.org/2018-conference/programme_2018/
     The conference organizers are now calling for papers to be presented at the conference’s parallel sessions: https://www.icon-society.org/2018-conference/call_2018/ If you are interested in submitting an abstract for the conference, please note the following:
  • The due date for submission of abstracts is 31 January 2018.
  • The language of the conference is English.
  • Your presentation may relate to any aspect of public law, and need not be limited to the general theme of the conference, i.e. “Identity, Security, Democracy: Challenges for Public Law”.
  • Proposals for fully-formed panels are strongly encouraged, although individual papers are also acceptable. Panel proposals should include at least three papers by scholars who have agreed in advance to participate. Such fully-formed panel proposals should also identify one or two discussants, who may also serve as panel chair and/or paper presenter. Each concurrent session is 90 minutes. A panel proposal should include the name of the chair and/or discussant, the names of the presenters, the abstracts of each presentation, and a title and brief description of the topic of the panel.
  • Submission of full papers is not required for the purpose of participating in this conference. (Presenters at parallel sessions need only submit abstracts and deliver an oral presentation at the parallel session.)
The conference will be an excellent occasion to meet old and new friends in public law to discuss topics of common interest. We hope you will be able to join us in Hong Kong!

Identity, Security, Democracy: Challenges for Public Law

ICON-S 2018 Annual Conference
Hong Kong, June 25-27, 2018

The International Society of Public Law (ICON-S) is pleased to announce that its 2018 Annual Conference will be held in Hong Kong on June 25-27, 2018, under the auspices of the University of Hong Kong’s Faculty of Law and its Centre for Comparative and Public Law – one of Asia’s foremost centres for the study of public law in all its varieties. This will be the fifth Annual Conference of ICON-S, following the four Annual Conferences (Florence 2014, New York 2015, Berlin 2016, Copenhagen 2017) which have been overwhelmingly successful, thanks to the support of our Members.
     ICON-S now invites paper and panel submissions for the 2018 Annual Conference. The overarching theme of the Conference will be “Identity, Security, Democracy: Challenges for Public Law.”
     Modern identity struggles and the search for constitutional and legal mechanisms that can accommodate diversity occur at many levels including the national, supra-national, local, individual, and collective; and also involve multiple dimensions: ethnic, racial, religious, gender, sexual, and cultural, to name but a few. In recent years, identity claims and security issues have taken centre stage in law and politics, prompting realignment of domestic, regional and international orders. Technological advancement has to some extent countered traditional security concerns, but has given rise to new ones as well as to issues of privacy and political control. At the same time, democracy, a widely revered political ideal for addressing differences and realising human aspirations, is facing challenges in many parts of the world. How should public law respond to these changing circumstances? Asia – with some of the most diverse cultures in the world, where domestic and regional security threats and human rights violations loom large, and where democracy is a relatively recent and at times fragile phenomenon or still under experimentation – offers a unique setting for fresh thinking on these and other closely-related themes.
     The Conference will include a keynote address by The Rt Hon the Lord Neuberger of Abbotsbury, former President of the Supreme Court of the UK (2012-2017), as well as three plenary sessions featuring prominent jurists, intellectuals and judges, focused on the general themes of the Conference. A provisional program can be found here. At the heart of the Conference, however, are the concurrent sessions during the three-day conference which will be devoted to the papers and panels selected through this Call.
     ICON-S particularly welcomes proposals for fully-formed panels, but also accepts individual papers dealing with any aspect of the Annual Conference’s themes. In any case, paper and panel proposals need not be limited to those themes, and may focus on any theoretical, historical, comparative, empirical, jurisprudential, ethical, behavioral, ethnographic, philosophical or practical, policy-oriented perspective related to public law, including administrative law, constitutional law, international law, criminal law, immigration and citizenship law and human rights and may address domestic, subnational, national, regional, transnational, supranational, international and global aspects of public law.
     We strongly encourage the submission of fully-formed panels. Panel proposals should include at least three papers by scholars who have agreed in advance to participate. Such fully-formed panel proposals should also identify one or two discussants, who may also serve as panel chair and/or paper presenter. Concurrent panel sessions will be scheduled over two days. Each concurrent panel session will be scheduled for 90 minutes.
     We invite potential participants to refer to the ICON-S Mission Statement when choosing a topic or approach for their papers or panels.
     ICON-S is by no means restricted to public lawyers! We particularly welcome panel proposals that offer genuinely multi-disciplinary perspectives from various areas of law (including civil, criminal, tax, and labor law), as well as from scholars in the humanities and the social sciences (e.g. history, economics, political science, sociology) with an interest in the study of identity, security, democracy and public law. We welcome submissions from both senior and junior scholars (including advanced doctoral students) as well as interested practitioners.
     All submissions must be made through the ICON-S website (here) by January 31, 2018. Successful applicants will be notified by March 1, 2018.

All participants will be responsible for their own travel and accommodation expenses.

We very much look forward to receiving your paper and panel proposals.

See you at ICON-S Hong Kong 2018!

Gráinne de Búrca (NYU) & Ran Hirschl (University of Toronto)
Co-Presidents of ICON-S

Richard Albert (Boston College); Lorenzo Casini (IMT School for Advanced Studies, Lucca); Cora Chan (HKU); Albert Chen (HKU); Rosalind Dixon (University of New South Wales); Kelley Loper (HKU); Joseph Weiler (NYU); Simon Young (HKU)
Members of the ICON-S 2018 Organizing Committee

Saturday, October 28, 2017

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

Vol. 7, No. 9: Oct 24, 2017

Po Jen Yap, The University of Hong Kong - Faculty of Law

Shitong Qiao, The University of Hong Kong - Faculty of Law

Wendell Pritchett, University of Pennsylvania Law School
Shitong Qiao, The University of Hong Kong - Faculty 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

Friday, October 27, 2017

Michael Jackson Interviewed on ICAC Search of China Jinmao's Hong Kong Office (FT)

"China Jinmao's Hong Kong office searched in corruption probe"
Don Weinland and Hudson Lockett
Financial Times
25 October 2017
Hong Kong’s anti-corruption watchdog has searched the offices of China Jinmao Holdings, the property arm of chemicals group Sinochem, in a rare example of the local agency investigating a state Chinese group. Jinmao said in a regulatory filing that the Independent Commission Against Corruption had searched its main offices in Hong Kong and “invited” its chief financial officer Jiang Nan to visit the body in relation to an investigation... 
     Michael Jackson, associate professor at the University of Hong Kong’s Faculty of Law, said the ICAC had generally shied away from investigating and prosecuting cases involving Chinese state-owned enterprises. He said this was due in part to its jurisdiction over foreign entities and individuals essentially being limited to within the territory... 

Thursday, October 26, 2017

New Publications by Roda Mushkat

"Exploring International Environmental Governance Regimes: The Asian Way"
Roda Mushkat
Wisconsin International Law Journal

2017, vol. 34, pp. 585-667
Abstract: Ecological degradation and strategies to combat it have loomed increasingly large on the socio-legal research agenda for the past three decades or so. The scholarly attention they have garnered has spawned a rich literature on multi-level environmental governance, including on an international, and even global, scale. Social scientists have spearheaded the quest for gaining a deeper insight into the phenomenon, but students of law have also been active participants in the process of knowledge accumulation. Asian inputs have been relatively modest and have been produced comparatively late in the long journey of scientific, or quasi-scientific, discovery, yet they enhance the understanding of the issues broadly addressed, even if at times in a critical fashion, despite their selective focus and the paucity of constructively articulated suggestions for remedial action.

"The Political Economy of Constitutional Incrementalism in Hong Kong"
Roda Mushkat & Miron Mushkat 
2016, vol. 9, pp. 1-46 
Abstract: A highly developed, large, knowledge-rich, and mostly autonomous territory, acting as a global economic ‘matchmaker’ with residents who do not hesitate to openly express their voice through multiple channels, should ideally be endowed with institutional capital commensurate with its structural and functional attributes. That has not been the pattern observed in Hong Kong, whose political system has been reconfigured slowly and selectively, in a manner lacking a clear sense of purpose and coherence. The upshot is a governance regime that is out of tune with prevailing realities. Without resorting to ‘shock therapy’ and causing reverberations across the border, a version of deliberative democracy conducive to the pursuit of prosperity and stability may productively be embraced.

Wednesday, October 25, 2017

Inna Amesheva on Environmental Degradation and Economic Development in China (Law & Development Rev)

Inna Amesheva (PhD candidate)
Law and Development Review
July 2017, published online, Vol. 10, Issue. 2
Abstract: The author argues that the deterioration of the natural environment in China provides a persuasive reason to reorient China’s economic growth towards a more sustainable path. Reconciling the development and environment imperatives needs to become an urgent priority for the Chinese government in order to avert the cascading implications that will arise in terms of social unrest, loss of further development opportunities as well as deepening income inequality. This paper thus examines the inter-relationship between the current ecological challenge in China and the need for economic sustainability. It evaluates the extent of environmental damage in China and focuses on the environmental impact on development and social inequality. The paper then examines the recent legislative measures that have been taken by the Chinese government to address the problem of inefficient environmental monitoring. The author suggests that further reform is needed to achieve an economically and ecologically just pathway for China’s future. The paper therefore demonstrates that the environment–development challenge in China is mainly a challenge of governance. Resolving it will contribute to better environmental justice and development.

Tuesday, October 24, 2017

Eric Ip and Kelvin Kwok on Judicial Control of Local Protectionism in China (J Comp L & Econ)

Eric Ip and Kelvin Kwok
Journal of Competition Law & Economics
Oct 2017
Abstract: This article studies the rise of judicial review of local administrative monopolies in contemporary China. Anticompetitive abuses of power by local party-states, driven by corruption, have shaken the very foundations of the country’s administrative unity and market efficiency. The entrenched skepticism of the authoritarian party-state toward legal institutions notwithstanding, the Supreme People’s Court in Beijing has over the past decade steadily aggrandized its own and local courts’ authority to constrain regional protectionist, collusive fiefdoms in ways unforeseen by the drafters of the landmark Anti-Monopoly Law; returning incremental but genuine benefits to the central party-state, whose tacit acquiescence in judicial empowerment has over time transformed into express approval. However, given that administrative monopoly is instinct in a Leninist polity, the central party-state and the Court should have few incentives to eradicate local protectionism once and for all. All things being equal, full-fledged, independent judicial review of administrative monopoly will not emerge in China.

Monday, October 23, 2017

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

Vol. 7, No. 8: Oct 17, 2017

Inna Amesheva, The University of Hong Kong, Faculty of Law, Students

Anne S. Y. Cheung, The University of Hong Kong - Faculty of Law
Wolfgang Schulz, Hans-Bredow-Institute for Media Research, Alexander von Humboldt Institute for Internet and Society

Roderick M. Hills, Jr., New York University School of Law
Shitong Qiao, The University of Hong Kong - Faculty of Law

Po Jen Yap, The University of Hong Kong - Faculty of Law

Puja Kapai Discusses Sexual Harassment in Hong Kong on Backchat (RTHK)

"Sexual Harassment in Asia"
Presenters: Hugh Chiverton and Danny Gittings
Backchat, RTHK Radio 3
20 October 2017
Description: On Friday's Backchat, sexual harassment. After the revelations about Hollywood Mogul Harvey Weinstein, many actors, sports stars and others, as well as hundreds of thousands of others through twitter are stating that they have suffered sexual harassment and assault. If people are aware of the scale of the problem will it change attitudes? Why did people like Harvey Weinstein get away with it, when so many were aware of the problem? How can women without power fight back? Do women in Chinese societies suffer less harassment than in the West?  Panelists: Puja Kapai, Raees Baig, Susanne Choi, Sylvia Martin and Gina Marchetti. Click here to listen to the programme.

Amanda Whitfort Interviewed on the Need for an Animal Cruelty Police Force in Hong Kong (SCMP)

Yupina Ng and Louise Moon
South China Morning Post
7 October 2017
On the night of September 7, 2013, more than a thousand Hongkongers, some in tears, gathered outside the government’s headquarters at Tamar calling for stricter regulations to stop animal cruelty and a dedicated police unit to enforce those rules.
     The rally was prompted by a shocking case in which a four-month-old stray cat was found in Tsuen Wan with one of its legs cut. Police later arrested a couple on suspicion of animal cruelty, but did not press charges due to “insufficient evidence”.
     In the past four years, Hong Kong has done little to make animals better off, according to activists and law experts. No animal police squad has been set up, but more cruelty cases have been exposed, mainly by social media users.
   Experts said the recent case of a man throwing and kicking a dog in a Tuen Mun supermarket showed that current loose regulations were not serving as sufficient warnings for would-be offenders.
     “The main problem is that we still don’t have a duty of care,” said Amanda Whitfort, an associate professor at the University of Hong Kong’s faculty of law...  Click here to read the full article.

Friday, October 20, 2017

New book: Jianlin Chen on The Law and Religious Market Theory (CUP)

The Law and Religious Market Theory: China, Taiwan and Hong Kong
Jianlin Chen
Cambridge University Press
September 2017
Description: With comparative case studies from China, Taiwan and Hong Kong, Jianlin Chen's new work offers a fresh, descriptive and normative perspective on law and religion. This presentation of the original Law and Religious Market Theory employs an interdisciplinary approach that sheds light on this subject for scholars in legal and sociological disciplines. It sets out the precise nature of religious competition envisaged by the current legal regimes in the three jurisdictions and analyses how certain restrictions on religious practices may facilitate normatively desirable market dynamics. This updated and invaluable resource provides a new and insightful investigation into this fascinating area of law and religion in Greater China today.

Thursday, October 19, 2017

Michael Davis on Strengthening Constitutionalism in Asia (J of Democracy)

"Strengthening Constitutionalism in Asia"
Michael Davis (CCPL)
Journal of Democracy
Oct 2017, Vol. 28, No. 4, pp. 147-161
Abstract: Much has been written about the retreat of liberal democracy. In Asia, a region where the notion of illiberal democracy has long been advocated, illiberalism and populism have spawned numerous constitutional crises. Drawing on experience from countries across Asia, this article stresses seven principles as a roadmap to establishing and maintaining a liberal constitutional democracy. These cover all stages of the process, from early mobilization and constitution-making to full implementation and consolidation, and they address issues of institutional autonomy, popular engagement, and ethnic and regional inclusion. Efforts at democratization in Asia have too often given insufficient attention to constitutional fundamentals and popular inclusion as critical ingredients on the path to establishing and maintaining stable democracies.

Wednesday, October 18, 2017

Artem Sergeev on The Right to Internet Access in China (Int'l J L & IT)

Artem Sergeev (PhD candidate)
International Journal of Law and Information Technology
Oct 2017 (Advance Articles), 27 pp
Abstract: Considering the valuable effect of the Internet on the modern world, it was argued that the cyberspace is protected under international law. Following the argument, the article discusses to what extent the Internet is protected under international law and what is the possible qualitative impact of the general right to the Internet. Primarily relying on examples of Chinese internet policy, the article deals with three key issues. First, the article evaluates the legal grounds to claim the existence of the right to the Internet. Secondly, the article outlines the international protection given to the internet by studying whether online censorship in China violates international treaties. Third, the article argues the possible qualitative impact of the widespread internet access on other civil rights. The focus on China is explained by Chinese far-reaching censorship and a general amount of internet users. The article concludes that the internet per se despite being considered as a right has a limited impact on democratization and protection of civil freedoms. As to the broader academic implications, first, the article illustrates the ways of indirectly applying treaties through Article 18 of VCLT. Secondly, it exemplifies the practical means to assess compliance with Human Rights norms academically. Lastly, it illustrates that implementation of certain Human Rights can have a limited impact.

Tuesday, October 17, 2017

HKU FinTech Day (30 October 2017, 2pm)

HKU FinTech Day

Hong Kong FinTech Education Week

30 October 2017 (Monday), 2:00 – 6:15 pm
Large Moot Court, 2/F Cheng Yu Tung Tower
The University of Hong Kong

Financial Technology (FinTech) is changing the world of finance at an incredible pace, impacting start-ups, financial institutions, regulators and more recently technology companies. Since 2008, the center of gravity of FinTech has shifted to establish itself in Asia with noticeable large-scale changes occurring in China, India and Australia.

In this context, the University of Hong Kong (HKU)’s pre-existing regional presence and financial expertise has been leveraged into FinTech academic leadership. This event will highlight the work of leading academics at HKU as well as a range of new educational initiatives to support human capital development in Hong Kong and around the world. 

In addition to presentations and panels, HKU FinTech Day will also include a student startup competition and information for students considering studying FinTech at HKU.

Please join us by registering HERE.

Confirmed Speakers

Professor Andy Hor, University of Hong Kong
Dr Toa Charm, Cyberport
Dr KP Chow, University of Hong Kong
Huy Nguyen Trieu, Centre for Financial Technology and Entrepreneurship
Professor Norman Tien, University of Hong Kong
Joelle Woo, Microsoft
Professor George Tham, University of Hong Kong
Janos Barberis, SuperCharger and University of Hong Kong
Professor Douglas Arner, University of Hong Kong
Terence Leung, Cyberport

A student startup and HKU teaching and research Showcase will be held on the
1/F Foyer of the Cheng Yu Tung Tower all day.

Further details are available at www.hkufintech.com.

Enquiries: Flora Leung at fkleung@hku.hk

Arner, Barberis, Buckley on The Emergence of Regtech 2.0 (J Financial Transformation)

Douglas Arner, Janos Barberis (PhD Candidate), Ross Buckley
Journal of Financial Transformation
Nov 2016, Vol 44, pp 79-86
Oct 2017, posted online
Abstract: The regulatory changes and technological developments following the 2008 Global Financial Crisis are fundamentally changing the nature of financial markets, services and institutions. At the juncture of these two phenomena lies regulatory technology or ‘RegTech’ – the use of technology, particularly information technology, in the context of regulatory monitoring, reporting and compliance.
     RegTech to date has focused on the digitization of manual reporting and compliance processes, for example in the context of know-your-customer requirements. This offers tremendous cost savings to the financial services industry and regulators. However, the potential of RegTech is far greater – it could enable a close to real-time and proportionate regulatory regime that identifies and addresses risk while also facilitating more efficient regulatory compliance.
     We argue that the transformative nature of technology will only be captured by a new approach that sits at the nexus between data, digital identity and regulation. The development of financial technology (‘FinTech’), rapid developments in emerging markets, and recent pro-active stance of regulators in developing regulatory sandboxes, represent a unique combination of events, which could facilitate the transition from one regulatory model to another.

Monday, October 16, 2017

New book by Yahong Li: Patents and Innovation in Mainland China and Hong Kong (CUP)

Editor: Yahong Li
Cambridge University Press
October 2017, 286 pp
Description: How do patents affect innovation in Mainland China and Hong Kong? How can two patent systems operate within one country and how is innovation affected by the 'one country two systems' model? For the first time, this book links these challenging issues together and provides a comprehensive overview for government officials, law-makers, academics, law practitioners and students to understand the patent systems of Mainland China and Hong Kong. Themes examined include the interaction between the two distinctive patent regimes, the impact of patents on innovation in China's specific industries such as green tech, traditional Chinese medicines and telecommunications, the role of utility models in inflating low-quality patents and the application of good faith principle in enforcing FRAND in Mainland China, patent system reforms in Hong Kong, and the impact of these changes on innovation in the two vastly distinctive yet closely connected jurisdictions.
  • The first detailed study of the links between Mainland China and Hong Kong in the area of patents and innovation
  • Describes the establishment of Hong Kong's indigenous patent system and how it was reformed after the handover to China
  • Analyzes in depth the role of patents in China's individual industries such as green tech, traditional Chinese medicines and telecommunications
Chapters were contributed by some of the students and graduates of the Faculty of Law's research postgraduate programme including Dr Chen Yifu, Dr Gao Li and Miss Yu Limeng.

Advance Praise
'In the international IP community a knowledge gap exists with regard to the fact that China employs two different, but complementary patent systems. The book giving deep comparative insight into both systems and furthermore promotes additional, valuable knowledge concerning other territories of 'Greater China'.' 
Heinz Goddar, European and German Patent and Trademark Attorney
'With uncertainties about the Unified Patent Court and system in Europe and the disruptions of long-standing expectations by the Supreme Court in the United States, China promises to emerge as the primary place where researchers and investors can vindicate their faith in the future of intellectual property. In that new emerging world of IP, knowledge of Chinese IP law and practice will be at a premium. Chinese IP has an additional point of attraction: it is actually two systems - one on the mainland and one in the traditional Asian economic powerhouse of Hong Kong. This book by Professor Li opens the door to both systems and increases insight into both by comparison. As China continues to emerge as the center pole holding up the tent of IP, Professor Li's book will teach ways to use that tent and its center pole to protect the world's IP assets.' 
Judge Randall Rader, Principal, The Rader Group; former Chief Judge, US Court of Appeals for the Federal Circuit

Saturday, October 14, 2017

PhD in Law at HKU 2018-2019 (Main Round Deadline: 1 Dec 2017)

Research Postgraduate Programme 2018-19 

Our Faculty is Hong Kong’s first law school and one of the most prestigious law schools internationally. It celebrates 50 years in 2019. Today, the Faculty has over 70 full-time academic staff members and more than 1,500 students studying in our undergraduate and postgraduate programmes, including the research postgraduate programmes leading to the degrees of Master of Philosophy (MPhil), Doctor of Philosophy (PhD) and Doctor of Legal Science (SJD).

Faculty of Law building
The Faculty of Law places great emphasis on the quality of postgraduate research education, and values innovative, high-impact and leading-edge research within and across disciplines. Our graduates include the current Attorney General of Sri Lanka, partners in law firms, and law professors in Australia, New Zealand, Kenya, Hong Kong, Macau, China, India, Malaysia, Thailand and the United Arab Emirates. We provide an intellectually stimulating environment nurturing students' intellectual and creative abilities. Students study in our modern 11-storey Cheng Yu Tung Tower situated next to the entrance of the HKU MTR station. Visit our website for more details on our programmes and the Graduate School website for information on scholarship funding and application submission.

We have two departments and five research centres/institutes dedicated to the study of public law, financial law, Chinese law, law and technology, and medical legal ethics. 

✫ Ranking 18 of 100 top law schools in the 2018 THE World University Ranking for Law 
✫ Consistently Ranking Top 20 in QS World Ranking for Law, 2013 to 2017 
✫ Ranked 10 in Social Sciences Research Network’s Top 500 International Law Schools, Oct 2017 
✫ Editorship of Three Major International Law Journals: Hong Kong Law Journal, Asia-Pacific Journal on Human Rights and the Law, Law and Literature  
✫ Held more than 180 public events in 2016 to 2017 featuring distinguished jurists, academics and practitioners from around the world
✫ Hosting major international conferences on public law (ICON-S), animal welfare law, and legal philosophy in 2018 and 2019 
✫ Two Fulbright Scholars (Hong Kong Awards) for 2018-2019 
✫ Two Outstanding Research Postgraduate Student Awards for 2015-2016
Major Research Areas for Supervision
✪ Chinese law and legal developments, including those related to the Belt and Road initiative 
✪ Corporate and financial law, including FinTech and RegTech 
✪ Comparative constitutional and public law, including human rights and empirical methods 
✪ Law and economics, particularly in competition law 
✪ Alternative dispute resolution 
✪ Innovation, technology, and intellectual property law 
✪ Legal ethics including medical legal ethics and the legal profession 
Published books by our research postgraduate students
For more details of our research areas and academic staff, please visit our website and the HKU Legal Scholarship Blog. If you have further questions, you may email them to lawpgs@hku.hk.

Monday, October 9, 2017

New Book by Po Jen Yap - Courts and Democracies in Asia (CUP)

Courts and Democracies in Asia
Po Jen Yap
Cambridge University Press, 224 pp
September 2017
Description: What is the relationship between the strength of a country's democracy and the ability of its courts to address deficiencies in the electoral process? Drawing a distinction between democracies that can be characterised as 'dominant-party' (for example Singapore, Malaysia, and Hong Kong), 'dynamic' (for example India, South Korea, and Taiwan), and 'fragile' (for example Thailand, Pakistan, and Bangladesh), this book explores how democracy sustains and is sustained by the exercise of judicial power. In dominant-party systems, courts can only pursue 'dialogic' pathways to constrain the government's authoritarian tendencies. On the other hand, in dynamic democracies, courts can more successfully innovate and make systemic changes to the electoral system. Finally, in fragile democracies, where a country regularly oscillates between martial law and civilian rule, their courts tend to consistently overreach, and this often facilitates or precipitates a hostile take-over by the armed forces, and lead to the demise of the rule of law.

Advance praise:
‘Po Jen Yap's new book is a must-read in the growing literature on the role of constitutional courts in democratic stabilization. Its fine-grained analyses demonstrates that the political power and vulnerability of courts in protecting democratic processes as well as their own independence is not fixed or prescribable in the abstract, but varies with the state of democratization and party contestation in which they operate.'
Stephen Gardbaum - MacArthur Foundation Professor of International Justice and Human Rights, University of California, Los Angeles
‘A fascinating tour through the fraught relations between courts and political power. Professor Yap provides a nuanced account of how constitutional courts in Asia balance precariously between semi-authoritarian dominant regimes and the live wire of electoral politics. A magnificent, sophisticated contribution that enriches our understanding of judicial politics in an era of weak democratic institutions.'
Samuel Issacharoff - Reiss Professor of Constitutional Law, New York University
'Po Jen Yap's analysis of the role of Asian courts in three types of democracies illuminates how the possibilities for effective judicial action in connection with major political issues varies according to the type of democracy in which the courts are located. It is an important contribution to the project of integrating comparative constitutional law with comparative political studies.'
Mark Tushnet - William Nelson Cromwell Professor of Law, Harvard University

Sunday, October 8, 2017

James Fry and Agnes Chong on Reconciling the Right to Health and the Right to Tobacco in Times of Armed Conflict (Houston J Int'l L)

James Fry and Agnes Chong (PhD candidate)
Houston Journal of International Law
2017, Vol. 39, Issue 3
Introduction: Imagine a situation where one internee or prisoner of war demands his right to tobacco - presumably in the form of smoking a cigarette - under the 1949 Geneva Conventions while a neighbor simultaneously demands his right to health - here, in the form of the right to be free from the harmful effects of tobacco.  As individuals within these groups tend to live in close proximity to one another for the duration of the hostilities, this problem presumably is not merely hypothetical, even though an actual case that pits these two rights against one another has not yet grabbed the public spotlight.  Given the growing number of pirates, their apparent predilection for cigarettes, and the possibility of them enjoying prisoner-of-war status after their capture until a competent tribunal has determined their status, the stage might be set for just such a case.  Regardless, which neighbor's right prevails?  Putting aside the somewhat obvious solution of creating smoking and non smoking zones, similar to those that exist in some airports, this article explores how to resolve this apparent conflict between rights and whether they actually conflict in the first place. 
     At first glance, it would seem like these rights directly and irreconcilably conflict.  However, upon closer inspection, it becomes clear that there is no actual conflict between these two rights.  Although the traditional view is that as soon as armed conflict begins, international humanitarian law supersedes international human rights law as the lex specialis, in reality this is not necessarily true.  Indeed, several conditions must be satisfied for lex specialis to apply.   For this article's purposes, the key condition is that both rights must be applicable at the same time for them to conflict.  Despite the expansion of the scope of international human rights law into times of armed conflict through the 2003 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory advisory opinion, the two rights in question actually do not apply at the same time.  Since international humanitarian law remains applicable only during times of armed conflicts, the two norms will be applicable at the same time only if the international human rights norm also applies during times of armed conflicts.  The Wall advisory opinion established that only non-derogable human rights norms - for example, those under Article 4 of the International Covenant on Civil and Political Rights - would apply during armed conflicts.  It is highly unlikely that the right to be free from the harmful effects of tobacco is a non-derogable right.  Therefore, the tobacco user's right will trump virtually every time, again, assuming arguendo that that use takes the form of smoking tobacco.
     This article is divided into six parts, including this introduction and an equally brief conclusion in Parts I and VI, respectively.  Part II lays out the history of tobacco use, focusing specifically on the perceived harms and benefits of tobacco on health, which is important in understanding why the right to tobacco and the right to be free from the harmful effects of tobacco have evolved as they have.  Part III explains the oft-overlooked rights to tobacco contained in such provisions of international humanitarian law as Article 11 of the 1929 Geneva Convention Relative to the Treatment of Prisoners of War (1929 Geneva Convention), Articles 26 and 28 of the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention).  Part IV explores the right to be free from the harmful effects of tobacco that comes from the World Health Organization's Framework Convention on Tobacco Control (Framework Convention), various human rights treaties, and customary international law.  Part V evaluates the secondary rules that exist for resolving this apparent conflict and concludes that there is no legal conflict between these primary rules, although they do still conflict from other perspectives.   Critics will complain that this article fails to fully address the clash-of-rights issues presented in the first paragraph of this introduction.  However, such criticism misses the entire point of this article - that clash-of-rights issues arise only when rights actually conflict, and there is no actual conflict between the right to tobacco and the right to be free from the harmful effects of tobacco.  While ample literature focuses on how international humanitarian law and international human rights law conflict of potentially conflict, this article appears to be the first to provide a detailed analysis of whether rights in these two areas of international law actually conflict, making the secondary rules for resolving conflicts relevant.  
     This article also is unique in providing the first academic analysis of the right to tobacco, although there are other academic articles on the right to be free from the harmful effects of tobacco.  It is somewhat surprising that previous academic studies have not focused on the right to tobacco, given that tobacco made up 2.18 percent of the overall weight of consignments to prisoners of war, civilian internees, and deportees from October 18, 1940 to December 1945, with tobacco apparently becoming the category of supply with the highest percentage on the International Committee of the Red Cross' budget in recent years.  This article also provides the first comparison of these two rights, which would have been an interesting case study fur the interaction of different branches of international law and the interpretive tools available for reconciling conflicts had these two branches actually conflicted with regard to tobacco-related rights.    

James Fry on the Eritrea-Ethiopia Boundary Commission (African J Int'l & Comp L)

"Ethiopian Exceptionalism and the Eritrea-Ethiopia Boundary Commission"
African Journal of International and Comparative Law
2017, Vol. 25, Issue 2
Abstract: This article explores the reasons why Ethiopia relied on legal resolution with its territorial boundary dispute with Eritrea when it could have relied on its relative military power to dictate the terms and conditions of peace. It dismisses Ethiopia's familiarity with Western-style legal resolution and its relative lack of nationalism as potential explanations, instead focusing on Ethiopia's general sense of exceptionalism from its history as an African and global leader and as a respecter of international law, among other key factors. Ethiopia's example provides considerable hope that legal resolution can be used more frequently with politically sensitive disputes between states.

Friday, October 6, 2017

Scott Veitch's "The Sense of Obligation" (Jurisprudence)

"The Sense of Obligation"
Scott Veitch
September 2017, published online
Abstract: This article is based on the Inaugural Adam Smith Lecture in Jurisprudence given at the University of Glasgow in 2016. It asks this question: is it not an age of obligation that we live in as much as, if not more so than, an age of rights? To answer this it explores a number of different senses of obligation to be found across a range of social practices. After an overview of some of the main concerns of Smith’s work, it looks at two types of ‘obligation practices’ prominent in contemporary society: those that make rights effective, and those that operationalise debt. In paying attention to the often less visible work done by and through obligations, it also highlights certain vulnerabilities citizens are susceptible to when the distinction between obligation and obedience threatens to collapse.

Thursday, October 5, 2017

HKU Law Ranks 18 of 100 World's Top Law Schools (THE World University Rankings 2018)

In the latest release of the Times Higher Education World University Rankings 2018 by Subject in which Law is included for the first time, The Faculty of Law of the University of Hong Kong comes in 18th in the world and first in Asia. The Faculty is delighted that its unwavering commitment to excellence in all that it does in Hong Kong, Asia and globally is recognized internationally. The Faculty is encouraged and inspired to redouble its efforts to provide first rate legal education, produce cutting-edge research, engage in transformative knowledge exchange, and to champion the Rule of Law.
     The Faculty of Law has also consistently ranked within the top 20 of the QS World University Ranking of law schools from 2013 to 2017.  For details of the 2018 Times Higher Education World University Rankings for Law, click here.  For related news coverage in the South China Morning Post, click here.