New Issue of Hong Kong Law Journal (Vol. 50 - Celebrating 50 Years of Legal Scholarship, Part 3 of 2020)

HONG KONG LAW JOURNAL

Vol. 50, Part 3 of 2020

Editor-in-Chief: Professor Rick Glofcheski

Associate Editor: Professor Albert Chen

Publisher: Sweet & Maxwell

TABLE OF CONTENTS

Analysis

Gay Rights in Hong Kong after Infinger v Hong Kong Housing Authority: A Step Backwards in Principle but a Step Forward in Practice? Kai Yeung Wong ... 831

Claiming Wrongful Diagnosis under the Mental Health Ordinance: The Impossibility of Building a Reasonably Arguable Case Urania Chiu and Daisy Cheung ... 837

Pecuniary Penalties for Anti-Competitive Conduct: Absolutely Deterrent? Alex C.H. Yeung and Joshua Yeung ... 851

The Singapore Convention: Is This the New York Convention for Mediation? Suraj Sajani ... 863

Hong Kong Law Journal: A Citation Analysis Antonia CH Yiu ... 877

Articles

Threats to Hong Kong's Autonomy from the NPC's Standing Committee: The Role of Courts and the Basic Structure Doctrine Surya Deva ... 901

Is Hong Kong's Riot Law "Respectable"? Margaret Ng, Jason Ko and Kin Lau ... 935

Lawful Traditional Right and Sustainability: An Unbalanced Interest in the Customary Ding Right in Hong Kong? Say H Goo and Heather Lee ... 961

How Much Is a Leg Worth in Hong Kong? Proposal for Reforming Personal Injury Compensation Felix WH Chan, Wai Sum Chan and Johnny SH Li ... 983

Re-examining the World Bank's Doing Business Report in the Light of its Pro-deregulation Bias Miriam Anozie, Festus Ukwueze, Louis Enu-Tampie, Benjamin Mukoro, Uju Beatrice Obuka, Obinne Oguejiofor and Ndubuisi Nwafor ... 1005

Treatment Standards of State-Owned Enterprises as Public Entities: A Clash or Convergence across International Economic Laws? Bin Gu and Chengjin Xu ... 1025

Shareholder Control in the Context of Corporate Social Responsibility: A Fundamental Challenge to the Modern Corporation Min Yan ... 1057

China Law

Pre-empting Court–Civil Society Synergy: How China Balances Judicial Autonomy and Legal Activism Yueduan Wang ... 1081

The Change of Government's Role in Reorganisation of Listed Companies in China: A Contrast of the Empirical Evidence in the Periods Between 2007–2013 and 2013–2019 Huimiao Zhao and Wei Cai ... 1107

Legal Personality and the Evolution of the Rule of "Debts-Follow-Assets" in China: Complicating the Theory of Interest Group James Si Zeng ... 1133

Compelling Filial Support: The Experience of the Elderly Law in China's Courts Luxue Yu ... 1155

Chinese Characteristics and Universalist Insolvency Ideals Chuyi Wei, Gerard McCormack and Xian Huang ... 1183

Book Review Law

Criminal Appeals in Hong Kong Amanda Whitfort ... 1215

Daniel Matthews on Reframing Sovereignty for the Anthropocene (Transnational Legal Theory)

"Reframing sovereignty for the anthropocene"
Daniel Matthews 
Transnational Legal Theory

Published on 20 May 2021

Abstract: Writing on sovereignty has failed to address the challenges associated with planetary climatic change. As debates about the nature of sovereignty return to the fore, there remains little attention paid to how our newly unstable environmental conditions might call for sovereignty to be imagined anew. Drawing on Neil Walker’s account of the ‘sovereignty frame’–as a means of understanding the enduring relevance of sovereignty for contemporary law and politics – this article understands sovereignty as an aesthetic device which constitutively inures political subjects to the ecological forces and relations central to the climate crisis and the broader challenges associated with the Anthropocene. In taking up the task of reframing sovereignty in a way that properly attends to these issues, this article introduces how sovereignty’s spaces, subjects and modes of governance might be reimagined in light of the Anthropocene thesis and the various disruptions it heralds for social life.

Eric Ip on Law, Virtue, and Public Health Powers (Public Health Ethics)

"Law, Virtue, and Public Health Powers"
Eric Ip

Public Health Ethics
Published on 20 May 2021

Abstract: This article contributes to philosophical reflections on public health law by drawing on virtue jurisprudence, which rests on the straightforward observation that a political community and its laws will inevitably shape the character of its officials and subjects, and that an excellent character is indispensable to fulfilment. Thus, the law is properly set to encourage virtue and discourage vice. This opens a new perspective onto the ultimate purpose of public health law that is human flourishing. The means of pursuing this end is to entrust public health powers to officials to virtuously serve the common good, of which population health is one of its most important constituents, within the bounds of the law of the land. This article calls for the adoption of a Prudent Public Health Official standard into the law, in order to cultivate prudent, just, courageous and temperate characters in officialdom. Interestingly, this standard already chimes with certain pre-existing core principles of public health judicial doctrine in the USA, the European Union and the UK.

Jane Richards (PhD candidate) on An Incremental Approach to Filling Protection Gaps in Equality Rights for Persons with Disabilities (Human Rights Law Review)

"An Incremental Approach to Filling Protection Gaps in Equality Rights for Persons with Disabilities"
Jane Richards (PhD candidate)
Human Rights Law Review

Published on 15 May 2012

Abstract: The Convention on the Rights of Persons with Disabilities (CRPD) guarantees that persons with disabilities (‘PWD’) are to be equal before and under the law. There are almost identical equality guarantees in the Canadian Charter of Rights and Freedoms and Hong Kong's mini constitution – the Basic Law. Australia boasts similar legislative equality guarantees for PWD. The CRPD Committee has interpreted the right broadly, whereas constitutional courts have taken a proportionality approach, balancing the right to substantive equality against competing concerns. The tension between these methods of rights protection means the CRPD is being positioned as an alternative model of rights protection, but it is not an alternative mechanism for enforcement. This article calls on the Committee to modify its guidance to make suggestions to state parties as to how incremental advances in rights protection can be immediately implemented, even if in the short-term, these advances fall short of full inclusion.

He Xin on Why Don’t Chinese Divorce Courts Better Protect Women? Efficiency and Stability Matter More (U.S.-Asia Law Institute)

"Why Don’t Chinese Divorce Courts Better Protect Women? Efficiency and stability matter more"

He Xin

U.S.-Asia Law Institute blog, Volume 1, Number 22

Published on 13 May 2021

Why do so many Chinese women suffer or even die from domestic violence? Why are personal safety protection orders rarely issued? Why are women still at a disadvantage in Chinese divorce courts when property is divided and child custody is awarded? Why are the laws protecting women’s rights not well implemented? 

     Based on extensive fieldwork and interviews in various court settings over more than a decade, I argue that institutional constraints to which Chinese judges are subject, a factor largely ignored by the existing literature, play a crucial role in generating outcomes unfavorable to women. The bureaucratic incentives of the court distort the implementation of the divorce law. Judges are responding to two sets of interrelated institutional constraints: efficiency concerns and stability concerns. 

      Click here to view the full text.

2021 HKU Legal and Political Theory Postgraduate Conference

The first joint postgraduate conference in Legal and Political Theory, co-organized by the Faculty of Law and the Department of Politics and Public Administration of the University of Hong Kong, successfully took place via Zoom on May 5, 6, and 7 2021. 

      On May 5th, the conference started with an inspiring talk by Professor Jonathan Wolff from the University of Oxford on 'The Point is to Change It', followed by 12 presentations by selected participants. The second day of the conference started with a wonderful talk by Dr Kieran Oberman from the University of Edinburgh on 'Immigration and the Hohfeldian Fallacy', followed by another 12 presentations by selected participants. The last day of the conference started with an information session by Chandran Kukathas from Singapore Management University on 'John Rawls and the Immigrant' , followed by 12 more presentations by selected participants.

     Over, the conference attracted over 70 applications from academics and students all over the world, including Europe, North America, Australia and Asia. 

Jingyi Wang and Wilson Chow on The Reformed Individual Income Tax Law in China: A Move towards Equity (HKLJ)

"The Reformed Individual Income Tax Law in China: A Move towards Equity"
Jingyi Wang and Wilson W.S. Chow
Hong Kong Law Journal
2021, Vol. 51, Part 1 of 2021, pp. 249-272

Abstract: China’s 2018 individual income tax (IIT) law reform introduced itemised deductions, increased the standard deduction and expanded lower tax rate bands. On the one hand, this may help reduce the income tax burden for the relatively low-income group, but, on the other hand, the tax base of IIT would be further reduced, which may also reduce the redistributive effect of income taxation. However, the dominance of income tax extracted from wages and salaries remains the same. This may be related to the different treatment of income from labour and income from capital, which benefits those with more financial resources and thus discriminate against the less prosperous. Income from employment is also subject to strict tax administration. This article evaluates the sufficiency and equity of the reformed IIT law in China. Given that the Chinese government intends to gradually increase the proportion of direct taxation in its total tax revenue, the fairness of its income tax system should be one of the prioritised areas for any future reform.

Shiling Xiao (PhD candidate) on Proportionality, Unreasonableness and a Unified Model: Reframing the Spectrum of Intensity of Judicial Review (HKLJ)

"Proportionality, Unreasonableness and a Unified Model: Reframing the Spectrum of Intensity of Judicial Review"

Shiling Xiao (PhD candidate)

Hong Kong Law Journal
2021, Vol. 51, Part 1 of 2021, pp. 85-114

Abstract: One of the most contested issues in common law public law is the relationship between proportionality and unreasonableness in judicial review. Neither the bifurcated model that draws a rigid line between the two standards nor the parallel mode that recognises both as general standards of review seems to be satisfactory, as courts always swing between these two standards resulting in legal uncertainty. This article attempts to suggest a unified model that is based on the jurisprudence of the Court of Final Appeal. First, it argues that as proportionality and unreasonableness have overlapping elements, proportionality can replace unreasonableness and serve as a single standard of review by organising these elements within a more structured framework, which ultimately increases legal certainty. Second, this article highlights the similarities between Wednesbury unreasonableness and “manifestly without reasonable foundation”, which is a deferential standard for assessing proportionality. The similarities create an opportunity for Wednesbury unreasonableness being merged into unified proportionality and being part of the spectrum of intensity of proportionality review.

Jiang Zixin (JD 2018) on "Explosive Substances” that cannot Explode? (HKLJ)

“Explosive Substances” that cannot Explode?"
Jiang Zixin (JD 2018) 

Hong Kong Law Journal
2021, Vol. 51, Part 1 of 2021, pp. 15-22

Abstract: In HKSAR v Kwan Ka Hei, the Court of Final Appeal held that an “explosive substance” under s 55(1) of the Crimes Ordinance (Cap 200) (CO) includes “any substance used or manufactured with a view to producing a practical effect by explosion or a pyrotechnic effect”, applying by analogy the definition under s 2 of the Dangerous Goods Ordinance (Cap 295). This note (1) criticises the court’s view that ss 52 and 54(b) of the CO support this interpretation and (2) argues that insufficient attention was paid to the interaction between the principle that statutes in pari materia should be read together and the principle against doubtful penalisation.

Benjamin Chen, Alexander Stremitzer, and Kevin Tobia on Having Your Day in Robot Court (SSRN)

"Having Your Day in Robot Court"
Benjamin Chen, Alexander Stremitzer, and Kevin Tobia
SSRN & the University of California, Los Angeles School of Law, Public Law & Legal Theory Research Paper Series​.

Featured on the Legal Theory Blog  ​
Published in May 2021

Abstract: Should machines be judges? Some balk at this possibility, holding that ordinary citizens would see a robot-led legal proceeding as procedurally unfair: To have your “day in court” is to have a human hear and adjudicate your claims. Two original experiments assess whether laypeople share this intuition. We discover that laypeople do, in fact, see human judges as fairer than artificially intelligent (“AI”) robot judges: All else equal, there is a perceived human-AI “fairness gap.” However, it is also possible to eliminate the fairness gap. The perceived advantage of human judges over AI judges is related to perceptions of accuracy and comprehensiveness of the decision, rather than “softer” and more distinctively human factors. Moreover, the study reveals that laypeople are amenable to “algorithm offsetting.” Adding an AI hearing and increasing the AI interpretability reduces the perceived human-AI fairness gap. Ultimately, the results support a common challenge to robot judges: there is a concerning human-AI fairness gap. Yet, the results also indicate that the strongest version of this challenge — human judges have inimitable procedural fairness advantages — is not reflected in the views of laypeople. In some circumstances, people see a day in robot court as no less fair than day in human court.

New Issue of Hong Kong Law Journal (Vol. 51, Part 1 of 2021)

HONG KONG LAW JOURNAL

Vol. 51, Part 1 of 2021

Editor-in-Chief: Professor Rick Glofcheski

Associate Editor: Professor Albert Chen

Publisher: Sweet & Maxwell

TABLE OF CONTENTS

Analysis

Judicial Responses to the National Security Law: HKSAR v Lai Chee Ying Johannes Chan ...1

“Explosive Substances” that cannot Explode? Jiang Zixin ...15

Lectures

The Right to Life Hon Mr Justice Kemal Bokhary GBM, NPJ ...23

Lesbian, Gay and Bisexual Human Rights in Europe, Taiwan and Hong Kong Robert Wintemute ...31

Articles

Copyright, Freedom of Speech and the Insult to the National Anthem Tianxiang He ...53

Proportionality, Unreasonableness and a Unified Model: Reframing the Spectrum of Intensity of Judicial Review Shiling Xiao ...85

Service Out and the Abela Interpretation in Hong Kong: The Triumph of Private Parties over Sovereignty Liam H. Y. Yuenw ...115

“The Court” Rises: The New Use of Depersonalised Opinions on the Hong Kong Court of Final Appeal Stuart Hargreaves ...141

Fragmented before a Global Menace: WHO, COVID-19 and the Fragmentation of International Law Jaemin Lee ... 169

Lord Reed and Unjust Enrichment: A Correct(ive) Retreat from Expansionism Nguyen Sinh Vuong ...203

China Law

The Reformed Individual Income Tax Law in China: A Move towards Equity? Jingyi Wang and Wilson W.S. Chow ...249

Departmental Protectionism and Local Protectionism in China’s WTO Disputes Chenxi Wang ...273

China’s Evolving Data Protection Law and the Financial Credit Information System: Court Practice and Suggestions for Legislative Reform Lu Yu and Björn Ahl ...287

A Typology of Judicial Liability for Error in Chinese Courts Peter C.H. Chan and Huina Xiao ... 309

The Chinese Guiding Case System through the Lens of a CISG Case Qiao Liu339

The Influence of Pre-Conviction Detention on Probation in China Xifen Lin,Sihong Liu and Yong Ma363

Book Review

A Special Standing in the World: The Faculty of Law at The University of Hong Kong, 1969-2019John P. Burns ....395

The Construction of Guilt in China: An Empirical Account of Routine Chinese Injustice Xin He ... 401

Johannes Chan on Judicial Responses to the National Security Law: HKSAR v Lai Chee Ying (HKLJ)

"Judicial Responses to the National Security Law: HKSAR v Lai Chee Ying"
Johannes Chan
Hong Kong Law Journal
2021, Vol. 51, Part 1 of 2021, pp 1-14

Abstract: Jimmy Lai, a media tycoon supportive of the democratic development of Hong Kong, is the most prominent person arrested under the National Security Law (NSL) since its coming into operation in June 2020. The Court of First Instance granted him bail under stringent conditions, but the decision was reversed on the prosecution’s appeal. The decision of the Court of Final Appeal (CFA), being its first on the NSL, will set the tone for the judiciary in its approach to this controversial piece of legislation. This article analyses the positive and the negative aspects of the CFA’s judgment. It argues that the Court has unnecessarily entered into a jurisdictional question when this could have been avoided. It criticises the Court for having too readily accepted that art 42 of the NSL has displaced the common law presumption in favour of bail, without sufficiently examining whether this acceptance is necessary or proportionate to the presumption of innocence and the right to bail that are also protected by the NSL. While the hands of the Court may be tied, it warns against the risk of the Court not holding a draconian provision to the utmost scrutiny.

Benjamin Chen on The Expressiveness of Regulatory Trade-Offs (Georgia Law Review)

"The Expressiveness of Regulatory Trade-Offs"
Benjamin Chen

Georgia Law Review, Volume 55, Issue 3

Published online on 4 May 2021

Abstract: Trade-offs between a sacred value—like human life—against a secular one—like money—are considered taboo. People are supposed to be offended by such trade-offs and to punish those who contemplate them. Yet the last decades in the United States have witnessed the rise of the cost-benefit state. Most major rules promulgated today undergo a regulatory impact analysis, and agencies monetize risks as grave as those to human life and values as abstract as human dignity. Prominent academics and lawmakers advocate the weighing of costs and benefits as an element of rational regulation. The cost-benefit revolution is a technocratic coup, however, if citizens view regulatory trade-offs as a symbolic denial of the values they hold dear.

     This Article details three experiments that evaluate responses to a cost-benefit justification for regulatory policy. Across a range of conditions, the experiments revealed no evidence of diffuse hostility toward a consequentialist approach to saving lives. The final experiment found, however, that informing participants that they were expected to vindicate the sanctity of life resulted in them doing so. This result demonstrates the malleability of norms and expectations surrounding regulatory trade-offs.

       Taken together, the experiments suggest that people normally do not perceive regulatory trade-offs as symbolic affronts that call for an expressive defense of the value of life. While these results do not conclusively establish the normative desirability of the cost-benefit paradigm, they do suggest the absence of any broad opposition to consequentialism in public life. These findings have implications for the democratic legitimacy of the administrative state and its institutional design. They also bear on the relationship between tort and regulation as mechanisms for risk control. Insofar as tort judgments are expressive and regulatory decisions are not, regulation that preempts the common law of torts might help temper the tangible costs of symbolism.

Melissa Loja (PhD 2018) on Recent Engagement with International Human Rights Norms by the Courts of Singapore, Malaysia, and Philippines (International Journal of Constitutional Law)

"Recent engagement with international human rights norms by the courts of Singapore, Malaysia, and Philippines"
Melissa Loja (PhD 2018)

International Journal of Constitutional Law
Published in March 2021

Abstract: This article makes two claims about international human rights norms in three English-speaking courts in Southeast Asia. First, the courts are engaging with the norms, contrary to the prevailing view that the four-walls and dualist doctrines maintain a stranglehold on the region. Singapore courts relied on foreign case law applying the European Convention on Human Rights to rationalize a liberal interpretation of arbitration agreements; Malaysia’s Court of Appeal based its decision on the Association of Southeast Asian Nations Human Rights Declaration, despite lack of legislative incorporation; and the Philippine Supreme Court applied the Convention on the Protection of Persons against Enforced Disappearances (CPPED) as evidence of customary international law, notwithstanding that the government had repeatedly refused to ratify CPPED. Second, their engagement is characterized by inconsistency and arbitrariness as it is governed more by exigency than by human rights philosophy. The Philippine court invoked universality to give direct but selective effect to the norms. In the name of pluralism, Malaysian courts gave direct effect to the norms, but the effect has been transitory. In Singapore, the norms have teleological effect in private law cases involving commercial and investment interests, but not in public law cases involving individual and political rights. The lack of principled practice and the ensuing uncertainty undermine the ethos of human rights and raise the question of whether more practice makes right.

Frederick Long & Syren Johnstone on Applying ‘Deep ESG’ to Asian Private Equity (Journal of Sustainable Finance & Investment)

"Applying ‘Deep ESG’ to Asian private equity"
 Frederick J. Long & Syren Johnstone
Journal of Sustainable Finance & Investment
Published online in February 2021

Abstract: At this stage of Asia's development there is a need, and an opportunity, to establish a validation methodology that better gauges ESG implementation and sustainability aspirations in Asian private equity. Private equity, like major public market and debt investors such as Blackrock, has adopted language that suggests a proactive approach to ESG management. However, process-oriented ESG compliance presently far outstrips evidence of tangible contributions to ESG objectives and outcomes. This article describes a taxonomy of common approaches to ESG investment practices in Asian private equity and discusses their shortcomings. It then presents ‘Deep ESG’ as an alternative approach that operationalizes ESG and sustainability metrics more holistically than existing frameworks. The Deep ESG framework enables a higher level of market-led intentionality that better informs institutional investors, regulators, communities, and employees as they evaluate private equity's ‘balance sheet’ of ESG outcomes. By investing in tools for goal setting, measurement and evaluation and applying them consistently across all target and portfolio companies, private equity managers can pivot away from a defensive approach by working with stakeholders to shape constructive solutions to urgent sustainability goals.

Amanda Whitfort on Organised and Serious Crimes Ordinance (OSCO) amendments & Species Victim Impact Statement (SVIS)

An important step towards the acceptance of wildlife crime as organised and serious crime has been achieved with the CE providing her consent, under Article 74 of the Basic Law, to a private member's Bill to amend OSCO being presented in LegCo.

The Bill co-drafted by Amanda Whitfort and introduced to LegCo by lawmaker Elizabeth Quat in March 2021 requests the amendment to OSCO, which provides for a combination of enhanced enforcement and deterrent methods to investigate and prosecute serious wildlife crimes.

Unlike serious offences under the Dangerous Drugs Ordinance or the Theft Ordinance, offences under the Protection of Endangered Species Ordinance, Cap 586, have not been classified as ‘specified offences’ in Schedule 1 of OSCO. This has been a significant omission, given the organised nature of the transnational trade in endangered species. Despite the United Nations Office on Drugs and Crime and Interpol endorsing a ‘follow the money’ approach, focusing on the syndicates behind wildlife smuggling, enforcement in Hong Kong has traditionally focused on the mules in the supply chain, when offenders are caught red-handed trying to smuggle in the species. Failure to include Cap 586 offences in Schedule 1 of OSCO has also meant Hong Kong courts are not empowered, under the Ordinance, to confiscate the proceeds of organised crime’s wildlife trafficking.

The Hong Kong government increased the maximum penalties for wildlife crime in 2018. Unfortunately record-breaking seizures of smuggled wildlife have continued unabated. The OSCO amendment would go further to allow Hong Kong to effectively deter the criminal networks funding the extinction of endangered species.

Here is the link to the White Paper which convinced EQ to take up the Bill:

https://www.admcf.org/wp-content/uploads/2020/10/Protection-of-Endangered-Species-White-Paper.pdf

There is an SCMP story on it last week: 

https://www.scmp.com/lifestyle/article/3130438/hong-kongs-leading-role-global-extinction-crisis-hub-illegal-wildlife

Amanda Whitfort will be giving a talk on the OSCO amendments and my SVIS (species victim impact statement) project on 7 May on Zoom at HKU.   Details are as follows:

Speaker: Ms Amanda Whitfort

Title: New Law Reform Initiatives to Improve the Protection of Endangered Species in Hong Kong

Zoom details:

Topic: E&B Seminar Series

Time: May 7, 2021 04:00 PM Hong Kong SAR

Join Zoom Meeting: https://hku.zoom.com.cn/j/91675926608?pwd=d2ZoaElKS2pnWlVQS1lvaittSWtDdz09

Meeting ID：916 7592 6608

Password：329737

Amanda Whitfort on Hong Kong’s Leading Role in the Global Extinction Crisis, as Hub of Illegal Wildlife Trade, and the Legal Amendment that could Change that (SCMP)

"Hong Kong’s leading role in the global extinction crisis, as hub of illegal wildlife trade, and the legal amendment that could change that"

SCMP Lifestyle

23 April 2021

• The scales and carcasses of tens of thousands of pangolins are shipped illegally through Hong Kong every year
• Existing laws do little to stem this trade, but a proposed law change to treat wildlife smuggling as organised crime could make a big difference

Pangolins have clever defence mechanisms. When threatened they curl up into a tight ball – the name pangolin is derived from the Malay word pengguling, meaning “one who rolls up” – the hard scales covering their bodies overlap to create an “armour”. Like skunks, pangolins can spray a noxious fluid from glands near their anuses to keep predators at bay.

      Sadly these protective tools can’t deter humans, who have poached the anteater-like creatures to near-extinction, the trade fuelled by false claims in traditional Chinese medicine that pangolin scales relieve ailments from asthma to poor kidney function, and can improve lactation. On top of that, in China and Vietnam pangolin meat is considered a delicacy. 

...

     The legislative reform, says Amanda Whitfort, associate professor of law at the University of Hong Kong, would facilitate the use of powers by enforcement authorities to tackle wildlife crime that are currently reserved for serious crimes such as drug and arms trafficking.

      It would allow the investigation of persons or materials with connections to organised crime as well as the confiscation of proceeds of crimes, she says, and could serve as a powerful disincentive to wildlife criminals, preventing the reinvestment of profits to fund further criminal activities.

... Click here to read the full text. 

Benjamin Chen & Zhiyu Li on Judicial Legitimation in China (Cornell International Law Journal)

"Judicial Legitimation in China"
 Benjamin Minhao Chen & Zhiyu Li
Cornell International Law Journal, Volume 53, Issue 2, pp. 169 - 206

Published in April 2021

Abstract: China’s judiciary is becoming increasingly professionalized, and its courts are enjoying a degree of autonomy they have not enjoyed since the Revolution. By promulgating abstract interpretations of the code and through the selective publication of cases, Chinese judicial institutions today function as policymaking bodies on both national and local scales. But are they able to legitimize social policy? This question has received little attention from legal scholars, but its answer is important for our understanding of the judicial role in the governance of modern China.

     We field a survey experiment that seeks to measure the persuasiveness of courts vis-à-vis administrative and non-regulatory actors. We find that courts are sometimes able to induce support for the policies they endorse. We also find, however, that this ability is not unique to courts and is at least equaled by administrative bodies.

     Our results have profound implications for the future of judicialization in China. They illuminate the potential of litigation as a tool for fostering social change. But they also explain why the regime does not rely on judicial institutions to convince the public of the rightness of government policy: other governmental entities are as persuasive as courts, if not more so. More broadly, the empirical findings presented here suggest that while the Chinese party-state might find it advantageous to operate through law, it does not necessarily have to govern through courts.

Chris Szabla on "Contingent Movements? Differential Decolonisations of International Refugee and Migration Law and Governance" (new book chapter)

"Contingent Movements? Differential Decolonisations of International Refugee and Migration Law and Governance"

Chris Szabla

in Contingency in International Law: On the Possibility of Different Legal Histories, eds. Kevin Jon Heller and Ingo Venzke (Oxford University Press, 2021), pp. 199-212

Abstract: No single international organisation oversees and enforces global migrant rights or plans and facilitates migrant movement. Migrant rights are fragmented among, inter alia, human rights and labour law. Why does no clear, comprehensive international regime exist to integrate migrant law and provide oversight for all migrants as international refugee law and institutions do for refugees? Scholars have cited a 1951 US decision to withdraw support for a migration regime that involved communist participation. But the Cold War explanation sidesteps, among other things, the creation of an intergovernmental migration regime outside the communist world. Both the refugee and migration regimes subsequently paralleled one another’s development, but architectural differences ultimately rendered one more robust. This chapter shows how decisions that shaped the differences between these regimes were not entirely determined by the Cold War, while demonstrating how decisions related to another overarching historical force—decolonisation—resulted in the expression of these differences.