Simon Young on Money Laundering in International Law (Oxford Bibliographies)

"Money Laundering in International Law"
Simon Young
Oxford Bibliographies
Published on 27 October 2021

Introduction: The international law of money laundering is found in several United Nations (UN) crime suppression treaties, United Nations Security Council (UNSC) resolutions, and a body of soft law, some of which arguably has crystallized as customary norms. Beginning with the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention), states agreed to establish anti-money laundering (AML) measures in their domestic law for drug-related offenses. This was followed by AML measures against organized crime and corruption, respectively, in the 2000 UN Convention against Transnational Organized Crime (Palermo Convention), including its protocols and the 2003 UN Convention against Corruption (Merida Convention). The AML measures include the criminalization of money laundering, powers to freeze and confiscate the proceeds of crime, duties of the private sector to generate financial intelligence, the establishment of financial intelligence units (FIUs), and formal legal cooperation arrangements between states, necessary given the transnational dimension of money laundering. While AML originally covered only property derived from crime, its measures were extended to property used to finance or carry out crimes, most notably for terrorist acts and the proliferation of weapons of mass destruction. Though countries concluded a treaty against terrorist financing in 1999, it was not until after the events of 11 September 2001 that anti-terrorism financing norms, as part of the panoply of AML measures, were diffused around the world by UNSC resolutions. International bodies, including the United Nations Office on Drugs and Crime (UNODC), have prepared model laws to assist countries to incorporate AML measures. The Financial Action Task Force (FATF), established in 1989 by the G7 industrialized nations, is the most important and influential body in setting detailed international standards on AML. Through replication of its norms and functions by regional bodies, the FATF’s soft law of AML measures has hardened into near universal domestic AML laws, adopted to signify the integrity of a country’s financial systems. European nations extensively adopted AML measures by treaties and directives, sometimes going beyond FATF recommendations. As AML measures have grown in number and global significance, critical literature has grown, questioning their effectiveness, whether their benefits outweigh their costs, and whether they are justified from the standpoint of principles of criminal liability and human rights law. For more criminological literature, readers may wish to consult the Oxford Bibliographies in Criminology article Money Laundering...

PhD candidate Ms Zhang Hongjiao Awarded Third Place in ATRIP Essay Competition 2020

 

Congratulations to Ms Hongjiao Zhang, HKU PhD candidate under the supervision of Dr Yahong Li, on winning the third place at the ATRIP Essay Competition 2020 with her paper “A Typological Framework for the Implied License Doctrine in Copyright Law”.   

Abstract: In property law, the transfer of the possession of movable property and the registration system of real estate can demonstrate the transfer of property ownership. However, intellectual property, including copyright, is intangible. The ownership of copyright cannot be inferred from the possession of the material object in which the work is embodied because the ownership of copyright is distinct from the ownership of the material object. Thus, to enhance the predictability and certainty of copyright ownership, including exclusive licenses of copyrighted works, a signed document is required in many jurisdictions. Nonexclusive licenses, however, carry no such requirements and can be granted via oral expression or implied from conduct. The point of the leading copyright treaties that “a nonexclusive license may be granted via oral expression or implied from conducts” has been cited in many US copyright cases. In this sense, an implied license addresses a gap in copyright law.  The paper can be downloaded here.

International Conference: Intellectual Property, Covid-19, and the Next Pandemic: Diagnosing Problems, Developing Cures (5-6 Nov 2021)

Intellectual Property, Covid-19, and the Next Pandemic:

Diagnosing Problems, Developing Cures 

Dates: November 5 – 6, 2021 (Friday – Saturday) 

Time: 8am – 12:30pm (US Eastern Standard Time) 

This conference will be conducted via Zoom. 

This conference is co-organized by the Law and Technology Centre of the University of Hong Kong Faculty of Law and the Georgetown University Law Center.  It will be conducted via Zoom and prior registration is required.  More information is available on the conference website: https://www.covidip.hku.hk/.

 Conference organizers

• Madhavi Sunder, Professor of Law and Associate Dean for International and Graduate Programs, Georgetown University Law Center
• Haochen Sun, Associate Professor of Law, University of Hong Kong Faculty of Law
  

Keynote speakers

• Edward Kwakwa, Assistant Director General, Global Challenges and Partnerships Sector, World Intellectual Property Organization
• William Fisher, WilmerHale Professor of Intellectual Property Law and Faculty Director, Berkman Klein Center for Internet and Society, Harvard Law School
• Ruth Okediji, Jeremiah Smith, Jr. Professor of Law and Faculty Director, Berkman Klein Center for Internet and Society, Harvard Law School
  

Panel speakers & moderators

• Kashish Aneja, Consultant, O’Neill Institute for National and Global Health Law, Georgetown University Law Center
• Olufunmilayo Arewa, Murray H. Shusterman Professor of Transactional and Business Law, Temple University Beasley School of Law
• Anupam Chander, Professor of Law, Georgetown University Law Center
• Jorge L. Contreras, Presidential Scholar and Professor of Law and Director of Program on Intellectual Property Law & Policy, University of Utah S.J. Quinney College of Law
• Rochelle Dreyfuss, Pauline Newman Professor of Law and Co-Director, Engelberg Center on Innovation Law & Policy, New York University School of Law
• Lawrence Gostin, University Professor and Faculty Director, O’Neill Institute for National & Global Health Law, Georgetown University Law Center
• Calvin Ho, Associate Professor of Law and Co-Director, Centre for Medical Ethics and Law, University of Hong Kong Faculty of Law
• Eric Ip, Associate Professor of Law and Research Fellow, Centre for Medical Ethics and Law, University of Hong Kong Faculty of Law
• Amy Kapczynski, Professor of Law and Faculty Director, Global Health Justice Partnership, Yale Law School
• Matthew Kavanagh, Assistant Professor of Global Health and Director, Global Health Policy and Politics Initiative, O'Neill Institute, Georgetown University
• Priti Krishtel, Co-Founder and Co-Executive Director of Initiative for Medicines, Access & Knowledge (I-MAK)
• Sapna Kumar, Professor of Law, John Mixon Chair and Co-Director for the Institute for Intellectual Property and Information Law, University of Houston Law Center
• Peter Lee, Martin Luther King Jr. Professor of Law, University of California, Davis, School of Law
• Laura Pedraza-Fariña, Professor of Law, Northwestern University Pritzker School of Law
• Nicholson Price, Professor of Law, University of Michigan Law School
• Arti Rai, Elvin R. Latty Professor of Law, Duke University School of Law
• Jerome Reichman, Bunyan S. Womble Professor of Law, Duke University Law School
• Ana Santos Rutschman, Assistant Professor of Law, Saint Louis University School of Law
• Ken Shadlen, Professor of Development Studies, Department of International Development, London School of Economics and Political Science
• Jayashree Watal, Former Staff Member, WTO’s Intellectual Property Division and Honorary Professor, National Law University Delhi
• Peter Yu, Regents Professor of Law and Communication and Director, Center for Law and Intellectual Property, Texas A&M University School of Law

All are welcome!  More information about this event is available on the conference website.  Please register as soon as possible.

Please direct any inquiries to Ms. Grace Chan at mcgrace@hku.hk or (+852) 3917 4727.

Scott Veitch's Observations on Hong Kong (Critical Legal Thinking)

Observations on Hong Kong

by

 Scott Veitch
Published at Critical Legal Thinking

19 October 2021

It has been said that a poem is never finished, just abandoned. Academic writing has a touch of that too. The visions and revisions it has taken to get a text into decent shape could always do with one more run through, one more update, one more check for meaning and style. It is true also of research. It could be – it is – endless, but one must just stop somewhere otherwise the writing will never get done. If one is doing research on contemporary issues, a decision must be made about what to include and when to end the period for analysis. The process of selection and exclusion is one of the skills of judgement in research and writing one seeks to learn, test out, pass on, but always facing it afresh with each new project. For as Borges illustrates so well with Funes the Memorious – who remembers every detail but knows nothing of meaning, which only comes with generalization – without selection and exclusion, no sense will be possible. And if this is a concern that applies to research on current issues, it applies even more to historical research, since in addition to the question of when to stop, there is the much more challenging question of when to start. Each event, each effect, has a range of causes, and each of them in turn a further range. And so selection and exclusion – methodology – become key to making any sense, contested as that will always be. In the end perhaps, all you might say about your research and writing is that there are better and worse ways of abandoning it; and that what is offered in the text is the best you are able to do for now. ...Click here to read the full article.

Lusina Ho on The Mental Element in Equitable Accessory Liability (Current Legal Problems)

"The Mental Element in Equitable Accessory Liability"
Lusina Ho

Current Legal Problems

Published: 1 June 2021

Abstract: There has been heated debate over the test of dishonesty since it was first laid down in Royal Brunei Airlines v Tan. This paper argues that the essence of ‘dishonest’ assistance is willing participation in a breach of trust, that is, assistants endorse or accept their causal role in bringing it about. Three implications follow. First, the mental element should be fixed at the minimum level necessary to reflect endorsement rather than varying by the degree of causal contribution to the primary wrong. Second, the test of neither dishonesty nor knowledge fully captures the requisite mental element for endorsement. Third, a test framed in terms of intention and belief concerning the core elements of a breach would better identify the mental element of accessory liability in equity. This reformulated test would add much-needed transparency to mental element determination for equitable accessory liability.

New Book by Anselmo Reyes and Wilson Lui: Direct Jurisdiction: Asian Perspectives (Hart Publishing)

Direct Jurisdiction: Asian Perspectives

edited by Anselmo Reyes and Wilson Lui (BA&LLB 2019)
Hart Publishing

Publication Date: August 2021
440 pp

Description: The second thematic volume in the series Studies in Private International Law – Asia looks into direct jurisdiction, that is, the situations in which the courts of 15 key Asian jurisdictions (Mainland China, Hong Kong, Taiwan, Japan, South Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka, and India) are prepared to hear a case involving cross-border elements. For instance, where parties are habitually resident abroad and a dispute has only some, little or no connection with an Asian state, will the courts of that state accept jurisdiction and hear the case and (if so) on what conditions? More specifically, the book's chapters explore the circumstances in which different Asian states assume or decline jurisdiction not just in commercial matters, but also in other types of action (such as family, consumer and employment disputes).

     The Introduction defines terminology and identifies similarities in the approaches to direct jurisdiction taken by the 15 Asian jurisdictions in civil and commercial litigation. Taking its cue from this, the Conclusion assesses whether there should be a multilateral convention or soft law instrument articulating principles of direct jurisdiction for Asia. The Conclusion also discusses possible trajectories that Asian jurisdictions may be taking in respect of direct jurisdiction in light of the COVID-19 pandemic and the political tensions currently besetting the world. The book suggests that enacting suitable rules of direct jurisdiction requires an Asian jurisidction to strike a delicate balance between affording certainty and protecting its nationals. At heart, direct jurisdiction involves sometimes difficult policy considerations and is not just about drawing up lists of jurisdictional grounds and exceptions to them.

Chris Szabla's Critical Study of the International Labour Organization (ILO)'s Work on Migrants' Rights (Melbourne JIL)

"Entrenching Hierarchies in the Global Periphery: Migration, Development and the 'Native' in ILO Legal Reform Efforts"
Chris Szabla

Melbourne Journal of International Law

Vol 21(2) (Dec 2020), pp 1-39

Abstract: This article examines the historical imbrication of international law and institutions with both migration and development. Specifically, it examines legal initiatives of the interwar International Labour Organization ('ILO') that focused on migration in what is now known as the Global South -- and their aftermath. The Treaty of Versailles created the ILO as an institution related to the League of Nations in part to 'protect ... workers ... in countries other than their own' and invested it with other, more implicit powers related to migration. In subsequent years, the ILO's mandate to oversee migration and promote new migrant rights expanded. Yet such expanding oversight intersected with another feature of the interwar ILO: respecting -- and thereby entrenching in international law and governance -- existing hierarchies forged by colonial relationships or mentalities in regions beyond Europe. The Organization's efforts did shift some state behaviour towards respecting migrants' rights. Nonetheless, in providing largely African 'native' migrants fewer or different protections than those available for European migrants and in encouraging domestic legal reform to accommodate the needs of European settlers migrating to Latin America over those of locals -- each done in order to promote different forms of 'development' -- the institution enshrined and in some ways redoubled hierarchical divisions between Europeans and natives. Its actions, moreover, demonstrate the deep roots of -- and lessons for -- today's impoverished international migration law, forms of international development premised on international institutional control and the legal understanding of 'indigenous peoples'. This analysis therefore not only produces further evidence of the colonial entanglements of international law and institutions but also demonstrates unexplored links between the genealogies of migration, development and international law, as well as implications for rethinking their contemporary forms and their relationship with the Global South today.  Click here to read the full article.

New Book: The Rule of Law Under Fire? by Emeritus Professor Raymond Wacks (Hart Publishing)

The Rule of Law Under Fire?

Raymond Wacks ( Emeritus Professor of Law and Legal Theory at the University of Hong Kong)

Hart Publishing
Published on 21 October 2021

Summary: Does the rise of populism, authoritarianism, and nationalism threaten the welfare of the rule of law? Is this fundamental democratic ideal under siege?

     In this timely and important book, Raymond Wacks examines the philosophical roots of the rule of law and its modern, often contentious, interpretation. He then investigates 16 potential ideological, economic, legal, and institutional dangers to the rule of law. They range from the exercise of judicial and administrative discretion and parliamentary sovereignty, to the growth of globalisation, the 'war on terror', and the disquieting power of Big Tech. He also considers the enactment and enforcement in several countries of Draconian measures to curtail the spread of COVID-19, which has generated fears that these emergency powers may outlive the pandemic and become a permanent feature of the legal landscape, thereby impairing the rule of law.

      Wacks identifies which issues among this extensive array pose genuine risks to the rule of law, and suggests how they might be confronted to ensure its defence and preservation.

Reviews: 

“It is a welcome reminder of both the value of the rule of law and its fragility in the face of grave challenges … We travel in competent hands from the ancient philosophical foundations of the rule of law to an appraisal of the primary questions arising about its health in the modern world. This highly readable text will appeal not only to lawyers and legal theorists but to many others who wish to reflect on these important issues.” – TRS Allan, Professor of Jurisprudence and Public Law, University of Cambridge, UK

“The rule of law has come under strain from multiple directions, as skilfully charted by Raymond Wacks, who provides interesting and informed insights as to the nature of such tensions and their interaction.” – Paul Craig, Emeritus Professor of English Law, University of Oxford, UK

“One of our most impressive legal theorists, Raymond Wacks has written a wonderful small book that successfully illuminates a large number of pressing legal and political questions ... A wonderful synthesis of legal theory with real-world political and social analysis that I strongly recommend to anyone with an interest in the rule of law and its uncertain fate.” – William E Scheuerman, James H Rudy Professor of Political Science, Indiana University, USA

“With seasoned pen and lucid prose, Raymond Wacks continues his lifelong journey of grappling with new and old challenges to the rule of law. The result is something rare in legal scholarship – accessible erudition.” – Albie Sachs, former Justice of the Constitutional Court of South Africa

“Raymond Wacks is rightly concerned that integrity, democracy and legality are under siege in our world. By reference to key concepts that help him to illustrate his proposition, he helps to explain how the rule of law is not the same concept as the law of rules. It must have a foundation resting on deep values … Raymond Wacks carefully and accurately defines the concept for today's world … And he affords us a roadmap by which we can invigorate, defend and strengthen this key concept of human freedom.” – The Hon Michael Kirby AC CMG, former Justice of the High Court of Australia

“Raymond Wacks' short and readable book does a lot more than offer a spirited defence of the rule of law at a time when it is 'under fire'. He articulates simply and clearly his own theory of the rule of law in a discussion of the complex philosophical debates about it, and then vindicates that theory through showing its application to topics as different as 'capitalism', 'emergencies' and 'globalization'. An astonishing achievement!” – David Dyzenhaus, University Professor of Law and Philosophy, University of Toronto, Canada

“Wacks shows [that] the Rule of Law embrac[es] notions of justice ... [and] is indispensable to a society that claims to be democratic ... The book is a timely reminder of the threats we face on many fronts and of the need for vigilance in defence of the Rule of Law.” – John Dugard, Professor of Law Emeritus, University of the Witwatersrand, South Africa and Leiden University, the Netherlands

Marco Wan on Queer Temporalities and Transgender Rights: A Hong Kong Case Study (Social & Legal Studies)

"Queer Temporalities and Transgender Rights: A Hong Kong Case Study" 
Marco Wan 
Social & Legal Studies An International Journal

First Published: 2020-8-27
Abstract: This article investigates how theoretical explorations of queer time can shed light on our understanding of law. Taking transgender rights in Hong Kong as a case study, it argues that legal judgments can entrench normative temporal structures and impose tropes such as linearity, futurity, and finality onto the life scripts of trans subjects. Through close readings of the Court of Final Appeal decision in W v. Registrar of Marriages and the recent judicial review challenges that have emerged in its aftermath, it demonstrates how the cases exclude transqueer individuals who do not fit into those temporal trajectories from the realm of rights protection. It also suggests ways of thinking about the temporalities of transgender issues differently. The analysis here stages an encounter between law and literary/cultural theory, and provides a new perspective on the current state of transgender rights in Hong Kong.

CALL FOR PAPERS - Berkeley Center on Comparative Equality and Anti-discrimination Law (BCCE) 9th Annual Conference 2022

BEKELEY CENTER ON COMPARATIVE EQUALITY

& ANTI-DISCRIMINATION LAW

9th ANNUAL CONFERENCE 2022

Hosted by the University of Hong Kong, Faculty of Law, the Centre for Comparative 

and Public Law, the Human Rights Hub, and the Equality Rights Project 

22-24 June 2022

 

CALL FOR PAPERS 

Comparative Equality Law in a Post-Pandemic World 

The ninth annual conference of the Berkeley Center on Comparative Equality & Anti-Discrimination Law (BCCE) will be held at the Faculty of Law at The University of Hong Kong from 22-24 June 2022. Previous conferences were hosted in Paris (Sciences-Po 2012), California (Berkeley Law 2013), Brussels (Université Libre de Bruxelles 2014), Shanghai (Jiao Tong University 2016), Dublin (Trinity College 2017), Melbourne (Melbourne Law School 2018), Stockholm (University of Stockholm 2019), and Cape Town (University of Cape Town 2021). 

We plan to hold the conference on site in Hong Kong with options for online participation for those unable to join us in person. However, if a face-to-face event turns out to be impossible because of ongoing travel restrictions or other unforeseen circumstances, we will organize an entirely virtual conference instead. 

The conference will expand on many of the themes explored at the BCCE’s previous events and within its various working groups. It will focus on what Covid-19 has revealed about the causes and nature of inequalities which exist within and across countries and regions. Calls to tackle deep-seated structural and intersectional discrimination have increased in recent years, but so has the strong backlash against these campaigns. Indeed, in some places we see attempts to dismantle hard-won, progressive legal and policy change. In others, ongoing efforts to achieve much needed reform have been stalled or defeated. 

With these realities in mind, the conference will consider possibilities for crafting effective short-term and long-term responses as we move forward in a vastly unequal post-pandemic world. These may include: reforms to - or the better implementation of – equality and antidiscrimination law; improved enforcement mechanisms; re-energised social movements; fully representative governance; ensuring equality in economic recovery efforts; tackling inequalities in health care, education, employment, and other sectors; and identifying new, creative solutions in the digital space, the arts, and the media. 

These challenges and more will shape the discussions and plenary sessions at the 2022 conference. As always, the comparative insights and ideas presented by scholars from around the world will enrich the conference experience. We hope to further expand the BCCE’s network and particularly encourage emerging scholars - from within the Asian region and elsewhere - to join us. 

Paper proposals may address the broader themes described above or any area of equality and anti-discrimination law. Specific conference sub-themes reflect the focus of BCCE’s working groups: 

• Covid-19 

• Digital Equality

• Disability Rights

• Immigrant Justice and Climate Refugees

• Pay Equity and Living Wage 

• Sexual Harassment and Violence 

• Global Systemic Racism 

• LGBTQI 

Cross-cutting themes include: structural discrimination; equality and governance; equality and economic recovery; equality and socio-economic rights (healthcare, education, employment, etc.); enforcement and institutional responses; the impact on communities such as older persons, children, indigenous peoples, and non-citizens; the role of the arts and media in promoting equality; and civil society participation and social movements.

We are now inviting submissions for workshop presentations on topics related to these themes, and aspects of equality law more generally. Please submit a completed abstract of up to 500 words to bccehk@hku.hk on or before 1 December 2021. Please include a brief biography (suitable for publication on the conference website) and clearly indicate your objectives and methodology in your abstract. The abstracts will be reviewed by the conference committee and invitations to present will be sent out by early February 2022. Full papers will be due on 15 May 2022. Note that initial abstracts must be submitted in English, but we may be able to make some accommodation if you wish to present in another language at the conference. Please indicate this in your submission.

Loper and Petersen on Legal Capacity, the Disability Convention, and Domestic Law Reform (J Comp Law)

"Legal Capacity and the Convention on the Rights of Persons with Disabilities: An Alternative Framework to Promote Law Reform in Hong Kong and Beyond"
Kelley Loper  and Carole J. Petersen

The Journal of Comparative Law

Published in September 2021

Abstract:

Although widely ratified, the Convention on the Rights of Persons with Disabilities (CRPD) has proven challenging for governments to implement. This article focusses on the right to legal capacity, which is protected by Article 12. According to the UN Committee on the Rights of Persons with Disabilities (CRPD Committee), Article 12 requires governments to abolish all forms of substitute decision-making and provide, instead, mechanisms of supported decision-making for those who need assistance implementing decisions that reflect their own will and preferences. Rather than try to meet that standard, it appears that many governments are choosing not to engage in the process of reforming laws governing adult guardianship, compulsory treatment, and detention on the ground of disability. Hong Kong provides an excellent example of such a jurisdiction. Although bound by the CRPD since 2008, the government has not implemented Article 12 and largely ignored the issue in its 2018 report to the CRPD Committee. Meanwhile, the problems in Hong Kong’s legal framework have become critical. This is partly because the political unrest of 2019 and the crackdown by Beijing in 2020-21 have contributed to a mental health crisis in the territory. Fortunately, the CRPD Committee has requested more detailed information on the right to legal capacity for its upcoming review of Hong Kong. It is, therefore, an ideal time to consider what Hong Kong and other jurisdictions can do to better meet their obligations. This article recognises that the right to legal capacity is a contentious area of law and policy and that it is unrealistic to expect governments to immediately abolish all forms of substitute decision-making. We therefore propose an alternative theoretical framework for interpreting Article 12, one that we hope will promote law reform. Although our approach differs from that taken by the CRPD Committee, it is consistent with the holistic approach to rights that is the hallmark of the CRPD and with the doctrines of interpretation for human rights treaties.

New Book by Syren Johnstone: Rethinking The Regulation of Cryptoassets (Edward Elgar)

Rethinking the Regulation of Cryptoassets: Cryptographic Consensus Technology and the New Prospect

(Rethinking Law series)

Syren Johnstone

Edward Elgar Publishing

Publication Date: September 2021

328 pp

Description: This thought-provoking book challenges the way we think about regulating cryptoassets. Bringing a timely new perspective, Syren Johnstone critiques the application of a financial regulation narrative to cryptoassets, questioning the assumptions on which it is based and whether regulations developed in the 20th century remain fit to apply to a technology emerging in the 21st.

Review:

‘Prof. Johnstone’s book on the regulation of cryptoassets forces us to think twice about the way we try to regulate the digital economy. He challenges the habit of the regulators to push new disruptive ideas and instruments into old frames and concepts, and invites them to move out of their comfort zone. Rethinking the Regulation of Cryptoassets is a complete account of the challenges we face in developing a crypto-economy and proposes a coherent and sustainable regulatory framework that ensures both market efficiency and technological relevance.’ – Eva Kaili, Chair of the STOA Committee, Rapporteur of the Blockchain Resolution of the European Parliament, Brussels

‘Cryptographic consensus technology presents extraordinary market opportunities but also raises a host of vexing regulatory challenges. Rethinking the Regulation of Cryptoassets maps this complex terrain and charts a way forward, offering a novel approach to the regulatory enterprise to protect against abuses while fostering innovation. Johnstone brings considerable legal, financial, and technological sophistication to the task, and his analysis is at once rigorous and accessible. This book will become essential reading on the future of cryptoassets.’ – Christopher Bruner, University of Georgia, School of Law, US

‘The crypto industry moves fast and requires regulatory frameworks that can cater to that pace. Prof. Johnstone brings forward a number of ideas that are worth reflecting on as cryptoassets are definitely here to stay.’  – Henri Arslanian, Global Crypto Leader and Partner, PwC

‘Johnstone provides a refreshing way to think about the regulatory limits of applying the standard financial narrative to a technology that is globally programmable but locally valuable. His DBA (Determined-By-Architecture) framework may help align regulation with the borderless possibilities of mathematics.’ – Pindar Wong, Chairman, VeriFi (Hong Kong) Ltd

John Liu on Jury Trial And Public Trust in The Judiciary (APLR)

"Jury Trial And Public Trust In The Judiciary: Evidence From Cross-countries Comparison"

John Zhuang Liu & Lei Chen

Asia Pacific Law Review

Published Online: 2021-9-14

Abstract: The jury is an institution that has evoked praise and criticism throughout its history. Recently, it has also triggered debate in many countries as they reform their judicial processes. Gathering data on 111 countries from various sources to analyse the jury as part of the judicial system, we find that public trust in the judiciary is higher in countries with jury trials than in countries without them. Countries that conduct jury trials also tend to have stronger judicial constraints on other sources of governmental power and better-performing criminal adjudication systems. These analyses reveal correlation rather than causation, but they are helpful for challenging conventional wisdom and for better understanding the function of the jury system. The seemingly paradoxical patterns that are identified — namely, that the jury, designed to constrain the judiciary, ends up correlated with stronger judicial power, and that laypeople, supposedly less proficient than professionals in deciding cases, are in fact positively associated with judicial performance — suggest an internal connection between the jury as a judicial body and as a political institution.

HKU Law Dean’s Letter to the Incoming Class of 2021

Dear Students,

I am writing to congratulate all new students on your decision to join the Faculty of Law at HKU; and to extend my warmest “welcome back to campus” to our current students.

     Hong Kong is at a critical moment in its political and historical transition and you are undertaking your legal education at this important juncture. The Rule of Law is a core value of our society and indeed it is part of the DNA of our collective identity. Both before and after the 1997 transition, the Rule of Law has been the city’s bedrock and has provided the essential ballast to navigate Hong Kong through troubled waters. In recent years the city has experienced perhaps its ultimate stress test. Studying law at the University of Hong Kong in such testing times is particularly meaningful, challenging and intellectually interesting.

     Allow me to begin with a few housekeeping matters: against the devastating backdrop of the ongoing global pandemic, I scarcely need to remind you all of the importance of mask-wearing, getting vaccinated and carefully complying with the social distancing rules. Notwithstanding the success of online teaching, which helped us limit the disruption to education during the initial phase of the pandemic, as professional educators we appreciate the fundamental importance of traditional interpersonal interactions and socialization to effective teaching and learning. We are therefore eager to resume face-to-face teaching as soon as possible. However, we are keenly aware of the risks, and to get to face-to-face teaching, your support and cooperation is going to be essential. Please look after yourselves and each other. Take care to religiously follow the social distancing requirements, including special seating arrangements for classes and lectures, hand-washing and wearing masks, bearing in mind that even those of you who are vaccinated are not invincible against what is, after all, one of the most formidable viruses the world has ever seen.

     As your journey of intellectual and personal growth at HKU begins, may I remind everybody and reiterate the importance of the University’s Civility Rules. The University has adopted these rules in line with United Nations standards to which I would like to draw your attention (https://www.hku.hk/f/upload/19914/Civility-on-Campus.pdf). Having touched upon the importance of the Rule of Law as one of our society’s core values, let me stress that another core value is diversity and inclusiveness. This is a quality that is needed more than ever in our deeply polarized society. Located at the heart of a truly global city, the University of Hong Kong is one of Asia’s most international universities. Students naturally come from all over the world, from many different countries and jurisdictions and speak a variety of different languages. You will meet friends and peers who have grown up in different cultural backgrounds and who hold a healthy variety of, among other things, diverse political opinions and religious beliefs.

     In the age of the European Enlightenment, the French political philosopher Voltaire once wisely wrote, "I may disagree with what you have to say, but I shall defend, to the death, your right to say it." However passionate your own views and beliefs may be, graciously and generously tolerating differing opinions, and respect for people who hold them, is one of the hallmarks of an enlightened society. As Aristotle said, “It is the mark of an educated mind to be able to entertain a thought without accepting it.” A motto of the university’s is “unity in diversity”; indeed our campus is an ideal place for you to learn from your fellow human beings in an apt demonstration of life’s wonderfully pluralistic nature. While engaging in impassioned, robust and frank debate on academic, social or political issues, please be open-minded and respectful of individual differences. It is our belief that by bringing together diverse views and characteristics, we create a dynamic, innovative and stimulating learning environment for all of you.

     Some students have raised concerns about the impact of the National Security Law (NSL) on teaching and learning. I would like to reiterate that academic freedom is an enumerated right in the Basic Law of the HKSAR. It is also a core value of HKU that has been tested from time to time, but which has always been safeguarded with rigor and persistence. In the new era of the NSL, the University and the Faculty are determined to uphold academic freedom while complying with the NSL.

     The Faculty reiterates and emphasizes the enormous value it places on the lawful exercise of academic freedom. We also insist on the significance of carrying out academic research and teaching and learning without fear. The Faculty will strive to uphold its institutional autonomy under the law and to create a free environment for intellectual inquiry and academic excellence.

     While complying with the relevant provisions in the NSL, the Faculty has not initiated any changes in its research, teaching and learning, and international collaborations. Subject only to quality assurance and legal requirements, academic staff are free to design the syllabus of the courses they teach, and no restrictions are being imposed on the content of teaching and classroom discussion.

      You are now a member of the HKU Law community. We teachers in the Faculty are the first port of call if you have any concern about the above-mentioned or other matters. Please feel free to reach out to your respective programme directors, Heads of the Departments or myself.

     Welcome to HKU Law again and I wish you a healthy and productive year!

Yours faithfully,

Fu Hualing

Dean, Faculty of Law

Warren Chan Professor of Human Rights and Responsibilities

Anna Dziedzic on Foreign Judges of The Pacific As Agents Of Global Constitutionalism (new article)

"Foreign Judges Of The Pacific As Agents Of Global Constitutionalism" 

Anna Dziedzic

Global Constitutionalism

Published Online: July 2021

Abstract:

Studies of global constitutionalism have focused on the transnational movement of constitutional law through the citation of foreign judgments. However, little attention has been paid to the movement of constitutional judges themselves. This article considers how the foreign judges who sit on courts of constitutional jurisdiction in Pacific island states can be understood as part of the phenomenon of global constitutionalism. It identifies three ways in which foreign judges can be agents of global constitutionalism: as mechanisms for the diffusion of constitutional ideas, as expressions of global constitutional values and as objects of transnational legal transfer. An empirical analysis comparing the citation practices of local and foreign judges in constitutional cases in nine Pacific states suggests that the use of foreign judges on constitutional courts does contribute to the international movement of constitutional ideas. However, a critical analysis of foreign judges as expressions and objects of global constitutionalism sheds light on a range of tensions in the role of constitutional judges and understandings of global constitutionalism.

Daniel Matthews on Reframing Sovereignty For The Anthropocene (Transnational Legal Theory)

"Reframing Sovereignty For The Anthropocene" 

Daniel Matthews

Transnational Legal Theory

Published Online: 2021-5-20

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.

Life as a Global Academic Fellow with HKU Law (Interview with Dr Anna Dziedzic)

Anna Dziedzic joined HKU Law as a Global Academic Fellow in 2019. She researches in the field of comparative constitutional law, with a particular focus on constitutional change and the role of judges and judiciaries. She used the Global Academic Fellowship to undertake broader comparative research into foreign judges and the significance of nationality to judicial office.  Her book, Foreign Judges in the Pacific, will be published by Hart Publishing in November 2021.  

1.    When were you a Global Academic Fellow with HKU Law?

I was a Global Academic Fellow in Hong Kong from August 2019 to August 2021. This time encompassed both the Hong Kong protests and the pandemic, but despite these challenges the Fellowship was a dynamic and rewarding experience.

2.   What was the topic of your PhD thesis? Were you able to extend or develop your PhD research during your time as a Global Academic Fellow?

I completed my PhD thesis at Melbourne Law School in 2019, on the topic of foreign judges on courts of constitutional jurisdiction in Pacific island states. The Global Academic Fellowship at HKU Law provided me with the opportunity and the support to develop my research on foreign judges beyond the Pacific to consider the more than 50 jurisdictions which use foreign judges, in some way, on their domestic courts.

     One reason I was attracted to post-doctoral research at HKU was that Hong Kong has its own experience of using foreign judges on its Court of Final Appeal, a point of similarity that connected with my research on Pacific island judiciaries. I was able to test some of the theoretical insights that emerged from my study of foreign judges in the Pacific by applying them to the different context of Hong Kong, especially as the position of foreign judges came under pressure after the enactment of the National Security Law in 2020.

     In addition, with funding from the HKU Law Faculty and support from HKU’s Centre for Comparative and Public Law, I and Professor Simon Young led a comparative project on foreign judges on domestic courts. This included an international workshop in May 2021, during which 36 judges, scholars and practitioners came together to discuss the use of foreign judges in over 30 jurisdictions across the world, and a joint keynote presentation from Justice Joseph Fok PJ and Justice William Gummow NPJ of the Hong Kong Court of Final Appeal. The papers presented at the workshop will be published in The Cambridge Handbook of Foreign Judges on Domestic Courts, co-edited by Professor Young and I.

L-R: Dean Fu, Justice Fok, Prof Young, Dr Dziedzic

    The Global Academic Fellowship also provided me with the time and space to revise and extend my PhD thesis for publication as a monograph titled Foreign Judges in the Pacific.

3.    What other opportunities did you take up during your fellowship?

Living and working in Hong Kong also opened up new areas of comparative study for me. In response to issues raised by the protest movement of 2019, Julius Yam and I prepared a CCPL Policy Paper on the potential use of amnesties in contexts of civil unrest. This work inspired a scholarly paper comparing amnesties for street protesters across the world and examining the normative justifications for amnesties in the distinctive context of street protest.

     While a Global Academic Fellow, I was invited to be Associate Director of the Centre for Comparative and Public Law. This role provided many opportunities to collaborate with comparative constitutional law academics and research centres around the world and to organise and participate in seminars and conferences, both in person and online.

4.    How did you like living in Hong Kong and being part of the HKU Law community?

The HKU Law community is very welcoming and supportive. It is also a diverse community and in addition to connecting with scholars in my field of public law, I learned a lot from scholars of law and literature, legal theory, and empirical legal studies, to name a few.

     One aspect of the community that I particularly enjoyed was convening the Junior Scholars Forum. Together with Chris Szabla (another Global Academic Fellow) we sought to create a space for post-doctoral and post-graduate researchers from the three law schools in Hong Kong to meet and share their work in a supportive and collegial way. It was a valuable way to build connections with researchers from other Hong Kong universities working in very different areas of law.

5.    How did the Global Academic Fellowship prepare you for the next stage of your academic career?

The Global Academic Fellowship is a great stepping stone to further research as well as a tenured academic career. I was able to extend my research agenda, strengthen my publication record, and develop networks of scholars and practitioners in Hong Kong and beyond. There were also opportunities to teach, participate in events, and engage with student associations and the wider legal community, all experiences that open many doors for future work.

6.    What advice would you have for someone thinking of applying for the fellowship?

Do it! The Global Academic Fellowship is a rare post-doc: two years with the freedom to choose what you are going to research and write about. With time, funding and a supportive Faculty, you can continue to follow research pathways from your PhD thesis or begin something completely new.

HKU Law Awarded Five KE Impact Projects 2021/2022

The University of Hong Kong's Knowledge Exchange (KE) Funding Scheme for Impact Projects supports projects that have the potential to create social, economic, environmental or cultural impacts for industry, business or the community by building on expertise or knowledge in the University and projects designed to collect evidence for corroboration and evaluation of impacts. Engagement projects that aim to benefit non-academic communities beyond Hong Kong are strongly encouraged.

     Five projects are supported under the KE Impact Project Grant Scheme in the 2021/22 with an exceptional outstanding case being awarded with the maximum funding amount of HK$150,000. Congratulations to :

• Ms Amanda Whitfort "Wildlife Crime: Knowledge Transfer for Informed Sentencing in Greater China". This ongoing interdisciplinary project involves a collaboration between Associate Professor Amanda Whitfort, Faculty of Law, Dr Caroline Dingle, School of Biological Sciences and Dr Gary Ades, Head of Fauna, Kadoorie Farm and Botanical Garden, in producing species victim impact statements, showing the impact of wildlife crime on endangered species. These statements aid the Agricultural Fisheries and Conservation Department, Customs and Excise Department and the Department of Justice (Hong Kong) and Forestry police and prosecutors in the PRC to effectively prosecute wildlife crimes, and assist the judiciary in Hong Kong to deter, through effective sentencing, wildlife offences against Hong Kong legislation.

• Ms Isabella Wenting Liu and Ms Stephanie Biedermann “Understanding Rule of Law for Secondary School Students”. The project aims at enhancing Hong Kong secondary school students’ understanding of the rule of law and its crucial role as the foundation of Hong Kong’s success and institutions. HKU law students will develop teaching plans on different rule of law topics and deliver legal talks at secondary schools. This project provides a platform for HKU students and secondary schools to form connections and develop a forum for discussion on foundational legal concepts. Teaching materials will be made accessible to the wider community through the ROLE website (www.role.hku.hk).

• Ms Darcy Lynn Davison-Roberts “Employment & Labour Claims Knowledge Hub”. In partnership with LITE Lab@HKU, A2J and HKWWA, this project seeks to implement the Hub; a technology-based caselaw databank for use by the primary beneficiary HKWWA. The Hub will provide the means by which HKWWA can collect, collate and analyse labour and employment caselaw and in turn facilitate their mission of promoting and improving women workers’ interests and status in Hong Kong through their advocacy work. Once established, the project intends to make the Hub open-sourced and available to other NGOs. This project aims to achieve greater transparency in the judicial decision-making process and to increase access to justice for grassroots, female workers in respect of their labour and employment law issues in Hong Kong.

• Ms Darcy Lynn Davison-Roberts “Legal Advice Programme for Grassroots Women Workers”. This project aims to address the lack of employment and labour law expertise and legal resources available to the grassroots women workers served by the primary beneficiary, the Hong Kong Women Workers’ Association (“HKWWA”). By conducting a needs and capacity assessment, the project will first seek to understand what HKWWA, and its clients identify as their existing and future legal needs and what legal knowledge and resources exist within HKWWA. Following this preliminary analysis, the project will revise and expand upon HKWWA’s existing legal case handling practices and knowledge base and design and implement a bespoke monthly community legal advice programme similar to those utilised by other Hong Kong NGOs.

• Dr Richard Wai Seng Wu “Building Better Lawyers in China and Australia in the Post-Covid-19 Era Through Strengthening Their Capabilities in Innovation, Creativity and Ethics with Experiential Learning”. This interdisciplinary project aims to build better lawyers in China and Australia by strengthening their capabilities in innovation, creativity and ethics in the post-Covid-19 era. Cutting-edge knowledge in these areas will be delivered through webinars to lawyers in these two countries by academics from HKU, UC Berkeley, Melbourne University and Birmingham University, as well as law firm partners, legal counsel and legal technologist who have local experience in China and Australia. This project seeks to create social impact by raising Chinese and Australian lawyers’ awareness of the importance of innovation, creativity and ethics for globalized legal practice in post-Covid-19 era.

HKU Law Welcomes Dr Wanshu Cong, Global Academic Fellow of 2020/21

Welcome to Dr Wanshu Cong, our new Global Academic Fellow at the Department of Law, HKU. Her research interests include theory and history of international law, critical legal studies and the intersection of law and technology. More recently, her work has been looking at transnational data governance by drawing from Marxist and Third World Approaches to International Law. During the Global Academic Fellowship, she will compare claims and practices of digital sovereignty by state and non-state actors around the world and analyze them from a historical perspective.  Before joining HKU, Wanshu was a Max Weber Fellow at the European University Institute. She holds a D.C.L from McGill University and an LL.M. from Geneva Academy of International Humanitarian Law and Human Rights. She is also an associate editor for the European Journal of International Law.

Eric Ip on Courts, Proportionality and COVID-19 Lockdowns (IACL-AIDC Blog)

"Courts, Proportionality and COVID-19 Lockdowns" 

Eric Ip

IACL-AIDC Blog
September 23, 2021

The COVID-19 pandemic and domestic legal responses to it have inflicted widespread suffering across the globe. States, democratic and authoritarian, most of them signatories of international human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the United Nations Convention on the Rights of Persons with Disabilities (CRPD), have imposed drastic emergency responses that include quarantines of entire towns, cities, provinces, even nations unprecedented in the modern era.

    Mass quarantine, called ‘lockdown’, can be said to be an invention of the Chinese authorities who shut down transport systems in Wuhan, the first known epicentre of the COVID-19 outbreak, in January 2020. Though differing from state to state, such measures generally feature significant restrictions on citizens’ personal liberty, freedom of movement, work, family life, education, and ironically even health due to the delay in treating other diseases. Displacing individuals, families, and social networks may very well prove, in retrospect, to have caused a devastating public mental health crisis. The economic slump, mass unemployment, domestic violence, and other repercussions that ensued on lockdowns that disproportionately hit the less well-off may ramify in more long-run health issues and early deaths than the pandemic itself.

     It has become commonplace in public debate that a public health emergency is a legitimate justification for suspending fundamental rights and freedoms at all costs. In fact, to adopt an ‘all-or-nothing’ approach to combat a public health emergency using non-pharmaceutical Interventions is incompatible with most international human rights treaties, especially the ICCPR. Article 4 of the ICCPR explicitly forbids such restrictions, even during a ‘public emergency which threatens the life of the nation’, if it should involve ‘discrimination solely on the ground of race, colour, sex, language, religion or social origin’; or derogations from the right to life, freedom of thought, conscience and religion; or from the prohibition of torture, cruel, inhuman or degrading punishment, medical or scientific experimentation without consent, slavery, slave-trade, servitude, imprisonment due to inability to fulfil a contractual obligation; or from recognition of everyone as a person before the law and the principles of legality in criminal law. What is more, the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, approved in 1984 by the United Nations’ Commission on Human Rights, states that the ‘severity, duration, and geographic scope’ of any emergency response that derogates from the rights guaranteed by the ICCPR must be ‘strictly necessary’ and ‘proportionate’ to the threat defended-against... Click here to read the full post.

Podcast Interview with Professor Scott Veitch on his latest book, Obligations: New Trajectories in Law (New Books Network)

Professor Scott Veitch was interviewed by Jane Richards, a doctoral student at the University of Hong Kong for the New Books Network. In the interview, Professor Veitch discusses his latest book Obligations: New Trajectories in Law. In his book, Professor Veitch challenges the normative assumptions that shape law and social practices, and shows how obligations and practices of obedience are core to sustaining the inequalities faced by members of the global community. In doing so, Professor Veitch explores the potential and enduring role that obligations have in furthering individual and collective well-being. He offers an alternative trajectory for the current crises faced by all citizens today, including environmental degradation and human inequality and injustice. Click here to listen to the podcast.

New HKU SPCA Study on Animal Cruelty in Hong Kong (Amanda Whitfort)

On Friday 3 September, the Law Faculty's Associate Professor Amanda Whitfort and Dr Fiona Woodhouse Deputy Director (Welfare) of the Society for the Prevention of Cruelty to Animals (Hong Kong) published an empirical study of animal cruelty cases in Hong Kong. The study was funded by the Policy Innovation and Co-ordination Office of the HKSAR government. It examined 335 cruelty cases in the SPCA's police investigation database from 2013 to 2019 and identified patterns of offending, including which types of animals are most at risk and in what circumstances.

Dogs were the primary victims in all categories of animal abuse. In 75% of prosecutions for active maltreatment or neglect-related cruelty the offender was male. In most cases the offender was the dog's owner or a family member of its owner. The majority of neglect cases involved mongrel dogs being abandoned inside private premises without food/water. In nearly all cases of abandonment, the animals were found alone inside rented village houses (with their owners not living on site) and, in nearly one third of cases, the animals died. In many cases the dogs found were significant in number and had been collected from strays by persons who did not have sufficient financial resources or time to care for them adequately. The study found action is necessary to educate owners to voluntarily surrender animals they can no longer care for appropriately rather than place their welfare at high risk by abandoning them. Government policies prohibiting the keeping of dogs in public housing, alongside historical dog population management strategies, have both contributed to the serious problem of abandonment of dogs in Hong Kong.

In two significant animal hoarding cases, where the dogs had started to eat each other to survive, more than 100 animals had been collected by the offenders and placed in so-called 'rescue' shelters. The shelters were accepting animals from members of the public in exchange for donations. To counter the risk to animals in unregulated shelters, there is an urgent need to introduce shelter licensing legislation. A further reason to regulate animal rescue shelters is the lack of financial transparency as to how public donations are being used.

Other findings of the study include the need for:

• a duty of care for animals to be introduced to compliment current anti-cruelty legislation;
• regulations to control grooming parlours, animal trainers and boarding facilities;
• new offences to deter animal poisoners;
• improved regulations to control the use of traps;
• a new offence to combat animals falling from heights; and
• prohibitions on mercy release of wild animals.

A full report of the study can be read on the Faculty staff webpage for Associate Professor Whitfort at https://www.law.hku.hk/academic_staff/amanda-whitfort/

Richard Cullen on White Man’s Media: Anxious and Aggressive (Pearls and Irritations)

This is one of a number of  articles in a series on White Man’s Media which is running at Pearls & Irritations. Articles in the series can be found here.

White Man’s Media: anxious and aggressive

by

Richard Cullen

Published at Pearls and Irritations in Australia

It is useful to recall how so much Western media coverage, from Hong Kong, of the deeply intimidating, three-month shut-down of arterial roads in 2014 and the unremitting violence of the 2019 multi-month insurrection was, in each case, dominated, first, by a constant retelling of narratives supplied by the activists and secondly, by intense coverage of all perceived lapses in official and police reactions. Added to this was a steady degree of media support for the protestors – regularly spilling over into acclamation – regardless, typically, of the unfolding disruption, chaos and destruction.

     It is inconceivable that coverage by the mainstream media in the US or UK, or elsewhere in the West, would have been remotely this tilted had these events unfolded on their own doorstep, rather than on China’s doorstep.

    Next, imagine, today, a leader in the New York Times (NYT) accurately observing that:

America’s appalling response to the COVID pandemic has cost the US trillions of dollars and thousands of preventable deaths. If only we had looked to and learned from China.

You certainly have to imagine this for it will never appear. In fact, the NYT has recently moved from repeatedly dismissing the Wuhan lab-leak conspiracy theory as fevered blame-averting by the Trump administration to arguing robustly that this is now a matter in need of serious revisiting.

     Why, though, has this remarkable U-turn materialized? A pivotal aspect of the explanation is that history and current polling indicate that the Biden Democrats face a serious risk of losing their slim majorities in either the House of Representatives or the Senate – or both – in the mid-term elections due in November, 2022. Now that Trump is gone, the far-reaching anti-Trump media machine can get seriously behind Joe Biden. Re-energizing the (once derided) Wuhan lab-leak conspiracy theory provides an opportune argument, blessed with significant Sino-phobic potential to spur Democrat voter turnout and support in 2022... Click here to read the full article.