Yongxi Chen & Lingqiao Song on China and the Regulation of Cross-Border Genomic Data Sharing (Human Genetics)

"China: concurring regulation of cross-border genomic data sharing for statist control and individual protection"

Human Genetics
Yongxi Chen & Lingqiao Song
published online, 16 July 2018

Abstract: This paper reviews the major legal instruments and self-regulations that bear heavily on the cross-border sharing of genomic data in China. It first maps out three overlapping frameworks on genomic data and analyzes their underpinning policy goals. Subsequent sections examine the regulatory approaches with respect to five aspects of responsible use and sharing of genomic data, namely, consent, privacy, security, compatible processing, and oversight. It argues that substantial centralised control exerted by the state is, and would probably remain, the dominant feature of genomic data governance in China, though concerns of individual protection are gaining momentum. Rather than revolving around a simplistic antinomy between privacy preservation and open science, the regulatory landscape is mainly shaped by the tension between government desires for national security, state competitiveness, and public health benefits.

Anne Cheung on Moving Beyond Consent For Citizen Science in Big Data Health and Medical Research (Northwestern J Tech & IP)

"Moving Beyond Consent For Citizen Science in Big Data Health and Medical Research"

Anne Cheung
Northwestern Journal of Technology and Intellectual Property
Summer 2018, Volume 16, Issue 1

Abstract: Consent has been the cornerstone of the personal data privacy regime. This notion is premised on the liberal tenets of individual autonomy, freedom of choice, and rationality. The above concern is particularly pertinent to citizen science in health and medical research, in which the nature of research is often data intensive with serious implications for individual privacy and other interests. Although there is no standard definition for citizen science, it includes generally the gathering and volunteering of data by non-professionals, the participation of non-experts in analysis and scientific experimentation, and public input into research and projects. Consent from citizen scientists determines the responsibility and accountability of data users. Yet with the advancement of data mining and big data technologies, risks and harm of subsequent data use may not be known at the time of data collection. Progress of research often extends beyond the existing data. In other words, consent becomes problematic in citizen science in the big data era. The notion that one can fully specify the terms of participation through notice and consent has become a fallacy. Is consent still valid? Should it still be one of the critical criteria in citizen science health and medical research which is collaborative and contributory by nature? With a focus on the issue of consent and privacy protection, this study analyzes not only the traditional informed consent model but also the alternative models. Facing the challenges that big data and citizen science pose to personal data protection and privacy, this article explores the legal, social, and ethical concerns behind the concept of consent. It argues that we need to move beyond the consent paradigm and take into account the much broader context of harm and risk assessment, focusing on the values behind consent – autonomy, fairness and propriety in the name of research.  Click here to download the full article.

New Book: Socialist Law in Socialist East Asia (CUP, Hualing Fu and others)

Socialist Law in Socialist East Asia

Edited by Hualing Fu,  John Gillespie, Pip Nicholson and William Edmund Partlett

Cambridge University Press
July 2018, 460 pp.

Description: Since China's reform and opening up started in 1978 and Vietnam's Doi Moi reforms were initiated in 1986, these two East Asian economies have adopted capitalistic models of development while retaining and reforming their socialist legal systems along the way. Tracking the trajectory of socialist laws and their legacy, this book offers a unique comparison of laws and institutional designs in China and Vietnam. Leading scholars from China, Vietnam, Australia and the United States analyze the history, development and impact of socialist law reforms in these two continuing socialist states. Readers are offered a varied insight into the complex quality and unique features of socialist law and why it should be taken seriously. This is a fresh theoretical approach to, and internal critique of, socialist laws which demonstrates how socialist law in China and Vietnam may shape the future of global legal development among developing countries.

• Rejuvenates academic interest in socialist law with a unique comparison of laws and institutional designs in different socialist states
• Insightfully accounts for the resilience of authoritarian socialism and explores the function of law in legitimizing and governing socialist states in transitions
• Offers a sharp focus on China and Vietnam as an ongoing interpretation of the Soviet formulation of socialist law following the 100th anniversary of the Russian Revolution

Editors:
Hualing Fu, The University of Hong Kong
Professor of Law and Associate Dean at The University of Hong Kong.

John Gillespie, Monash University, Victoria
Professor of Law in the Monash Business School at Monash University, Victoria.

Pip Nicholson, University of Melbourne
Professor of Law and Dean at Melbourne Law School, University of Melbourne, Australia.

William Edmund Partlett, University of Melbourne
Associate Professor at Melbourne Law School, University of Melbourne, Australia.

Contributors:

Hualing Fu, John Gillespie, Pip Nicholson, William Partlett, Michael Dowdle, Glenn Tiffert, Pham Duy Nhia, Jason Buhi (PhD 2018), Bui Ngoc Son (PhD 2013), Sarah Biddulph, Pham Lan Phuong, Aaron Halegua, Cynthia Estlund, Do Hai Ha, Wendy Ng, Chen Li, Toan Le

Praise:

'Socialism is dead – long live socialist law! This important volume examines the genealogy, influence and continued relevance of socialist law in contemporary East Asia. Relying on a mix of conceptual, historical and analytic contributions, the authors collectively shed light on this understudied tradition, and in doing so advance our understanding of several important countries.' 

- Tom Ginsburg, Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, University of Chicago Law School

'This rich volume demonstrates that socialist law remains a critical concept despite decades of liberal reforms. The fascinating chapters in this book not only shed light on the myriad ways in which socialist legal traditions have adapted to the modern world, but also highlight underappreciated institutions and practices. There is much here that will drive agendas in future comparative work.'

- David E. Landau, Mason Ladd Professor and Associate Dean for International Programs, Florida State University College of Law

'Socialist legality, which originated from the Russian Revolution one century ago, is still very much alive and well today in Asia. In this book, leading scholars of Chinese, Vietnamese and Soviet laws provide up-do-date accounts of contemporary socialist law and society. They demonstrate that despite far-reaching reforms in recent decades, the contemporary legal systems and practices of China and Vietnam can only be fully understood in light of the socialist/communist political-legal tradition.' 

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

Fu, Gillespie, Nicholson and Partlett on "Socialist Law in Socialist East Asia" (new book chapter)

"Socialist Law in Socialist East Asia"

Hualing Fu, John Gillespie, Pip Nicholson and William Edmund Partlett

in Socialist Law in Socialist East Asia (Cambridge University Press, July 2018), pp. 3 -22

Introduction: More than fifty years ago, socialist states in Asia turned to the Soviet Bloc for inspiration in developing their political and legal systems. They enacted constitutions and laws, and established institutions that, with varying degrees of faithfulness, replicated Soviet regulatory models. The collapse of socialism in the Soviet Bloc was accompanied by the literal collapse of structures and bodies previously considered indestructible, such as the Berlin Wall and statues venerating social heroes. Mirroring this decline, much subsequent analysis about socialist Asia promptly devalued and dismissed social institutions, legal theories and forms of knowledge - presupposing a linear transition from socialism to liberal legalism. Far from linear, legal reform in this region has been variegated and complex - raising the question of whether socialist laws and institutions were more resilient and adaptable than previously thought. 

     This book argues that the scholarly focus on the emergence of liberal legalism has marginalized the ongoing normative and structural legacy of Asian socialism found in various guises in contemporary Vietnam and China. The assumption of the inevitable export of Western capitalism, together with versions of liberalism and its institutional manifestations, is, we suggest, flawed, or at least misconceived, in socialist Asia. The chapters suggest that, at lease in part, a failure to recognize the normative and structural legacy of Marxist-Leninist approaches to socialism constrains our capacity to interpret the contemporary Vietnamese and Chinese reforms. Further and significantly, a failure to recognize the socialist legacy risks overlooking a key reason for ongoing local support for strong/authoritarian states in socialist Asia, which seek to promote 'development' while also resisting its destabilizing effects. As will become evident, the impacts of contemporary socialism vary across countries, jurisdictions and institutions.

     We commence this Chapter with a brief review of the history of socialism, including recalling socialist debates before the advent of the Russian revolution. Subsequently, we briefly trace the 'import' of Soviet socialism into both the People's Republic of China, and the Socialist Republic of Vietnam. We turn then to the 'puzzle' of socialism's resonance and relevance today, outlining the debates about its resilience and adaptation in socialist Asia...

Hualing Fu & Jason Buhi on Diverging Trends in the Socialist Constitutionalism of China and Vietnam (new book chapter)

"Diverging Trends in the Socialist Constitutionalism of the People's Republic of China and Socialist Republic of Vietnam"

Hualing Fu & Jason G. Buhi (PhD 2018)

in Socialist Law in Socialist East Asia (Cambridge University Press, July 2018), pp.135-163

Introduction: This chapter provides an overview to comparative study of Sino-Vietnamese comparative constitutionalism by exploring the bases of three core, substantive pillars of socialist constitutionalism through the Sino-Vietnamese comparison: insistence on Party leadership, reliance on socialist rule of law, and adaptation to populism. After considering several examples of how constitutional rules are currently operating through political and popular constitutionalism in all three areas, we conclude that Vietnam is presently moving in a direction offering more prospects for convergence with international norms, as the current Vietnamese Party-state is relatively less politically monolithic, more open to the influence of international laws, and more tolerant of civil society than its Chinese counterpart. That being the case, we predict that Vietnam will likely continue to depart from the increasingly insular Chinese model of constitutional development for the foreseeable future. The chapter can be downloaded from SSRN from here.

Bui Ngoc Son on Socialism and Constitutionalism in Contemporary Vietnam (new book chapter)

"Constitutional Dualism: Socialism and Constitutionalism in Contemporary Vietnam"

Bui Ngoc Son (PhD 2013)

in Socialist Law in Socialist East Asia (Cambridge University Press, July 2018), pp. 164-192

Introduction: In early 2013, when the Socialist Republic of Vietname released the draft Constitution to the public for comment, people called for, among other things, a change to the nation's name by eliminating the term 'socialist'. They proposed alternative names such as Democratic Republic of Vietnam, Republic of Vietnam and People's Democratic Republic of Vietnam. The new Constitution approved by the National Assembly of Vietnam on 28 November 2013 rejects the call to change the nation's name, and other substantive reforms. It retains fundamental socialist constitutional principles and the overall Leninist constitutional structure. However, it also introduces some concepts and principles that are unconventional to the socialist constitutional tradition and that resonate with the normative requirements of constitutionalism. The Constitution has still functioned as an instrument to describe the party-state's socialist principles and goals in constitutional terms, but at the same time it has begun to perform prescriptive function. This Chapter examines these two competing functions of the Constitution in socialist Vietnam, with a particular focus on the 2013 Constitution.

     International scholars, namely John Gillespie, Pip Nicholson and Mark Sidel, have provided useful explorations of Vietnamese constitutional law, although they have not yet accounted for the 2013 Constitution. Recently, the Asian Journal of Comparative Law published a special issue on Vietnamese and comparative constitutional law, focusing on the constitutional debates leading to the birth of the 2013 Constitution. The featured scholars helpfully demonstrated how fundamental socialist constitutional principles were subject to social contestations, contributing to the understanding of the dynamics of constitutional law within the socialist regime. They did not, however, consider the function of the new Constitution.

     In this Chapter, I will focus on the function of the Constitution in Vietnam. I propose the concept of 'functionalist constitutional dualism', which denotes two competing functions of a constitution in response to competing concerns. Within that conceptual framework, I argue that, in response to competing demands of state and social actors, the Constitution in Vietnam now has dual functions - its traditional, hegemonic socialist function and a new, nascent constitutionalist function. On the one hand, in response to the concern of the socialist elite, the constitution has predominantly remained the instrument for the party-state to describe the socialist principles, structure and goals in constitutional language. On the other hand, in response to the concerns of society, it has incrementally assumed constitutionalist function: it establishes normative constraints upon constitutional politics.

     First, I will describe the background on how socialism informed constitutional history in Vietnam. Next, I critically review several relevant theories and consider how functionalist constitutional dualism may be a useful concept. I then examine the two functions of the constitution in Vietnam, before concluding with some discussions and reflections...

Dr Po Jen Yap Promoted to Full Professor (HKU Law)

(Belated) Congratulations to Dr Po Jen Yap on his promotion to full Professor earlier this year.  Professor Yap's specialises in  constitutional and administrative law. A LLB graduate of National University of Singapore,  he received  a PhD degree from the University of Cambridge, apart from obtaining LLM qualifications from both Harvard Law School and University College London.  He is the recipient of HKU's 2016 Outstanding Young Researcher Award.  He joined HKU in 2006.

  He is a prolific researcher and has made important contributions to the literature on constitutional law in Asia. His first sole-authored monograph, Constitutional Dialogue in Common Law Asia, was published by Oxford University Press in 2015, for which he was awarded HKU's University Research Output Prize in 2016.
    His second sole-authored monograph, Courts and Democracies in Asia, was published by Cambridge University Press in October 2017.​ He has been the Principal Investigator of two RGC General Research Fund (GRF)​ projects.  He is currently editing a special issue of Hong Kong Law Journal to mark the 20th anniversary of Hong Kong's Basic Law.  He is also organising a collaborative project on proportionality in Asian jurisdictions. Leading scholars in this area will convene at HKU in December 2018 to present and discuss papers which are to be published in an edited volume by an international publisher.  This project will complement a similar project led by Professor Yap on the judicial review of elections in Asia which led to the publication of an edited volume published by Routledge in 2016.

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

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

Vol. 8, No. 8: July 19, 2018

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

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

       Anselmo Reyes, Court of First Instance (Hong Kong) 

       Weixia Gu, University of Hong Kong - Faculty of Law

2.   Transparency As an Offence: Rights Lawyering for Open Government Information in China 

       Han Zhu, Centre for Chinese Law, The University of Hong Kong Faculty of Law

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

3. Introduction to the Hong Kong Basic Law (2nd Edition) 

      Danny Gittings, University of Hong Kong, College of Humanities and Law, School of 

      Professional and Continuing Education, The University of Hong Kong, Faculty of Law

Fu Hualing Interviewed on China’s National Supervisory Commission (SCMP)

"China’s National Supervisory Commission: fresh, bigger fears over reach of new anti-corruption super agency"
Nectar Gan

South China Morning Post
19 July 2018

     The unbridled power and reach of China’s anti-corruption super agency have exceeded the initial fears of lawyers and academics in the four months since the new controversial system was introduced.

      When Beijing set up the National Supervisory Commission in March, the most contentious issue was the commission’s power to detain anybody for investigation for up to six months without access to a lawyer.

     But a recent case in the central Chinese province of Hunan has exposed how the commission’s activities could be used to deny detainees held by other law enforcement agencies access to legal counsel, even over unrelated offences.

     The example has prompted lawyers and legal scholars to call for urgent official checks on the super agency’s “bloated power” under the National Supervision Law introduced in March.

       ...

     The commission has been described by some critics as lending a veneer of legality to the party’s anti-corruption watchdog, the Central Commission for Discipline Inspection, and its long-criticised extra-legal measures. The two commissions share the same office and personnel, as do their various local branches.

     Fu Hualing, a law professor at the University of Hong Kong who specialises in China’s legal system, said that if true, the supervision commission’s intervention in Chen’s police custody was illegal and a perfect example of the new agency’s “bloated power”.

     “The [supervisory commission] does not have the right to command the police – the two organisations are totally separate and operate under different laws. There is no [direct supervisory] relationship between the two, at least legally, if not politically,” Fu said.

     “The problem now is that the law and politics are entangled. The ‘New Era’ is an era where the law and politics cannot be separated – once something involves politics, the law does not have a say any more.”

     Under China’s newly revised constitution, the supervisory commission has a status close to the cabinet and is ranked higher than the supreme court and top prosecutor’s office.

     “Now they can lead the police; later they may lead the prosecutors by commanding which cases should proceed and what should be the penalty,” Fu said.

      “In the future, will they try to lead the judiciary as well?”

     “The supervisory commissions’ power must be confined to the cage of the National Supervision Law – it has already escaped the cage.”  Click here to read the full text. 

Emily Lee on Equity Crowdfunding in Hong Kong (J Corp L Studies)

"Equity crowdfunding in Hong Kong: potential, challenges and investor protection"
Emily Lee
The Journal of Corporate Law Studies
July 18 2018, published online

Abstract: Equity crowdfunding is a relatively new investment format that allows investors to purchase unlisted securities from a company that does not meet listing requirements for an initial public offering. Equity crowdfunding offers investment rewards but also has risks of fraud, herding, insolvency and dilution of shareholder equity. Regulation is a natural response to negative externalities like systemic risk caused by asymmetric information, adverse selection and lemon problems. While the US and the UK have extensive crowdfunding regulations, Hong Kong does not, although crowdfunding is not specifically banned under the Securities and Futures Ordinance. This article focuses on the current state of equity crowdfunding in Hong Kong but draws inspiration from legal requirements for equity crowdfunding in the US, the UK and Singapore, as well as the Korea Startup Market in South Korea. The author makes regulatory suggestions for consideration by Hong Kong’s law-makers and policy-makers.

Kelley Loper Interviewed on Prejudices Against Ethic Minorities (SCMP)

"Is Hong Kong racist? Prejudice against ethnic minorities, especially Africans, undermines city’s claim to be truly international"

Mandy Zheng and Rachel Leung

South China Morning Post
21 July 2018
 With the weight of the world on her shoulders, Camy Lok Mei-ching takes a deep breath and strides into a rural committee meeting. About 10 people turn to face her. She recognises lawmakers, government officials and the residents of Shek Wu Tong Village in Yuen Long district.

     Lok is president of the Hong Kong African Association which she hopes will be allowed to convert an abandoned school in their village into an activity centre.

     Despite approval by the Town Planning Board, Lok’s plan faces strong opposition from villagers. Over the past months, various protests were launched, with residents citing security concerns and accusing African people in the community of being “more likely to be criminals”.

     Lok, in her 50s, is married to 45-year-old Nigerian, Ezeakunne Sylvester, and has been leading a lonely battle against what she says is a clear-cut case of racial discrimination – part of a long-standing yet often neglected problem in Hong Kong.

...

     Kelley Loper, associate professor and director of the Centre for Comparative and Public Law at the University of Hong Kong’s faculty of law, calls the events in the Yuen Long village a “worrying development”.

     She says: “The case highlights a clear need for much greater efforts to educate the public and promptly address racist attitudes.“Blocking the establishment of the activity centre is likely to violate the Race Discrimination Ordinance which prohibits direct and indirect racial discrimination in the provision of facilities, goods and services.”

     Loper calls for the government and Equal Opportunities Commission to investigate the matter. “Views that racial minorities are more likely to engage in ‘criminal’ activity perpetuates negative, discriminatory stereotypes about minority communities in Hong Kong and are not based on fact.”... 

Click here to read the full text.

Puja Kapai Interviewed on Failure of Anti-discrimination Laws to Prevent School Segregation (HKFP)

"Video: ‘A tiger with broken teeth’ – anti-discrimination laws fail to prevent school segregation, legislative panel hears"

Jennifer Creery

Hong Kong Free Press

17 July 2018

Hong Kong’s anti-discrimination law has failed to prevent the segregation of ethnic minority students at schools, a Legislative Council public consultation heard on Monday. NGOs and members of the public said that separate classes for those who learn Chinese as a second language delayed learning and ostracised pupils from the wider community.

     A panel tasked with examining racial discrimination policies heard calls for tighter laws to tackle what minority groups say is a failure to allow them to integrate into society.

...

     Puja Kapai, Associate Professor of Law at the University of Hong Kong, who also spoke at the hearing said that the panel was receptive to her suggestions to introduce data to gauge progress on racial equality. But she also said that the three-minute time limit for presenting ideas was restrictive.

     “The new rules of procedure provide a very limited time for engagement, unfortunately, because three minutes is really challenging for everyone to make their presentations and for lawmakers to raise questions,” Kapai told HKFP. ... Click here to read the full text.

Interview with Yun Zhao, the first Supreme Justice of Asgardia

Source: Asgardia website

The space kingdom Asgardia held its first Parliamentary session on 24 June 2018 in Vienna.  The 108 members of Parliament adopted the first law on the Parliament of Asgardia.  The Head of Nation, Dr Igor Ashurbeyli, signed the law immediately after adoption.
      Decree No 19 appointed Professor Yun Zhao, HKU's head of the Department of Law, as the Supreme Justice of Asgardia in accordance with Article 35, item 3 of the Asgardian Constitution.  Mr Lembit Opik and Ms Ana Diaz were appointed Parliament Chairperson and Prime Minister, respectively.  Two laws, an Act on the Enactment of Legislative Acts of the Nation of Asgardia and the Citizenship Law, were debated and passed.

Source: Asgardia website

     On the following day, a ceremony was held at Hofburg Palace to mark the inauguration of Dr Igor Ashurbeyli as the Head of Nation.  In attendance were ambassadors of more than 10 countries and guests from over 40 nations.  The one hour, fifty-one minute video of the celebration can be viewed here.  Many major international news media organisations (The Standard, Reuters, The Sun,  The Daily Mail, covered the inauguration ceremony.
     Despite his extremely busy schedule, Professor Zhao kindly spared a few minutes of his time to participate in an e-interview by the HKU Legal Scholarship Blog.

1. What is Asgardia and how did you first get involved?

Asgardia is the first space nation, which was set up in 2016. I was invited to attend a press conference held in Hong Kong in 2017 when Asgardia announced future plans for the space nation.

Source: Asgardia website

2. How did you come to be appointed the head of Asgardia’s Court, a position known as Supreme Justice of Asgardia, and what responsibilities do you have in this new role?

Supreme Justice of the Court is an appointed position, not elected. Relevant factors include the professional qualifications and experience in the field. I will ensure the smooth operation of Asgardia's legal system, such as constitutionality, resolution of disputes that arise from Asgardia's laws.

3. Will other judges be appointed in the future?

Other judges will be appointed in the near future, targeting end of 2018. There are four panels for constitutional, civil, administrative and criminal proceedings.

4. Do you envisage Asgardia’s Court ever hearing a case and what kinds of issues would it likely have to address?

There is the possibility of court hearing, most probably cases arising from the new Citizenship' Law.

5. How has your scholarship on space law contributed to your involvement in Asgardia?

This appointment takes into account my professional qualifications and experience in the space law field, and recognition from the space law (and international law) circle. 

6. What opportunities are available for other legal academics and law students if they want to become involved in Asgardia?

At the moment Asgardia is making appointments of ministers in the Asgardia Government, committee chairmen (Deputy-Chairmen) of Parliament and judges. Those interested in Asgardia and outer space should consider applying for Asgardia citizenship and indicate their interest in these positions.

    A short video of Dr Zhao speaking about his new role as Supreme Justice can be viewed here.

HKU's Rule of Law Education Project 2017-2018

The Rule of Law Education (ROLE) Project is a Knowledge Exchange initiative of the Faculty of Law, The University of Hong Kong, that started in 2012. Its main purpose is to enable a fruitful exchange of rule of law concepts between HKU law students and secondary school teachers and students. In the academic year 2017-2018, ROLE successfully reached 29 schools and about 4,690 students.

   Based on the content of the official Liberal Studies (LS) syllabus, ROLE continued to offer topic-based seminar to LS teachers. Forty LS teachers attended our seminar entitled 'Current Challenges to the Rule of Law in Hong Kong 2018'. We have established a regular seminar series for LS teachers.
     This year, ROLE extended its reach to civil society groups. We offered the “Rule of Law and Hong Kong Society”, a four-session course, to civil society group members in September to October 2017. Seventy individuals from 16 organizations registered for the course. Inspired by the course, we organized the “Rule of Law Day” event. Many attendees of the course helped in the “Rule of Law Day”. Twenty-nine civil society group members teamed up with 35 HKU law students to set up 10 street stations across Hong Kong. They distributed rule of law pamphlets to persons on the street and engaged them in interactive questions and answers at the street stations. Our HKU law students and civil society group members exchanged ideas about the rule of law and its implementation in actual practices. Together, they reached over 5,500 individuals.
    We expanded cooperation with more schools in 2017-18. In response to the newly implemented requirement on Basic Law Education in secondary schools, we focused our seminar topics on the Basic Law this year. The website was also revamped and now provides useful information on the four essential aspects of rule of law: (1) existence of law; (2) regulation by law; (3) limitation from law; and (4) justice through law.

Interview with Dora Chan, Inventor of the “E-package of DIY Residential Tenancy Agreement” (CLIC)

The online Community Legal Information Centre (CLIC) recently uploaded an e-package of Do-It-Yourself (DIY) Residential Tenancy Agreement.  The package includes a tenancy agreement template in English and Chinese which tenants and landlords can use to structure their legal relations.  Principal Lecturer Dora Chan, Adjunct Associate Professor Edmund Cham, and their team of students/graduates developed the templates along with a set of guidance notes with the assistance of the HKU Knowledge Exchange Fund.  HKU Legal Scholarship Blog caught up with Dora to find out more about her project.

1. What motivated this project and what is its aim?

Currently, if members of the public want to enter into a tenancy agreement on their own, the most common means is to buy a sample tenancy agreement from a stationery shop or to download a sample agreement from the internet. All these samples are not satisfactory as they are not prepared and reviewed by persons competent in tenancy law. In one of the stationery shop sample, one of the clause refers to legislation from 1952 which had been repealed and some of the terms used in samples are archaic. If the public use inappropriate samples for renting their residential homes, it may result in disputes and problems between the landlord and tenant which can have significant impact on their daily lives. In many cases, the public may not want to engage a lawyer to prepare a residential tenancy agreement as it can be costly and time consuming. 

     The aim of the E-package is to provide the public with a properly prepared residential tenancy agreement template. Members of the public can enter into a proper residential tenancy agreement using the E-package without the need and costs to engage a lawyer or an estate agent. 

2. Who are the targeted beneficiaries?

Any member of the public who would like to enter into a residential tenancy agreement on his or her own. 

3. Can this substitute for the assistance of a lawyer or only supplement?

Depending on the individual circumstances, if the transaction is a simple letting of a residential flat, the public can use the template tenancy agreement by filling in the essential details of name of parties, rent, term of tenancy and deposit and they can have a workable tenancy agreement. For complicated transactions, they may still need to engage a lawyer.

4. Is there a purpose to having a bilingual agreement? 

It would give a choice to the public as to whether they want the tenancy agreement to be in Chinese or English.

5. Why should someone use this new “E-package of DIY Residential Tenancy Agreement”? 

The public can have free online access to a residential tenancy agreement properly prepared and vetted by the students and staff of the Faculty of Law, HKU who have competent legal knowledge on HK tenancy law. The guidance notes also provide a comprehensive guide to the public on how to stamp and register timely a residential tenancy agreement to avoid incurring late fees and penalty.

6. How is this related to HKU's goals to promote knowledge exchange and experiential learning? 

In the course of preparing the E-package, the law students in the E-package team gained the valuable experience in applying their legal knowledge and English and Chinese drafting skills in preparing the E-package which is beneficial and useful to the general public. The practical experience gained by the students in producing the E-package would be most advantageous to them as future lawyers and would also serve the worthy purpose of knowledge exchange between HKU and the society. 

7. Why is this project unique?

As far as I am aware, the E-package is the first online website which provides a properly prepared residential tenancy agreement template and comprehensive guidelines on stamping and registering a residential tenancy agreement.

8. Who can access the free agreement package? And, where?

Any member of the public can have free access to the E-package from the HKU CLIC website. The URLs are as follows in the three languages (English, Traditional Chinese, Simplified Chinese):-

http://www.clic.org.hk/en/topics/DIY_Residential_Tenancy_Agreement

http://www.clic.org.hk/tc/topics/DIY_Residential_Tenancy_Agreement

http://www.clic.org.hk/sc/topics/DIY_Residential_Tenancy_Agreement​

9. What if the users encounter problems when using the e-package? Who can they contact? What can they do?

The E-package is intended to be a self-explanatory document. If the public finds the E-package does not suit their specific needs, they would have to seek legal advice from a lawyer.

Call for Papers: Limitations on Trademark Rights from Comparative and Interdisciplinary Perspectives (HKU Law & Technology Centre)

Limitations on Trademark Rights from Comparative and Interdisciplinary Perspectives

Call for Papers

Deadline for Abstract Submission: September 14, 2018

The Law and Technology Centre at the University of Hong Kong Faculty of Law and the Engelberg Center on Innovation Law & Policy at New York University School of Law will next year co-sponsor a conference on limitations on trademark rights. The conference will bring together scholars from around the world to explore the nature and scope of those limitations from comparative and interdisciplinary perspectives. The conference will be held at the University of Hong Kong on January 7-8, 2019.

      The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) sets no minimum standards for limitations on trademark rights, such as fair use and exhaustion. At the domestic level, the courts in various jurisdictions have adopted conflicting opinions on how to decide cases involving such limitations (e.g., nominative fair use). Comparative studies are therefore useful in understanding the differing legal standards for the limitations on trademark rights adopted in different jurisdictions. Moreover, conventional wisdom largely justifies trademark rights limitations from free speech or market competition perspectives, with other theoretical approaches such as social and cultural studies enjoying limited application in considering the nature and scope of those limitations. Against this backdrop, the conference organizers welcome submissions of papers developing new thoughts and theories on limitations on trademark rights by examining them through a comparative or interdisciplinary lens.

      The Rt. Hon. Professor Sir Robin Jacob will deliver the conference’s keynote speech, and a number of leading trademark scholars have already agreed to present papers. A limited number of presentation slots have also been reserved for scholars to be selected through this call for papers. Both senior and junior scholars are encouraged to submit abstracts of the papers they intend to present. Abstracts will be selected based on scholarly merit and originality.

      Please submit an abstract (no more than 300 words) to Ms. Grace Chan at mcgrace@hku.hk by September 14, 2018. The submission should also include your name, position, institutional affiliation and e-mail address.

      All applicants will be informed of the selection outcome by October 2, 2018. Financial support is available for scholars who experience difficulty obtaining a sufficient travel grant from their institution.

     All conference enquiries should be addressed to Ms. Grace Chan at the above e-mail address or at (+852) 3917-4727.

HKLII Launches New Database: Hong Kong Treaty Series

Users of the Hong Kong Legal Information Institute (HKLII) will be pleased to know a  new resource has been added.  Hong Kong Treaty Series is an electronically searchable database containing the full text of 

(1) arrangements with the Macao SAR, 

(2) arrangements with the Mainland China, 

(3) bilateral agreements with other jurisdictions and 

(4) treaties that are applicable to Hong Kong. 

     Distinctively the database can be viewed and searched alphabetically, by year, category, countries, international organizations and bodies and keywords. HKLII users can now locate treaties and international agreements applicable to Hong Kong in a one-stop portal.  HKLII thanks the Hong Kong Department of Justice for providing access to the relevant data.  This project is supported by the HKU Knowledge Exchange Fund.

Anna Baka on ""The Core of Legal Rights as a Logical Necessity" (Proceedings of the XXIII World Congress of Philosophy)

"The Core of Legal Rights as a Logical Necessity: From Wittgenstein’s Logic of Language to Phenomenology and Aristotle’s Induction"

Anna Baka (PhD 2015)

Philosophy of Law: Proceedings of the XXIII World Congress of Philosophy

Volume 54, 2018, pp. 5-19

Abstract: Analytical jurisprudence and the legal mainstream perceive legal rights in an interactionist fashion, pursuant to a right-obligation duality. The Paper suggests that this is principally because legal positivism and the analytical Anglo-Saxon legal tradition ground their theories on logical positivism and the Wittgensteinian premise that meaning is produced and asserted in social use, i.e. both consensually and contextually. The paper suggests that there is a surplus of meaning which exists beyond social use and which cannot be conceptualized within the sociolinguistic confines of Wittgenstein’s logic of language. This surplus of meaning corresponds to the essential core of legal rights, which, following Aristotle’s induction and philosophy of the essences, constitutes a necessary property and τὸ τί ἦν εἶναι of legal rights, namely a state of affairs or a state of being that cannot be altered without their necessary breach or, indeed, the negation of their very meaning. The Paper discusses the shortcomings of the Wittgensteinian approach and revisits the philosophical foundations of legal rights by employing Aristotle’s induction and theory of the essences, which the Paper connects to the phenomenological method and particularly Ricoeur’s hermeneutics and Husserl’s transcedental phenomenology. This is a process of abstraction and insight, which aspires to induce a rational revisiting of the general theory of legal rights and address the surplus of meaning that Wittgensteinian logic leaves semantically uncovered.

Yash Ghai: "Is Kenya in the danger of dependence on China?" (The Star)

"Is Kenya in the danger of dependence on China?"

Yash Ghai

The Star

7 July 2018

I am prompted to write this column by the remarkable statement of a scholar in Hong Kong on a recent visit there that China was on the verge of bankruptcy.

     Consequently countries that depend on loans from Chinese authorities are ill advised, as it is likely to be a device to trap the borrower. Some Hong Kong-based scholars were critical of another aspect: The integrity of Mainland China. It had reneged on the 1984 agreement between China and Britain guaranteeing Hong Kong’s autonomy as the condition for the transfer of sovereignty over Hong Kong back to China.

     Last year, when I was in Sri Lanka, I was told that country had made a serious error by moving its primary relations from India to China, for Chinese will exact a heavy price for its “grants or assistance”. I began to worry about the price we in Kenya will have to pay for huge loans and other “assistance” that our government had obtained from China — not least that has gone into the SGR, which the government never tires of advertising in the media as a great success. The Chinese government has also started making public declarations that it is “not increasing the public debt burden of African countries”... Click here to read the full text. 

New Issue of Asia-Pacific Journal of Human Rights and the Law (Issue 1 of 2018)

ASIA-PACIFIC JOURNAL ON HUMAN RIGHTS AND THE LAW

Editors-in-Chief: Simon NM Young and Kelley Loper

Publisher: Brill, Leiden

2018, Vol. 19, Issue 1

Research Articles

The Rohingya Refugee Crisis and Human Rights: What Should ASEAN Do?
Author: Zezen Zaenal Mutaqin
Source: Volume 19, Issue 1, pages: 1 –26

LGBTI Rights in Indonesia: A Human Rights Perspective
Author: Eleni Polymenopoulou
Source: Volume 19, Issue 1, pages: 27 –44

Can an Open Access Approach be the Solution to Better Implementation of the Right to Information Act in Bangladesh?
Authors: Harold Sougato Baroi; Shawkat Alam and Carlos Bernal
Source: Volume 19, Issue 1, pages: 45 –68

Book Reviews

Women’s Human Rights and Migration: Sex-Selective Abortion Laws in the United States and India, written by Sital Kalantry
Author: Rangita de Silva de Alwis
Source: Volume 19, Issue 1, pages: 69 –73

Human Rights in China: A Social Practice in the Shadows of Authoritarianism, written by Eva Pils
Author: Han Zhu
Source: Volume 19, Issue 1, pages: 74 –79

Hualing Fu Interviewed by SCMP on Crackdown on Chinese Human Rights Lawyers, Three Years On

"Trial by fire: three years on from the crackdown that put China's nascent human rights law movement to the test"

Nectar Gan

South China Morning Post

8 July 2018

Sui Muqing was thinking about leaving the law altogether. The forty-something graduate of one of China’s top law schools had an established career in commercial and criminal litigation in the southern Chinese city of Guangzhou but was disillusioned by the day-to-day reality.

     “I often felt like a worthless wimp, having to cultivate favour with the authorities and judges. It was merely a job to make a living – I got so tired of it over time,” he said.

     That all changed when he met the city’s leading human rights lawyer Guo Feixiong and found another way to use his advocacy skills.

     Sui was inspired by Guo’s example and started representing the poor and vulnerable, either for free or minimal fees.

     “You can’t only think about the money. There is also the question of dignity, your self-worth, your social value, to which you can find an answer in a rights lawyer’s work,” he said.

      But now Sui is suffering the consequences of his decision, barred from working as a lawyer in the aftermath the “709” crackdown on or soon after July 9, 2015.

     He was one of about 300 rights lawyers, legal assistants and activists rounded up across the nation in a major clampdown on dissent.

     Three years on, those events still reverberate in the rights community, with a string of disbarments, new stifling regulations on lawyers and law firms and the ever-extending reach of the Communist Party into the legal profession.

     Fu Hualing, a law professor at the University of Hong Kong, said the crackdown symbolised “the end of an era” of promoting rule of law and human rights that started in the early 1990s.

     In China, “human rights” did not became part of the official lexicon until 1991, when the State Council, the country’s cabinet, published its first white paper on the subject. At the time, all lawyers were civil servants on the government payroll, but five years later, with the passage of China’s first lawyers law, they became an independent profession... Click here to read the full article.

HKU Law Students Excel in Mooting Competitions (Maritime Law and Competition Law)

L-R: A Fung, J Ma, K Lee, F Chan,
R Cheung

The 19th International Maritime Law Arbitration Moot 

Competing against 29 universities from 14 overseas jurisdictions, the HKU Maritime Law Moot Team was awarded the 1st Runner-Up of the Oral Hearings held in Brisbane, Australia from 29 June to 3 July 2018. The 2018 Maritime Law Moot Team consisted of Alex Fung (PCLL), Justin Ma (PCLL), Ferrida Chan (BBA-Law) and Ryan Cheung (LLB), coached by Mr. Ken Lee. 

L-R: K Lee, R Cheung, A Fung, J Ma,
F Chan

    During the group stages, the Team came in 6th overall and later defeated both the National University of Singapore and University of Malaya to advance into the grand finals held in the Federal Court of Australia in Brisbane. Our heartfelt thanks go to Professor Anselmo Reyes, Dr Felix Chan, Mr. Winky So and the previous award-winning team for their comments in various practice sessions; and Mr. Ken Lee, our team coach, for his unwavering support throughout the year. 

HKU Competition Law Team Captured Best Written Pleadings Award 

The HKU Competition Law Team won the Best Written Pleadings Award for the written round on route to the semi-finals of the annual Herbert Smith Freehills Competition Law Moot from 15 to 16 June 2018. Guided by Mr. Thomas Cheng and Mr. Kelvin Kwok, the 2018 Competition Law Moot Team comprised of 4 PCLL students –Yuet Yi Cheng, Law Wai Tsun Hazel, Ng Chun Wai Jonathan and Karen Tsang Nga Yue. The Team advanced to the oral rounds hosted by King’s College London based on the strength of its written memorandum. 

L-R: J Ng, H Law, T Cheng, YY Chen,
K Tsang

     After winning all its moots in the preliminary stage with Wai Tsun Hazel capturing an oralist award, the Team subsequently lost in the semi-finals to KCL which was ultimately the winner of this year’s competition. The Faculty is grateful for the valuable support from team coaches Thomas Cheng and Kelvin Kwok and various practitioners and ex-mooters including Mr. Sunny Chan, Ms. Tiffany Chan, Ms. Jasmine Cheung, Mr. Tommy Cheung, Mr. Byron Chiu, Mr. Joshua Kanjanapas, Mr. Kevin Lau, Mr. Joe Lee, Ms. Rosa Lee, Ms. Allison Wong, and Ms. Stephanie Wong for their kind assistance.