Stephen Thomson and Eric Ip on Hong Kong's Legal Response to Covid-19 ( new OUP encyclopedia book chapter)

"Hong Kong Special Administrative Region, People’s Republic of China: Legal Response to Covid-19"

Stephen Thomson and Eric Ip
in Jeff King and Octavio Ferraz (eds), The Oxford Compendium of National Legal Responses to Covid-19 (Oxford University Press, 2021)

Abstract: Hong Kong is a Special Administrative Region (HKSAR) of the People's Republic of China (PRC). Prior to the outbreak of the Covid-19 pandemic, the HKSAR had experienced several months of civil unrest following the introduction of a bill to the Legislative Council of the HKSAR regarding extradition matters. The protests, which were at their most intense in the second half of 2019 and which included violent clashes between protestors and police officers, vandalism of public property, and the shutting down of major infrastructure in Hong Kong, sparked a series of major political and constitutional events. The unrest eventually led to the enactment of the National Security Law for the HKSAR by the PRC authorities which is arguably the most significant constitutional development in the territory since the resumption of sovereignty over Hong Kong by the PRC on 1 July 1997.    

      It is against this backdrop that Covid-19 arrived in the HKSAR in January 2020. With prior experience of a similar, though globally less severe, outbreak of infectious disease, in the form of SARS in 2003, the HKSAR implemented control measures relatively early in the Covid-19 pandemic which kept reported cases at comparatively low levels by international standards.  Just over 11,000 positive cases have been officially reported of a population of approximately 7.5 million people, and officially reported daily deaths never exceeded single digits.  Although no general 'lockdown' was implemented in the manner of other countries and territories, the HKSAR's 'success' in controlling Covid-19 has nevertheless been achieved through the use of controversial means such as 'ambush' lockdowns of residential blocks, government quarantine camps, and some of the most stringent quarantine and isolation strategies seen anywhere in the world. Additionally, elections to the HKSAR's Legislative Council were postponed for at least one year in the name of public health protection.​ ... Click here to access the full encyclopedia book chapter. 

Michael Jackson on DOJ Secures ‘Joint Enterprise’ Enforcement (Part II) (Boase Cohen & Collins blog)

"DOJ secures ‘joint enterprise’ enforcement (Part II)"
 Michael Jackson
Boase Cohen & Collins blog

Published on 15 April 2021

In Part I, we outlined the recent decision of the Hong Kong Court of Appeal (“HKCA”) in Tong Wai Hung ([2021] HKCA 404) in which the court ruled that the doctrine of “joint criminal enterprise” (as it has been styled by the Court of Final Appeal – hereafter “JCE”) is of general application to all offences in Hong Kong, unless excluded by statute; secondly, and more specifically, that it applies to unlawful assembly and riot, contrary to ss.18 and 19 respectively of the Public Order Ordinance (“POO”); and thirdly, that presence at the scene is not a necessary requirement of joint enterprise liability. In this part, we offer some additional thoughts on Tong, and ask what will actually need to be proved to impose liability for unlawful assembly or riot on parties to a joint enterprise (assuming the correctness of the latter two rulings).

     Presumably consideration is being given to appealing the decision. In the meantime, the following comments are offered by way of critique of the legal analysis and reasoning offered and relied on in Tong and to elaborate its effect, and not to suggest that the social instability which the HKCA addressed in its judgment and perceived by it as a motivating reason for ensuring the doctrine of joint enterprise liability is available in relation to ss.18 and 19, is anything less than a legitimate and pressing concern of the criminal law... Click here to read the full text. 

New KE Initiative from GRF: Hong Kong Historical GIS (1900-1933) (Dr Michael Ng)

Hong Kong Historical GIS (1900-1933)
(https://hkh-gis.lib.hku.hk/)

This digital humanities project is to apply GIS technology to portray the geographical landscape of the commercial activities on Hong Kong Island from 1900 to 1933. The objective of this project is to convert the conventional archival directories and the historical block-maps into GIS data to provide spatial distributions and visualization of commercial entities on Hong Kong Island in a web-based map.

     The GIS datasets are drawn from a GRF Research Project of Dr Michael Ng (Faculty of Law, University of Hong Kong), in collaboration with digital geographers Dr Edwin Chow (Texas State University), Prof David Wong (George Mason University) and Carlo Chan (University of Sheffield). The primary materials adopted from the Research Project to create this web-based GIS mapping project are old directories of Hong Kong and block-maps of Hong Kong in 1901. The historical directories list both public and private entities such as banks, merchants & traders, law firms, shipping firms, government offices, schools, churches, hotels, clubs and registered societies and associations. While the historical directories cover both Hong Kong Island and Kowloon side, the block-maps, however, illustrate only the geographical landscape of the urban areas of Hong Kong Island (around today’s Western District to Tai Hang). Therefore only the spatial-temporal data of Hong Kong Island on the early twentieth century is included in this GIS database at the moment. It is hoped that interested scholars will further conducting GIS research analysis on Kowloon Peninsula in the future.

     In this GIS database, various business activities are grouped into categories for browsing purpose, names of companies & organizations and keywords of business description can also be searched. Spatial distributions of business entities are displayed with associated spatial data, overlay of the 1901 historical map is provided to visualize the original geographical phenomena.

     The "Hong Kong Historical GIS (1900-1933)" system is now to open to use by the public via Digital Initiatives section in HKU Library's website (https://lib.hku.hk/database/index.html).

Douglas Arner et al on Decentralized Finance (Journal of Financial Regulation)

"Decentralized Finance"
Dirk A Zetzsche, Douglas W Arner, Ross P Buckley
Journal of Financial Regulation, Volume 6, Issue 2, pp.  172–203
Published in September 2020

Abstract: DeFi (‘decentralized finance’) has joined FinTech (‘financial technology’), RegTech (‘regulatory technology’), cryptocurrencies, and digital assets as one of the most discussed emerging technological evolutions in global finance. Yet little is really understood about its meaning, legal implications, and policy consequences. In this article we introduce DeFi, put DeFi in the context of the traditional financial economy, connect DeFi to open banking, and end with some policy considerations. We suggest that decentralization has the potential to undermine traditional forms of accountability and erode the effectiveness of traditional financial regulation and enforcement. At the same time, we find that where parts of the financial services value chain are decentralized, there will be a reconcentration in a different (but possibly less regulated, less visible, and less transparent) part of the value chain. DeFi regulation could, and should, focus on this reconcentrated portion of the value chain to ensure effective oversight and risk control. Rather than eliminating the need for regulation, in fact DeFi requires regulation in order to achieve its core objective of decentralization. Furthermore, DeFi potentially offers an opportunity for the development of an entirely new way to design regulation: the idea of ‘embedded regulation’. Regulatory approaches could be built into the design of DeFi, thus potentially decentralizing both finance and its regulation, in the ultimate expression of RegTech.

Douglas Arner et al on Regulating Artificial Intelligence in Finance: Putting the Human in the Loop (Sydney Law Review)

"Regulating Artificial Intelligence in Finance: Putting the Human in the Loop"
Buckley, Ross P.; Zetzsche, Dirk A.; Arner, Douglas W.; Tang, Brian W.

Sydney Law Review,  Vol. 43 Issue 1, pp. 43-81

Published in March 2021

Abstract: This article develops a framework for understanding and addressing the increasing role of artificial intelligence ('AI') in finance. It focuses on human responsibility as central to addressing the AI 'black box' problem -- that is, the risk of an AI producing undesirable results that are unrecognised or unanticipated due to people's difficulties in understanding the internal workings of an AI or as a result of the AI's independent operation outside human supervision or involvement. After mapping the various use cases of AI in finance and explaining its rapid development, we highlight the range of potential issues and regulatory challenges concerning financial services AI and the tools available to address them. We argue that the most effective regulatory approaches to addressing the role of AI in finance bring humans into the loop through personal responsibility regimes, thus eliminating the black box argument as a defence to responsibility and legal liability for AI operations and decisions.

Douglas Arner et al on Regulating Libra (Oxford Journal of Legal Studies)

"Regulating Libra"
Dirk A Zetzsche, Ross P Buckley, and Douglas W Arner

Oxford Journal of Legal Studies, Volume 41, Issue 1, Spring 2021, pp. 80–113
Published on 1 December 2020

Abstract: Libra is the first private cryptocurrency with the potential to change the landscape of global payment and monetary systems. Due to the scale and reach provided by its affiliation with Facebook, the question is not whether, but how, to regulate it. This article introduces the Libra project and analyses the potential responses open to regulators worldwide. We conclude that perhaps the greatest impact will come not from Libra itself, but rather from reactions to it, particularly by other BigTechs, incumbent financial institutions and governments around the world.

Simon Young on Political System Transformation in Hong Kong (Verfassungsblog)

"Political System Transformation in Hong Kong"

Simon Young
Verfassungsblog: On Matters Constitutional 

Published on 13 April 2021

China’s National People’s Congress (NPC) and Standing Committee of the NPC (NPCSC) decided in March 2021 to transform Hong Kong’s political system. Within a couple of months, the Hong Kong government will amend local laws to enable elections for a reconfigured Election Committee (EC) and Legislative Council (LegCo) to be held, respectively, in September and December 2021, ahead of the Chief Executive (CE) election in March 2022.

Reforming Hong Kong’s electoral system

The CE is Hong Kong’s political leader, accountable to both the central government and the Hong Kong Special Administrative Region (HKSAR). The CE is nominated by EC members, elected by the EC, and appointed by Beijing. The EC was first established in 1998 with 800 members divided equally across four sectors. In 2012, it was expanded to 1,200 members. EC members are elected by almost 250,000 voters, most of them individuals, some corporate. To run for CE a nomination by one-eighth of the EC members is needed, and the successful candidate needs more than 50 per cent support. The CE is not allowed to be a member of a political party. The new reforms will increase the size of the EC by another 300 members, add a new sector for Hong Kong members of national bodies, abolish individual voting, and give EC members the power to nominate LegCo members. ...  Click here to view the full text.

Weixia Gu on Multi-Tier Approaches and Global Dispute Resolution (Japanese Yearbook of International Law)

"Multi-Tier Approaches and Global Dispute Resolution"

Weixia Gu
Japanese Yearbook of International Law
Published in 2020, Volume 63, pp. 147-166

Introduction: There are many ways disputes in the commercial world can arise, and as many ways they can be resolved.   Just as different methods of alternative dispute methods have attracted more and more attention.

     The Queen Mary University of London and White & Case LLP 2018 International Arbitration Survey ("QMUL Survey 2018") findings reveal that "there has been a significant increase in the combination of arbitration with ADR.   Nearly half of the participants to the 2018 survey preferred the hybrid approach, as compared to just 35 percent in the 2015 survey findings.   This is unsurprising in view of the benefits of using mediation as a prerequisite to starting arbitration.   The mediation step allows for a "cooling off" period for parties, thereby avoiding the escalation of disputes for adversarial resolution as an immediate recourse.   It also has a filtering effect: only the "truly" contentious issues in dispute proceed for resolution by arbitration.   Overall, thus, the mediation prerequisite increases the prospects of preserving the parties' commercial relationship.  Indeed, the QMUL Survey 2018 findings support the general dispute-avoidance mentality of business parties.  Within the in-house counsel sub-group, it is reported that there is "a clear preference" for the twinning of international arbitration and ADR (60 percent) over international arbitration as a stand-alone mechanism.

        As the 2018 Pound Conference Report further reveals, there is now a global interest in using mixed mode of dispute resolution.  Hybrid dispute resolution usually features a combination of mediation and arbitration into a dispute resolution framework with multiple stages.  These multi-layered modes of dispute resolution can thus be called "multi-tier dispute resolution" ("MDR").  However, despite its widespread popularity, the development of MDR has followed different pathways around the world.  This essay aims to provide a global survey of the development of MDR.  The essay comes in four parts.  Part I would first introduce the concept and procedure of MDR.  Part II then explores how MDR is developed around the world from a regulatory perspective.   Afterwards, Part III would turn to examine the specific situation in some of the world's most prominent legal jurisdictions in the East and West.  Last but not the least, Part IV provides some comparative observations on the trend in the global future of MDR.   

Qiao & Hills on "Here’s How Transferable Development Rights Outweigh Lantau Reclamation Plan in Ending Hong Kong Housing Crisis" (SCMP Opinion)

"Here’s how transferable development rights outweigh Lantau reclamation plan in ending Hong Kong housing crisis"

Concrete Analysis by Qiao Shitong and Roderick Hills Jr.

SCMP Opinion

31 March 2021

Housing in Hong Kong is among the least affordable in the world. And the problem is not lack of land, but lack of development. Three quarters of Hong Kong’s land is vacant, and much of this is reasonably buildable territory.

     In particular, Hong Kong contains 1,414 hectares (3,494 acres) of brownfield sites and another 1,200 hectares of country development land reserved for indigenous villagers of the New Territories that is all suitable for high-density residential construction. Click here to read the full text. 

New KE Initiative: HKU "Species Victim Impact Statement (SVIS) Initiative" (Amanda Whitfort)

HKU "Species Victim Impact Statement (SVIS) Initiative" : giving wildlife a voice in courts

What are Species Victim Impact Statements?
Species Impact Victim Statements (SVIS) explain to lawyers and judges the harm that wildlife crime has done to individual animals, species and ecosystems.​
      A human victim of crime can make a victim impact statement alerting the court to the harm suffered as a result of the crime.
      Non-human victims of wildlife crime have no similar voice in court. In the absence of training in ecology and conservation science, it is difficult for prosecutors and judges to assess the impact of wildlife crime.
Where harms are underestimated, defendants receive inadequate sentences that do not effectively deter wildlife offending.
     Species Victim Impact Statements help to ensure informed sentences for wildlife crimes.
 

To know more about SVIS Initiative, click: https://www.svis.law.hku.hk/

New Books by HKU Faculty of Law 2020-2021

2020-2021 is a fruitful and prolific year.  More than 20 books were written by our HKU Faculty of Law legal scholars.   Congratulations to these new book authors!

AIIFL Newsletter (April 2021)

                           AIIFL News Issue 2 - April 2021

                            MESSAGE FROM AIIFL 

I hope you all had a lovely holiday and welcome to our third issue of AIIFL News! At the outset I would like to take this opportunity to introduce Dr Kuzi Charamba,

who has joined AIIFL as our new Post-Doctoral Fellow in FinTech, RegTech and Digital Financial Transformation. He will be focusing on research in the area of digital finance, financial inclusion and the UN Sustainable Development Goals. Kuzi has taught a number of courses at McGill during his PhD / DCL studies, including winning McGill’s Teaching Tomorrow’s Professor Award. He also has extensive research experience, in particular with the One Earth Future Foundation in Denver, Colorado, USA, as a Visiting Scholar in Residence at the University of Colorado Law School, and research assistant to several leading professors at McGill.

Douglas Arner AIIFL Director | Email

HIGHLIGHTS 

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

In the first episode of Series 2 of Looking Back Looking Forward, Professor Douglas Arner looked at the big picture trends for finance, technology and regulation in 2021. In this Episode 2, he focuses in on one of these: how cryptocurrencies and digital assets are increasingly becoming a new asset class in the traditional financial system, subject to a wide range of regulation just like other aspects of finance. 

     The episode discusses the evolution of crypto, blockchain and digital assets over the past decade, highlighting that - regardless of price volatility - both the blockchain and digital assets now have a significant place in the financial system, a place that is likely to increase with the launch of not only Diem but also an increasing range of central bank digital currencies. 

     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

We are seeking to expand our world leading team in the area of FinTech, RegTech and Digital Finance. 

Post-Doctoral Fellow in Finance, Technology and Regulation Applications close: 31 July 2021, HK Time 

The post will be based in AIIFL and will work closely with the HKU-Standard Chartered Foundation FinTech Academy. Applicants should possess a Ph.D. degree in Law, Computer Science, Engineering, Business, Finance or any other areas related to finance, technology and regulation; knowledge and ideally experience of issues relating to FinTech, RegTech and digital finance; strong communication and organizational skills; sensitivity and commitment to cultural awareness; and the ability to work with a high degree of independence. They should also demonstrate proven ability to develop and pursue a coherent agenda of legal research and/or interdisciplinary scholarship; significant experience of presenting research at domestic and international conferences; and exceptional potential to develop a body of high-quality publications in scholarly journals. More details and online application are available HERE

Research Assistant Professor in FinTech / RegTech Applications close: 30 June 2021, HK Time 

The HKU-Standard Chartered Foundation FinTech Academy, with the aim to cultivate interdisciplinary research in FinTech, has established a Research Assistant Professor Scheme. The post will be based in AIIFL and will work closely with the HKU-Standard Chartered Foundation FinTech Academy. Applicants should have a Ph.D. degree in the field of Law, and have demonstrated promise of a high level of ability in research in the field of FinTech (including but not limited to Blockchain, Cyber Security, RegTech, InsurTech, WealthTech, Financial Intelligence, AI and Data Analytics). More details and online application are available HERE 

UPCOMING EVENT

How the Rise of China Challenges Global Regulation? (9 April 2021) 

Angela Zhang, the author of Chinese Antitrust Exceptionalism: How the Rise of ChinaChallenges Global Regulation, will share her views on the topic of “How the Rise of China Challenges Global Regulation?”, followed by an open discussion among participants moderated by Professor Heiwai Tang on 9 April 2021. Details and registration 

PUBLICATIONS AND REPORTS 

AIIFL reports and publications 

White Paper: Advantages of Security Token Offerings 

AIIFL jointly published a new report on Security token offerings (STOs) with Deloitte and HKbitEX. STOs are essentially an offering of securities in a blockchain environment that involves the creation of, and transaction in, digital blockchain tokens. The offering can be applied to financial or non-financial assets and with the token backed by these assets. 

     Following on from the first paper “Security token offerings: The next phase of financial market evolution?” issued on 15 October 2020, this paper identifies pain points of traditional capital raising channels faced by market participants, and considers how security token offerings (STOs) are able to address some of these problems. 

     The full report is available HERE 

Selected articles, books and reports from the AIIFL team 

Digital Finance, COVID-19 and Existential Sustainability Crises: Setting the Agendafor the 2020s Douglas W. Arner, Ross P. Buckley, Andrew M. Dahdal, Dirk A. Zetzsche 

Reimagining a Centralized Cryptocurrency Regulation in the US: Looking through theLens of Cryptoderivatives Sangita Gazi 

New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution 

Harmonizing the Public Policy Exception for International Commercial Arbitration along the Belt and Road, Chapter 7 Weixia Gu 

Arbitration in Comparative Perspective (Chapter 21) Comparative Dispute Resolution Weixia Gu 

Judging Regulators: The Political Economy of Anglo-American Administrative Law Eric C. Ip 

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

How Floating Rate Notes Stopped Floating: Evidence From the Negative Interest Rate Regime Jürgen Klaus, Eriks K Selga 

Chinese Antitrust Exceptionalism: How the Rise of China Challenges Global Regulation Angela Zhang

SELECTED MEDIA

A Fresh Opportunity to Tackle Big Issues (Richard Cullen)

RESEARCH PROJECTS AND IMPACT

HKU Excellence Awards for 2020

Teaching Innovation Award - Team Award

FinTech Professional Certificate | edX

 Congratulations to Douglas Arner, David Bishop, David Lee, Ellen Seto and SM Yiu.

Watch the award video HERE

Congratulations to Kelvin Kwok and Ernest Lim for the nomination of their article "Optimal Deterrence, the Illegality Defence, and Corporate Attribution" for the Concurrences Antitrust Compliance Awards 2021 as an Academic Initiative. This article has also been awarded the Faculty Research Output Prize 2020.

EVENTS AND ACTIVITIES

BIS Innovation Summit 2021: Banking on a New Digital Ecosystem - New Opportunities, Business Models and Regulation

Panel discussion: Douglas Arner, Henry Ma, Kahina Van Dyke and Noah Pepper on 23 March 2021 Watch it HERE

Syren Johnstone, William Magnusan and Christine Jiang participated in the "Perspectives on Blockchain and Cryptocurrency Regulation" on 22 March 2021

Details

Giuliano G. Castellano presented his latest research on commercial law and financial regulation in a talk delivered for the University College London LLM Programme on 8 March 2021.

The working-paper about the talk is available HERE

Douglas Arner, Seen-Meng Chew, Henry Chong and Lin Shi discussed "The Current Development and Outlook of the Security Token Market" at the Asian Structured Credit Virtual Summit 2021 on 16 March 2021

Watch it HERE

CMEL Newsletter (March 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 March 2021 Newsletter.

Highlights of the March newsletter:

1. Doctor’s conviction of Gross Negligence Manslaughter in Hong Kong and CMEL’s forthcoming webinar on this topic
2. (Webinar) Gross Negligence Manslaughter: Should it apply to healthcare practitioners?
3. Watch our Book Talk with the Editor and Contributing Authors
4. Ombudsman found Hong Kong government’s monitoring mechanism for high-demand vaccines inadequate
5. Recent publications
6. Reusing health insurance data of the dead
7. Canadian-funded project on regulation of Artificial Intelligence in healthcare

Cora Chan on "Can Hong Kong Remain a Liberal Enclave within China? Analysis of the Hong Kong National Security Law" (Public Law)

"Can Hong Kong remain a liberal enclave within China? Analysis of the Hong Kong National Security Law"
Cora Chan
Public Law
Published in April 2021, pp. 271-292

Abstract: In 2020, the Chinese government enacted a national security law (NSL) for Hong Kong that has raised doubts over the extent to which Hong Kong can retain its liberal status. The guarantee of that status is a core part of the "one country, two systems" policy stipulated in the Sino-British Joint Declaration and elaborated upon in Hong Kong's post-handover constitutional document, the Basic Law. This article examines the key provisions of the NSL, assesses its likely impact on the institutional and legal frameworks protecting Hong Kong's autonomy and freedoms, and explores what principles the Hong Kong courts—which are common law courts that follow the liberal rule of law tradition—should adopt in adjudicating the NSL, which is a product of China's socialist legal system. It argues that although the NSL undoubtedly weakens the ability of the Basic Law to function as a legal framework for protecting rights and the ability of Hong Kong institutions to check rights encroachments, if the courts properly construe the law, a natural consequence will be that its constricting effects on Hong Kong's autonomy and freedoms can be moderated. Whether Hong Kong's liberal constitutionalist character can be maintained in the NSL era therefore depends, inter alia, on how ready its courts are to apply the legal principles mandated by their constitutional role and how Beijing responds.