New Book: Archbold Hong Kong 2019 (Sweet & Maxwell)

ARCHBOLD HONG KONG 2019

Editor-in-Chief: The Hon. Mr. Justice Bokhary

General Editor: Professor Simon Young

Sweet and Maxwell

November 2018

Preface: I am honoured to assume the general editorship of this great practitioners’ work. The number of times Archbold Hong Kong has been cited is a sign of its influence. As of today, I count around 300 Hong Kong judgments since the work was first published in 2004. Other than the White Book, probably no other single text has been cited more often. It is mentioned at all levels of court, including in many Chinese language judgments and seven Court of Final Appeal (CFA) decisions. It is relied upon in both criminal and civil cases. It has even been cited favourably in two 2016 judgments of the High Court of Fiji. Could we see more common law jurisdictions referencing the work and following Hong Kong sources of criminal pleading, evidence and practice? I think there is much promise in this as there are many ways in which criminal law, evidence and procedure have developed distinctively in Hong Kong. All these points remind us of the importance for Archbold Hong Kong to state the law accurately, succinctly, yet comprehensively. For this I am extremely grateful to all of the expert contributing editors, the gracious Editor-in-Chief, and the dedicated colleagues at Sweet & Maxwell. To this team, I add my three student editors (Josh Baker, Eric Chan and Wilson Lui) who have ably assisted me with the General Editor’s Updates. 

     In the past year, we continued to see examples of distinctive Hong Kong criminal law written by our courts. In HKSAR v Choi Wai Lun (2018) 21 HKCFAR 167, the Court did not follow R v K [2002] 1 AC 462 (HL) on the mens rea for the age element in in- decent assault, in cases where the complainant was under the age of 16 years. Instead, the Court found the presumption of mens rea displaced, and, applying its distinctive approach to strict liability set down in HKSAR v Hin Lin Yee (2010) 13 HKCFAR 142 and HKSAR v Kulemesin (2013) 16 HKCFAR 195, the defendant had to prove he honestly and reasonably believed the complainant was over age to be acquitted. The deci- sion makes it even more difficult to decide between the second and third Hin Lin Yee alternatives, but positively the Court signaled a willingness to revisit HKSAR v So Wai Lun [2005] 1 HKLRD 443, which held that the offence of sexual intercourse with a girl under 16 years was one of absolute liability. In another case, the Court of Appeal affirmed Hong Kong’s approach to sentencing drug traffickers based on the weight of the drug trafficked even in cases of couriers; Macrae VP wrote separately that “we must apply a policy suited to our own needs, which may be very different from those of the county towns of England or the leafy suburbs of Australia”, HKSAR v Kilima Abubakar Abbas [2018] HKCA 602, [71]. 

     Of course, in most judgments from last year, the courts applied doctrine based on longstanding principles and practices of the common law. The two much publicised sentencing decisions for unlawful assembly (Secretary for Justice v Wong Chi Fung [2018] HKCFA 4; Secretary for Justice v Leung Hiu Yeung [2018] HKCFA 43) brought to public attention the fundamental principle against retrospective punishment, which one can trace to article 39 of the Magna Carta. Other notable judgments affirmed the prosecution’s loss of the right to make a closing speech where the unrepresented defendant called no witnesses other than himself (HKSAR v Leung Chun Kit Brandon [2018] HKCFA 30), the prosecution’s duty to call witnesses named on the back of the indictment (HKSAR v Lam Chun Man [2018] 1 HKLRD 539), and the minimalistic direction on the standard of proof (HKSAR v Fok Ka Po, Joe [2018] 2 HKLRD 1223). In three statutory interpretation cases, the CFA reiterated the need to interpret words in criminal legislation purposively, contextually and with common sense (HKSAR v Cheung Wai Kwong (2017) 20 HKCFAR 524; HKSAR v Wan Thomas [2018] HKCFA 15; HKSAR v Lam Tan Ching Paul (2018) 21 HKCFAR 1). 

     Practitioners should heed the three messages, which resonated through multiple judgments, directed at those who practice criminal appeals. The CFA emphasised the need for a “palpably sound basis” before arguing flagrant incompetence by trial counsel and for “great care to be exercised before such an accusation can responsibly be leveled at the counsel or solicitors involved” (HKSAR v Li Xiaoxiang (2018) 21 HKCFA 272, [31]-[32]; HKSAR v Cheng Yim Fung, Flora [2018] HKCFA 5; HKSAR v Dramane Mouhamed Saiti [2018] HKCA 338; HKSAR v Lam Mei Ching, Bet [2018] 3 HKLRD 68; HKSAR v Lo Pui Yi Cat [2018] 2 HKLRD 1176). Relatedly, where incompetence is not alleged, it is “not permissible on appeal... to advance grounds of appeal based on the submission that counsel for the applicant could have conducted the trial in a wholly different way, in particular that he could have taken objection to the admissibility of evidence and advanced submissions, which in fact were not made at trial” (emphasis in original) (HKSAR v Ezeh Christian Ifeanyi [2018] HKCA 57, [15]; HKSAR v Liu Sun Kong [2018] 1 HKLRD 216). Another concern of the Court of Appeal was “the culture of certain appeal counsel to include [an allegation of the summing up being unfair and unbalanced] almost as a matter of course in grounds of appeal, regardless of their merits” (HKSAR v Wiwik Lestari [2018] 3 HKC 110, [75] & [108]; HKSAR v Tse Hin Yeung [2018] HKCA 196; HKSAR v Chen Keen (alia Jack Chen) [2018] HKCA 121). Notwithstanding these latter concerns, the court found the summing up not to be fair and balanced in HKSAR v Yuen Cheung Ming, Leon [2018] HKCA 13. 

     In concluding this roundup, I note several successful appeals from the past year where there were errors in the summing up related to propensity evidence (HKSAR v Wang Jinwei [2018] 1 HKC 135; HKSAR v Liu Sun Kong [2018] 1 HKLRD 216), drawing inferences from primary facts (HKSAR v Chung Yiu Lam [2018] HKCA 153), and evidence of flight (HKSAR v Yuen Yu Kin [2018] HKCA 354). 

     Finally, I wish to pay tribute to several senior members of the criminal bar who passed away recently. I did not know all of them but their work captured in judgments continue to live on in the pages of this text. 

Professor Simon NM Young 

Parkside Chambers 

8 October 2018 

Chen, Chan and Cheung on Doxing Victimization and Emotional Problems among Secondary School Students in Hong Kong (Int'l J Env Res & Pub Health)

"Doxing Victimization and Emotional Problems among Secondary School Students in Hong Kong"

Qiqi Chen, Ko Ling Chan, and Anne Cheung

Int. J. Environ. Res. Public Health

published in 2018, Volume 15, Issue 12, p. 2665

Abstract: Doxing is the searching for and intentional disclosure of private information about a particular individual on the Internet without his or her consent, and is often used to exact punishment. The aim of this study was to investigate the associations between doxing victimization and emotional problems in secondary school students, paying particular regard to the impacts of different types of doxed information, the relationship between the perpetrators and victims of doxing, and the nature of the online platforms where doxing occurs. A sample of 2120 Hong Kong secondary school students of differing socioeconomic backgrounds participated in the study. The results show that almost all types of disclosed personal information result in negative feelings in victims, including depression, anxiety, and stress. Girls were also found to be more likely than boys to be doxed. Significant associations were found between emotional problems and the disclosure of mobile phone numbers and personal photos and videos; doxing conducted by schoolmates and anxiety and depression, and doxing through Instant Messenger and anxiety. Further exploration of integrated cyber violence prevention programs and research on the details of doxing are recommended.  Click here to read the full article.

Amanda Whitfort and Wildlife Crimes Featured in Tatler's Inaugural Philanthropy Magazine

"Stopping the Traffic", published in Tatler's inaugural Philanthropy magazine, is being distributed in the December issue.

    Hong Kong Tatler's inaugural Philanthropy features a story focusing on activists seeking to tackle illegal wildlife trade into and through Hong Kong. One of the activists featured is HKU Law's Amanda Whitfort, who is part of a Wildlife Trade Working Group, comprised of scientists, lawyers, and NGOs, which was set up by ADM Capital Foundation in 2015 to share expertise and strategy on reducing Hong Kong's role as a hub for wildlife trafficking in Asia. 

    A research grant, funded by the Research Grants Council, which was awarded to Whitfort and Dr Fiona Woodhouse of the SPCA in 2016, has enabled them to prepare a public report on how Hong Kong's laws can be improved to thwart trade in the region. Interpol and UNODC regard international trafficking of endangered species as a form of organised and serious crime.  The new report will recommend wildlife crime be included in Schedule 1 to Hong Kong's Organized and Serious Crimes Ordinance, Cap 455. The full report is near completion and will be released through by HKU Law, in early 2019.​

Melissa Loja on Recent Engagement with International Human Rights Norms by Courts in Southeast Asia (ASIL accepted paper)

PhD candidate Melissa Loja presented the following paper at the 2018 American Society of International Law Research Forum, 8-10 November 2018, University of California, Los Angeles. 

"Recent Engagement with International Human Rights Norms by Courts in Southeast Asia: New challenges to human rights theories"

Abstract: International human rights norms have had limited influence on the settlement of issues that defined the identities of nations in Southeast Asia, Yet, in recent cases involving arbitration and judicial immunity, Singapore courts cited European Convention on Human Rights (ECHR) norms; Malaysia’s Court of Appeal based two decisions on the ASEAN Human Rights Declaration (AHRD), despite lack of legislative incorporation; the Philippine Supreme Court applied the Convention for the Protection of all Persons from Enforced Disappearances (CPPED), which the government had repeatedly refused to ratify; and Indonesia’s Constitutional Court invoked UN human rights instruments to justify the ex post facto prosecution of the past regime for human rights violations. This recent engagement with international human rights norms by the courts in Southeast Asia has distinctive features, notably: 1) preference for ECHR and other regional norms rather than AHRD norms; 2) subversion of the ethos of the norms; and 3) lack of indication that the courts see themselves as agents of an exogenous regional or global normative order. These distinctive features are beyond the capacity of the descriptive and predictive tools of the main universalist, pluralist and institutionalist/neo-institutionalist paradigms about international human rights norms and their application by domestic courts. A re-examination of human rights theories would be enriched by this recent engagement with international human rights norms by the courts in Southeast Asia.

New Book: Constituciones Aparentes (David Law & Mila Versteeg)

Spanish monograph “Constituciones Aparentes”
(with Mila Versteeg) 

Congratulations to our Sir YK Pao Chair in Public Law Professor David Law who recently published his new Spanish monograph Constituciones Aparentes (with Mila Versteeg) by Universidad Externado de Colombia as part of their paperback public law series.

      Invited to deliver a lecture at the Constitutional Court of Colombia, Professor Law presented a keynote speech on 17 October 2018. After the lecture, a book launch was held, in which he happily found that the book sold out its initial print run on the day of the launch!

    The book was favourably reviewed by a Colombian newspaper, Asuntos Legales.  To benefit more students, Professor Pedro Pablo Vanegas led a reading group where the book was read and discussed.

     In support of the book launch, a podcast interview was conducted by Gonzalo Ramirez-Cleves, Deputy Justice of the Colombian Constitutional Court and adjunct professor at Universidad Externado.  To listen to the podcast, click here (Spanish with Prof Law in English).

New Book: Hotten and Ho on Family and Divorce Law in Hong Kong (Keith Hotten & Dennis Ho)

Hotten and Ho on Family and Divorce Law in Hong Kong

General Editors: Keith Hotten and Dennis Ho

LexisNexis

November 2018

Description: This new looseleaf service (3 binders) is the first work of its kind in Hong Kong primarily aimed at solicitors and barristers who practice family law. It is a comprehensive, practical and critical account of the law drafted from the viewpoint of experienced practitioners, which covers all major aspects of family law including children, marriage and divorce, ancillary relief, ADR, costs, enforcement, injunctions, legal aid and appeals. It also includes comprehensive collection of annotated ordinances, subsidiary legislation and other practical reference materials which help practitioners with their practice.  Product highlights

• The first ever looseleaf family law publication in Hong Kong.
• Drafted from the viewpoint of reputable practitioners, including the Principal Lecturer in the Faculty of Law at the University of Hong Kong and the Chairman of the Family Law Committee of the Law Society of Hong Kong.
• Useful commentary supplemented by relevant annotated ordinances and subsidiary legislation, practical forms and precedents, and clear checklists.

HKU Law at 50 Book Talk by Johannes Chan and Margaret Ng (Cantonese)

This book talk brings together two prominent alumni of the Faculty to talk about their recently published recollections on law and politics in Hong Kong.

   In Paths of Justice, Professor Johannes Chan reflects upon the fundamental themes and basic values of our legal system by drawing upon his experience as a scholar and a barrister. He explains and demystifies some of the most frequently asked questions about the law. How does a lawyer defend someone who is guilty? Does the law favour the rich and the resourceful? Is there a duty to obey the law in all circumstances? How do we balance human rights against national security when they are in conflict?

    In Under the Keystone (拱心石下──從政十八年), Dr Margaret Ng recounts her experience as a Legislative Councillor representing the Legal Functional Constituency between 1995 and 2012. She gives a first-hand account of the operation of the Legislature, and shares her thoughts on how the legal profession and the rule of law in Hong Kong have changed over the years.

    Details of the book talk are as follows: Speakers: Professor Johannes Chan SC (Hon), Dr Margaret Ng. Discussants: Dr Marco Wan, Ms Cora Chan. Date: October 11, 2018 (Thursday). Time: 7:00 - 8:30 pm (Media registration starts at 6:15 pm). Venue: Moot Court, 2/F Cheng Yu Tung Tower, Centennial Campus, The University of Hong Kong. Language: Cantonese.

To view the video, click here.

New CCPL Survey on Future Directions in Hong Kong’s Governance

Former CCPL Director, Puja Kapai, recently published Future Directions in Hong Kong’s Governance, findings from a public opinion survey conducted between August and September 2017 with a sample of 500 randomly selected respondents aged 18 or above living in Hong Kong. The household surveys were administered through face-to-face interviews. The study sought to understand Hong Kong people’s priorities and life satisfaction levels as well as their attitudes towards and expectations of politics and governance in Hong Kong. Specifically, the survey included items on public trust towards political parties, institutions, the government, and individuals of diverse backgrounds as well as the public’s prioritisation between economic and livelihood issues and democratic governance. In synthesising the data, the study also mapped the correlation between various demographic factors such as gender, age, education, and income levels and attitudes towards politics, governance, priorities, and life satisfaction.

      The project’s underlying objectives are timely and of significance at this juncture in Hong Kong’s political journey. The findings are distinct from other public opinion polls carried out to date in that they are obtained from face-to-face rather than telephone interviews. They also shed light on the underlying variables which appear to be determinative of public opinion on specific challenges facing Hong Kong at this time.

     Offering data-driven recommendations to guide the agenda of political parties, their leaders, and most importantly, the incumbent administration, the project seeks to underscore the importance of creating conditions and prioritising areas that are conducive to the effective engagement and governance of Hong Kong people going forward.

    The findings have been summarised and presented in two segments to distinguish the overall outcomes of the study from the distinct voices of Hong Kong’s youth, who portrayed a significantly different perspective on a range of issues, warranting a separate and focused analysis. Therefore, in addition to the Report presenting the Core Findings of the research, a dedicated report on Youth Perspectives has also been produced, offering a focused review of youth voices in Hong Kong, which are vital to any conversation on the future of governance in Hong Kong given the role of the youth in shaping Hong Kong’s future.

      Between May and June 2018, these Reports and the recommendations therein were presented to Mr Matthew Cheung, Chief Secretary for the Administration of the HKSAR, members of the Hong Kong Legislative Council, a range of consular representatives from different countries in Hong Kong, and youth groups. The presentations were conducted in small groups and generated much discussion and reflection on the part of all stakeholders engaged.  The full reports can be accessed here.

Empirical Study by Yuqing Feng and Frank He into How Petitioners Frame Disputes in Chinese Courts (The China Journal)

"From Law to Politics: Petitioners’ Framing of Disputes in Chinese Courts"
Yuqing Feng and Xin He

The China Journal

July 2018, Issue 80, pp. 130-149

Abstract: Drawing on empirical data collected from petitioners in Chinese courts, this article analyzes how the regime’s political concern for social stability transforms petitioners’ disputes and shapes the evolution of their legal consciousness. Compared with first time petitioners, who often address their complaints within a legal paradigm, the veteran petitioners take advantage of the judges’ political concern for social stability and present their disputes as potentially threatening social stability. They hold the judiciary responsible for their plight; they petition courts during “sensitive periods”; they employ innovative tactics to draw official attention; and they seek to secure government stability-maintenance funds as a substitute for legal remedies. However, in framing a legal dispute as a political problem, the veteran petitioners risk retaliation. This article’s analysis provides insights into the operation of the court petition system, how the legal consciousness of Chinese petitioners evolves, and how in the petitioners’ eyes the legitimacy of the legal system gets eroded.

HKU Law Colleagues Comment on the Cathay Pacific Data Leak (SCMP)

"‘Cathay Pacific should have alerted shareholders earlier about massive data leak’: calls for Hong Kong stocks regulator to probe matter"

South China Morning Post

4 November 2018

Airline only reported case to stock exchange as ‘inside information’ when approached by the Post Disclosure questioned under Securities and Futures Ordinance, especially since announcement was made after Cathay’s interim results in August.

     The five-month delay by Cathay Pacific Airways in notifying 9.4 million passengers about a data leak has sparked questions over whether the airline should have alerted its shareholders more promptly.

     ...

    Syren Johnstone, executive director of the LLM (compliance and regulation) programme at the University of Hong Kong’s law school, said in general, while a case of data hacking might not necessarily be inside information, it also depended on what had been accessed and the implications for a company’s security system as a whole. Johnstone said Cathay’s delay to inform the market was a concern that required further investigation by regulators to establish facts. He said he expected the Securities and Futures Commission (SFC) to take a closer look at why the hacking was announced after Cathay’s interim results in August [3], “when the data breach had been confirmed internally but not publicly”.

    “Directors should have been aware of the data breach long before their August board meeting to announce the interim results,” Johnstone added. 

    “If they were not aware, it suggests they may not have appropriate safeguards in respect of their disclosure obligations, which is itself a breach of the Securities and Futures Ordinance.” ... Click here to read the full text. 

"Hong Kong’s Cathay Pacific faces first collective legal action over massive data breach, with 200 customers poised to make claims"
South China Morning Post
30 October 2018

Cathay Pacific Airways is facing its first collective legal action in the wake of a massive data breach after about 200 customers expressed their intention to make claims over the leak, the Post has learned.

 ...

    Gary Meggitt, an expert in professional liability and the director of the Asian Institute of International Financial Law at the University of Hong Kong, warned that passengers ran the risk of having to pay legal costs for a claim in the English courts even if they have a “no win-no fee” deal with their lawyers. 

     “If the airline wins, its legal costs could still be on the passengers bringing the claim” he said. There could be “after-the-event” insurance for the passengers to cover these costs but they may still have to pay something. 

     Although successful claimants with “no-win-no fee” deal typically do not have to pay their lawyers’ fees in England, because the loser pays, passengers might still have to pay their own lawyers’ “success fee or bonus”, depending on the how the deal was structured, Meggitt said. Alternatively, it was possible in England for a third party company to fund the claim, but he wasn’t aware if this was the situation here. 

      And while Hong Kong runs a similar common law system to England, he said, passengers should be aware that the actual operation of evidence, lawyer-client confidentiality or the trial could still vary. ... Click here to read the full text. 

New Book: International Governance and the Rule of Law in China under the Belt and Road Initiative (Yun Zhao)

International Governance and the Rule of Law in China under the Belt and Road Initiative
Edited byYun Zhao
Cambridge University Press
September 2018, 330 pp.

Book description: The edited volume aims at examining China's role in the field of international governance and the rule of law under the Belt and Road Initiative from a holistic manner. It seeks alternative analytical frameworks that not only take into account legal ideologies and legal ideals, but also local demand, socio-political circumstances, to explain and understand China's legal interactions with countries along the Road, so that more useful insights can be produced in predicting and analysing China's as well as other emerging Asian countries' legal future. Authors from Germany, Korea, Singapore, Mainland China, Taiwan and Hong Kong have contributed to this edited volume, which produces academic dialogues and conducts intellectual exchanges in specific sub-themes.

Yun Zhao's Introduction to New Belt & Road Rule of Law Book (CUP book chapter)

"Introduction"
Yun Zhao
in Yun Zhao (ed), International Governance and the Rule of Law in China under the Belt and Road Initiative (Cambridge University Press, September 2018), pp.1-6

Introductory paragraph: Building on the concept of the ancient Silk Road networks, President Xi Jinping formally announced the Belt and Road Initiative (BRI) in September 2013, with the aim of strengthening the cooperation between China and other countries along the old Silk Road on a wide range of issues, in particular the fields of trade and investment.  The BRI, covering more than sixty countries in Asia, Africa and Europe, encourages economic integration in the region leading ultimately to the formation of a new regional trading and investment bloc...

Kelvin Kwok on Belt & Road and Cooperation in Trade Liberalisation and Antitrust Enforcement (CUP book chapter)

"The Belt and Road Initiative: Cooperation in Trade Liberalisation and Antitrust Enforcement"
Kelvin Kwok

in Yun Zhao (ed), International Governance and the Rule of Law in China under the Belt and Road Initiative (Cambridge University Press, September 2018), pp.104-131
Introduction: This chapter analyses China's Belt and Road Initiative (BRI) from the related perspectives of trade liberalisation and antitrust enforcement.  The initiative, which was first announced by Chinese President Xi Jinping in late 2013, has the overarching purpose of 'promot[ing] the economic prosperity of the countries along the Belt and the Road and regional economic cooperation', 'strengthen[ing] exchanges and mutual learning development'.  Amongst the priorities of cooperation under the BRI - and the focus of this chapter - is the promotion of 'unimpeded trade' between China and the other countries participating in the BRI.
     It is argued in this chapter that, in order for the BRI to successfully achieve its objective of unimpeded trade, China and the other BRI countries need to work towards: (i) reducing transport time and costs for imports of products and inputs; (ii) trade liberalisation cooperation with a new to removing government-imposed trade barriers, and (iii) antitrust enforcement cooperation with a view to eliminating cross-border anti-competitive behaviour that hampers free trade.  Whilst the Chinese government has announced a range of infrastructure projects intended to facilitate transport between BRI countries, there has been rather limited discussion of trade liberalisation and competition policies under the initiative or of the relevance of those policies to the aforementioned priority of promoting unimpeded trade.  This chapter fills the gap by examining the BRI through the lens of trade liberalisation and anti-trust enforcement cooperation.
     The chapter begins with an introduction to the BRI, its relevance to free trade and the infrastructure projects planned under the initiative's auspices.  It then considers the general relationship between trade and competition, and argues that comprehensive trade liberalisation and competition policies emphasising cooperation amongst BRI countries are essential components of the initiative insofar as its objective to promote unimpeded trade is concerned.  The chapter then addresses the significance of trade liberalisation cooperation amongst BRI countries, as well as the design of a trade liberalisation policy suited to the initiative.  It also considers the importance of antitrust enforcement cooperation amongst BRI countries and the design of a competition policy that encompasses such cooperation...

Yun Zhao on The Role of Regional Space Cooperation in Procuring Space Security in the Asia-Pacific Region (CUP book chapter)

"The Role of Regional Space Cooperation in Procuring Space Security in the Asia-Pacific Region: Prospects for the Future"
Yun Zhao
in Yun Zhao (ed), International Governance and the Rule of Law in China under the Belt and Road Initiative (Cambridge University Press, September 2018), pp. 243-258

Introduction: Space security has become a hot topic in recent years, with space cooperation, regional space cooperation in particular, believed to be the major mechanism for realising and maintaining such security.   This chapter examines the role of regional cooperation in the Asia-Pacific region and discusses how such cooperation can contribute to the maintenance of space security.   Drawing on the successful experience of Europe, the chapter explores possible ways of furthering space cooperation in the Asia-Pacific region.  It also outlines the principles and guidelines that should be followed in pursuing future regional space cooperation in the Asia-Pacific.  The chapter concludes by arguing that regional space cooperation is crucial to furthering space security, and thus that the Asia-Pacific region needs to step up its efforts in the arena.  

     The development of space technologies has important implications for both state security and perceived military imperatives, particularly given the increasing number of space activities taking place worldwide.   The issue of space security has become a focus of interests in the space arena partly because of the inclusiveness of the term 'space security' itself and partly because of the challenges posed to international society with regard to the peaceful uses of space.  Since the start of the space era in 1957, international society has emphasised the importance of international cooperation in space activities.   Such cooperation results in mutual respect for and understanding of the space activities of various countries, consequently contributing to the peaceful uses of space.  International cooperation can take place in various forms and at various levels. 

      Regional cooperation, a subcategory of international cooperation, is particularly helpful in addressing concerns over space security.  We have already witnessed successful regional cooperation in the case of Europe.  However, cooperation within the Asia-Pacific region does not appear to have led to fruitful results as yet.  The launch of China's Belt and Road Initiative (BRI) provides an excellent opportunity to re-examine the current situation and future development of space cooperation in the Asia-Pacific region.  Under the auspices of the BRI, countries in the region can be encouraged to work more closely with one another to realise space security.

     Following this introduction, Section 1 of this chapter addresses the relationship between space security and space cooperation.  A proper understanding of the term 'space security' is vital to any further consideration of space cooperation.  Thus, this section of the chapter presents the various contemporary understandings of the term to set the stage for the discussion in the subsequent sections.  Section 2 then examines the current status of regional space cooperation in Asia-Pacific, showing it to be far from satisfactory at present.  In making suggestions for improved space cooperation within the region, Section 3 takes regional space cooperation in Europe as an example, demonstrating how successful such cooperation has been in helping Europe to realise space security.  With the successful European experience in mind, Section 4 then discusses possible ways of furthering space cooperation in the Asia-Pacific region and proposes principles and guidelines to follow in future. The chapter concludes by arguing in Section 5 that regional space cooperation is so vital to ensuring space security that the Asia-Pacific region would be well advised to step up its game in this arena... 

Weixia Gu on Enforcement of Arbitral Awards in Asia under the Belt and Road Initiative (CUP book chapter)

"Enforcement of Arbitral Awards in Asia under the Belt and Road Initiative: Implications for International Governance and the Chinese Rule of Law"

Weixia Gu

in Yun Zhao (ed), International Governance and the Rule of Law in China under the Belt and Road Initiative (Cambridge University Press, September 2018), pp. 277-294

Introduction: The accomplishments of a broadly homogenised global arbitration system have been made possible by international embracement of three UN-initiated arbitration devices: the Convention on the Recognition and Enforcement of Foreign Aribitral Awards (the New York Convention here-after), UNICITRAL Model Law on International Commercial Arbitration (Model Law hereafter) and UNCITRAL Arbitration Rules (UNCITRAL Rules hereafter). However, a truly harmonised system of international commercial arbitration has thus been foiled by the 'public policy' exception in the enforcement of arbitral awards under the New York Convention, Article V2 (b) which stipulates that '[r]ecognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that ... (b) [t]he recognition or enforcement of the award would be contrary to the public policy of that country. Indeed, it was Burrough J of the English court of the Exchequer who famously proclaimed in 1824 that public policy 'is a very unruly horse, and once you get astride it you never know where it will carry you. The 'unruly horse' metaphor aptly captures the indeterminacy of the public policy exception within international commercial arbitration, a substantial and recurring obstacle to both the finality and enforceability of arbitral agreements and awards. The existence of differing conceptions of public policy amongst legal systems, traditions and jurisdictions generates substantial uncertainty as to the conditions of international arbitral award enforcement in both theory and practice. True harmonisation of the nebulous public policy exception is thus necessary to fashion a cogent, coherent arbitral enforcement system that is applicable across the globe.

     Within Asia, the aim of China's proposed Belt and Road Initiative (BRI) is to bolster regional connectivity, promote cross-border investment and strengthen economic coordination across the Eurasian nations located along the historic Silk Road. In light of the large volume of cross-border contractual disputes expected to arise as a result of the BRI, the importance of arbitration as the preferred means of commercial dispute resolution is expected to grow, particularly given its ability to mitigate conflicts between different legal systems. This chapter contends that the BRI provides an ideal context for contemplating the possibility of the regional or 'geo-legal' harmonisation of the public policy concept in the cross-border enforcement of arbitral awards within Asia. Whilst the abundance of different legal cultures in Asia presents formidable challenges to harmonisation, bringing consistency to the public policy exception is likely to yield substantive benefits in the arena of commercial certainty and, as a natural corollary, stimuli for boosting investment amongst the Belt and Road nations. Such developments will pave the way towards the ultimate goal of 'true harmonisation' of the international commercial arbitration system...

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

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

Vol. 8, No. 9: Oct 24, 2018

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

           1.       Separation of Powersand Deliberative Democracy

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

          2.       The Basic Law in theCourts: Learning to Live with China and a Changing Hong Kong

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

   3.      Piercing the Veil of Arbitration Reform in China:

          Promises, Pitfalls, Patterns, Prognoses, and Prospect
          Weixia Gu, University of Hong Kong - Faculty of Law

  4      Fintech and Regtech:Enabling Innovation While Preserving Financial Stability
           Douglas W. Arner, The University of Hong Kong - Faculty of Law

           Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance,        

           Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)

           Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

           Janos Nathan Barberis, The University of Hong Kong - Faculty of Law

   5.       Support in Hong Kong for Same-Sex Couples’ Rights Grew Over Four Years (2013-

          2017), Over Half of People in Hong Kong Now Support Same-Sex Marriage

          Holning Lau, University of North Carolina School of Law

          Charles Lau, RTI International

          K. A. Loper, The University of Hong Kong - Faculty of Law, The University of Hong Kong - 

          Centre for Comparative and Public Law

          Yiu-tung Suen, Gender Studies Programme