Call for Papers: 11th East Asian Conference on Philosophy of Law @ HKU (13-14 Dec 2018)

11th East Asian Conference on Philosophy of Law
“Justice, Dignity and the Rule of Law”

*Call for Panels and Papers*

Faculty of Law, The University of Hong Kong 

13-14 December 2018

We are pleased to announce that the 11th East Asian Conference on Philosophy of Law will be held in Hong Kong on December 13-14, 2018, under the auspices of the University of Hong Kong’s Faculty of Law and its Centre for Chinese Law. The event is also part of the celebration of the 50th anniversary of the Faculty of Law of the University of Hong Kong. The overarching theme of the conference is “Justice, Dignity and the Rule of Law”.

     The East Asian Conference on Philosophy of Law has been held once every two years since 1996. The China University of Political Science and Law in Beijing hosted the 10th conference in 2016, and Hankuk University of Foreign Studies in Seoul hosted the 9th conference in 2014. The conferences provide a forum for dialogue among East Asian scholars of legal philosophy and other scholars interested in Asian legal philosophy. 

     The 11th Conference will be divided into plenary sessions and parallel sessions. We now invite proposals to present papers at the Conference.  A proposal to present a paper at the Conference should include the title and abstract of the paper. If you are interested in submitting a proposal for the conference, please note the following:

1.  The closing date for submission of proposals is 30 June 2018. 

2. The conference will be mainly in English and Chinese. Proposals to present papers at the Conference and panel proposals (mentioned below) should be written in English or Chinese. Oral presentations at the Conference should be in English or Chinese, except that (1) in panels formed (according to the procedure mentioned below) by Japanese or Korean scholars, the oral presentations may be in English, Japanese or Korean (scholars speaking in Japanese or Korean are strongly encouraged to provide a written English translation of their presentations); (2) interpretation will be provided for specially invited speakers at the plenary sessions who speak in Japanese or Korean (who will provide a written English translation of their speeches). 

3.  The proposed papers may relate to any aspect of philosophy of law or related fields, and need not be limited to the general theme of the conference (“Justice, Dignity and the Rule of Law”). 

4.  Every participant at the Conference (including paper presenters, and chairmen and discussants at the panels mentioned below who are not presenting papers themselves) should submit the ‘individual proposal form’. Paper presenters will make an oral presentation at the conference (approximately 15 minutes). Submission of full papers is welcomed but not required. 

5.  Proposals to form a panel at a parallel session are welcomed. Panel organisers should submit a ‘panel proposal form’. Panel members presenting papers at the panel should also submit ‘individual proposal forms’. The ‘panel proposal form’ should include the panel topic, the name of the chair and/or discussant, the names of the presenters of papers, and the title of each paper. The chair and discussant may also serve as a paper presenter. The same person may serve as both chair and discussant. 

6.  The conference registration fee is waived; however, participants who would like to join the conference dinner will be required to make a payment in advance. Conference participants are responsible for their own travel and accommodation expenses. A list of recommended hotels will be provided on the conference website. 

7.  Inquiries may be emailed to: shelbyc@hku.hk.

     The Conference will be an excellent opportunity for you to meet East Asian scholars of the philosophy of law to discuss topics of common interest. We hope you will be able to join us in Hong Kong!  To access the Conference website, click here.

Global Animal Law Conference @ HKU (4-5 May 2018)

III Global Animal Law Conference hosted by HKU Faculty of Law will be held on 4-5 May 2018 (Fri-Sat) at Large Moot Court, 2/f, Cheng Yu Tung Tower, the University of Hong Kong. The purpose of this Conference is to bring together experienced legal thinkers and writers in the area of animal law, in order to learn about how the different legal systems of the world are dealing with animal issues in their respective countries. Speakers from 17 countries, representing over 20 universities will be present.  Many of the speakers have authored important books and articles in the area of animal law. Most of the speakers come from a legal academic background. Sponsoring academic institutions are The University of Hong Kong Law Faculty, Michigan State University College of Law Animal Law Program, Lewis and Clark School of Law Center for Animal Law Studies, Universitat Autónoma de Barcelona Masters in Animal Law, and Harvard Law School Animal Law and Policy Program. 

 To view the Conference details, please click here. To register, please click here.  For enquiries, please contact Ms Winnie Law at winniewm@hku.hk.

Meet the Two HKU Endowed Professors of Law Celebrated at the 11th Inauguration (21 March 2018)

The Eleventh Inauguration of Endowed Professorships

Warren Chan Professorship in Human Rights and Responsibilities

"Human rights are important, and human responsibilities are equally important. Ask not just what your rights are, but also what your responsibilities are, to yourself, to others and to the environment. 

Every society will have to strike its own balance of such rights and responsibilities."

                                                                         Mr Warren Chan

Appointed 2018. Professor Fu Hualing is Professor of Law and holder of the Warren Chan Professorship in Human Rights and Responsibilities at the Department of Law, The University of Hong Kong (HKU). He specialises in constitutional law, legal institutions, human rights with a focus on China, and cross-border legal relations in the Greater China region.

     Professor Fu's current research focuses on the rise of human rights lawyering in China and its implications for political and legal reform in the country, the politics of anti-corruption enforcement, popular justice, and a critical re-assessment of rule of law reform in China in the past four decades. His other research areas include the constitutional status of Hong Kong, in particular central-local relationships in the Hong Kong context and national security legislation. 

     He has a keen interest in building capacity in civil society, developing the rule of law, and enhancing legal protection of human rights in China. He has worked with and advised foreign governments and international institutions, as well as the Office of the High Commissioner for Human Rights (OHCHR), with respect to their projects in China. 

     His teaching focuses on human rights in China, corruption issues, and cross-border legal relations between Hong Kong and the Mainland. He is committed to expanding experiential learning opportunities for Hong Kong law students in the Mainland and Mainland law students in Hong Kong. He continues to actively promote student and faculty exchanges with leading Mainland law schools, in a spirit of better mutual understanding. 

     Professor Fu received his LLB from Southwestern University of Politics and Law, Chongqing, in 1983; his MA from the University of Toronto in 1988; and his Doctor of Jurisprudence from Osgoode Hall Law School in 1991. Prior to joining HKU in 1997, he taught at his alma mater in Chongqing, and at City University of Hong Kong. Professor Fu has served as Director of the Centre for Comparative and Public Law (2004-06), Head of the Department of Law (2008-10) and, since 2014, has been Associate Dean (China Affairs) at the Law Faculty. 

    He has been a visiting professor at the University of Washington, New York University, the University of Pennsylvania, the University of Michigan, and Zhongnan University. He served on the Mainland Affairs Committee of The Law Society of Hong Kong, and as an adviser to the Asian Law Centre, the University of Melbourne, and the Centre for Asian Legal Studies, National University of Singapore. 

     Professor Fu has published extensively in various books, and in local and international journals, including The China Quarterly, The China Journal and the Journal of Contemporary China. As a believer in collaborative approaches to scholarship, he has co-edited a number of significant studies including National Security and Fundamental Freedoms: Hong Kong's Article 23 Under Scrutiny (2005); Liu Xiaobo; Charter 08 and the Limits of China's Political Reform (2012); Mediation in Contemporary China (2017); Transparency Challenges Facing China (2018); and Socialist Law in Socialist East Asia (2018). 

     He is Co-editor of the Social Science Research Network Chinese Law eJournal, and Co-editor of The Routledge Rule of Law in China and Comparative Perspectives Series. Professor Fu was the recipient of the prestigious 2005 Gordon White Award from The China Quarterly for his 2005 article Re-education through Labour in Historical Perspective. He is widely regarded as one of the foremost commentators on the development and operation of public law in China. Professor Fu's perspectives on a broad range of legal issues are keenly sought internationally and also within Greater China. Overall, the work of Professor Fu Hualing has been important in helping to build HKU's exceptional reputation for research and scholarship in relation to China's law reforms, legal institutions, and civil society.

Kerry Holdings Professorship in Law

"We are honoured to support The University of Hong Kong with this Endowed Professorship. It is our shared vision that this Endowed Professorship will enrich the resources available at the Faculty of Law and help uphold its high standards of scholarship, research and education." 

                                                    Kerry Holdings Limited

Appointed 2017. Cryptocurrency Bitcoin made headlines around the world across last year as it surged from less than US$1,000 to over US$20,000 in less than one year, before crashing in January 2018. Its massive surge and price volatility raises many concerns, with many banking and government officials warning investors not to trust it and that it is a bubble waiting to burst.
     While Bitcoin’s meteoric rise grabbed the headlines, it also put the spotlight on Financial Technology (FinTech). Today’s FinTech is the result of a long evolutionary interaction between finance, technology and regulation, which is transforming finance around the world, particularly in China. Increasingly, it represents technologies and technological innovation in the financial sector that are disrupting traditional financial services, including mobile payments, money transfers, loans, fundraising, and cryptocurrencies.

     Professor Douglas Arner is the Kerry Holdings Professor in Law at The University of Hong Kong (HKU). He is the founding Director of the University’s LLM in Corporate and Financial Law and LLM in Compliance and Regulation programmes. He specialises in economic and financial law, and regulation and development, and is recognised for his work in FinTech and financial regulation, particularly in the context of Regulatory Technology (RegTech).

    He is the Project Co-ordinator of a HK$15.36 million five-year project on “Enhancing Hong Kong’s Future as a Leading International Financial Centre” funded by the Hong Kong Research Grants Council Theme-based Research Scheme. He is also a member of the Hong Kong Financial Services Development Council, the Executive Committee of the Asia Pacific Structured Finance Association, and the Advisory Board of SuperCharger FinTech Accelerator. 

    After graduating with a BA from Drury College and a JD from Southern Methodist University, Professor Arner continued his studies at the University of London where he earned an LLM and a PhD. Prior to joining HKU in 2000, he was the Sir John Lubbock Support Fund Fellow at the Centre for Commercial Law Studies, Queen Mary University of London.

     Professor Arner served as Head of the Department of Law at HKU (2011-14) and as Co-Director of the Duke University-HKU Asia-America Institute in Transnational Law (2005-16). During this time, he managed 70 full-time academic staff at HKU and was responsible for over 1,500 students. He also taught postgraduate teaching programmes, undertook a major reform of the curriculum, and oversaw a significant expansion in student and staff numbers. 

     He co-founded the Faculty’s Asian Institute of International Financial Law in 1999 and served as its Director in 2006-11. The Institute is considered today the leading academic research institute focusing on international financial law, regulation and policy in Asia. In 2007, he received HKU’s Outstanding Young Researcher Award. 

     The World Bank, the Asian Development Bank, and Asia-Pacific Economic Cooperation (APEC), among others, have invited Professor Arner to serve as a consultant. He has been a visiting professor or fellow at numerous overseas universities, including the University of Melbourne where he is a Senior Fellow. More recently, he was the Ken Yun Visiting Professor at Duke University in 2017 and the Peter Ellinger Visiting Professor at the National University of Singapore in 2016.

     He is author, co-author or editor of 15 books, and the author or co-author of more than 120 articles, chapters and reports on related subjects. His most recent books include Reconceptualizing Global Finance and its Regulation(Cambridge University Press 2016) and Financial Regulation in Hong Kong (Oxford University Press 2016).

     His recent papers are available at the Social Science Research Network (SSRN) where he is among the top 1% of all authors by downloads and one of the top 25 law authors in the world.

Richard Cullen on Filibustering: Flawed in Principle and Bad for Hong Kong (IPP Review)

"Filibustering: Flawed in Principle and Bad for Hong Kong"
Richard Cullen

IPP Review
March 9 2018

In October 2012, a leading member of the House of Lords visited Hong Kong on a regular visit. During one seminar, this experienced commentator expressed the view that the Judiciary in the Hong Kong Special Administrative Region (HKSAR) looked to be in sound health. It was doing the job it was institutionally designed to do very well. The Legislative Council (LegCo) received a less positive report card. The problems, already well entrenched, arising from filibustering were highlighted along with the lack of proper behavior within the LegCo by certain members — behavior, we learned, which would not be tolerated within the Parliament at Westminster. The LegCo emerged as the least functional of Hong Kong’s governance institutions according to this assessment.

    The LegCo recently voted, in somewhat controversial circumstances, to introduce significant restrictions on the capacity of LegCo Members to filibuster.

      In this essay, I want to discuss how this has come to pass, some 20 years after the establishment of the HKSAR within the People’s Republic of China (PRC), and why, on balance, it is a good thing that these restrictions have been put in place in Hong Kong. In order to do this, we need to consider what is meant by the term filibustering both specifically and more generally and, in particular, what this term has come to mean in the HKSAR.

     Those controversial circumstances concerned how the numbers within the LegCo changed so as to allow certain anti-filibustering amendments to the LegCo procedural rules ...

     Briefly, filibustering is the term applied when a member (or members) of a legislature speak at unusually great length on a proposal, which may often be a proposed new law (usually called abill), in order to delay or prevent a decision being made to enact that proposal by a vote of the legislature... 

     Given that the purpose of filibustering is political stonewalling — to stall or stop certain legislative processes — not surprisingly, a number of other procedural tactics are employed to this end, apart from ultra-lengthy member presentations. It is common for non-government members or groups within a legislature to resort, too, to tactics such as moving large, sometimes massive numbers of amendments to a bill, and making repeated calls to check that a quorum is present (that the specified minimum number of legislature members is present). Again, where the procedural rules allow this, amendments moved may be quite trivial and designed not to generate serious debate but simply to delay the process of legislating...

     Both the major parties in the deeply anchored two-party system in the US have benefitted from filibustering initiatives whilst in a minority in the Senate...

     The first filibuster in the HKSAR was mounted by the PE group within the LegCo in 1999 to delay a vote on a bill to dissolve the partially elected Urban and Regional Councils, established during the British Hong Kong era. The delay was needed to allow then absent PE LegCo Members time to return to the LegCo for the relevant vote. The PE group justified their action by reference to the accepted tradition of using filibusters within other notable legislatures around the world...

     It is simply quite difficult to locate suitable examples in order to draw up such a list of real benefits for the HKSAR (terrible laws stopped, for example) arising out of the extensive filibustering experience of recent years...

     The Judiciary in Hong Kong, particularly the Court of Final Appeal (CFA), continues to maintain very high standards (and independence), and to display the highest competence regularly. The LegCo can do much in a proper and positive manner. But it is beset by serious operational problems, sourced from within, which lower its performance level measurably and continuously. It is fair to say that the LegCo has, unfortunately, become the (comparative) pivot of governance dysfunction in Hong Kong. Filibustering has established itself as a significant part of how this has come to pass... Click here to read full text.

Alexa Lam on Crowdfunding in Hong Kong (HK Lawyer)

"Crowdfunding in Hong Kong - there are Sufficient Gateways"
Alexa Lam
Hong Kong Law Journal
March 2018, pp. 36-38

As start-ups and small businesses continue to crowdfund through the Internet, governments and regulators have had to respond.  The United States created a tailored regime for crowdfunding.  The United Kingdom and Singapore publicly consulted and clarified their regulatory approaches.  The Hong Kong regulator has been less proactive, thus inviting criticisms that Hong Kong has fallen behind in enabling financial innovation and entrepreneurship.
     Are these criticisms fair and accurate?  Not necessarily so.  In my latest research paper, I ventured to show that gateways for crowdfunding already exist in Hong Kong.  If these exemptions were fully utilised, Hong Kong would be broadly on a par with, or even ahead of, other international financial centres in allowing entrepreneurs to tap capital from professional (accredited) investors - the investor pool most coveted by entrepreneurs.
     With a strong political will to create jobs and promote growth after the global financial crisis, the United States was the most ardent in enacting legislation to enable crowdfunding.  The Jumpstart Our Business Startups Act ('Jobs Act') was passed in 2012 against this background...
   The HKCFA's clarification of the application of s.103(3)(k) has potentially far-reaching implications.  There are 200,000 high net worth individuals in Hong Kong holding US$1.1 trillion in wealth.  Start-ups will likely prefer a smaller number of keen professional investors to a large number of random retail investors.  It has been reported that angel investors tend to stay away from companies that have crowdfunded from retail - a company with too many investors is difficult to manage.   The HKCFA decision will make it easier for issuers to locate and connect with these business angels.  There is speculation that the authorities may consider legislating to reverse the HKCFA decision.  That would be regrettable.  As Fok PJ succinctly explained in his judgment in the Pacific Sun case, "if the investment products are not in fact sold or intended to be sold to the general public and instead are sold or intended to be sold only to professional investors, there is no necessity for protection to be afforded to the general public since they are not exposed to any material risk."  ...

     The HK$5 million small-scale offer exemption is slightly lower than the US$1.07 million small-scale offering exemption in the United States.  The Hong Kong regime however comes with a lighter touch.  There is effectively no particular disclosure requirement (subject however to provisions in the SFO governing false or misleading statements).  One should not underestimate the potential of this exemption for small or initial capital-raising, such as seed funding.  Note however that the exemption is available to companies only.  This exemption is not available to projects that are structured in the form of a non corporate CIS or a structured project.
     As demonstrated, Hong Kong is not falling behind in the gateways there are available for securities crowdfunding.    Yet, because the prohibitions and exemptions in the securities offering regime are fraught with difficulties, and the penalties for contravention severe, market players have been hesitant in making full use of the exemptions.
       We have heard endless debates on why and how the Hong Kong regulatory rules should kick-start their projects by making purposeful use of existing exemptions.  As the market starts to mature, regulators will have a fuller sense of how best to facilitate and regulate the crowdfunding space.  In the meanwhile, there is sufficient room for going forward. Click here to read the full text. 

Syren Johnstone on ICO Utility Tokens and the Relevance of Securities Law (HK Lawyer)

"ICO Utility Tokens and the Relevance of Securities Law"
Syren Johnstone
Hong Kong Lawyer

March 2018, pp. 30-33

     Abraham Lincoln famously posited that if one calls a tail a leg it doesn't mean that a dog has five legs. Similarly, a blockchain-based token offered in an initial coin offering ('ICO') may, irrespective of how it is called, be a security subject to securities laws applicable to the primary market as well as secondary market activities. ICOs are an example of how new technology is changing the way the public capital market is accessed by business, typically start-ups, in need of capital.

    The legal treatment of tokens remains unclear in my jurisdictions, which is increasingly problematic as ICO activity has ballooned from around US$300 million during 2013 to 2016 to well in excess of US$5 billion in 2017. As Hong Kong is now considering its potential status as an ICO hub, it is essential that regulatory agencies and market professionals come to grips with a better understanding of how tokens are, or may be, regulated.
     A focus of this article is "utility tokens"...The nature of a utility token is to permit the holder to access a service provided by the user's platform. This is typically a pre-sale made by a start-up seeking capital to develop the promised service. ...
    The law applying to the offering of securities and their marketing in Hong Kong, as set out in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) and the Securities and Future Ordinance ('SFO') (Cap. 571), is in general consistent with best international practices that prohibit accessing public capital unless registration or authorisation requirements are complied with it a relevant exemption applies. Tokens that are securities may also be subject to laws concerning regulated activities and the operation of exchanges and automated trading services. However, whether a specific token is a security will require careful consideration. ...
     First, because Howey has been applied to tokens by the U.S. SEC...
     Second, because of potential similarities to elements in the definition of CIS that align with, though are not identical to, the concept in Howey of a common enterprise in which the efforts of another are key.
    However, applying existing law to tokens is inherently problematic because blockchain has enabled fundamental changes in the ease and manner of accessing public capital, the cost and time of doing so, the willingness of the public to purchase tokens and the ease of trading them.
     Hong Kong practitioners will therefore need to exercise some caution when advising on the nature of a proposed token issuance and how it is undertaken.
     The increasing awareness that tokens can be subject to securities laws that possess uncertainties in their potential scope of application has had an impact on practices in the industry. ...
     While best practices have been developed to promote self-regulation of the industry, they have not always been observed in practice...

     Legal practitioners will be well aware that avoidance and evasion are quite different matters...

    While that distinction may be clear-cut in principle, the characteristics of a utility token that might cause it to be regarded as a security are less clear...
     The overarching purpose of securities laws is to regulate investments, irrespective of the form or name they assume ...
     One might point to the development of structured product regulation as a lesson in the failure of looking at how a product fits into a pre-existing set of categories, rather than considering its function in the market...
    New challenges may require regulatory agencies to interpret the law with one eye firmly fixed on regulatory intent...
   Care needs to be taken that purposive flexibility is not applied by regulators in a way that creates uncertainty...
     Returning to Abraham Lincoln, he was wrong semantically. If a tail is called a leg then it can be said that a dog has five legs. And if utility token issuances put public capital at risk, expose consumers to fraud, and behave similarly to an investment in established classes of securities, then perhaps that is enough to render it a security within the original intent of the legislature. Practitioners call it "the smell test". Indeed, the SFO provides that "interests, rights or property...commonly known as securities" are to be regarded as securities. On the other hand, calling a security a utility token does not change its nature. Click here to read the full text.

David Law Interviewed on the New Chinese Supervisory Commission (CGTN TV)

Professor David Law, Sir YK Pao Chair in Public Law, was interviewed on the television programme, The Point, on 13 March 2018.  He spoke to China Global Television Network (CGTN)'s Ms Liu Xin on China's New National Supervisory Commission and its constitutional and political implications.  Dr Xu Qinduo, Senior Researcher in Pangoal Institution, also joined the interview. Click here to view the programme. 

Puja Kapai on Workplace Sexual Harassment in Asia (Nikkei Asian Review)

"Time to confront workplace sexual harassment in Asia"

Puja Kapai
Nikkei Asian Review
15 March 2018

The #MeToo movement against sexual harassment that kicked off in the U.S. is starting to gain momentum in Asia. Actresses in Hong Kong, a prosecutor in South Korea, a journalist in Japan and even factory workers in China have spoken out about their experiences with workplace sexual harassment, putting to rest any notion the problem is not a concern in Asia.

     A study in 2009 by D.K. Srivastava, the former pro vice chancellor of O.P. Jindal Global University, in India, found that 80% of working women in China had experienced sexual harassment at least once in their careers. Some 70% of female factory workers participating in a more recent survey conducted in the city of Guangzhou by the Sunflower Women Workers Center reported encountering sexual harassment. Similarly, 84% of female Chinese journalists polled by reporter Sophia Huang Xueqin said they suffered from workplace sexual harassment. Some 20% reported at least five such experiences, but only 3.5% had reported any incidents to senior managers. ...

     How can we transform Asian workspaces to tackle sexual harassment effectively? ...

    First, companies must revisit their anti-sexual harassment policies and complaint mechanisms and critically examine any barriers victims face...
     Second, victim support is essential...

     Third, building the capacity for and practicing effective interventions to address harmful attitudes and actions will be key to institutionalizing a cultural shift toward dismantling systemic privilege and power and responding forcefully to sexual harassment...
     Likewise, staff training can dispel patriarchal, misogynistic values and myths about women and victims of sexual harassment and violence which can lead to blame, shame or silence... Institutional change also requires that bystander intervention training be introduced, from the bottom to the top of the pecking order to ensure that inappropriate conduct is checked not only through complaints but also informally...This serves an important educational function ...

     Finally, Asia must commit to rehabilitating perpetrators instead of just passing the problem on to the next employer. This requires accountability and a program for rehabilitation with professional assistance. Only a multipronged approach can address the myriad issues which undermine effective strategies to address sexual harassment given its roots in deeply entrenched patriarchal value systems.  Click here to read the full text.

Hong Kong Law Students Win First Round of Global Legal Hackathon

HKU BBA(Law) & LLB Year 3 students, Alison Li Pui Wun, Edelweiss Kwok Yuet Yi and Sally Yiu Man Ki together with two CUHK LLB students and four computer science/information technology experts won the Hong Kong round of Global Legal Hackathon. They will represent Hong Kong in the next round of the competition, with a chance to head to the finals in New York in April.

     The Global Legal Hackathon 2018, which took place on 23-25 February 2018, was co-organised by various legal-tech companies including IBM Watson, Global Legal Blockchain Consortium and Integra, and is one of the largest legal hackathons taking place in over 20 countries and 40 cities. It brought together stakeholders in the legal industry, including legal professionals, technologists, business strategists and law students in an intense sprint of legal tech education, creativity and invention. Each team was required to create a technological solution for improving the legal industry worldwide under a tight schedule. A video for the event can be viewed here.

     The winning project "Decoding Law" is a machine learning powered browser plugin that helps people read and understand legislation. It finds the relevant section(s) of legislation by identifying keywords in questions entered by users, explains defined terms for easier navigation and breaks down complex legislative drafting into simple language, which is particularly useful to unrepresented litigants. If you are interested in knowing more or want to support the team, please like and follow their Facebook page.  They need as many likes as possible to get to the final round.
     Alison, Edelweiss and Sally are newbies to hackathon. Edelweiss said, "the competition is an eye-opening experience that provides lots of different insights for legal tech that I have never imagined before." Alison said, "the GLH is a great platform for us to meet legal and tech talents and exchange and even realise our innovative ideas. It is indeed inspiring to see different teams' approaches and solutions, which is unprecedented but feasible." Sally said, "I am indeed impressed to see so many talented minds collaborate and come up with feasible solutions to solve certain legal problems in the society."  For more information, read Brian Tang (curator of the event)'s coverage in Asia Legal Business.

Photo with the judges and the organiser

(First row left 2: Edelweiss Kwok; first row left 3: Alison Li; first row left 4: Sally Yiu)

Law students team photo

(Left 2: Sally Yiu; Middle: Alison Li; Right 2: Edelweiss Kwok)

HKU Team Wins Hong Kong Regional Jessup Round and Heads to Washington Finals

 

From left: Brian Lee, Natalie So, Jason Ko, Coach Ms Astina Au, Michelle Sum, and Sakinah Sat

Continuing the success of HKU last year, the HKU Jessup Team has won the Regional Champion in the 59th Philip C. Jessup International Law Moot Court Competition on 25th February 2018. The Team was also awarded with the Best Written Memorial Prizes for both the Applicant and Respondent.

     With participants from 700 law schools in 100 different jurisdictions, the world’s largest moot competition is based on a fictional case before the International Court of Justice. This year’s problem concerns international arbitration, law of the seas, nuclear disarmament, and use of force. It requires a thorough understanding of public international law, an increasingly important area of law in 21st century.

     The Team consists of 5 PCLL students – Ko Lun Jason, Lee Chun-Hin Brian, Sat Sakinah, So Tsz Ching Natalie, and Sum Hiu-Yan Michelle. Since the selection round in September 2017, the Team has been researching extensively on international conventions and customs. Further, numerous oral practice sessions were held before the Moot, through which the Team has tremendously benefitted from rigorous questions and comments on advocacy style. For this, the Team would like to express sincere gratitude to Mr Isaac Chan, Mr Jeff Chan, Mr Victor Lui, Mr Henness Leung and Ms Angel Cheng for their kind assistance.

     Last but not least, thanks must be given to Ms Astina Au and Mr Peter Barnes (team coaches), and Mr Sunny Hor (student coach), for their unfailing support all along. The Team will be representing Hong Kong in the upcoming international rounds in Washington DC in April 2018.

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

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 8, No. 1: Feb 8, 2018
Vol. 8, No. 2: Feb 14, 2018

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Vol. 8 No. 1: Feb 8, 2018

1. International Judges on Constitutional Courts
    Alex Schwartz, The University of Hong Kong - Faculty of Law

2. Misconceptions of Interest Benchmark Misconduct
   Paul Lejot, The University of Hong Kong - Faculty of Law
   
3. Strategic Public Shaming: Evidence from Chinese Antitrust
   Angela Huyue Zhang, The University of Hong Kong - Faculty of Law, King's College London
   
4. Alternatives to Liberal Constitutional Democrac
   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

Vol. 8 No. 2: Feb 14, 2018

1. The Biographical Core of Law: Privacy, Personhood, and the Bounds of Obligation
   Marcelo Thompson, The University of Hong Kong - Faculty of Law

2. What Do the Panama Papers Teach Us About the Administrative Law of Corporate Governance Reform in Hong Kong?
   Bryane Michael, University of Oxford
   Say Hak Goo, The University of Hong Kong - Faculty of Law

3. Hard Corporate Governance Law in a Soft Law Jurisdiction
   Bryane Michael, University of Oxford
   Say Hak Goo, The University of Hong Kong - Faculty of Law

4. The Value of the Corporate Governance Canon on Chinese Companies
   Bryane Michael, University of Oxford
   Say Hak Goo, The University of Hong Kong - Faculty of Law

Angela Zhang on The Antitrust Paradox of China, Inc (NYU J Int’l L & Pol)

"The Antitrust Paradox of China, Inc"

Angela Zhang

N.Y.U. J. Int’l L. & Pol.

2018, Volume 50, Issue 1, pp. 159 -226

Abstract: Common ownership by the Chinese State recently caused a stir in Europe. During its review of a joint venture involving a Chinese nuclear power company, the European Commission (“Commission”) held that it would treat all Chinese state-owned enterprises (SOEs) in the energy sector as a single entity. This decision carries significant legal and practical implications for both businesses and the regulator. It also contradicts the Commission’s previous approach to European SOEs. In this Article, I argue that the legal framework under the E.U. Merger Regulation (EUMR) is unsuited to deal with the anticompetitive effects of state ownership. While the delineation of the boundary of an undertaking is a prerequisite for merger review, ownership and control are not absolute. Importantly, the extent to which the coordination by the Chinese State has lessened competition is a quantitative question rather than a qualitative one. Consequently, a bright-line approach to defining an undertaking is both over and underinclusive. To address the European Union’s dilemma in handling Chinese SOEs, I propose that the Commission should view national security review as a complement to its merger review. The optimal regulatory response to Chinese acquisitions hinges not only on economics but also, perhaps more importantly, on politics.

Angela Zhang on The Role of Media in Antitrust: Evidence from China (Fordham Int’l L.J.)

"The Role of Media in Antitrust: Evidence from China"

Angela Zhang

Fordham International Law Journal

2018, Vol 41, Issue 2, pp. 473 - 530

Abstract: This Article examines the media, a neglected but important institution that plays a role in influencing Chinese antitrust enforcement. Drawing from the methodology used in communication studies, the Article conducted a content analysis of 1,394 news reports on six high-profile Chinese antitrust investigations from 2008 to 2015. The findings demonstrate that in reporting antitrust investigations, Chinese media tends to be biased against firms under investigation. Instead of providing a balanced and objective account of the story, the media was an effective conduit for amplifying the populist concern, and aided and abetted the regulator in advancing its enforcement. The Article argues that such an outcome is driven by at least three factors: the regulator’s strategic leakage of information to state-controlled media, the rarity of public dissents of agency decisions, and the populist pressures for lower prices and nationalism. See full text here.

David Law Discusses President Trump's Stance on Gun Legislation (AM870; FM105.3)

"There is a Middle Ground Here"
Host: Newell Normand

Radio wwl.com (AM870; FM105.3)

President Trump calls for a comprehensive gun bill, taking a more liberal stance on possible gun legislation. David Law, Professor of Law and Political Science at Washington University in St. Louis and University of Hong Kong, joins Newell to discuss the President's stance and what we may see coming out of Congress soon.  Listen to the interview here (duration: 20 minutes).

Anselmo Reyes on Foreign Direct Investment in the Philippines and the Pitfalls of Economic Nationalism (new book chapter)

"FDI in the Philippines and the Pitfalls of Economic Nationalism"
Anselmo Reyes
in Julien Chaisse and Luke Nottage (eds), International Investment Treaties and Arbitration Across Asia (Brill, 2018), pp. 243-279

Abstract: Recent trends in Philippine growth and FDI reveal only modest achievements, when compared with other ASEAN countries, and little impact on income inequality.  These outcomes are attributed to the policy of economic nationalism in the Philippines' constitutional and legislative framework for FDI, whereby government reserves 'strategic' fields to Filipinos, while foreigners face hurdles in making investments.  The account doubts whether foreign nationals can safeguard investments by recourse to Philippine BITS as those reinforce economic nationalism by requiring FDI to comply with Philippine law.  Poulsen's observation that developing countries entered into BITS oblivious of the risks does not seem applicable to the Philippines, which has deftly used BITS to advance economic nationalism.  Litigation before domestic courts is not an alternative for protecting investor rights, but international commercial arbitration may become so in due course.  The account concludes with proposals for future policy.

Albert Chen and PY Lo on Hong Kong's Judiciary under 'One Country, Two Systems' (new book chapter)

"Hong Kong's judiciary under 'one country, two systems' " 

Albert H. Y. Chen and P. Y. Lo (PhD 2012)

in Hoong Phun Lee and Marilyn Pittard (eds), Asia-Pacific Judiciaries: Independence, Impartiality and Integrity (Cambridge University Press, Dec 2017),  pp. 131-168
Introduction: Hong Kong, formerly a British colony and since 1997 a Special Administrative Region (HKSAR) of the People's Republic of China (PRC) under the constitutional formula of 'One Country, Two Systems', has a judicial system that is much more highly evaluated, trusted and respected internationally and locally than its counterpart in mainland China.  The colonial judicial system in Hong Kong, though modelled on the common law system in England, did not always fully guarantee the litigant's right to a fair hearing before an independent and impartial tribunal, but at least the normative ideals of the rule of law and judicial independence were implanted on Hong Kong soil during the colonial era.  Such ideals have remained alive and well, and more cherished and vigorously defended than ever before, since Hong Kong was re-unified with China in 1997.   Under the Hong Kong Basic Law - the HKSAR's constitutional instrument that was enacted by the PRC's National People's Congress in 1990 and came into effect in 1997 - Hong Kong enjoys a high degree of autonomy, and its pre-existing legal and judicial systems have largely remained intact, save that a new Court of Final Appeal was established, which exercises the power of final adjudication in Hong Kong cases - a power formerly exercised by the Judicial Committee of the Privy Council in London.

    This chapter provides an overview of the Hong Kong Judiciary, particularly those aspects of the judicial system that are relevant to the independence, impartiality and integrity of the courts and their judges.   The chapter includes the following sections: (7.2) the structure of the judicial system; (7.3) judicial features of 'One Country, Two Systems'; (7.4) appointment and conditions of service of judges; (7.4.11) rules of bias and recusal; (7.4.12) contempt of court by 'scandalising the court'; (7.4.13) judges and free speech; (7.4.14) judges and non-judicial functions.  These sections will be followed by a concluding section.

Reviving Article 23: Two-Part Story on Hong Kong's National Security Debate (Hong Kong Free Press)

"Reviving Article 23 (Part I): The rise and fall of Hong Kong’s 2003 national security bill"

Elson Tong (JD candidate)
17 Feb 2018

Hong Kong Free Press

“As long as we work on the basis of ‘loving the country and loving Hong Kong’, there will always be hope,” said the city’s outgoing Secretary for Security at a dinner in Wanchai’s Grand Hyatt, organised by various pro-Beijing trade unions. “But sometimes I see an unhealthy wind blowing across society. People mix up what is right and what is wrong, what is black and what is white. I even sense a Cultural Revolution-era mentality and language in some of the media.” The speech was not delivered in 2017 - but in the pivotal year of 2003...

     With these existing laws in mind, scholars such as Hong Kong University professor Johannes Chan are sceptical as to whether – by asking Hong Kong to “enact laws” – Article 23 really means that the government has to table a fresh bill.

     “We shouldn’t say that Hong Kong has failed to fulfil its constitutional duty under Article 23. We should ask whether existing laws already do so,” Chan told a conference last March...

     At the time, Regina Ip and Elsie Leung respectively led the Security Bureau and the Department of Justice. But Hong Kong University professor and prosecutor Simon Young told HKFP that colonial-era British officials, like solicitor-general Robert Allcock, were more involved as hands-on drafters for the bill. ... Click here to view the full article.

"Reviving Article 23 (Part II): Old wine in new bottles for Hong Kong’s national security debate"

Elson Tong (JD candidate)
18 Feb 2018
Hong Kong Free Press

In December 2017, Hong Kong’s pro-democracy lawmakers – who were six members short after some were ousted by the courts – fought a lost cause to prevent their pro-Beijing colleagues from changing the legislature’s house rules. Henceforth it would become much harder to filibuster controversial bills. ...

     Hong Kong University law professor Eric Cheung speculated that the motive for this document was to strip Hong Kong courts of their oversight of the arrangement. He added that Beijing may do the same thing to stop future Article 23 national security laws from being judged unconstitutional for any violations of protected rights and freedoms...

     Mainland constitutional law professor Fu Hualing told attendees that in pushing for a national security law, Beijing’s aim is now to suppress Hong Kong’s pro-independence movement.

     “The Falun Gong, for example, disappeared entirely from the field of debate,” he told HKFP. “I think Hong Kong will continue to be a foundation for activities within mainland China… like civil society development, working with NGOs.”...

     A national security bill only requires the support of a simple majority in the legislature to be voted into law. The pro-Beijing camp has always obtained over half of the seats. Therefore, few legislative obstacles exist to the passing of a law that would criminalise mere speech.

     However, Hong Kong University criminal law professor Simon Young told HKFP that the courts can refuse to enforce vague or otherwise unconstitutional laws.

    “The courts could say that the provision is so vague that it violates the principle of legal certainty… because it gives no indication to anyone what the law is, and you can’t regulate your conduct accordingly… But that rarely happens.”

    “The second thing that they can do is [to say] that there are provisions or aspects of the law that violate specific constitutional rights, whether it’s the freedom of expression or the presumption of innocence.” A judge would then either strike down the provision, or employ more lenient legal tests favouring the accused...

     His colleague Albert Chen told attendees at the December conference that under Article 17 of the Basic Law, the National People’s Congress Standing Committee (NPCSC) might invalidate a Hong Kong security law and ask for new legislation if it deems the provisions unsatisfactory...

     Click here to view the full article.