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. 

Highlights
✫ 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
Jurisprudence
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.

Tuesday, October 3, 2017

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


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

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