Anne Cheung and Clement Chen's Work on Big Data in China Profiled in HKU's Bulletin (Jan 2018)

"Big Data's Dark Side"

Bulletin

Jan 2018, Vol 19, No 2

How can individuals be protected when their personal data is constantly being collected for uses that may not be apparent until some future date? And when it may not be obvious who is collecting that data?

     As giants like Google, Facebook, WeChat and Alibaba track their users every minute of the day, these questions are rising high on government agendas around the world. In little more than a decade, most people now share personal information in order to gain access to services – whether socialising, shopping, seeking entertainment, or checking up on their health. Even our whereabouts can be tracked at every moment if the location service on our phones is turned on.

     That goldmine of information is being used by both businesses and governments to make decisions about individuals and groups, such as how much to charge certain users for services, whether to deny them access and what trends are revealed by their data. And therein lie several problems.

    First, the story told by big data may not be an accurate one. Professor John Bacon-Shone of the Faculty of Social Sciences, a statistician with an interest in big data and privacy who also advises the Hong Kong Government on the issues, cites the example of the Google Flu Trends web service which aggregated search queries about flu to predict outbreaks. “The problem is, it’s just an association, not causation, and it doesn’t work well at prediction. If you have a different type of flu, the whole thing falls apart,” he said...

     Personal data protection laws typically require banks and other institutions to keep accurate up-to-date information and disclose how it will be used. But when the technology is changing rapidly, with new and unanticipated uses becoming possible, this may no longer be sufficient.

     Professor Anne SY Cheung of the Faculty of Law has been studying privacy and personal data protection and is co-editor of the 2015 book Privacy and Legal Issues in Cloud Computing. “Recent legal reforms and position papers from the European Union (EU), the UK and the US have raised concerns about the problem of profiling, predictive decisions and discrimination, and the harm that may result from that. This is because the use of big data is very different from our traditional understanding of how to regulate personal data.

     “The traditional approach is essentially one of notice and consent: the collection of personal data is allowed only for a specific and limited purpose. But in the age of big data, the more data one has, the more accurate and arguably useful one’s conclusions will be. So the collector tries to collect as much data as possible and only after they have it and have done their analysis, will they find correlations and identify the purpose,” she said...

China: Big data, big brother?

The use of big data in China is of an altogether different level of concern from commercial uses of personal information.  The central government is in the process of rolling out a social credit system that draws on big data to rate each individual's reputation based on their political leanings, purchase history, social interactions and other factors.  

     "China is like a big data laboratory," said Professor Cheung, who has been studying the situation there with colleague Dr Clement Chen.  "Arguably, there is 360-degree surveillance watching individuals and gathering data. They have real-name registration [for mobile and internet services] and close connections between the government and the banking system and internet companies"...  Click here to read the full article.

Ryan Whalen on Complex Innovation and the Patent Office (Chicago-Kent J of IP)

"Complex Innovation and the Patent Office"

Ryan Whalen

The Chicago-Kent Journal of Intellectual Property,
2018, Volume 17, Issue 1

Abstract: As the universe of available information becomes larger and innovation becomes more complex, the task of examining patent applications becomes increasingly difficult. This Article argues that the United States Patent Office has insufficiently responded to changes in the information universe and to innovation norms. This leaves the Patent Office less able to adequately assess patent applications, and more likely to grant bad patents. After first demonstrating how innovation has been responsive to contemporary innovation norms for hundreds of years, this Article uses information and data science methods to empirically demonstrate how innovation has drastically changed in recent decades. After empirically demonstrating the changed innovation system and the inadequate response to these changes by the USPTO, this Article concludes with policy prescriptions aimed to help the Patent Office implement examination procedures adequate to assess 21st century innovation. These prescriptions include more granular crediting for the time spent by examiners assessing applications, an increased focus on teamwork at the Patent Office, improvements to the inter partes review process, and alterations to the analogous art doctrine.

New Book by Wilkinson, Cheung & Meggitt: Civil Procedure in Hong Kong (6th edition) (LexisNexis)

Civil Procedure in Hong Kong (6th edition)
Michael Wilkinson, Eric TM Cheung & Gary Meggitt
LexisNexis
December 2017,

Description: Civil Procedure in Hong Kong Sixth Edition provides practitioners with a clear and up to date exposition of the rules and judicial decisions governing the conduct of civil litigation in Hong Kong. The Civil Justice Reform has now been effective for more than 8 years and there are many judicial decisions reflecting judicial approaches and attitudes to the implementation of the new rules. The authors have chronicled these developments by reference to the considerable amount of case law on the new rules and practice directions.

     This sixth edition includes the most significant new cases affecting both the new rules and rules unaffected by the Reforms, including:

• The use of translated documents in proceedings vide case development on High Court Civil Procedure (Use of Language) Rules r 5(5)(a)

• Rules on service and forum in lieu with Hong Kong’s role in a developing global economy

• Updates to procedural rules since previous edition eg vide L.N. 175 of 2015, L.N. 3 of 2016

Wilson Chow on Legal Interpretation of Tax Law: Hong Kong (new book chapter)

"Legal Interpretation of Tax Law: Hong Kong"
Wilson Chow
in Robert  F. van Brederode & Richard Krever (eds.), Legal Interpretation of Law (Wolters Kluwer, 2017), ch 9

Introduction and Background: Three themes introduce this chapter, and they inform us why legal interpretation of taxation law in Hong Kong has evolved in the way it has.  They are historical development (which explains the reliance placed by Hong Kong courts on precedents from comparable common law jurisdictions and illustrates that, in different periods of Hong Kong's legal history, different approaches to statutory interpretation have evolved), simplicity and stability (which explains why Hong Kong 'tax law' in many key areas is found in case law, rather than statutory intervention; which supports the comparatively recent adoption by the courts of a practical and purposive approach to statutory interpretation; and which, as well shall see, has not been inimical to the interests of the Revenue) and low taxation rates (which, in part, explains the antipathy apparent in the courts to 'tax avoidance' transactions and which, in turn, reinforces the purposive approach).

Chow, Ng & Jen on Experientialization of Legal Education in Hong Kong (new book chapter)

"Experientialization of Legal Education in Hong Kong – Adoption and Adaptation"

Wilson Chow, Michael Ng and Julienne Jen

in Legal Education in Asia: From Imitation to Innovation (Brill, 2017), pp. 197-222.

As a former British colony, the legal system in Hong Kong is deeply rooted in and influenced by the common law tradition, and culture of England and Wales. Even its model of legal education and training was first guided by the English Report of the Committee on Legal Education, under the chairmanship of Sir Roger Ormrod, in 1971. Hence a vocational year, the Postgraduate Certificate in Law (PCLL), following the three year undergraduate law curriculum that was to be recommended in England and Wales was also implemented in the first law school in Hong Kong - the University of Hong Kong (HKU) - in 1972. The larger picture has not changed much despite the handover of Hong Kong in 1997 to People's Republic of China, which is a civil law jurisdiction. Nevertheless, like every other legal transplant which typically starts with the adoption of legal rules which work elsewhere and often continues to modify, develop and evolve in order to suit the particular jurisdictional social and cultural context, Hong Kong has also seen an extended four-year instead of three-year, LLB, joint degree programmes with law, and the degree of Juris Doctor (JD), all of which are not typical features of the traditional English common law educational framework and, with the exception of the lengthened LLB, are just other examples of legal transfer from outside Hong Kong...

Thomas Cheng's Consumer Behavioral Approach to Resale Price Maintenance (Virginia Law and Business Review)

"A Consumer Behavioral Approach to Resale Price Maintenance"
Thomas Cheng
Virginia Law and Business Review

Fall 2017, Volume 12, Issue 1, pp 1-92

Abstract: This Article reexamines the various pro-competitive justifications and theories of harm for resale price maintenance (“RPM”), one of the most controversial practices in antitrust law. It argues that the existing literature overlooks three important issues regarding RPM, namely, the kind of retail service invoked in a justification, the kind of retailer at issue, and the prevailing model of consumer behavior. All three issues have important implications for the plausibility and validity of the various justifications and theories of harm for RPM. It argues that most of the existing literature presumes the inter-brand primacy model of consumer behavior. Once this model is not applicable, much of the prevailing analysis breaks down and the legality of RPM needs to be reconsidered. In particular, this Article demonstrates that many of the accepted justifications for RPM are of doubtful validity or are only valid under limited circumstances. This lends support to a more hostile view of RPM.  Click here to download the full article.

David Law on Alternatives to Liberal Constitutional Democracy (Maryland Law Review)

"Alternatives to Liberal Constitutional Democracy"

David Law

Maryland Law Review

December 2017, Volume 77, Issue 1, pp 223-243

Abstract: The global appeal of liberal constitutional democracy—defined as a competitive multiparty system combined with governance within constitutional limits—cannot be taken for granted due to the existence of competing forms of government that appear successful along a number of practical dimensions and consequently enjoy high levels of public acceptance. Proponents of liberal constitutional democracy must be prepared to proactively explain and defend its capacity to satisfy first-order political needs. A system of government is unlikely to command popular acceptance unless it can plausibly claim to address the problems of oppression, tribalism, and physical and economic security.

     Along these dimensions, the advantages of liberal constitutional democracy over the alternatives of social democracy of the type seen in Scandinavia, and bureaucratic authoritarianism of the type seen in parts of Asia, are not self-evident. Within Asia alone, seemingly functional alternatives to liberal constitutional democracy run the gamut from illiberal nondemocracy in China, to liberal one-party rule in Japan, to illiberal constitutional democracy in Singapore, to liberal constitutional nondemocracy in Hong Kong, to hereditary monarchy in Bhutan.  Click here to download the full article.

Puja Kapai Interviewed on Gender Pay Inequality in Hong Kong (SCMP)

"Is gender pay inequality a problem in Hong Kong?"

Yupina Ng 

South China Morning Post 

21 January 2018 

There was quite a commotion in Hollywood when it was revealed that Michelle ­Williams was paid less than 1 per cent of what her male co-star received for ­reshooting scenes of crime thriller All the Money in the World...

     Although the Sex Discrimination Ordinance, which came into force in 1996, prohibits discrimination against either men or women on the basis of sex, marital status and pregnancy in seven public domains including employment, a lack of transparency in some companies’ pay scales has made it extremely difficult for complainants to establish their claims, according to Puja Kapai, an associate professor of law at the University of Hong Kong.

     “The legislation itself provides the scope for this kind of claim, but it’s about the practical implementation,” she says. “You really need a lot of transparency to be able to confidently say that any difference in pay is purely on the basis of gender.”

     Kapai adds that the legislation’s requirement of attempting reconciliation poses challenges. “It puts a lot of claimants in a very difficult position because oftentimes they don’t necessarily want to confront their very powerful employers.”...

Anselmo Reyes and Weixia Gu, Towards a Model of Arbitration Reform in the Asia Pacific (new book chapter)

"Introduction: Towards a Model of Arbitration Reform in the Asia Pacific"

Anselmo Reyes and Weixia Gu

in Anselmo Reyes and Weixia Gu (eds), The Developing World of Arbitration - A Comparative Study of Arbitration Reform in the Asia Pacific (Hart Publishing, January 2018), pp. 1-16.

Since the turn of the twentieth century, international commercial arbitration has flourished and prospered across the Asia Pacific. The development of international arbitration as a mechanism for commercial dispute resolution has not only mirrored, but also responded to, the commercial needs of continuing economic development within Asia Pacific jurisdictions. 

     Attracting foreign investment and boosting commercial confidence, whether in the short or long term, will typically necessitate the institution of efficient and effective dispute resolution mechanisms to handle the differences that inevitably arise as a matter of cross-border business. Given that outside investors may be wary of the impartiality of domestic courts in resolving cross-border commercial disputes, it is natural that arbitration has found itself uniquely situated in Asia Pacific jurisdictions as a preferred mode of dispute resolution, as well as a magnet for foreign investment within a given state. 

     The steady growth of international commercial arbitration in Asia is reflected by the numbers. Since 2008, the total number of arbitrations handled by key international arbitration institutions in the Asia Pacific has continuously exceeded the number of cases handled by similar institutions in the West. The establishment of key institutions from the Korean Commercial Arbitration Board in Northeast Asia, to the Singapore International Arbitration Centre and the Kuala Lumpur Regional Centre for Arbitration in Southeast Asia, and to the Australian Centre for International Commercial Arbitration in the Pacific, coupled with the ongoing consolidation of the China International Economic and Trade Arbitration Commission in China, has raised the presence and standing of international commercial arbitration as a form of dispute resolution in the Asia Pacific. 

     Each jurisdiction, however, has a different story to tell in terms of the trajectory of its respective arbitration reform efforts. While some jurisdictions have attained global renown in their efforts, others have trodden different paths with only modest or even minimal success...

Shahla Ali on Balancing Procedural and Substantive Arbitration Reforms: Advancing International Arbitration Practice in Hong Kong (new book chapter)

"Balancing Procedural and Substantive Arbitration Reforms: Advancing International Arbitration Practice in Hong Kong"

Shahla Ali

in Anselmo Reyes and Weixia Gu (eds), The Developing World of Arbitration - A Comparative Study of Arbitration Reform in the Asia Pacific (Hart Publishing, January 2018), pp. 39-65.

Introduction: This chapter examines how the UNCITRAL Model Law on International Arbitration (the Model Law) has affected arbitration practice in Hong Kong. It also examines measures taken in the region to promote the use of arbitration including training programmes and legislative reforms. It concludes by examining challenges in the implementation of the Model Law and efforts at reform...

Weixia Gu on China's Arbitration Modernisation Under Judicial Efforts and Marketisation Waves (new book chapter)

"China's Arbitration Modernisation Under Judicial Efforts and Marketisation Waves"

Weixia Gu

in Anselmo Reyes and Weixia Gu (eds), The Developing World of Arbitration - A Comparative Study of Arbitration Reform in the Asia Pacific (Hart Publishing, January 2018), pp. 17-38.

Introduction: Since 1978, China's drive towards economic modernisation and marketisation in its policy of 'reform and opening up' has led to increased foreign trade, investment, and as a natural corollary, commercial disputes. Arbitration, the preferred means of settling business disputes in China, plays a significant role in providing foreign cooperative partners with the confidence and reassurance that are necessary to encourage trade and investment.

     China's Arbitration Law, promulgated in 1994 (effective in 1995) forms the cornerstone of the modern Chinese arbitration regulatory framework. However, there has been little legislative improvement afterwards towards meeting the changing needs of the past two decades. Instead, top-down judicial efforts by China's Supreme People's Court and bottom-up institutional initiatives by Chinese arbitration commissions have played their role in further refining and internationalising the Chinese arbitration system. Arbitration commissions in particular have proliferated int he years following the promulgation of the Arbitration Law, and their rising competition for independence and professionalism in recent years has pushed the formation and flourishing of the Chinese arbitration market...

Anselmo Reyes and Weixia Gu on an Asia Pacific Model of Arbitration Reform (new book chapter)

"Conclusion: An Asia Pacific Model of Arbitration Reform"

Anselmo Reyes and Weixia Gu

in Anselmo Reyes and Weixia Gu (eds), The Developing World of Arbitration - A Comparative Study of Arbitration Reform in the Asia Pacific (Hart Publishing, January 2018), pp. 279-300.

The Introduction chapter to this book promised three deliverables. The first, a summary of arbitration reform in 12 Asia Pacific states, has been provided in the preceding 12 chapters. The function of this Conclusion is to make good on the remaining two promises. 

     The initial part of this Conclusion will pull together various strands in those previous chapters to evaluate the model for arbitration reform in the Asia Pacific posited in section 3 of the Introduction. The second part will deal with the three sets of questions (looking to the past, present and future) posed in the same section of the Introduction. The final part will make good on the promise of a third deliverable by forecasting likely future arbitration reform initiatives in the Asia Pacific...

HKU Law Welcomes Two New Colleagues: Frank He Xin (Chinese Law) and Anya Adair (Law & Literature)

The Faculty of Law warmly welcomes Professor He Xin (Frank), who joins us from City University of Hong Kong, and Assistant Professor Dr Anya Adair, who joins us from Sydney University.  They further strengthen respectively our leading research areas of Chinese law and law & literature.

Prof He Xin (Frank)

     Professor Frank He's research interests are law and society, empirical legal studies, comparative laws, and Chinese legal systems, especially on judicial reforms in China and Chinese family laws.  He obtained his LLB and LLM from Peking University, China, and his JSM and JSD degrees from Stanford University, where he was an Asia-Pacific Scholar. Before joining HKU, he was Professor and Director of the Chinese and Comparative Law Center at School of Law, City University of Hong Kong. He has also taught at the law schools of NYU and University of Illinois as Visiting Professor.  His recent works appear in the American Journal of Sociology, Law & Society Review, China Quarterly, China Journal, and American Journal of Comparative Law. His monograph Embedded Courts: Judicial Decision Making in China with Kwai Ng was recently published by Cambridge University Press.

Dr Anya Adair

    Dr Anya Adair is a jointly appointed Assistant Professor in the Department of Law (Faculty of Law) and School of English (Faculty of Arts) in the University of Hong Kong.  Her research interests include medieval English literature, as well as pre-modern English law and legal culture.  She is currently teaching LALS2001 "Introduction to Law and Literary Studies" this semester. The historical scope of Dr Anya Adair’s present research covers the seventh to the sixteenth centuries. It aims to unite more closely the fields of medieval law and medieval literature, and to provide insight into the intellectual, emotional and social dimensions of legal and literary production across the period. She holds a Bachelor of Arts and Bachelor of Laws from the University of Melbourne and graduate degrees in English from Melbourne, Oxford and Yale.  Dr Adair's joint appointment, a first of its kind at HKU, will enhance our law and literary studies double degree programme (BA & LLB) and further HKU's interdisciplinary research in this field.

New Book: Rethinking Regulation of International Finance: Law, Policy and Institutions (Kluwer)

Rethinking Regulation of International Finance: Law, Policy and Institutions
Uzma Ashraf Barton (PhD 2016)
Kluwer Law International
December 2017, 280 pages

Description: Rethinking Regulation of International Finance encapsulates the most important aspects of the development and operation of the international financial system. This book questions the fundamental basis of the existing international financial architecture (soft law) and explores the need for a compliance-based model based on legitimacy of regulations and accountability of the regulatory bodies in international financial stability. Why have financial standards and institutions almost always failed to effectively predict and respond to real-world financial crises? The answer, as this challenging book shows, is that international financial law suffers from a persistent lack of judicial or quasi-judicial enforcement mechanisms, leaving flaws in the structure of the international financial system that lead inevitably to excesses that threaten the public good of global financial stability. The author, an internationally renowned legal expert on financial and fiscal reforms, responds to the increasingly urgent call for rethinking the structure and the functioning of international financial law and argues that a resilient procedural mechanism with judicious regulatory substance can make the financial system safer for all actors, including the taxpayers of not only the Member States but also the unrepresented countries. To this end, the book suggests short-to-medium term reforms within the existing financial system and for longer-term it recommends an unconventional alternative that takes risk away from the market and thereby makes every stakeholder accountable to the system.

     This book asserts that the existing financial architecture repeatedly fails to safeguard the essential public good of financial stability and this failure perpetuates higher risks in financial markets. Centering on the concept of enforcement – which continues to be an unresolved issue in the discipline of international financial law – the analysis describes the likely contours of hard-law regulatory reform. It weighs the pros and cons of much-talked-about regulatory and policy issues such as the following and more:

• policy implications from the transformation of finance from a domestic to an international concept;
• new or revised supervisory and regulatory bodies with redefined mandate, jurisdictions and powers;
• possibility of a treaty-based structure similar to the European Union’s integration framework; and
• consolidation of crisis-prevention and crisis-management policies.

The analysis takes into account instances from trade and monetary systems pertinent to the development of the discipline of international financial law. The concluding chapter explores possibilities for putting in place an asset-backed resilient financial system based on risk sharing that is empowered to legislate reform and authorized to seek compliance from its members.

Launch of the New SSRN Chinese Law eJournal

We are proud to announce the launch of the new Chinese Law eJournal, published as a Subject Matter eJournal on the Legal Scholarship Network of the Social Science Research Network (SSRN). The eJournal includes working and accepted abstracts and papers providing a platform for scholars of different background and approaches to communicate with each other. We welcome submissions of doctrinal as well as interdisciplinary, quantitative as well as qualitative, macro as well as micro studies of China. We are pleased that there are already almost 3500 papers within the paper series.

     The HKU Faculty of Law has the widest range of expertise in Chinese Law outside Mainland China. Our expertise ranges from One Belt One Road, dispute resolution, criminal law, public law, securities regulation and finance, and intellectual property, to cross-border issues, one country two systems, and legal theory and jurisprudence. Coupled with our strength in common law, we are in a strong position in offering comparative law research and teaching on civil law and common law. 

     To access the papers in the new paper series, click here.  To subscribe to the paper series, click here (sign in to SSRN required).  We encourage all Chinese Law (including Taiwan, Hong Kong and Macau law) scholars to publish their latest work in this series for wide and speedy dissemination.  The editors and advisory board members (confirmed thus far) are as follows:

Editors

Professor Fu Hualing, Faculty of Law, The University of Hong Kong

Dr Shitong Qiao, Assistant Professor & Co-Director, LL.M. (Chinese Law), Faculty of Law, The University of Hong Kong

Advisory Board Members

Professor Albert H. Y. Chen, Cheng Chan Lan Yue Professor in Constitutional Law, Faculty of Law, The University of Hong Kong

Dr Michael Ng, Assistant Professor, Director of Centre for Chinese Law, Faculty of Law, The University of Hong Kong

New Issue of Hong Kong Law Journal (Part 3 of 2017)

HONG KONG LAW JOURNAL

Vol. 47, Part 3 of 2017

Editor-in-Chief: Professor Rick Glofcheski

Associate Editor: Professor Albert Chen

Publisher: Sweet & Maxwell

Articles

1. Constitutionality of the Co-location Arrangement at the West Kowloon High-Speed Rail Terminus Lin Feng 699

2. Corporate Governance and Company Law: The Disconnect between Accountability and Directors’ Duties Ernest Lim 733

3. Mediation and Resolving Disputes Involving Emergency Nurses in Hong Kong: A Legal Empirical Inquiry Ka Ki Cheng and Andra Le Roux-Kemp 763

4. Decriminalisation of Same-Sex Relations and Social Attitudes in Singapore: An Empirical Study Lynette J Chua, Dickson Su, Rayner Kay Jin Tan and Koh Wei Jie 793

5. Rethinking the NPCSC’s Power to Interpret the Basic Law Jonathan Lam 825

6. Latest Developments on the Right to be Forgotten — Is the Time Ripe for Hong Kong? Griffith Cheng 847

7. Developing MDBs’ Dispute Settlement Systems: A Perspective of Asian Infrastructure Investment Bank Bin Gu 871

Lectures

8. Judges, Access to Justice, the Rule of Law and the Court of Final Appeal under “One Country Two Systems” Lord Neuberger of Abbotsbury 899

9. Legal Implications of Hanjin Shipping’s Rehabilitation Proceeding In Hyeon Kim 915

China Law

10. Cybercrime in China — A Review Focusing on Increasing Criminalisation of Harmful Cyberactivities Jiajia Yu 937

11. Sino-Vietnam Dispute Over Hydrocarbon Resources Exploration in Nansha Waters after the South China Sea Arbitration Ran Guo 951

12. The Acquisition and Use of International Law by Chinese Diplomat as a Sword to Defend Sovereignty and Challenge Chinese Exclusion Act in the Late Qing Dynasty Li Chen 987

Book Reviews

China’s Legal System Thomas Coendet 1013

The Making of the Modern Chinese State: Cement, Legal Personality and Industry Dr Jonathan Chappell 1017

A Theory of Discrimination Law PY Lo 1023

Click here to read the abstracts of each article. Hong Kong Law Journal is published by Sweet & Maxwell. Full text is available on Westlaw.

New Issue of Asia-Pacific Journal on Human Rights and the Law, 2017, Vol 18(2)

ASIA-PACIFIC JOURNAL ON HUMAN RIGHTS AND THE LAW

2017, Vol. 18, Issue 2
Editors-in-Chief: Simon NM Young and Kelley Loper

Publisher: Brill, Leiden

Articles

1. The Communist Party of China’s Approach to Human Rights and the Death Penalty
Huang Gui
Volume 18, Issue 2, pages 117 - 154, 2017

2. Enforcement of Fatwas in Bangladesh and the Violation of Constitutionally Guaranteed Fundamental Rights of Others: Compromising Between Rights
Md Jahid Hossain Bhuiyan
Volume 18, Issue 2, pages 155 - 171, 2017

3. Moving Away From Paternalism: The New Law on Disability in Indonesia
Agung Wardana and Ni Putu Yogi Paramitha Dewi
Volume 18, Issue 2, pages 172 - 195, 2017

4. Achieving the Zenith of Education: Human Rights Based Transformation of Higher Education in Sri Lanka
Binendri Perera
Volume 18, Issue 2, pages 196 - 218, 2017

5. Contents
Volume 18, Issue 2, pages 219 - 220, 2017

Simon Young on Enforcing Criminal Law Through Civil Processes: How does Human Rights Law Treat 'Civil for Criminal Processes'? (JICL)

"Enforcing Criminal Law Through Civil  Processes: How does Human Rights Law Treat  'Civil for Criminal Processes'?"
Simon Young
Journal of International and Comparative Law
Dec 2017, Volume 4, Issue 2, pp. 133–170

Abstract: The distinction between civil and criminal procedures has blurred with the advent and growth of hybrid procedures. Governments in common law jurisdictions have created civil processes and penalties to further criminal law aims. This article describes them as “civil for criminal processes”. Some controversial examples include civil forfeiture, anti-social behaviour orders and measures targeting money laundering and insider dealing. They serve as an alternative to traditional criminal proceedings. Foregoing the sanction of imprisonment and stigmatising effect of a criminal conviction, these civil processes provide governments with evidential and procedural advantages and greater opportunities for case settlement. But human rights law has treated civil for criminal processes inconsistently, deeming some as criminal proceedings and therefore entitled to high levels of procedural protection and others not. This article explores different approaches developed by the European Court of Human Rights and the Supreme Court of Canada. It argues in favour of the Canadian approach, defining the “criminal” sphere more narrowly, and calls for the concomitant, principled development of adequate procedural protections in civil for criminal processes.  Click here to download the full article.

Call for Papers:The Emergence of Computational Legal Studies @ HKU (June 28–29, 2018)

Call for Papers: The Emergence of Computational Legal Studies @ HKU

June 28 & 29, 2018, the University of Hong Kong

OVERVIEW:

     In recent decades, technology has had a profound influence on the practice of law, and the legal education landscape. Meanwhile, it has also begun to transform the way that scholars perform empirical legal research. Improved access to data, increased computational power, and the development of new analytic techniques have led to the emergence of a body of work that some refer to as “Computational Legal Studies.”

     Much of the scholarly discourse surrounding “Law and Technology” has focused on either the doctrinal issues raised by technological developments, or the impact of legal technologies on the practice of the law. Meanwhile, comparatively little attention has been paid to Computational Legal Studies as such.

     The Department of Law at the University of Hong Kong, in conjunction with the University’s Law & Technology Centre, is excited to provide a venue for computational legal scholars to come together and discuss the promises and challenges facing this emerging body of research.

FORMAT: 
     We seek papers or presentations broadly related to Computational Legal Studies. Our definition of Computational Legal Studies is expansive, including:

• Research that applies computational data processing or analytic methods to questions of interest to legal scholars
• Work that explores computational legal studies as a sub-discipline
• Methodological work that develops or assess computational methods of interest to legal scholars

We are interested in hearing from scholars using any-and-all computational methods including: machine learning, natural language processing, large-data set analysis, network analysis, computer simulation and modeling, computational data collection, etc.

FINANCIAL SUPPORT:

     Some financial assistance may be available to partially offset travel costs.

APPLICATION PROCEDURE:

     To submit work, or inquire about the workshop please contact Ryan Whalen at whalen@hku.hk. 

     Submissions can include drafts of papers or extended abstracts (~500 words) about research projects you would like to undertake and present at the workshop. Submissions should be received by February 28, 2018. 

REWARD:

     Papers from the workshop will be made available in an edited volume.

Satyam Mukherjee and Ryan Whalen on "Priority Queuing on the Docket: Universality of Judicial Dispute Resolution Timing" (Frontiers in Physics)

"Priority Queuing on the Docket: Universality of Judicial Dispute Resolution Timing"
Satyam Mukherjee and Ryan Whalen
Frontiers in Physics

Accepted: 03 Jan 2018. 

Description: This paper analyzes court priority queuing behavior by examining the time lapse between when a case enters a court’s docket and when it is ultimately disposed of. Using data from the Supreme courts of the United States, Massachusetts, and Canada we show that each court’s docket features a slow decay with a decreasing tail. This demonstrates that, in each of the courts examined, the vast majority of cases are resolved relatively quickly, while there remains a small number of outlier cases that take an extremely long time to resolve. We discuss the implications for this on legal systems, the study of the law, and future research.

Albert Chen's Legal Analysis of Hong Kong's Joint Checkpoint Co-Location Arrangements (Ming Pao)

Professor Albert Chen provides a legal analysis of the NPCSC’s Decision on the Co-location Arrangement in a two-part article in Chinese published in Ming Pao on 8 January and 9 January 2018. He argues that the uproar in the legal profession after the NPCSC Decision is a result of different understandings of the meaning of the Decision and different ways of interpreting the Basic Law. The Decision is not inconsistent with the Basic Law. Taking into account the convenience of the passengers and the nature of “colocation”, the Co-location Arrangement can be understood to be a “proportionate” arrangement under Article 18 of the Basic Law if the Article is interpreted in accordance with a “purposive approach”.

     He contends in the first article:

“[T]he Decision of the NPCSC considers that Article 18 (of Basic Law) does not prohibit the Hong Kong SAR from exercising its high degree of autonomy in matters of immigration (entry and exit) control to set up the co-location arrangement and to deem the Mainland Port Area in the West Kowloon station to be part of the Mainland. Accordingly, the HKSAR can prescribe that for the purposes of the application of law and the jurisdiction of the courts (except for the six types of matters stipulated in the “cooperative arrangements on colocation” to be governed by the law of Hong Kong), the Mainland Port Area is deemed to be part of the Mainland. Therefore, the application of Mainland law in the Mainland Port Area of the West Kowloon station does not contravene Article 18 of the Basic Law. It must be pointed out that the Decision of the NPCSC does not assert or imply that the HKSAR government or the HKSAR legislature shall have power to mark out a piece of land anywhere in the Hong Kong for any purpose and to stipulate that Mainland law will be implemented on that piece of land. Therefore the Bar Association is mistaken in contending in a Statement on December 28 last year that the Decision of the NPCSC implies that the HKSAR government is capable of authorizing the application of Mainland laws to any part of the HKSAR designated by itself (e.g. the High Court Building) as long as it does not cover the whole of the HKSAR. This is definitely not the legal meaning of the NPCSC Decision.” 

For the full article in Chinese only, see Legal Analysis of the NPCSC Decision on the Co-location Arrangement I.

     In the second article, Professor Chen states that: 

“Some legal professionals argue that the co-location arrangement is in clear violation of Article 18 of the Basic Law, and this is because they interpret Article 18 in accordance with the literal rule of interpretation. Let us put aside for the moment the interpretation approach (of “original intent”) adopted by the NPCSC, which may differ from the common law approach adopted in Hong Kong. Even in the common law tradition, the literal interpretation of law is not the only way of interpretation. Another method of judicial interpretation that has long been established by common law courts is to interpret and apply relevant legal provisions so as to give effect to the legislative purpose behind the provisions. This is the so-called purposive approach. In the precedents of common law, despite the fact that courts have followed the literal approach of interpretation in large numbers of cases, there are quite a few cases in which the Court applies the purposive approach in order to give a more flexible interpretation or application of the relevant laws; it is not rigidly constrained by the literal meaning of the legal text.”

For the full article in Chinese only, see Legal Analysis of the NPCSC Decision on the Co-location Arrangement II.  This post was prepared by Ms Isabella Liu, Research Officer, Faculty of Law.

Yash Ghai Envisions the Future of Kenya (The Star)

"Ethnicity, democracy and justice"

Yash Pal Ghai

The Star

8 Jan 2018

In an article published in the Star (December 22) and the Sunday Standard ( on December 24 ), I advocated the conferment of the title of the Baba wa Taifa on Raila Odinga by his admirers and followers, rather than his seeking to be sworn in as President, which he and millions of Kenyans think he is entitled to after the August 8 election.

     I gave several reasons for this, including the ability to influence the fortunes of a society from outside of the State, following the examples of Gandhi, Mandela and Martin Luther King. This would, I argued, minimise the risks of ethnic conflict and massacre, driven by the State. The other major reason was the need to move away from the highly corrupt government and to a fair allocation of resources and social justice, and a truly democratic state.

     Of the readers who wrote to me, only Charles Kipkulei, who I do not know, expressed severe criticism (in the Star on December 29 ). I am writing in the spirit of an academic: Not to score a point but to search for the truth. This article is intended to assure him and readers, who he might have convinced, that my fidelity to the Constitution remains unshaken. However, I have to admit that political parties and electoral candidates have shown that they do not have any respect for the Constitution — a point I made repeatedly during the electoral process, which seems to have upset Kipkulei. Kipkulei accuses me of “three false notions that should be a concern and should be disabused”... Click here to read the full article.

New Book by Anselmo Reyes and Weixia Gu: The Developing World of Arbitration - A Comparative Study of Arbitration Reform in the Asia Pacific (Hart)

The Developing World of Arbitration - A Comparative Study of Arbitration Reform in the Asia Pacific
Editors: Anselmo Reyes and Weixia Gu
Hart Publishing
January 2018, 356 pages

Description:  The Developing World of Arbitration studies the recent emergence of Asia Pacific jurisdictions as regional or international arbitration centres, thanks to various reform efforts and initiatives. This book provides an up-to-date and comprehensive analysis of the ways in which arbitration law and practice have recently been reformed in Asia Pacific jurisdictions. Leading contributors across the Asia Pacific region analyse twelve major jurisdictions representing varying patterns and degrees of development, whether driven from top down, bottom up, or by some hybrid impetus. Setting the arbitration systems and reforms of each investigated jurisdiction in the context of its economic, political, and judicial dynamics, this book presents, for the first-time, a cross-jurisdiction comparative and contextual study of the developing world of arbitration in the Asia Pacific and contributes to comparative international arbitration literature from an Eastern perspective. It also aims to identify an Asia Pacific model of arbitration modernisation, one that may be distinct from a Western model, and predicts future trajectories of development and challenge in light of the ever increasing competition between Eastern- and Western-based arbitration centres. This edited collection will be an invaluable addition to the libraries of academics and practitioners in the field of international commercial arbitration.
     The book was favourably reviewed by Ms Debby Lim of Shook Lin & Bok LLP in the Singapore Gazette in September 2018.  Click here to read the review.

CCPL's Submission to the Working Group on Gender Recognition in Hong Kong

December 2017. The Centre for Comparative and Public Law (CCPL) in the Faculty of Law at the University of Hong Kong welcomes the opportunity to comment on the Consultation Paper published by the Hong Kong SAR Government’s Inter-departmental Working Group on Gender Recognition (IWG). 

     This submission identifies recent interpretative materials produced by international human rights treaty monitoring bodies that shed light on the content of relevant human rights provisions that apply to Hong Kong. The Consultation Paper, while providing an impressive and thorough overview of gender recognition schemes from around the world, does not fully evaluate whether – or which of - these schemes comply with Hong Kong’s international human rights obligations. Consistency with human rights should be the IWG’s primary consideration when reviewing submissions and ultimately proposing a gender recognition scheme suitable to the Hong Kong context. Human rights and the rule of law are core societal values in Hong Kong and cornerstones of the SAR’s constitutional framework. 

     Our responses to the issues raised in the Consultation Paper are summarized below. These are based on developments in international human rights law as reflected in the treaty body comments described in section II. 

1. International human rights law applicable to Hong Kong mandates the introduction of a gender recognition scheme that enables a person to acquire a legally recognized gender other than his or her birth gender. Response to issue 1: yes. 
2. The requirements discussed in the Consultation Paper related to medical treatment (including, but not limited to, sex reassignment surgery and hormone therapy), immigration, marital and parental status, age, etc., are inconsistent with human rights and should not be introduced. A self-determination model that does not necessitate medical intervention or other unjustifiable conditions would likely be the most compliant with Hong Kong’s human rights obligations. Responses to issues 2-12: no. 
3. The scheme should be based on legislation in order to ensure clarity and consistency. If the legislative process results in unacceptable delays, however, an administrative procedure might serve as a reasonable stopgap measure until appropriate legislation can be finalized. Response to issue 13: the gender recognition scheme should be based on a legislative framework. 
4. The 2004 UK Gender Recognition Act does not fully comply with international human rights law. We note, however, that the UK intends to amend the 2004 Act to remove all medical preconditions. A future revised Act may be an appropriate model for Hong Kong to consider. In the meantime, however, the Act in its current state is flawed. Response to issue 14: no. 
5. Introducing a dual-track scheme would be unnecessarily complicated and likely contain elements that are inconsistent with self-determination and international human rights obligations. Response to issue 16: no. 

Section II of this submission notes a selection of recent, relevant interpretive comments by United Nations (UN) human rights treaty monitoring bodies that elucidate Hong Kong’s human rights duties and support these responses. These comments confirm that Hong Kong is obliged under international human rights law – and domestic constitutional law - to introduce a gender recognition scheme based on self-determination without medical or other unreasonable requirements. Section III explains that any restrictions on a right to gender recognition, including medical and other requirements, must be evaluated according to a proportionality analysis. Section IV disputes claims that gender recognition is a particularly divisive issue in Hong Kong based on recent research. Section V reflects on connections between the rights to gender recognition and equality and non-discrimination and the need to proceed simultaneously with the introduction of both gender recognition legislation and an anti-discrimination ordinance on the grounds of gender identity.  Click here to download the full submission which was prepared by Kelley Loper, Director of CCPL, with the assistance of Lili Ullmann, Assistant Reserach Officer in Human Rights, CCPL.

Marco Wan's Masculinity and the Trials of Modern Fiction Awarded Two Book Prizes

Congratulations to Marco Wan whose book, Masculinity and the Trials of Modern Fiction, published by Routledge in 2016, was awarded the 2017 Penny Pether Prize of the Law, Literature, and Humanities Association of Australasia. The citation for the book on the prize certificate reads as follows:

Marco Wan’s monograph, Masculinity and the Trials of Modern Fiction, is an exemplary work of law and literature. In Wan’s layered reading of five obscenity trials in 19th-century England and France, this book realises some of the most vital aims of the field. Wan’s command of law, and of literature, enables him to appraise the reading practices and pretensions of each, and to illuminate the courtroom conversations that take place between them. Wan asks a question at the heart of law and literature, how does the law read not just the texts but the novels that come before it? He answers this question by attending not only to final judgment, but to an original archive of trial transcripts, prosecution and defence submissions and oral argument. Wan’s reading of law’s encounter with these novels as shaping and preserving hegemonic forms of masculinity deepens his argument and extends the already impressive reach of this book. This is an exceptionally meticulous and beautifully crafted text: alongside its contribution of the fields of law, literature and masculinity and gender studies, Wan prosecutes his case with clarity and authority, and with the pleasure of the reader in mind.

The prize is awarded by the Association to the author whose book has, in the judgment of the Committee, made the most significant contribution to the field of Australasian law, literature and humanities. The prize honours the late Penny Pether (1957-2013), an Australian scholar whose passionate life-long commitment to the field pervaded every aspect of her teaching, research, and academic work. She helped convene the first conference of the Association and founded the interdisciplinary journal Law Text Culture. 

     As further testament to the excellence of the work, Masculinity and the Trials of Modern Fiction was awarded The University of Hong Kong's Research Output Prize 2016-17 in the Faculty of Law announced in January 2018.

Shitong Qiao Awarded the First Masahiko Aoki Award for Economics Paper

Congratulations to Shitong Qiao who was awarded the first Masahiko Aoki Award for Economics Paper for his book, Chinese Small Property: The Co-Evolution of the Law and Social Norms, published by Cambridge University Press in 2017.

      The Masahiko Aoki Award for Economics Paper was established in honor of Professor Masahiko Aoki, Professor Emeritus of Stanford University, the famous economist, co-founder of Center for Industrial Development and Environmental Governance (CIDEG) at Tsinghua University and former former joint chairperson of CIDEG Academic Committee, with a view to excavate and encourage Chinese young scholars to conduct academic research concerning public policy and institutional construction, and promote academic research and concrete progress in China’s public governance area. The award is in the name of Prof. Masahiko Aoki to honor his hopes.  The focus is on economics and China’s reform and development.  The award recognises excellent research papers making academic contribution to comparative institutional analysis.  The first Award Ceremony was presented in Beijing on 16 December 2017.  News coverage of the award and ceremony can be found here: Tsinghua University, Nikkei, Sina, and Sohu.