Emily Lee on Digital Financial Inclusion: Observations and Insights from Hong Kong's Virtual Banks (Law and Contemporary Problems)

"Digital Financial Inclusion: Observations and Insights from Hong Kong's Virtual Banks"

Emily Lee
Law and Contemporary Problems
2021, Issue 84, pp. 95-113

Abstract: This Article examines issues affecting virtual banks, specifically those issues related to the financial technology (fintech) disruption and dealing with alternative banking and finance. It covers an expansive interpretation of Hong Kong regulatory law regarding the requirements for the authorization of virtual banks, with an accompanying study and critique of the financial industry’s collection and storage of digital data in relation to privacy, drawing inspiration from international norms. It then discusses those regulations in terms of their effect on digital financial inclusion. Finally, it evaluates some potential challenges facing fintech lenders, virtual banks included, in a regulatory environment that promotes digital financial inclusion while seeking to manage financial consumerism. This Article adds to the literatures of banking, finance, information technology management, and consumer protection law enforcement by analyzing the latest digital financial inclusion developments in Hong Kong, following the Hong Kong Monetary Authority’s (HKMA) issuing of virtual bank licenses in 2019 in an effort to promote financial inclusion and fintech innovation.

     This Article focuses on the connection between financial inclusion and digital financial inclusion as it assesses the role of virtual banks in Hong Kong’s financial inclusion agenda because this connection may be key to virtual banks’ success. This Article undertakes the original contribution of examining why Hong Kong’s inflexible capital requirement, unclear demands on digital banking innovation, and outdated laws against technical risks may render its financial inclusion policy less effective.

Richard Cullen on Hong Kong's New Political Realities After 2019 Watershed Year (China Daily)

"HK's new political realities after 2019 watershed year"
Richard Cullen

China Daily
Published on 10 March 2021

Intense disputation within the LegCo in May 2019, which involved open physical intimidation by Opposition members, played a significant role in laying the foundations, through the example, for the coming mass public protests — and violent civil upheaval — initially directed against the HKSAR Government’s proposed new Extradition Bill.

     This was, in fact, a needed bill justified by imperatives. The Financial Action Task Force (FATF) of the leading G7 group of countries had urged Hong Kong, in 2008, to reform its visibly inadequate extradition regime. According to Reuters, the FATF confirmed, in September 2019, that the lack of expected extradition provisions was an obstacle to tackling money laundering and terrorism. By then, however, the SAR government had withdrawn the bill following very large protest marches in June. The purpose of the bill had spuriously but very effectively been recast by the Opposition, with extensive media support, as a mass threat to personal freedoms in the HKSAR.

     It was in June 2019 that Hong Kong’s multi-month insurgency began, spinning off from the mass marches, to become an exceedingly violent anti-government, anti-China movement. It is now clear that it was robustly financed (from offshore and onshore), thoroughly planned and highly organized.

     The audacious physical aggression within LegCo in May had not stopped consideration of the Extradition Bill. The fierce protest-riot on June 12 ultimately did so, however, by shutting down the operation of LegCo completely. A fateful blow to Hong Kong’s basic constitutional order was struck. Now an enduring insurrection was underway, one which would include a perverse attempt to fire-bomb us all onto the road of everlasting democratic bliss.

      That the need for this radical restructuring (both the Election Committee and LegCo) is deeply felt in Beijing is scarcely surprising. These reforms are not, however, rash or reckless. They also convincingly signal enduring support for the distinctive role of the HKSAR within China... Click here to read the full text. 

Simon Young on Constitutional Review of Hong Kong's National Security Law (LAWFARE)

"Hong Kong’s Highest Court Reviews the National Security Law—Carefully"

Simon Young
LAWFARE blog

Published on 4 March 2021

Since its establishment in 1997, Hong Kong’s apex court, the Court of Final Appeal, has demonstrated a strong approach to constitutional review in human rights cases. It has struck down laws and executive acts found to be in violation of protected fundamental rights and freedoms. But in the wake of Hong Kong’s new National Security Law, is that changing?

     In HKSAR v. Lai Chee Ying (2021) HKCFA 3, the court ruled it had no jurisdiction to constitutionally review the controversial National Security Law (NSL), which created new national security offenses in Hong Kong punishable by up to life imprisonment, a high-level security committee, new law enforcement bodies, and new police powers including surveillance powers without judicial authorization. The court’s decision meant it could not consider whether any NSL provision was incompatible with Hong Kong’s constitution, known as the Basic Law, or the Hong Kong Bill of Rights (HKBOR), which implements the International Covenant on Civil and Political Rights (ICCPR) and has constitutional status.

     The court could have taken several different approaches to the constitutional review of the NSL. It chose an option that, on its face, appeared conservative and weak. But in the current political environment, the court’s approach was a wise strategic decision: It preserved the court’s judicial independence, enabled the continued protection of fundamental rights by common law principles and fended off the risk of executive backlash... Click here to read the full text. 

New Book co-edited by Haochen Sun: The Cambridge Handbook of Copyright Limitations and Exceptions (CUP)

The Cambridge Handbook of Copyright Limitations and Exceptions

Edited by Shyamkrishna Balganesh, Ng-Loy Wee Loon and Haochen Sun

Cambridge University Press

Published in January 2021, 420 pp.                                

Book Description:  While copyright law is ordinarily thought to consist primarily of exclusive rights, the regime's various exemptions and immunities from liability for copyright infringement form an integral part of its functioning, and serve to balance copyright's grant of a private benefit to authors/creators with the broader public interest. With contributors from all over the world, this handbook offers a systematic, thorough study of copyright limitations and exceptions adopted in major jurisdictions, including the United States, the European Union, and China. In addition to providing justifications for these limitations, the chapters compare differences and similarities that exist in major jurisdictions and offer suggestions about how to improve the enforcement of copyright limitations domestically and globally. This work should appeal to scholars, policymakers, attorneys, teachers, judges, and students with an interest in the theories, policies, and doctrines of copyright law.

    HKU Law colleagues contribute to Chapters 14 ("Creating a Public Interest Principle for the Adjudiciation of Fair Use and Fair Dealing Cases" by Haochen Cun) and 19 ("From Fair Dealing to User-Generated Content: Legal La La Land in Hong Kong" by Alice Lee and Brendan Clift).

AIIFL Newsletter (February 2021)

AIIFL News Issue 2 - February 2021 

MESSAGE FROM AIIFL 

I am pleased to introduce our second issue of AIIFL News. Best wishes from all of us at the Asian Institute of International Financial Law for a happy, healthy and prosperous the Year of the Ox! 

Douglas Arner AIIFL Director | Email

HIGHLIGHTS 

Looking Back Looking Forward: Finance, Technology and Regulation in 2021 

In this episode of Looking Back Looking Forward - the first of 2021 and the first of our second series - looking forward, Professor Douglas Arner talks about the key themes for FinTech, RegTech and digital finance in 2021. 

Looking back, Professor Arner highlights how 2020 marked the key trends for digital finance over the next decade: technology, sustainability, and an ongoing tension between globalisation and fragmentation. Looking at these in 2021, the focus will be on Digital Finance Platforms such as Ant, on normalisation of cryptocurrencies and digital assets, on building better infrastructure including RegTech/SupTech and central bank digital currencies, and on the role of data and cybersecurity.

For more information on the University of Hong Kong's financial technology programme and all the episodes of Looking Back Looking Forward, visit http://www.hkufintech.com and discover the transformation of information technology's ever-growing impact on finance. Watch the video now.

Master of Law in Compliance and Regulation 

The Master of Laws in Compliance and Regulation programme was established to respond to needs arising not only in the business sector but in society more broadly. 

Our students are drawn both locally and from abroad - many with experience in the financial industry, such as securities, banking, asset management, IT, etc. The mix of our students' working backgrounds provide an interdisciplinary platform to transfer knowledge from both the private and public sectors in Hong Kong. of funding for the fellowships scheme, providing HK$1.2 million directly to successful Hong Kong students taking the programme. Info video | Start your application 

New LITE Lab@HKU Courses: LITE Internships and LITE Lab: LawTech & RegTech Sandbox 

Law, Innovation, Technology, Entrepreneurship Lab, or LITE Lab@HKU, is a new interdisciplinary and experiential programme based at HKU and co-hosted by AIIFL and the Law & Technology Centre to support the Hong Kong legal innovation and LawTech ecosystem. LITE Lab@HKU’s team is led by Brian Tang (Founding Executive Director) and Stephanie Biedermann (Lecturer). Since its inception, in 2019, LITE Lab@HKU has attracted more than 70 tech companies, startups, social entrepreneurs, and NGOs to apply to work with the more than 40 students enrolled in the LITE Lab@HKU internship and co-designed student research courses. 

We are very excited to announce that for the semester starting in January 2021, LITE Lab@HKU has launched three new courses, namely two internship courses for undergraduate and postgraduate students, and a new experiential and interdisciplinary undergraduate course (LawTech & RegTech Sandbox) focused on LawTech and RegTech. 

If you have any questions or would like to discuss collaborations, please contact Brian Tang: Email.

PUBLICATIONS & REPORTS 

Selected articles, books and reports from the AIIFL team 

New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution | Edited by Luke Nottage, Shahla Ali, Bruno Jetin, Nobumichi Teramura 

How Much Is a Leg Worth in Hong Kong? Proposal for Reforming Personal InjuryCompensation | Felix Chan, WS Chan, JSH Li 

Dispute Resolution in China: Litigation, Arbitration, Mediation and their Interactions| Weixia Gu

The Markets in Crypto-Assets Regulation (MICA) and the EU Digital Finance Strategy | Dirk A. Zetzsche, Filippo Annunziata, Douglas W. Arner, Ross P. Buckley

Sovereign Digital Currencies: The Future of Money and Payments? | Dirk A. Zetzsche, Ross P. Buckley, Douglas W. Arner, Anton N. Didenko, Lucien van Romburg 

Bankruptcy Law in China 

Company Law in Hong Kong 2021 Chapter 14 | Xian Chu Zhang 

Archbold Hong Kong 2021 | General Editor Simon Young 

Chinese Antitrust Exceptionalism (forthcoming in March 2021) | Angela Zhang 

SELECTED MEDIA 

Hong Kong TVB’s Money Matters 

TV show host Melissa Gecolea interviews AIIFL Director and Kerry Holdings Professor in Law Douglas Arner in a Cryptocurrencies series exploring what’s new in the crypto world. Watch it here.

 Podcast: Fintech, payments, and CBDC in China 

Bhavin Patel, Head of Fintech at OMFIF, the Official Monetary and Financial Institutions Forum, speaks with Douglas Arner, Kerry Holdings Professor in Law and Director of Asian Institute of International Financial Law at the University of Hong Kong, and Charles Chang, Deputy Dean of Academics, Professor of Finance and Director of the Fintech Research Centre at Fudan University’s Fanhai International School of Finance. 

In this two-part series, they discussed the Chinese FinTech space, focussing on payments, regulations and the Chinese central bank digital currency project. 

Part 1 | Part 2

Central Bank Digital Currencies 

Henri Arslanian and Douglas Arner on CBDCs at Digital Davos 2021: Video 

RESEARCH PROJECTS AND IMPACT 

Hong Kong Insolvency and Restructuring Law and Policy in Times of COVID-19 and Beyond 

AIIFL’s Kelvin Kwok and colleagues received funding from the Hong Kong Research Grants Council Collaborative Research Fund (CRF) of HK$3.11 million for a new project on Hong Kong Insolvency and Restructuring Law and Policy in Times of COVID-19 andBeyond. The project collects data on the impact of the pandemic on businesses in Hong Kong and considers whether reforms to Hong Kong's laws of insolvency and business restructuring are needed. It is led by Wai Yee Wan of City University of Hong Kong School of Law and includes Co-Principal Investigators from HKU Law (Alwin Chan and Kelvin Kwok, AIIFL Deputy Director) and other collaborators from Oxford University and Leeds University. 

An Empirical Study of Money Laundering Offending in Hong Kong 

Simon Young and his team are building a database of all the money laundering judgments in Hong Kong with the aim of identifying laundering typologies and to think more deeply about possible reforms of the existing law. Funded by the Hong KongResearch Grants Council General Research Fund. 

Process Review Panel for the Hong Kong Estate Agent Authority 

Wilson Chow was appointed a Member of the Hong Kong Estate Agent Authority in November 2020.

 UNIDROIT Working Group on a Model Law on Factoring 

Giuliano Castellano (AIIFL Deputy Director) was appointed by the International Institutefor the Unification of Private Law (UNIDROIT) to serve as international legal expert in the Factoring Model Law Working Group. UNIDROIT is an independent intergovernmental Organisation, based in Rome; its purpose is to promote the modernisation and the harmonisation of private law and, in particular, commercial law. Among the current projects, UNIDROIT has been tasked to develop a Model Law on Factoring. 

EVENTS AND ACTIVITIES 

Digitizing Green Bonds in Hong Kong (4 February 2021) 

AIIFL and the Blockchain and WealthTech Committees of the ciaFintech Assotion of Hong Kong organized a webinar with global participants to discuss the prospects for digitizing green bonds in Hong Kong. 

Asia WealthTech Forum (21 January 2021) 

AIIFL co-hosted the Asia WealthTech Forum along with Virtual FinTech Fair and the Associations of Family Offices in Asia. 

American Society of International Law, Asia-Pacific Section: Weixia Gu coorganized four Webinars with American Society of International Law: 

- The Potential Impacts of RCEP on the Asian-Pacific Region 

- Outstanding Issues of ISDS Reform: Perspectives from Asia-Pacific Stakeholders 

- National Security in International Law: An Asia-Pacific Perspective 

- International Law in the Asia-Pacific during the COVID-19 Pandemic Details are available here.

 Digital Assets Project: Workshop (8 January 2021) 

Giuliano Castellano joined the Digital Assets Project, led by Professor Louise Gullifer (Cambridge) and Professor Jennifer Payne (Oxford) with the support of Fusang Vault Ltd. During the meeting held in January, members of the project updated on their recent activities. Dr Castellano offered an overview of the World Bank’s Note on RegulatoryImplications of Integrating Digital Assets and Distributed Ledgers in Credit Ecosystems(2020). 

UNIDROIT Model Law on Factoring (14-16 December 2020) 

In December 2020, UNIDROIT held the second meeting on the preparation of a ModelFactoring Law. Giuliano Castellano shared his analysis and research on the regulatory regimes affecting factoring activities. 

World Bank and NatLaw Forum on Receivables Finance (8 December 2020) 

Giuliano Castellano presented at a plenary session of the Second Forum “Toward Coordinated Implementation of International Standards on Receivables Finance”. His presentation focused on the role of regulatory reforms to promote receivable finance and supply chain finance in the context of sustainable development and access to credit. Further information on the effort to coordinate secured lending reforms with financial regulation policies, see IFC Coordinating Prudential Regulation and SecuredTransactions Frameworks: A Primer (2020) 

The Innovating Justice Forum Recognition of LITE Lab@HKU 

LITE Lab@HKU has been invited to exhibit in the prestigious 2021 annual InnovatingJustice Forum organised by the Hague Institute for Innovation of Law whose theme is "Making People Centered Justice Work". The exhibition will showcase LITE Lab@HKU work, where students are engaged in impactful projects to strengthen access to justice through technological advancements. NGOs interested in collaborating with LITE Lab@HKU on access to justice technology initiatives should feel free to contact Brian Tang, LITE Executive Director at bwtang@hku.hk. 

CMEL Newsletter (February 2021)

 CMEL is established jointly by the Li Ka Shing Faculty of Medicine and the Faculty of Law at the University of Hong Kong. Its primary vision is:

• to become a focal point for international research excellence in the area of medical ethics and law;
• to co-ordinate and provide teaching and training to university students and professionals;
• and to promote and disseminate its expertise to the benefit of the public.

The Centre’s objectives are to promote excellence in the fields of research, teaching, knowledge exchange and professional training. The Centre will collaborate, as appropriate, with institutions, professional bodies and scholars in Hong Kong and internationally in order to pursue these objectives. CMEL has recently issued the latest newsletter. To view click: CMEL February 2021 Newsletter.

Highlights of the February newsletter:

1. Doctor and patient acquitted of charges arising from the gifting of a watch in Hong Kong
2. Runaway COVID-19 patient sentenced to four months in jail in Hong Kong
3. Controversy over proposed new pathway for non-locally trained doctors to practise in Hong Kong
4. Online book talk with the editor and contributing authors
5. Recent publication by CMEL member

Calvin Ho et al on Immunity Certification for COVID-19: Ethical Considerations (Bulletin of the WHO)

"Immunity certification for COVID-19: ethical considerations"
By Teck Chuan Voo, Andreas A Reis, Beatriz Thomé, Calvin WL Ho, Clarence C Tam, Cassandra Kelly-Cirino, Ezekiel Emanuel, Juan P Beca, Katherine Littler, Maxwell J Smith, Michael Parker, Nancy Kass, Nina Gobat, Ruipeng Lei, Ross Upshur, Samia Hurst & Sody Munsaka
Bulletin of the World Health Organization (2021) 99(2): 155–161.

Abstract: Restrictive measures imposed because of the coronavirus disease 2019 (COVID-19) pandemic have resulted in severe social, economic and health effects. Some countries have considered the use of immunity certification as a strategy to relax these measures for people who have recovered from the infection by issuing these individuals a document, commonly called an immunity passport. This document certifies them as having protective immunity against severe acute respiratory syndrome coronavirus-2 (SARS-CoV-2), the virus that causes COVID-19. The World Health Organization has advised against the implementation of immunity certification at present because of uncertainty about whether long-term immunity truly exists for those who have recovered from COVID-19 and concerns over the reliability of the proposed serological test method for determining immunity. Immunity certification can only be considered if scientific thresholds for assuring immunity are met, whether based on antibodies or other criteria. However, even if immunity certification became well supported by science, it has many ethical issues in terms of different restrictions on individual liberties and its implementation process. We examine the main considerations for the ethical acceptability of immunity certification to exempt individuals from restrictive measures during the COVID-19 pandemic. As well as needing to meet robust scientific criteria, the ethical acceptability of immunity certification depends on its uses and policy objectives and the measures in place to reduce potential harms, and prevent disproportionate burdens on non-certified individuals and violation of individual liberties and rights.

New Book by Albert Chen: The Changing Legal Orders In Hong Kong and Mainland China: Essays on "One Country, Two Systems" (CityU Press)

The Changing Legal Orders In Hong Kong and Mainland China: Essays on "One Country, Two Systems"

Albert Chen

City University of Hong Kong Press

Published in February 2021, 440 pp. 

Book Description: This collection of selected works by Professor Albert H.Y. Chen shows the contours of the author’s scholarship as it developed over 35 years of his academic career, from 1984 to the present. The essays are divided into three sections which cover the three major domains of Professor Chen’s research. Part I covers the legal developments and controversies of “One Country, Two Systems” since the Hong Kong interpretation on “the right of abode” in 1999 to the anti-extradition movement of 2019. Part II shifts to focus on tradition and modernity in Chinese Law, including China’s Confucian and Legalist traditions and how the socialist legal system in China evolved and modernized in the era of “reform and opening”. Part III examines the transplantation of Western thinking and constitutionalism to East Asia in modern times and discusses the achievements and failures of these efforts. In conjunction with an introductory chapter that sets out the basic orientation and paradigm of these legal and constitutional studies and an epilogue that reflects on the main themes, this collection exemplifies the author’s important contributions to the field and provides insight into how the legal orders in Hong Kong and mainland China have changed over the course of Professor Chen’s academic career.  To view the event launching book held at HKU on 2 March 2021, click here. The book was reviewed by Professor Jaakko Husa in the Chinese Journal of Comparative Law (15 November 2021):  "Constitutional Biography of Hong Kong and Ambiguities of One Country, Two Systems Policy"

CCL's Equality Rights Project and Chinese NGOs Submit Report to the UN Committee on the Elimination of Discrimination against Women

The Equality Rights Project (under the Centre for Chinese Law) and two other Chinese NGOs jointly submitted a parallel report to the United Nations Committee on the Elimination of Discrimination against Women ahead of the adoption of the list of issues for the ninth periodic report of China at its 80th Pre-Session (which will be held in this March). The report covers only Mainland China. It refer to the Ninth Periodic Report of the State Party (SP) and the CEDAW Committee’s Concluding Observation (CO). The List of Issues are ordered according to the articles in CEDAW, together with the two issues that are addressed in Concluding Observation of 2014. The report was published in February 2021. To view the report, click here.

James Fry & Saroj Nair on Deconstructing Dud Disarmament Disputes (Journal of Conflict and Security Law)

"Deconstructing Dud Disarmament Disputes"
James D Fry & Saroj Nair
Journal of Conflict and Security Law

Published on 11 December 2020

Abstract: This Article explores the limits of judicial settlement of nuclear-weapon disputes through a case study of the Marshall Islands’ cases against India, Pakistan and the UK before the International Court of Justice in 2016. It posits that judicial settlement is limited mainly by the quality of the arguments and evidence submitted by the disputants, not by any limitations inherent in judicial settlement with such politically sensitive disputes. The lawyers in the Marshall Islands’ cases should have taken greater care in crafting their arguments and in tying them explicitly to Article VI of the Nuclear Non-Proliferation Treaty and its customary equivalent.

New Book by Weixia Gu: Dispute Resolution in China: Litigation, Arbitration, Mediation and their Interactions (Routledge)

Dispute Resolution in China:Litigation, Arbitration, Mediation and their Interactions
Weixia Gu

Routledge

Published in February 2021, 288 pp.

Description: China's ever-expanding commercial influence has attracted global attention on how its civil and commercial disputes are resolved. This compelling new book, Dispute Resolution in China, offers a detailed examination of the elements in the Chinese legal system and the relevant reforms to the multiplicity of approaches to civil and commercial disputes in China today. This book reveals how civil litigation, commercial arbitration, mediation, and their hybrid dispute resolution have distinctly responded to, reformed, and developed in the context of China’s transformational economic growth, societal development, and international interaction in the last two decades. It situates these developments and continued experimentation within a unique hybrid of empirical, contextual, and comparative analytical framework, while paving productive pathways towards the future.

    This book argues that, rather than being a legal project, China’s civil and commercial dispute resolution system is essentially a social development project, which distinguishes the Chinese approach to civil justice reform from contemporary civil justice movements elsewhere. Among the primary methods of dispute resolution, commercial arbitration in China today uniquely transcending the traditional socio-political constraints, its reform has developed in favor of market-oriented considerations and shaped by China’s socio-economic dynamics and internationalization needs. By contrast, civil litigation and mediation being more instrumentalist in nature, their reform is socio-politically embedded and continues to prioritize social stability. This book also shines a fresh light on comparative assessments of top-down and bottom-up changes in China’s dispute resolution discourse, as well as on how China speaks to international dispute resolution systems. Original and rich in its analysis, this book will be essential reading and invaluable reference tool for scholars with a focus on Chinese law, comparative and international dispute resolution, and on broader legal, institutional, economic, social, political and cultural dimensions of dispute resolution development.

Praise: 

"One of the best works on dispute resolution in China, this timely and insightful study offers an unrivalled account of the changing landscape of commercial dispute resolution in China. Against the background of China's ever-expanding commercial influence, it offers an invaluable and impressively informed guide to the multiplicity of approaches to civil disputes in China, formal and informal, and shines a fresh light on topics which often seem mysterious, and are often misunderstood. Original and rich in its analysis, it is stimulating reading for anyone interested in comparative law, civil procedure, and in how legal institutions are shaped by their social, political and economic context. The author deserves congratulations on a fascinating work, which is scholarly and absorbing and assured of its place in the literature."

    -Richard Fentiman QC (Cambridge Law Faculty) – Professor of Private International Law and Former Dean

"This is an impressive study of dispute resolution in China covering litigation, arbitration, mediation and mixed processes. A particular strength is its extensive research and its academic contribution and impact on the topic of civil and commercial dispute resolution in China from a comparative, empirical and contextual perspective. There are also law and society and law and economics assessments. This is most certainly now the most comprehensive and definitive analysis on the topic."

  -Loukas Mistelis (Queen Mary University of London School of Law) – Clive M Schmitthoff Professor of Transnational Commercial Law and Arbitration

"Professor Gu has produced the state-of the-art study of civil dispute resolution in China. Covering the entire dynamic landscape, it chronicles changing developments and continued experimentation, while providing an intelligent roadmap for productive reforms. The book will be essential reading for China law scholars, but also for practitioners and business leaders who work with Chinese partners."

  -Tom Ginsburg (Chicago Law School) – Leo Spitz Professor of International Law and Member of the American Academy of Arts and Sciences

"Gu’s book is a must for scholars and practitioners who really want to understand the development on commercial dispute resolution in China: insightful, resourceful, exhaustive. One of the best works on dispute resolution in China."

  -Franco Ferrari (NYU Law School) – Professor of Law and Director, Center for Transnational Litigation, Arbitration and Commercial Law

"One of the finest works on dispute resolution in China, this book is essential reading for everyone interested in the evolution of civil and commercial dispute resolution in China. The　book blends　empirical analysis with a thorough understanding of the economic and social transformation of dispute resolution　in China. It highlights China’s salient divergence from international dispute resolution systems. Gu’s outstanding book is both a　compelling manifesto and an　indispensable　pathway into the future."

  -Leon Trakman (UNSW Law School) – Professor of Law and Former Dean

"Dr Weixia Gu has produced a highly valuable work that examines the current regime for resolution of civil commercial disputes in China. Dr Gu goes well beyond the existing English language treatments of the subject to fully examine the legal principles, literature and practice relating to dispute resolution in China. The book also considers the topic through the prism of law and development and the immense recent changes in Chinese society.　 It is an impressive book."

   -Richard Garnett (Melbourne Law School) – Professor of Law

"Professor Gu’s Dispute Resolution in China: Litigation, Arbitration, Mediation and their Cross-Interactions is an outstanding study of how civil litigation, commercial arbitration, and mediation have responded to, reformed, and developed in the context of China’s transformational economic growth and societal development of the last two decades. Gu analyzes the different degrees to which mediation and litigation remain politicized and continue to prioritize social stability, often at the expense of rights; the extent to which civil litigation has evolved to address public interest objectives, especially with respect to environmental and consumer issues; and the way in which commercial arbitration, uniquely among the three principal methods of dispute resolution, has transcended traditional socio-political constraints in favor of market-driven international standards, with the support of the Chinese judiciary. Gu offers invaluable comparative assessments of "top down" versus "bottom up" changes in China’s dispute resolution discourse, along with compelling empirical analyses in support of her arguments. An indispensable comprehensive study, Gu’s book makes an exceptional contribution to the literature on contemporary dispute resolution　in China. It is a "must read" for legal scholars, social scientists, lawyers, policymakers and business leaders alike who focus on Chinese law and dispute resolution."

  -Philip J. McConnaughay (Peking University School of Transnational Law) – Dean and Professor of Law

"Professor Gu’s wonderful study of dispute resolution processes in China explores important issues of procedural law, including the substantial reforms attempted in recent years in response to the economic transformation and social changes that have been taking place in China. The insightful analysis offered by Professor Gu locates developments in the legal and institutional framework of civil litigation, arbitration, mediation and mixed dispute resolution in their social and cultural contexts. Among other key themes, this important book argues that the system which has emerged is more a project of social transformation than it is of legal development, especially in areas of dispute resolution that are less directly linked to the functioning of the economic system."

  -Michael Palmer (University of London School of Oriental and African Studies) – Emeritus Professor of Law and Former Head

Weixia Gu on Arbitration in Comparative Perspective (new book chapter)

"Arbitration in Comparative Perspective"
Weixia Gu
in Comparative Dispute Resolution  edited by Maria Federica Moscati, Michael Palmer, and Marian Roberts (Edward Elgar, 2020), Chapter 21

Abstract: This chapter explores various arbitration issues from East-West and common law-civil law comparative viewpoints. The term “East” refers generally to certain prominent Asian jurisdictions (e.g., China, Hong Kong, Singapore, Japan and Korea); while the “West” represents some of the major Continental European civil law jurisdictions (e.g., France, Germany and Switzerland), as well as the main Anglophonic jurisdictions traditionally viewed as main players in the common law world in the “West” (e.g., the United Kingdom, the United States, Canada and Australia).

     Three driving forces, as argued in this chapter, exert varying degrees of influence and account substantially for variations in the arbitration issues considered: (1) cultural dissimilarities between the East and the West; (2) operational differences in the practice of common law and civil law legal systems; and (3) variances in dispute resolution traditions among jurisdictions (e.g., a longstanding preference for using mediation rather than litigation and arbitration).

     Various arbitration issues will be examined. First, the relationship between alternative dispute resolution (ADR) and arbitration at a conceptual level in differing legal cultures is discussed. Next, the different permutations underlying the formation and operation of the arbitral tribunal across the surveyed jurisdictions will be analyzed, before examining the issue of juridification of arbitration tribunal processes. Finally, dispute resolution traditions are discussed and the diverse attitudes toward med-arb among legal systems and cultures are analyzed. In each section, this chapter explores whether and to what extent the aforementioned three driving forces contribute to the jurisdictional differences.

Weixia Gu on China’s Approach to the Recognition and Enforcement of Foreign Civil and Commercial Judgments (Journal of Comp Law)

“China’s Approach to the Recognition and Enforcement of Foreign Civil and Commercial Judgments and International Litigation Capacity Building” 

Weixia Gu
The Journal of Comparative Law
2020, Volume 15, Issue 2, pp. 264-291

Introduction: The unparalleled economic growth of the People’s Republic of China (hereafter China, or the PRC) has resulted in a paradigm shift in its legal regime. Once a comparatively closed market to the world, China now faces an unprecedented surge of international business and movement of global capital into its domestic market in light of its immense economic growth in the past forty years. As a result of this growth, the internationalisation of business in China requires the domestic courts to accommodate private international law practices such as allowing foreign judgments to be recognised and enforced in the domestic courts: a clear indicator of globalization1 and the development of China’s economy.

      An important step China has taken in the past few years is to improve efficiency in recognising and enforcing foreign judgments. Specifically, the salient shift to a more liberal application of the reciprocity principle, the signing of the 2005 Hague Choice of Court Convention (2005 Hague Convention) and the growing number of bilateral treaties on judicial assistance are clear indicators of China’s recent willingness to improve commercial certainty for the parties involved, to promote fairness for both domestic and foreign litigants, and to ensure the global movement of judgments, resulting in increased investor confidence and further economic growth in China.

      This article analyses current theory and practice with respect to the recognition and enforcement of foreign civil and commercial judgments in China. There are three regimes that will be analysed: (1) the existing Sino-bilateral judicial assistance treaties on civil and commercial matters; (2) in the absence of a bilateral treaty, the application by the Chinese courts of the principle of ‘reciprocity’ while taking account of procedural and substantive concerns specific to China; and (3) the potential impact of the 2005 Hague Convention signed by the Chinese government in September 2017.

      This article argues that while China’s recent reforms in the judicial recognition and enforcement of foreign civil and commercial judgments (hereafter, JRE) are encouraging, due to the growing demand of international litigation in context of the Belt and Road Initiative (BRI), the Chinese JRE regime should be comprehensively reformed to build legal capacity. For that purpose, the author has put forward three proposals: (1) the ratification of the 2005 Hague Convention; (2) the Model Law on JRE to be adopted by China’s Supreme People’s Court; and (3) potential reference to the 2019 Hague Judgments Convention. Finally, this article examines the extent to which such proposals can actually help China promote the legitimacy and competence of the Chinese international litigation system in light of her ambitious BRI development.

Weixia Gu on Harmonizing the Public Policy Exception for International Commercial Arbitration along the Belt and Road (new book chapter)

"Harmonizing the Public Policy Exception for International Commercial Arbitration along the Belt and Road"
Weixia Gu
in New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution
edited by Luke Nottage, Shahla Ali, Bruno Jetin, Nobumichi Teramura (Kluwer Law International, 2020), Chapter 7 

Abstract: Following the Introduction, in subsequent sections, international commercial arbitration ("ICA") – and in particular, the public policy exception – are identified as prime initial targets for harmonization efforts. This chapter then considers the practical mechanics of harmonizing the public policy exception, proposing designation of the Asian Infrastructure Investment Bank (“AIIB”) as a coordinating authority for the drawing up of common standards and normative regulations. The possible substantive contents of a public policy exception, utilizing a “negative list” approach, are considered, with reference to similar harmonization efforts of the European Union (“EU”) and the Organization for the Harmonization of African Business Law (“OHADA”) evaluated as comparative case studies. The far-reaching implications of China’s BRI upon a steadily evolving global landscape will also be considered.

New Book co-edited by Shahla Ali: New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution (Wolters Kluwer)

New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution

Edited by Luke Nottage, Shahla Ali, Bruno Jetin and Nobumichi Teramura

Wolters Kluwer

Published in November 2020

Description: An invaluable book that challenges the existing procedures and frameworks for cross-border dispute resolution in commercial and treaty arbitration. The eastward shift in international dispute resolution has already involved initiatives not only to improve support for international commercial arbitration (ICA) and investor-state dispute settlement (ISDS) but also to develop alternatives, such as international commercial courts and mediation. This remarkable book focuses on these initiatives and their accompanying case law and trends in the Asia-Pacific region.

     What’s in this book: An outstanding team of experienced and insightful arbitrators and scholars describes the following pertinent developments:

• ICA and ISDS in the context of China’s Belt and Road Initiative;
• the Singapore Convention on Mediation;
• the shift to virtual hearings and other challenges from the COVID-19 pandemic;
• mistrust of the application of the rule of law in certain East Asian jurisdictions;
• growing public concern over ISDS arbitration;
• tensions between confidentiality and transparency; and
• potential regional harmonisation of the public policy exception to arbitral enforcement.

Evolving practices and high-profile cases have been charted out by the contributors to make informed observations about where changes are needed and educated guesses about the pros and cons of reforms. The leading jurisdictions covered are China, Hong Kong, Japan, Malaysia, India, Australia and Singapore.

     How this will help you: Being a pioneer in-depth study of recent trends in dispute resolution practice related to business in the Asia-Pacific region, the book’s practical analysis of new resources for dealing with the increasing competition among countries to become credible regional dispute resolution hubs will prove to be of great value to specialists in the international business law sector. Lawyers will make informed decisions on the venue and dispute resolution methods that are the most suitable for any specific dispute in the region, and policymakers will confidently assess emerging trends in international dispute resolution policy development and treaty-making.

     Professor Ali authors chapter 6 titled "New Frontiers in Hong Kong's Resolution of 'One Belt One Road' International Commercial and Investor-State Disputes" and co-authors the concluding chapter with Nobumichi Teramura and Anselmo Reyes.

HKU Wins Hong Kong Jessup Moot Regional Rounds 2021

The HKU Jessup Team won the Regional Champion title in the 2021 Philip C. Jessup International Law Moot Court Competition on 28 February 2021. Known also as the most prestigious international mooting competition in the world, this year’s Jessup problem concerned the issues of state responsibilities during a global pandemic, diplomatic asylum, jurisdiction of the ICJ, and international aviation law. The Team consists of Ryan Cheung (PCLL), Jason Louie (PCLL), Raphael Leung (PCLL), and Thomas Lam (LLB3). In addition to the Champion title, the Team was awarded the Best Written Memorial Prize for the Respondent, and Thomas Lam was ranked 3rd best oralist in recognition of his outstanding advocacy skills.

     After competing against other law schools in Hong Kong, the HKU Team advanced to the Grand Final, where oral submissions were heard before Mr Geoffrey Ma Tao-li GBM QC SC (the former Chief Justice of the Court of Final Appeal), Mr Jin Pao SC (Barrister at Temple Chambers), and Mr Wesley Wong Wai-chung SC (Solicitor General of the Department of Justice).

    The Team would like to take this opportunity to express their most sincere gratitude to the coaches, Ms Astina Au and Ms Natalie So for their valuable feedback and guidance. The Team would also like to thank Ms Deanna Law, Mr Jason Ko, and Mr Fergus Tam for their kind assistance and helpful advice.  The team now advances to the Global Rounds which will be held virtually this year over a five-week period in March 2021.

Shitong Qiao & Wenzheng Mao on Legal Doctrine and Judicial Review of Eminent Domain in China (Law & Social Inquiry)

"Legal Doctrine and Judicial Review of Eminent Domain in China"

Wenzheng Mao and Shitong Qiao
Law & Social Inquiry
Published online: 22 February 2021

Abstract: Which of the three legal doctrines of public use, just compensation, and due process is the most effective in constraining abuses of eminent domain power? This paper addresses this question for the first time and presents the first-ever systematic investigation of the judicial review of eminent domain in China. Our empirical study reveals that Chinese courts focus on eminent domain procedures while rarely supporting claims based on public interest or just compensation. Procedural rules are determinate and therefore easier to enforce than substantial standards of public interest and just compensation. Chinese courts also choose to focus on eminent domain procedures to confine their own judicial review power for the purpose of self-preservation in an authoritarian state that empowers the courts to monitor and control local governments but does not want them to become too powerful. The study calls for a “due process revolution” in eminent domain law and introduces the “judicial politics of legal doctrine” approach to the study of Chinese law, an approach that takes both political institutions and legal doctrines seriously.  Click here to download from SSRN.

Dr Ngoc Son Bui (PhD 2013) Appointed Associate Professor of Asian Laws at Oxford University

Congratulations to Dr Ngoc Son Bui, a 2013 graduate of our PhD programme, who will be the first Associate Professor of Asian Laws at Oxford University, when he takes up the appointment in July 2021. He will also be a Fellow of St Hugh’s College.  Dr Bui was a graduate of Vietnam National University-Hanoi (LLB; LLM) before he began his graduate studies at HKU Law under the supervision of Professor Albert Chen, Cheng Chan Lan Yue Professor in Constitutional Law. His dissertation was on Confucianism and Constitutionalism in Vietnam.  After graduation, he published his book titled Confucian Constitutionalism in East Asia (Routledge 2016) which was based on his doctoral work.  Before assuming his current tenure track position at CUHK Law, he held research positions at the National University of Singapore, Harvard Law School, Melbourne Law School and the University of Tsinghua. He is completing a new book on legal reform in the contemporary socialist world and co-editing a four-volume collection on Asian comparative constitutional law.  

New Book by Jason Buhi (PhD 2014): Global Constitutional Narratives of Autonomous Regions: The Constitutional History of Macau (Routledge)

Global Constitutional Narratives of Autonomous Regions: The Constitutional History of Macau
Jason Buhi (PhD 2014)
Routledge

Published in March 2021, 213 pp.

Description: With international attention focused on Hong Kong, many forget that Macau also exists in a delicate "one country, two systems" (OCTS) balance with mainland China. This book provides insights into the circumstances surrounding the less-understood half of China’s OCTS policy, including the stagnation of representational government, and the location of any Macau characteristics in the Macau Basic Law.

    Despite being Hong Kong’s sister "Special Administrative Region" (SAR) within the People’s Republic of China, Macau’s unique constitutional development under Portuguese and Chinese administration remains under-appreciated despite its potential contributions to local, national, and international constitutional discourse. Utilizing a multidisciplinary approach, including doctrinal, historical, and comparative methodologies, this work fills that gap. The research blends Portuguese, Chinese, and foreign-language sources in order to reconstruct a balanced constitutional narrative. The book focuses on a consequential effect of globalization – that is, the assimilation of a long-standing and unique constitutional order by a new hegemonic sovereign – including processes for internationalization as China opened up, legal harmonization of two distinct legal and socioeconomic orders, juridification of local affairs with the establishment of a new local court system in preparation for handover to the Chinese regime, and democratization (or the lack thereof) among the various communities comprising the Macanese polity before and since.

     Focusing on Macau’s unique development at the crux of European and Chinese empires, and the role it plays as a mirror for Chinese intentions vis-a-vis Hong Kong today, the book will be of interest to those working in constitutional law, politics, and history.

New Book by Han Peng (PhD 2015): Law and Social Solidarity in Contemporary China: A Durkheimian Analysis (Routledge)

Law and Social Solidarity in Contemporary China: A Durkheimian Analysis
Han Peng (PhD 2015)

Routledge

Published in December 2020, 290 pp.

Description: This book adopts Durkheim’s legal perspective to treat law as a symbol of social solidarities to examine Chinese society. The work analyzes changes in the nature of social solidarity from observing changes in laws, thus drawing together western socio-legal theory and distinctive Chinese conditions. It draws on Durkheim’s theoretical framework and methodology to develop a more comprehensive understanding of the role of law using theories of others such as Habermas and by taking into account the discussion of power and the conflicts of interests in analyzing key social features during transition. The analysis of social anomie in terms of the changes of juridical rules as well as the changes in the nature of social solidarity provides an inspiring perspective to look into contemporary social problems. The book will be essential reading for researchers and academics working in the areas of socio-legal studies, legal theory and law and society in China.

New Book by Scott Veitch: Obligations: New Trajectories in Law (Routledge)

Obligations: New Trajectories in Law

Scott Veitch
Routledge

Published on 24 February 2021, 132 pp.

Book Description: Obligations: New Trajectories in Law provides a critical analysis of the role of obligations in contemporary legal and social practices. As rights have become the preeminent feature of modern political and legal discourse, the work of obligations has been overshadowed. Questioning and correcting this dominant image of our time, this book brings obligations back into view in a way that fits better with the realities of contemporary social life. Following a historical account of the changing place and priorities of obligations in modernity, the book analyses how obligations and practices of obedience are core to understanding how law sustains conditions of inequality. But it also explores the enduring role obligations play in furthering individual and collective well-being, highlighting their significance in practices that prioritize human and environmental needs, common goods, and solidarity. In doing so, it also offers an alternative and cogent assessment of the force, and the potential, of obligations in contemporary societies. This original jurisprudential contribution will appeal to an academic and student readership in law, politics, and the social sciences.

New Book by Angela Zhang: Chinese Antitrust Exceptionalism: How the Rise of China Will Challenge Global Regulation (OUP)

Chinese Antitrust Exceptionalism: How the Rise of China Will Challenge Global Regulation
Angela Zhang
Oxford University Press
Published on 11 March 2021
Overview: 

• Analyses Chinese antitrust law in the broader context of China's developing global economic presence
• Explores the ways in which bureaucratic missions, cultures, and structures of administrative agencies can play a crucial role in shaping the enforcement agenda, investigative approach, and final regulatory outcomes in China
• Describes how Chinese antitrust law can be transformed into a powerful economic weapon to counter aggressive U.S. sanctions
• Examines the new difficulties that Chinese firms will encounter as the U.S. and E.U. regulators tighten scrutiny over investment and trade from China

Description: China’s rise as an economic superpower has caused growing anxieties in the West. Europe is now applying stricter scrutiny over takeovers by Chinese state-owned giants, while the United States is imposing sanctions on leading Chinese technology firms such as Huawei, TikTok and WeChat. Given the escalating geopolitical tensions between China and the West, are there any hopeful prospects for economic globalization?  In her compelling new book Chinese Antitrust Exceptionalism, Angela Zhang examines the most important and least understood tactic that China can deploy to counter western sanctions: antitrust law. Zhang reveals how China has transformed antitrust law into a powerful economic weapon, supplying theory and case studies to explain its strategic application over the course of the Sino-US tech war. Zhang also exposes the vast administrative discretion possessed by the Chinese government, showing how agencies can leverage the media to push forward aggressive enforcement. She further dives into the bureaucratic politics that spurred China’s antitrust regulation, providing an incisive analysis of how divergent missions, cultures and structures of agencies have shaped regulatory outcomes.  More than a legal analysis, Zhang offers a political and economic study of our contemporary moment. She demonstrates that Chinese exceptionalism—as manifested in the way China regulates and is regulated, is reshaping global regulation and that future cooperation relies on the West comprehending Chinese idiosyncrasies and China achieving greater transparency through integration with its western rivals.

Praises & Endorsements:

"Informed by legal analysis, game theory, and deep knowledge of both Chinese and Western legal practices, this valuable book provides a guide both to present-day controversies and to a more hopeful way forward."
  -Dani Rodrik

​"This is an excellent book on a hugely important issue... I recommend the book highly to anyone who has an interest in Chinese political economy."
  -Yasheng Huang

"The book is astute, engaging, and highly compelling."
  -Anu Bradford

"Required reading for anyone interested in China-West relations through the lens of law and real-world politics."
  - Noah Feldman
​
"Angela Zhang's new book ... fills a big gap in understanding the mystery of China."
  -Eleanor Fox

The launch of the new book: HKU's Centre for Chinese Law is pleased to announce the launch of a new book Chinese Antitrust Exceptionalism: How the Rise of China Challenges Global Regulation by Dr Angela Huyue Zhang, published by Oxford University Press this week. This book explores the unique ways in which China regulates and is regulated by foreign countries, revealing a ‘Chinese exceptionalism’ that is reshaping the global antitrust regime. In this book, Dr Zhang dives deep into the unique Chinese political and economic institutions, examining bureaucratic politics, the power imbalances between businesses and the government, the highly decentralized economic system, and state-led governance. This allows her to explain the dilemmas foreign multinationals have faced in complying with Chinese antitrust law, as well as the difficulties Chinese firms have encountered overseas as US. and EU antitrust regulators tighten their scrutiny over Chinese businesses. Dr Zhang’s book has proven to be incredibly timely. In the past few months, China has taken unprecedented action to enforce antitrust regulations against its leading firms, such as the fintech conglomerate Ant Group and its affiliate Alibaba. Dr Zhang’s responses to these events have been quoted by numerous media outlets including the WSJ, Financial Times and the Economist, and her commentaries have appeared in Project Syndicate, Nikkei Asia, Fortune and Bloomberg. Recently, Dr Zhang was featured on CNBC, as well as the Economist’s virtual event on balancing innovation and regulation. Dr Zhang is an associate professor of law and the director of the Centre for Chinese Law at the University of Hong Kong. An award-winning legal scholar, Zhang is a highly sought-after commentator on Chinese antitrust issues. Before joining the University of Hong Kong, Dr Zhang taught at King’s College London and practiced law for six years in the United States, Europe, and Asia. She received her LLB from Peking University, and her LLM, JD and JSD from the University of Chicago Law School. Dr Zhang will be giving virtual book talks on April 16 at UPenn, April 19 at Harvard, and April 30 at Oxford. These events are free to attend and open to the public. Dr Zhang’s book is now available on Amazon, Book Depository, and OUP (30% discount with promotion code ALAUTHC4). More details on the book are available on a dedicated website.