Philip K.H. Wong Centre for Chinese Law Newsletter (June 2022)

Centre for Chinese Law is Renamed Philip K.H. Wong Centre for Chinese Law

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Introduction to HKU Law Series (IV) Professor Douglas W. Arner’s Sharing

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Angela Zhang’s interview with Bloomberg TV on China’s Regulatory Easing

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RECENT PUBLICATIONS

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Chinese Law | Philip K.H. Wong Centre for Chinese Law | Hong Kong (hku.hk)

New Regulatory Ramblings Podcast Features ex-Undercover Tackling Financial Crimes and Regulations (Arner & Shamdasani)

New Regulatory Ramblings  Podcast Features ex-Undercover Tackling Financial Crimes and Regulations

HKU has launched a new podcast,  Regulatory Ramblings, discussing topics on the intersection of all things pertaining to finance, technology, law and regulation. It is  now available on Spotify, Apple Podcasts, YouTube, and Bilibili. 

    Hosted by the HKU Reg/Tech Lab, the HKU-Standard Chartered FinTech Academy and the HKU-edX Professional Certificate in FinTech, the new podcast is a forum for those that appreciate long-form conversations, with new content available every middle and end of the month.

    In the first episode, former covert agent Bill Majcher revisits his detailed operations involving financial crimes across the globe, from anti-money laundering investigations, surveillances on terrorist activities and infiltrating drug cartel operations. Bill reveals the defining moments in his career, predicating his discussions on financial crimes and regulations. 

   Regulatory Ramblings Podcasts is led by Douglas Arner and Ajay Shamdasani. Ajay is a veteran writer, editor and researcher based in Hong Kong with extensive knowledge in regulatory developments in Asia. His experience comes from a 15-year long career as a financial and legal journalist, editor and former correspondent with Thomson Reuters’ Regulatory Intelligence/Compliance Complete. Douglas (Kerry Holdings Professor in Law, HKU Law) is a global expert and thought leader on issues relating to digital finance/financial technology, sustainability development and regulation. 

     Part Two of the Financial Crimes episode with Bill Majcher, focusing entirely on the money-laundering activities happening in Hong Kong and the region, will be released on 15 June 2022. Visit https://www.hkufintech.com/regulatoryramblings to find out more! Contacts: Ajay Shamdasani (ajayshk@yahoo.com) | Prof. Douglas Arner (douglas.arner@hku.hk) Note: All quotes from the podcast must be attributed to “Regulatory Ramblings Podcasts”.  Actual Podcast and Video links will be available through the website: www.hkufintech.com/regulatoryramblings

New Book by Haochen Sun: Technology and the Public Interest (Cambridge University Press)

Technology and the Public Interest
Haochen Sun

Cambridge University Press

Published in April 2022

Book description: In this groundbreaking work, Haochen Sun analyzes the ethical crisis unfolding at the intersection of technology and the public interest. He examines technology companies' growing power and their increasing disregard for the public good. To tackle this asymmetry of power and responsibility, he argues that we must reexamine the nature and scope of the right to technology and dynamically protect it as a human right under international law, a collective right under domestic civil rights law, and potentially a fundamental right under domestic constitutional law. He also develops the concept of fundamental corporate responsibility requiring technology companies to compensate users for their contributions, assume an active role responsibility in upholding the public interest, and counter injustices caused by technological developments.

Reviews: 

‘It’s hard to imagine a more timely intervention. In this important and urgent volume, prominent intellectual property scholar Haochen Sun sets out a compelling case for recognition of the human right to technology and a blueprint for defending that right against the assaults of Big Tech.’

Barton Beebe - John M. Desmarais Professor of Intellectual Property Law, New York University School of Law

‘In this foundational book, Haochen Sun builds a new vision of corporate social responsibility in the digital era. He uncovers a nearly forgotten human right to the benefits of science, and argues that technology companies need to better ensure broad distribution of the benefits of technology.’

Anupam Chander - Scott K. Ginsburg Professor of Law and Technology, Georgetown University Law Center

‘As backlash against leading technology firms grows, it is time to think big about the future governance of intellectual property and internet platforms. Technology and the Public Interest more than meets the challenge, offering a comprehensive vision for law and policy to promote fundamental corporate responsibilities to protect and promote human flourishing. Sun’s first-rate work squarely addresses contemporary concerns like COVID vaccine disparities, while developing a normative framework of lasting relevance. Read this important book for an erudite and inspiring perspective on technology governance.’

Frank Pasquale - Professor of Law, Brooklyn Law School

Three HKU Law Scholars Profiled in HKU Bulletin (May 2022)

The latest HKU Bulletin magazine (May 2022, Vol. 23, No. 2) features the accomplishments of several Faculty of Law colleagues: Dr Angela Zhang (Research, pp 28/29), Professor He Xin (Research, pp 30/31), and Dr Haochen Sun (Books, pp 44/45). 

"China's Jumpy Take on Tech"

For years, the Chinese government treated technology companies with kid gloves, encouraging them to get on the innovating and making money,  But in 2020, that changed.  Dr Angela Hueyue Zhang has been looking into the factors motivating the new hard-line regulation of techonlogy in Mainland China ...

'China's volatile style of policymaking is deeply ingrained in its authoritarian governance system, where regulatory authorities need to adhere to central policy initiatives and administrative power is subject to few institutional constraints.'  

~ Dr Angela Huyue Zhang

Dr Zhang also recently had a book published by Oxford University Press on the wide-ranging issues involved in China’s regulatory regime, Chinese Antitrust Exceptionalism: How the rise of China challenges global regulation.

"Men Win Out in Divorce in China"
Professor He Xin's research shows that a combination of institutional constraints on Chinese judges, traditional values about gender, and income inequality frequently result in divorce decisions that are more favourable to men than women.

'The judges follow strictly the law and the instructions of the Supreme People’s Court and they think their decisions are neutral. But they are ignoring the underlying socioeconomic inequality between the two genders, which affects the outcomes.'

           ~ Professor He Xin 

Divorce in China: Institutional Constraints and Gendered Outcomes was published by NYU Press in 2021.

"Your Right to Technology" 

Access to COVID-19 vaccines, broadband connections and other beneficial technologies should be a human right, argues legal scholar Dr Haochen Sun in a new book.

'Technology has become the major driver of our economic, cultural and political life. We have to talk about access to technology as a human right so that everybody can benefit and we can prevent serious harm caused by improper application of the technology.'

          ~ Dr Haochen Sun

Henry Litton Comments on Yeung Lai Ping v Secretary for Justice (CACV 206/2019)

Commentary on Yeung Lai Ping v Secretary for Justice (CACV 206/2019)

Henry Litton, Honorary Professor

HEALTH WARNING: Reading this article might arouse such sense of outrage it could damage your health, particularly for those suffering from high blood pressure.

Introduction

This is the story of a public health provider that cares neither for the welfare of its patients nor the health of its employees; and when an employee injured at work sought redress for harm done, the department deployed lawyers to crush her by the weight of black-letter law.

Background

Yeung Lai Ping (the plaintiff) qualified as a dentist when she was 23. She practised for about 4½ years, then resumed full-time studies, obtaining a Master of Dental Surgery degree when she was 30.

     In February 1997 she joined the Department of Health as a dental officer, and in the course of her practice performed a considerable number of surgical extractions (SX). This involved the removal of bone and cutting of teeth, operating in an awkward position and the use of some force. It also involved the use of hand-held drills for about 20-30 minutes in each session. The drill, inevitably, would transmit vibrations to the wrist.

     The wrist is prone to strain. The structure of the wrist comprises eight small bones, allowing it to be flexible. But sprain can easily occur, as typists and tennis players well know. The symptoms are pain, numbness and swelling. Repeated over-exertion might result in carpal tunnel syndrome and triangular fibrocartilage tear. These are very serious conditions.

Work at North District Hospital

In September 1998 the plaintiff was posted to work as a dental officer in the dental unit of North District Hospital (NDH): a newly opened hospital. The dental unit had only two dentists – the plaintiff and Dr Tsui, her supervisor.

     Prior to working in NDH the plaintiff had no problem with SX. Her patients were well-served by her exercise of skill in surgical extraction operations.

     Her work schedule at NDH was gruelling. Her appointment book was marked three months in advance. The number of SX required of her was far greater than that of Dr Tsui. Between October 1998 to September 1999 she performed 710 SX. Over the same period Dr Tsui did 479 SX.

    Her work in NDH over a period of 13 months resulted in her developing carpal tunnel syndrome and triangular fibrocartilege tear. This eventually ended her career as a dentist.

The legal proceedings

On 2 September 2002 the plaintiff issued a writ seeking damages against the government. It was not until 14 years later that the action was heard in court. That took place in December 2016 and March 2017. Judgment was delivered in April 2019. The judge found that the department had failed to maintain a safe and healthy workplace and had breached its duty of care to the plaintiff. She was awarded substantial damages and costs.

The findings of fact

The plaintiff first developed symptoms in her right hand and wrist in mid-1999. This was known to Dr Tsui who had monitored closely her appointments. As the judge found, a reasonable and prudent employer had the duty to consider the plaintiff’s capabilities and condition, and adjust her duties particularly as regards SX. Those capabilities had, of course, a direct impact on her patients’ welfare. Because the dental unit was so short-staffed and the demands of the patients so pressing, there was no real choice that her SX might have been lessened.

     From July 1999 the plaintiff wore a hand splint and sought medical and physiotherapy treatment. Her work schedule did not diminish. In October she took three weeks’ sick leave and returned to work on 25 October, with the symptoms only partially relieved. Dr Tsui made no inquiry of her condition and put her back onto the same gruelling schedule. Things came to a head on 30 October (a Saturday) when she was given three SX to perform. On the third SX she suffered excruciating pain in her right wrist and could not continue the operation (to the distress of her patient, of course). She was later diagnosed to have suffered carpal tunnel syndrome and a tear to the triangular fibrocartilage complex which effectively ended her career as a dentist.

     The judge found as a fact that, on the plaintiff’s return from sick leave, Dr Tsui told her he would not change her schedule; complaints from her would not have resulted in her rescheduling; and, in particular, the 3 SX fixed for 30 October. It would seem that Dr Tsui himself was under pressure. The fault was in the heartless system of the department which was interested in numbers and not in the welfare of people under its care.

     It was on these facts that the trial judge found for the plaintiff. What civilised legal system in the world would not have arrived at the same conclusion? And, it might be added, what caring public health provider in the world would not have felt sympathy for the plaintiff, accepted responsibility for the incident and moved on? Not the Hong Kong Department of Health.

Appeal

The Health Department launched an appeal, dealt with by the Court of Appeal (CA) by its judgment of 8 March 2021, comprehensively reviewing the judge’s findings and affirming his conclusions.

Application for leave to further appeal

On 7 April 2021 the department sought leave from the CA to take the matter to the Court of Final Appeal. The CA determined the matter a year later on paper, by its ruling of 20 May 2022.

     This is a 22-page document where the CA comprehensively disposed of the eight purported questions for the CFA’s consideration. They were all dismissed. The CA rejected the application for leave to appeal in its entirety.

     Beneath its dignified language, one can sense boiling outrage rightly felt by the CA. The trial judge, three years earlier, had made clear findings of fact, putting an end to litigation which started in 2002. The fact that the department had grievously failed to discharge its duty of care to the plaintiff could hardly be in doubt. The CA had affirmed those findings. And yet the Health Department was not satisfied; it wanted lawyers to engage in a point-scoring nit-picking forensic game to deprive the plaintiff of redress, as if the health and well-being of Yeung Lai Ying were of no account; it wanted the plaintiff back in the grinding forensic machine to face further delay and anxiety. Having been responsible for damaging the plaintiff’s health, ending her dental career, it cared not whether further proceedings might not damage her mental health as well.

The eight questions

The eight questions were farcical. Question 1 was a pure pleading point which no modern judge would for a moment entertain. Question 2 was this:

“Whether factual findings on the nature of injury suffered by a plaintiff employee, and causation between such injury and the alleged breach of duty committed by the defendant employer, may be made by resorting to ‘common sense’ to fill a gap not covered by the medical evidence, when the medical experts have not been asked to give an opinion on those issues?”

Common sense indeed. What is singularly missing is common sense in the department’s whole approach; common sense and compassion. The following six questions simply piled absurdity on absurdity and bear no examination.

Conclusion

The time limit for the department to seek leave from the Appeal Committee to take the matter to the CFA has yet to expire. Is it conceivable that the department would take this inhumane step? Is this trial by ordeal starting in 2002 not long enough?

     The Minister for Food and Health bears ultimate responsibility for the department. Is she aware of this outrage?

AIIFL Newsletter: Issue 8 (May 2022)

 AIIFL Newsletter: Issue 8 - May 2022

UPCOMING EVENT
Wednesday, 22 June 2022, 3:00 – 4:00 PM Hong Kong Time via ZOOM
The Future of Tax Jurisdiction
Professor Miranda Stewart, Melbourne Law School, University of Melbourne
Read More

FELLOWS’ PUBLICATIONS
Forming Transnational Dispute Settlement Norms: Soft Law and the Role of UNCITRAL's Regional Centre for Asia and the Pacific
Shahla Ali

Financial Data Governance: The Datafication of Finance, the Rise of Open Banking and the End of the Data Centralization Paradigm
Douglas W. Arner, Giuliano G. Castellano and Eriks K. Selga

Before Blockchain and Why it Matters (in English and Chinese)
Syren Johnstone

Blockchain as a Disruptor of Securities Regulation (in English and Chinese)
Syren Johnstone

Judging the Party: Public Law Wrongs and Private Law Remedies
Hualing Fu and Xianchu Zhang

Chapter 14: Bankruptcy Law in China
Company Law in Hong Kong – Insolvency 2022
Xianchu Zhang

MEDIA
NFT: 元宇宙中分布式数字认证是炒作, 还是希望? (in Chinese)
(NFT: Hypes and Hopes of Distributed Digital Certifications in the Metaverse)
Stefano Beghi and Giuliano G. Castellano

The Emergence of Financial Data Governance (Oxford Business Law Blog)
Douglas W. Arner, Giuliano G. Castellano and Eriks K. Selga

FELLOWS’ ACTIVITIES

• As part of the General Research Fund project “Creating Credit: Law Reforms, Policy Tensions, and Disruptive Technologies”, Dr Giuliano G. Castellano (Principal Investigator) has spent a semester as Visiting Scholar at Columbia Law School in New York from January to June 2022. During this period, Dr Castellano focuses on the notions of systemic disturbances in the context of credit markets.
•  Professor Douglas Arner participated in the 14th Annual G-24/AFI Policymakers' Roundtable at the 2021 International Monetary Fund (IMF) and World Bank Group (WBG) Spring Meetings held virtually on 26 April 2022 Watch HERE
• The UNIDROIT Factoring Model Law Working Group met on 16-18 May 2022 to continue its work on the development of international standards to facilitate access to credit via receivable financing and supply-chain finance. Dr GiulianoG. Castellano is one of the international experts appointed by the UNIDROIT Secretariat. More information on UNIDROIT Factoring Model Law Working Group can be found HERE.

PAST EVENTS
Book Talk: Hong Kong Competition Law - Comparative and Theoretical Perspectives
(28 April 2022)

Understanding the Momentous Mainland-Hong Kong Cross-Border Insolvency Arrangement (21 April 2022)

Blockchain Asset Registries-Freeing Crypto from Mania (12 April 2022)

Protecting Policy Holders’ Interests in Health Insurance (31 March 2022)

Peter Willoughby Memorial Lecture: China’s Rising (and the United States’ Declining) Influence on Global Tax Governance? Some Observations (3 March 2022)

Book Talk: Regulating the Crypto Economy - Business Transformations and Financialisation (24 February 2022)

Book Talk: Reforming Antitrust (24 February 2022)

Creating Equitable Tax Systems: Challenges Posed by Financial Markets (17 February 2022)

Visit & Explore AIIFL

Emily Lee on De-risking Practices in Hong Kong and Technological Responses (Common Law World Review)

"Technology-driven solutions to banks’ de-risking practices in Hong Kong: FinTech and blockchain-based smart contracts for financial inclusion"
Emily Lee
Common Law World Review, 
Published on 18 May 2022

Abstract:   This article examines banks’ de-risking practices inside Hong Kong's Anti-Money Laundering/Countering the Financing of Terrorism (AML/CFT) regime, a problem that has created considerable tension between the demands of AML/CFT prevention and those of financial inclusion. It unravels the public policy tensions stemming from a multitude of financial reform causes, namely the facilitation of AML/CFT regulatory compliance, the promotion of financial technology (FinTech) innovation and an ultimate expansion in financial inclusion. The article argues that tiered account services are an important first step towards financial inclusion, culminating in the introduction of simple bank accounts by some banks to mitigate the effect of de-risking. While proposed solutions such as the know-your-client utility system and central data repository may contribute to a digital financial inclusion framework, they are not tailored to solve a specific problem (de-risking). The article therefore proposes and evaluates whether FinTech and blockchain-based smart contracts qualify as alternative solutions to de-risking. The article aims to address those policy tensions and contribute to the regulatory policy formulation and the rule-making for financial law and regulation intended to facilitate financial inclusion.

CCPL Conference: Berkeley Centre on Comparative Equality & Anti-Discrimination Law (June 22-24, 2022)

About the Conference
The conference will focus on what the pandemic has revealed about the causes and nature of inequalities around the world. Calls to tackle deep-seated structural and intersectional discrimination have increased in recent years, but so has the backlash. In some places we see attempts to dismantle hard-won, progressive legal and policy change. In others, ongoing efforts to achieve reform have stalled.

With these realities in mind, the conference will consider possibilities for crafting effective responses as we move forward in a vastly unequal post-pandemic world.

The conference features 3 keynote presentations, 4 other plenary discussions, and 23 parallel workshops with 150+ experts from over 25 countries.

Keynote Speakers
New Directions for Equality in a Post Covid World
Jayna Kothari (Founder-Director Centre for Law and Policy Research, Bangalore)

Microverse, Mezzoverse, Macroverse: Protection against Discrimination in an Artificialized World?
Vitit Muntarbhorn (Professor Emeritus Faculty of Law, Chulalongkorn University, Bangkok)

From Disabled Justice to Disability Justice: the Practice of China
Zhang Wanhong (Professor of Jurisprudence Wuhan University School of Law, Wuhan, China)

Plenary Discussions
Judicial Perspectives on Tranforming Equality
Beverley McLachlin (Former Chief Justice of the Canadian Supreme Court)
Geoffrey Ma (Former Chief Justice of the Hong Kong Court of Final Appeal)

Let’s Get Equality Out of the Box!
Laura Carlson, Puja Kapai, Naina Kapur

[Book Talk] Exponential Inequalities: Equality Law in Times of Crisis
Shreya Atrey and Sandra Fredman (eds)
Alysia Blackham, Jessica Clarke, Beth Gaze, Kelley Loper, Jule Mulder, Colm O’Cinneide

UCLA WORLD Policy Analysis Center: Equal Rights and Discrimination Project
Jody Heymann

Conference Programme
The conference programme can be found here.

Registration
There is no fee, but all attendees must register in advance here.

New Book by Agnes Chong (PhD graduate): International Law for Freshwater Protection

International Law for Freshwater Protection
Series: International Water Law Series, Volume: 9
Agnes Chong (PhD graduate)
Brill
Published in April 2022

Description: International Law for Freshwater Protection traces the development of international water law on fresh water protection and demonstrates how the regime focuses on the utilisation and rights of sovereign states over the protection and sustainable growth of shared water resources. The evolving jurisprudence influenced by environmental law highlights the regime’s insufficient focus on the environmental protection of watercourses. This book argues that existing rules, mechanisms and norms within international law can address the regime’s imbalance and establish how these might be applied to improve freshwater protection.

Ryan Whalen on the What, Why and How of Automated Patent Decision-making (ALTI Forum)

The Amsterdam Law & Technology Institute’s team is inviting external faculty members to publish guest articles in the ALTI Forum. Here is the latest contribution authored by Ryan Whalen (The University of Hong Kong).

"The What, Why and How of Automated Patent Decision-making"

Ryan Whalen

9 May 2022

Introduction

The patent system is slow, expensive, and inaccurate. So much so that some refer to it as “broken.”1 Meanwhile, patent applications are increasing in number and complexity.2 Examiners are overworked, which leads them to make more incorrect decisions.3 This has led some to advocate for increased use of technologies, and in particular patentability classifiers, at patent offices.4

     This essay provides an overview of issues related to implementing automated patentability decision-making technologies within patent offices. It first briefly discusses the technologies in question, underpinned by advances in machine learning and natural language processing. The subsequent section explores why the patent system is a prime candidate for the adoption of increased automation. Finally, it turns to exploring different ways these technologies could contribute to existing patent examination processes, or enable the development of new categories of “machine examined” patent grants with distinct legal protections... Click here to view the full text. 

Norman Hui, Gary Meggitt et al: The Professional Conduct of Lawyers in Hong Kong, Issue 64 (LexisNexis)

The Professional Conduct of Lawyers in Hong Kong 
Norman Hui, Gary Meggitt et al

Issue 64

LexisNexis

Published in May 2022

The Professional Conduct of Lawyers in Hong Kong is an unrivaled text on professional conduct and ethics in Hong Kong, providing in-depth analysis on the application of the Bar Code, the Prosecution Code and the Solicitor's Guide to Professional Conduct  This 5 binder looseleaf title is intended to provide up-to-date information, discussion, and a thorough analysis of the practice, principle, and regulation of the legal profession in Hong Kong. Legal practitioners, be it solicitors, barristers, the judiciary, government officials, prosecutors, in-house counsel, foreign and overseas lawyers or students, have become particularly susceptible to the interplay of regulation with professional responsibility considerations when taking up the task of advising and representing clients. The text is aimed at assisting practitioners to stay alert of duties and responsibilities, and understand and maintain the high standards of conduct that is expected of the legal profession in Hong Kong.