Kelley Loper & Carole J. Petersen on Academic Freedom in the Shadow of Hong Kong's National Security Law (new book chapter)

"Academic Freedom in the Shadow of Hong Kong's National Security Law"
Kelley Loper & Carole J. Petersen
in The National Security Law of Hong Kong: Restoration and Transformation,

Edited by Hualing Fu & Michael Hor (Hong Kong University Press, July 2022),
Chapter 12, pp. 255-278
Introduction: This chapter analyses the impact of the Law of the People's Republic of China on Safeguarding National Security in Hong Kong (NSL) on educational autonomy and academic freedom, two core values that the "One Country Two, Systems" (OCTS) model of autonomy is supposed to protect.  Due to space constraints, this chapter primarily focuses on academic freedom in tertiary education.  However, it will also address certain contentious issues which have arisen in primary and secondary schools.

     Following this introduction, Part I reviews the concept of academic freedom, its value to society, and the ways in which it can be undermined.  Part II then analyses the situation in the Hong Kong Special Administrative Region (SAR) prior to the enactment of the NSL.  Although academic freedom and educational autonomy are expressly protected in the Hong Kong Basic Law (BL), changes to university governance in the past two decades have made universities and individual academics more vulnerable to political pressures.

      Part III of the chapter analyses provisions in the NSL that could further inhibit academic freedom and educational autonomy.  The NSL obligates the local government to "promote national security education in schools and universities" and creates several new criminal offences, which also apply extraterritorially.  The NSL also created new security agencies and endowed them with extensive powers.  On the other hand, Article 4 provides that human rights shall continue to be protected, including the rights stated in the BL, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).  These two treaties have a special place in Hong Kong's legal framework due to Article 39 of the BL and the Bill of Rights Ordinance (Cap 383) (which duplicates most of the provisions of the ICCPR).  Thus, any policies adopted by Hong Kong's educational institutions should comply with both treaties.  When cases are litigated the local courts should use the ICCPR as a guide to interpret vague language in the NSL.  Thus, the views of the United Nations (UN)  Human Rights Committee, the expert body tasked with monitoring states parties' implementation of the ICCPR, are particularly relevant.  The UN Committee on Economic, Social and Cultural Rights, the monitoring body for the ICESCR, can also offer guidance, particularly in the context of the right to education.  These international standards and their direct incorporation into Hong Kong law allow room for the courts and others to support academic freedom.  At the same time, legal protection alone is unlikely to be sufficient.  Other non-legal strategies, such as the drafting and enforcement of robust academic freedom policies by tertiary institutions themselves, are needed to strengthen academic freedom in Hong Kong going forward.  Indeed,  we conclude that the academic community has an obligation to adopt such policies and that the Hong Kong government has a constitutional obligation to respect them.  Suggested language for a university policy on academic freedom is therefore included at the end of this chapter. 

Po Jen Yap on Judging Hong Kong's National Security Law (new book chapter)

"Judging Hong Kong's National Security Law"
Po Jen Yap
in The National Security Law of Hong Kong: Restoration and Transformation,

Edited by Hualing Fu & Michael Hor (Hong Kong University Press, July 2022),
Chapter 7, pp. 149-166
Introduction: An hour before the twenty-third anniversary of the Hong Kong Special Administrative Region's (HKSAR) establishment, the Standing Committee of the National People's Congress (NPCSC) bequeathed a new National Security Law (NSL) to Hong Kong.  Presented as a "birthday gift", this offering was prepared behind closed doors - the details were not subject to any public consultation and the law as only unveiled before the awaiting population after it took effect.  Surprise!

     Secession, which includes independence advocacy, subversion of state power, which includes the use of unlawful means to seriously undermine the operations of "the body of central power of the People's Republic of China or the body of power of [the HKSAR]", and collusion with foreign governments, which includes the receipt of any funding or support from a foreign country to provoke by unlawful means hatred among Hong Kong residents towards the Central or Hong Kong Government are all national security penal offences now.  Terrorism has also been defined to include the sabotage of vehicular transport and traffic facilities for political ends.  For all four crimes, offenders face sentences of up to life imprisonment for grave violations.  Even non-Hong Kong residents based outside the jurisdiction are liable for prosecution if they commit any of these penal offences against Hong Kong.  A national security agency established by Beijing to gather intelligence can now operate legally in Hong Kong but must abide by local laws, though these mainland officials are not subject to local jurisdiction for acts performed in the course of duty.  The enforcement and prosecution decisions made under this NSL are entrusted to local officials and Hong Kong courts are also empowered to adjudicate the vast majority of cases brought under this law.  Most local criminal law procedures and human rights safeguards continue to apply.  But jury trial in individual cases can be replaced with a panel of three judges, and where state secrets are involved, all or part of the trial can be closed to the public, though the verdict must still be announced in open court.  In those rare serious cases where foreign governments are involved or the Hong Kong government is unable to enforce the law effectively, the Chinese procuratorate and courts are legally empowered to take over from local counterparts.  The law opens up the chilling possibility that for these exceptional cases, the offenders, if in Hong Kong, can be extradited to the Mainland to face trial.  Finally, the power of interpreting this national security law lies with the NPCSC, which expressly allows mainland officials to overrule the Hong Kong judiciary's interpretation of this NSL.

     As to be expected, responses to this NSL have been sharply divided.  Western media has largely portrayed the NSL as the "final nail in Hong Kong's coffin" and mourned the city's death.  On the other hand, Beijing loyalists fete the law as a "new social contract" that restores stability and recovers Hong Kong's "original aspiration of 'One Country, Two Systems."'
     In this chapter, I do not intend to engage with the histrionics or propaganda.  Neither do I seek to navel-gaze and portend the long-term impact - salubrious or deleterious - that the NSL would have on Hong Kong's economic and civic life.  My aim is more modest: I shall examine whether the NSL is constitutional and explore the options Hong Kong judges have in assessing its legality and interpreting its operative scope.

     In essence, my arguments are as follows.  First, it is defensible - as Albert Chen has argued - that the HKSAR's constitutional duty to enact national security laws "on its own" is subject to an implied requirement that this duty be fulfilled within a reasonable time, or the Central Government may intervene and legislate on the HKSAR's behalf.  But to be consistent, Beijing should also act unilaterally on another mothballed provision - Article 68 of the Basic Law (BL) - which guarantees the election of all members of the Legislative Council by universal suffrage.  Second, the insertion of the NSL into Annex III BL is problematic as the BL only authorises the inclusion of 全國性法律   - People's Republic of China (PRC) laws that have nation wide applications or effects.  Notably, the NSL only applies to Hong Kong and not to the Mainland.  Nevertheless, it will be a fool's errand for the Hong Kong courts to reject the NSL wholesale, or invalidate it in part, as Beijing can legally overrule the courts and oust those judges from future national security disputes.  Instead, Hong Kong judges should engage in a remedial interpretation of the NSL, such that the law's operative scope is read down and additional safeguards are judicially inserted into the legislation.  

Michael Hor on The New National Security Law: Exploring a Meaningful Comparison with Singapore (new book chapter)

"The New National Security Law: Exploring a Meaningful Comparison with Singapore"

Michael Hor
in The National Security Law of Hong Kong: Restoration and Transformation,

Edited by Hualing Fu & Michael Hor (Hong Kong University Press, July 2022),
Chapter 16, pp. 358-376
Introduction: This chapter compares the National Security Law in Hong Kong and the Internal Security Act in Singapore from the angle of their capacity to cause persons or entities dealing with or observing these jurisdictions to fear unacceptable abridgement of human rights and liberties.  A technical analysis of the letter of the law reveals a potentially far more authoritarian executive detention without trial in Singapore, compared with even the modified criminal law embodied in the National Security Law of Hong Kong.  Yet, the contrasting rights trajectory of Singapore and Hong Kong and the more ominous current political context of the National Security Law, more than makes up for the initial favourable comparison.  The chapter ends with a brief thought, gleaned from the Singapore experience, of how those who still care about human rights in Hong Kong should respond. 

Hualing Fu & Michael Hor on Introduction: Re-balancing Freedom and Security in Post-NSL Hong Kong (new book chapter)

"Introduction: Re-balancing Freedom and Security in Post-NSL Hong Kong"
Hualing Fu & Michael Hor 
in The National Security Law of Hong Kong: Restoration and Transformation,

Edited by Hualing Fu & Michael Hor (Hong Kong University Press, July 2022),
Chapter 1, pp. 1-19
Introduction: This book offers a dialogic study of the Law of the People's Republic of China on Safeguarding National Security Law (NSL) in the Hong Kong Special Administrative Region (HKSAR).  It examines the text and the context of the NSL, what caused it and what it has caused, and highlights the changes - real, potential or merely imagined - that the NSL has brought and is likely to bring to Hong Kong.  Constitutional development is not brought about by isolated events but by a series of connected episodes that have taken place over a long duration with each act done in response to an earlier one and, in turn, generating future dialectical reactions in multiple fields, some contemplated and others unforeseen, or perhaps, still unforeseeable.  It is a complicated process and emotions may run high, but there is always a logic to be discovered and explained to make sense of what, at first sight, appear to be chaotic, random occurrences.  This book studies the political and constitutional roots of the NSL as well as its practical operation in Hong Kong.  The book also attempts to view the NSL in the larger Chinese, and comparative law, perspectives.  
         This introductory chapter first situates the enactment of the NSL in the context of Hong Kong's own constitutional context and in particular, the failed attempt to enact Hong Kong national security law in 2003 as required by the Basic Law (BL), and the tortuous path of democratic pursuit that Hong Kong had trodden.  The chapter then explores the constitutional and political roots of the NSL in the Chinese constitutional order.  Part Three addresses several key issues on the impact of the NSL on the legal system, academic freedom, business, and media among others.  Finally, part four assesses the future prospects of Hong Kong's one country two systems doctrine (OCTS) and Hong Kong's freedoms under rule of law in the post NSL era, assessed from a comparative perspective by referencing the development in national security law in mainland China, Singapore and liberal democracies.

Johannes Chan on National Security and Judicial Independence: A Clash of Fundamental Values (new book chapter)

"National Security and Judicial Independence: A Clash of Fundamental Values"
Johannes Chan
in The National Security Law of Hong Kong: Restoration and Transformation,

Edited by Hualing Fu & Michael Hor (Hong Kong University Press, July 2022),
Chapter 6, pp. 119-148
Introduction: Drafted in Beijing without any meaningful local public consultation and promulgated only an hour before it came into force, the National Security Law (NSL) was imposed on the people of Hong Kong just before 1 July 2021.  In less than a year, it has dramatically changed the civil and political scene in Hong Kong.  One of the features of the NSL is the Central Government's distrust and determination to curb the power of the judiciary in Hong Kong.  An independent judiciary is the hallmark of the rule of law, the only thing that still distinguishes the two systems between the Hong Kong Special Administrative Region (HKSAR) and the Mainland.  Yet China has a very different conception of the judiciary, and an independent judiciary that could challenge the sovereign power is beyond tolerance.  How this ideological difference led to the enactment of the NSL will be outlined in Part I of this chapter.  Part II will examine the impact of the NSL on judicial independence.  Judicial responses to the NSL will be discussed in Part III.  Part IV explores the room for judicial creativity under the NSL in light of decided cases.  It argues that the worst fear indeed comes from within.  By adopting a differential attitude towards any exercise of sovereign power, the judiciary will inevitably become compliant and there are already signs that the judiciary is losing public confidence in its independence.  Sadly, while the judiciary at the moment is still robust and independent, there is little room for optimism for the future of judicial independence in the HKSAR.

Albert Chen on The National Security Law of the HKSAR: A Contextual and Legal Study (new book chapter)

"The National Security Law of the HKSAR: A Contextual and Legal Study"
Albert H. Y. Chen
 in The National Security Law of Hong Kong: Restoration and Transformation,

Edited by Hualing Fu & Michael Hor (Hong Kong University Press, July 2022),
Chapter 2, pp. 20-48
Introduction: The adoption by the National People's Congress (NPC) in May 2020 of a Decision on Safeguarding National Security in the Hong Kong Special Administrative Region (HKSAR) and the enactment shortly thereafter by the Standing Committee of the National People's Congress (NPCSC) of the HKSAR National Security Law (NSL) were momentous events in the history of the HKSAR, marking a new era in the implementation of the "One Country, Two Systems" (OCTS) policy.  Critics have suggested that these acts by the government of the People's Republic of China (PRC) portend the end of OCTS.  On the other hand, defenders of the Chinese action argue that, given the riots and turmoil Hong Kong had experienced in 2019, the imposition of the NSL was necessary and was designed to and likely to ensure the continued operation of OCTS.
     This chapter attempts to understand the nature, significance, and implications of the NSL.  Part I situates the Chinese action within the relevant constitutional, legal, political and historical contexts.  Part II examines the NSL in the light of Chinese law relating to matters of national security.  Part III considers the impact of the NSL on Hong Kong's existing law.  Part IV concludes by reflecting on the significance and implications of the NSL in the context of the evolution of the OCTS policy and changing circumstances in Hong Kong.

Simon Young on Police Powers under the National Security Law: A Commentary (new book chapter)

"Police Powers under the National Security Law: A Commentary"
Simon N. M. Young

in The National Security Law of Hong Kong: Restoration and Transformation,

Edited by Hualing Fu & Michael Hor (Hong Kong University Press, July 2022),
Chapter 8, pp. 167-186
Introduction: The chapter is a commentary on the police powers provided for in the National Security Law (NSL).  It addresses three broad questions.  First, how does the NSL extend the existing scope of duties and functions of police in Hong Kong? Second, how are existing police powers in Hong Kong extended? Third, how does the NSL alter the existing mechanisms of keeping police powers in check?  The first two questions are related because the distinct duties and functions of national security police are related to the powers these officers need to discharge their duties and functions.  The third question explores the methods and mechanisms of limiting these powers.

     In many ways, these questions are novel.  Before the promulgation of the NSL on 30 June 2020, police powers in Hong Kong were either found in the common law or created by Hong Kong legislation.  This is the first occasion for national law to be directly applied to confer powers on the Hong Kong police.  How this affects the equilibrium of police and resident relations in the context of law enforcement is the focus of this chapter.  

New Book edited by Hualing Fu & Michael Hor: The National Security Law of Hong Kong: Restoration and Transformation (HKU Press)

The National Security Law of Hong Kong: Restoration and Transformation
(香港國安法：社會重建與變革)
Edited by Hualing Fu & Michael Hor
Hong Kong University Press
Published in July 2022
396 pp.

Book Description: The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong SAR (the ‘NSL’) promises to be the most important legal development in Hong Kong since the advent of the Basic Law. Many wondered in the aftermath of the NSL how the foundations of Hong Kong’s system might be changed and in what way the freedoms valued by Hong Kong may be affected. Supporters view the law as essential for the preservation of public order and the national security of China and to support the fundamental well-being of “One Country, Two Systems”, an arrangement that has been in place since the return of Hong Kong to China. Critics fear an adverse impact on the spirit of “One Country, Two Systems”.

     From a discussion initiated by the University of Hong Kong’s Faculty of Law, this collection of essays brings together leading experts on Hong Kong and Chinese law to offer an exploratory study of the NSL and its impact on the legal system and the principle of the rule of law in Hong Kong.

     The book examines the ramifications of the law in relation to constitutional matters, protecting national security and sustaining “One Country, Two Systems”, policing, judicial independence, and extraterritoriality, as well as its wider implications in areas such as academic freedom and the business environment. It explores the interaction between Hong Kong and Chinese law occasioned by the NSL. Finally, the book offers a comparative perspective of the experience of other jurisdictions that have engaged with similar security legislation.
Review: 

“This collection addresses an important and timely issue, and provides an invaluable resource for all lawyers interested in Hong Kong as they grapple with the momentous changes in its legal landscape. The collection will surely serve as a reference point for further discussion and debate.”

—Victor V. Ramraj, University of Victoria, Canada

“This book covers the most important aspects of national security issues, including freedom and security that we have always been concerned about. This timely publication not only offers the latest research results for the academic community, but also provides important reference materials for the Hong Kong society to understand the important topics of national security.”

—Zhu Guobin, City University of Hong Kong

Roda Mushkat on The Economic Fallout from Curtailing Judicial Independence: Why Tampering With Judicial Independence is an Economically Costly Strategy, in Israel and Elsewhere (Verfassungsblog: On Matters Constitutional)

"The Economic Fallout from Curtailing Judicial Independence:
Why Tampering With Judicial Independence is an Economically Costly Strategy,
in Israel and Elsewhere"
Roda Mushkat
Verfassungsblog: On Matters Constitutional
Published on 13 February 2023

Introduction: A new Israeli right-of-center government, with an ideological make-up unprecedented in the country’s history, came to power in late 2022 determined to radically reshape policies across a broad political spectrum. One of its principal targets is Israel’s Supreme Court, whose wings it seeks to clip by overhauling the current judicial selection procedures and the power the court supposedly exercises to roll back the government’s diverse and multilevel initiatives.

Benjamin Chen & Brian Libgober on Do Administrative Procedures Fix Cognitive Biases? (Journal of Public Administration Research and Theory)

"Do Administrative Procedures Fix Cognitive Biases?"
 Benjamin Minhao Chen & Brian Libgober 
Journal of Public Administration Research and Theory, 
Published on 8 February 2023
https://doi.org/10.1093/jopart/muac054

Abstract: This article uses survey experiments to assess whether administrative procedures fix cognitive bias. We focus on two procedural requirements: qualitative reason-giving and quantitative cost-benefit analysis (“CBA”). Both requirements are now firmly entrenched in U.S. federal regulation-making. Multilateral organizations such as the World Bank, OECD, and EU have encouraged their broad diffusion across many national contexts. Yet CBA, in particular, remains controversial. Supporters of CBA claim it leads to more rational regulation, with Sunstein (2000) explicitly proposing that CBA can reduce cognitive biases. By contrast, we argue that procedures should be conceptualized as imperfect substitutes subject to diminishing marginal benefits. To test and illustrate this argument, we examine how each procedure individually and cumulatively modulates the effects of gain-loss framing, partisan motivated reasoning, and scope insensitivity in a nationally representative sample. We find that one or both procedures decrease each cognitive bias. CBA is most helpful against partisan reasoning, where reason-giving does little. Both procedures are comparably effective for combatting the other biases, although in each case only one procedure produces cognitive benefits distinguishable from zero. We only find substantial synergies between the two procedures with respect to gain-loss framing. Layering on the less-useful procedure does not significantly reduce the other two cognitive biases. We hypothesize that procedures will only fix cognitive biases if they disrupt bias-inducing mental processes, and we reconcile this proposition with our findings. We conclude by relating this work to debates about the design of administrative procedures and describe a research agenda based upon rationality-improving procedures.

Douglas Arner, Giuliano Castellano, and Eriks Selga (RPg) on Financial Data Governance (Hastings Law Journal)

"Financial Data Governance"
Douglas W. Arner, Giuliano G. Castellano, and
Eriks K. Selga (RPg)
Hastings Law Journal, Volume 74, Issue 2, pp. 235-292
Published in 2023

Abstract: Finance is one of the most digitalized, globalized, and regulated sectors of the global economy. Traditionally technology intensive, the financial industry has been at the forefront of digital transformation, starting with the dematerialization of financial assets in the 1960s and culminating in the post–2008 global financial crisis era with the fintech movement. Now, finance is data: financial transactions are transfers of data; financial infrastructures, such as stock exchanges and payment systems, are data networks; financial institutions are data processors, gathering, analyzing, and trading the data generated by their customers. Financial regulation has adapted to this fast-paced evolution both by implementing new regimes and by adapting existing ones. Concomitantly, general data governance frameworks to protect a broad spectrum of interests, from individual privacy to national security, have emerged. Though these areas of law intersect, their relationship often remains unclear. This Article sheds new light in this critical area, focusing on key challenges and providing viable solutions to address them.

Kelley Loper on Intersecting Crises and Exponential Inequalities: The View from Hong Kong (new book chapter)

"Intersecting Crises and Exponential Inequalities: The View from Hong Kong"
Kelley Loper
in Exponential Inequalities: Equality Law in Times of Crisis,
edited by Shreya Atrey and Sandra Fredman (Oxford University Press, 2023),
Chapter 6, pp.97-117

Introduction: This chapter considers the limits and the potential of equality law to address inequalities arising from intersecting crises, that is, when more than one crisis occurs simultaneously or in close succession. It examines the case of Hong Kong, a Special Administrative Region (SAR) of China, which has recently faced multiple crises, with different, but interrelated, root causes and effects. While concurrent crises may have distinct features, their impacts frequently overlap, and mutually reinforce each other. As other contributions to this volume illustrate, a single crisis on its own is often enough to exacerbate existing inequalities (or produce new forms of marginalization) in many societies. Indeed, unresolved inequality itself may be characterized as 'a crisis' in its own right, whatever else is happening. Additional traumas are all the more likely to amplify disadvantage. 

Eric Ip on From the Right to a Healthy Planet to the Planetary Right to Health" (The Lancet: Planetary Health)

"From the right to a healthy planet to the planetary right to health"
Eric C Ip

The Lancet: Planetary Health, Volume 7, Issue 2
Published online in February 2023

Introduction: The rich potential of legal rights in advancing planetary health is no longer untapped. In July, 2022, the UN General Assembly adopted Resolution A/76/L.75, which recognised “the right to a clean, healthy and sustainable environment as a human right”, by a landslide of 161 votes. This historic resolution stands on the shoulders of a long line of UN initiatives, such as the Human Rights Council's Resolution 48/13, which was enacted in October, 2021, and recognised the right to a healthy environment as “important for the enjoyment of human rights”. This occurred 6 months after UN Environment, WHO, and 13 other UN entities issued a statement that described the failure to recognise the right to a healthy environment as detrimental to the attainment of the UN Sustainable Development Goals. Earlier, the Stockholm Declaration on the Human Environment 1972 affirmed that humans have “the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”. Two decades later, the Rio Declaration on Environment and Development 1992 demanded that states “conserve, protect and restore the health and integrity of the Earth's ecosystem”.

Angela Zhang et al on Improving Dispute Resolution in Two-Sided Platforms: The Case of Review Blackmail (Management Science)

"Improving Dispute Resolution in Two-Sided Platforms: The Case of Review Blackmail"
Yiangos Papanastasiou, S. Alex Yang, and Angela Huyue Zhang
Management Science
Published online on 23 January 2023
https://doi.org/10.1287/mnsc.2022.4655

Abstract: We study the relative merits of different dispute resolution mechanisms in two-sided platforms in the context of disputes involving malicious reviews and blackmail. We develop a game-theoretic model of the strategic interactions between a seller and a (potentially malicious) consumer. In our model, the seller takes into account the impact of consumer reviews on his future earnings; recognizing this, a malicious consumer may attempt to blackmail the seller by purchasing the product, posting a negative review, and demanding ransom to remove it. Without a dispute resolution mechanism in place, the presence of malicious consumers in the market can lead to a significant decrease in seller profit, especially in settings characterized by high uncertainty about product quality. The introduction of a standard centralized dispute resolution mechanism (whereby the seller can report allegedly malicious reviews to the host platform, which then judges whether to remove the review) can restore efficiency to some extent but requires the platform’s judgments to be both very quick and highly accurate. We demonstrate that a more decentralized mechanism (whereby the firm is allowed to remove reviews without consulting the platform, subject to ex post penalties for wrongdoing) can be much more effective, while simultaneously alleviating—almost entirely—the need for the platform’s judgments to be quick. Our results suggest that decentralization, when implemented correctly, may represent a more efficient approach to dispute resolution.

This paper was accepted by Victor Martínez-de-Albéniz, operations management.

Funding: S. A. Yang and A. H. Zhang acknowledge the support of the Hong Kong General Research Fund [Grant “Decentralizing Platform Governance: Innovations from China; Project 17614921].

Supplemental Material: The online appendices are available at https://doi.org/10.1287/mnsc.2022.4655.

Ryan Whalen et al on Diversity, Networks, and Innovation: A Text Analytic Approach to Measuring Expertise Diversity (Network Science)

"Diversity, networks, and innovation: A text analytic approach to measuring expertise diversity"

Alina Lungeanu, Ryan Whalen, Y. Jasmine W, Leslie A. DeChurch and Noshir S. Contractor

Network Science

Published online on 15 December, 2022

Abstract: Despite the importance of diverse expertise in helping solve difficult interdisciplinary problems, measuring it is challenging and often relies on proxy measures and presumptive correlates of actual knowledge and experience. To address this challenge, we propose a text-based measure that uses researcher’s prior work to estimate their substantive expertise. These expertise estimates are then used to measure team-level expertise diversity by determining similarity or dissimilarity in members’ prior knowledge and skills. Using this measure on 2.8 million team invented patents granted by the US Patent Office, we show evidence of trends in expertise diversity over time and across team sizes, as well as its relationship with the quality and impact of a team’s innovation output.

Hui Jing on Political Influence in the Regulation of Chinese Charitable Trusts (Canadian Journal of Law and Society)

"Political Influence in the Regulation of Chinese Charitable Trusts"
Hui Jing
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société

Published online on 26 January 2023

Abstract: With the 2016 Charity Law, Chinese legislators created a public-private hybrid model for the governance of charitable trusts. By endowing private actors with greater rights in the creation and management of charitable trusts, this hybrid model demonstrates the State’s intention of changing the functioning of the charitable trust sector from complete dependence on the State to a partnership. However, embedded in China’s particular institutional environment, the partnership relationship still bears the mark of strict government control, which is secured by granting extensive powers to regulators. This article analyzes the newly established regulatory framework for charitable trusts and outlines how regulators exercise their power in practice. The findings show that the tradition of regulators being subject to intense administrative pressures remains unchanged and that political concerns permeate every aspect of the regulation of charitable trusts.

Julius Yam's CCPL Working Paper: Response Paper to the Financial Services and the Treasury Bureau’s Public Consultation on Regulation of Crowdfunding Activities

Response Paper to the Financial Services and the Treasury Bureau’s Public Consultation on Regulation of Crowdfunding Activities

Julius Yam
February 2023

Executive Summary: The adoption of new technologies like crowdfunding in commerce and for social and political purposes has created new opportunities as well as risks. Crowdfunding fosters innovation, but can also be used for unlawful or illegitimate purposes.

      This paper responds to the Financial Services and the Treasury Bureau’s (“FSTB”) public consultation on regulation of crowdfunding activities, and considers whether it is necessary to introduce a new regulatory regime for crowdfunding. It argues that existing laws are capable of addressing most ⎯ if not all ⎯ of the risks that crowdfunding activities pose. Even if the government decides that regulatory intervention is necessary, this paper suggests that its approach should be guided by principles of regulatory certainty, minimizing user inconvenience and administrative feasibility. This enables the benefits crowdfunding offers to be maintained.

     The paper identifies issues raised by the FSTB’s proposal for regulating crowdfunding (“the proposal”) that need to be addressed. It makes six broad recommendations which are summarized as

follows:

1. Identifying the specific risks posed by non-investment-based crowdfunding in Hong Kong and developing solutions that mitigate those risks [paras 14-16].

2. Narrowing the scope of the proposal, including, for example, by [paras 24-26]:

a. Covering only fundraisers that have Hong Kong bank accounts or are companies or other entities registered in Hong Kong.

b. Targeting campaigns that are expected to raise over a certain amount.

c. Broadly interpreting the exceptions proposed.

3. Clarifying the definition, the scope of responsibility and consequences of online crowdfunding platforms under the proposal [paras 31-33].

4. Streamlining the approval system’s procedures [para 44], for example, by:

a. Simplifying application processes.

b. Making assistance from regulators readily available.

c. Creating reasonable time frames for the application process.

5. Providing sector-specific agencies with regulatory powers instead of setting up a centralized approval system [paras 45-46].

6. Setting aside the issue of crowdfunding for litigation purposes [para 50].

We hope that this paper provides a constructive platform for all stakeholders involved to formulate an approach that best meets the interests of Hong Kong as an international financial center.

HKU Law alumna Dorothy Siron (Zhong Lun Law Firm) on Regulatory Ramblings Episode 11 podcast

Regulatory Ramblings Ep11. Dorothy Siron is the Co-Managing partner of Zhong Lun Law Firm’s Hong Kong office. She heads the Litigation and Dispute Resolution practice. Being born and raised in the territory, where she trained as a solicitor, before recertifying in Canada. Dorothy is also a veteran litigator.

     Her expertise encompasses white collar and financial crime in HK and overseas, crime, cyber fraud, enforcement of foreign judgments as well as trust and probate disputes, and family law matters. In her worldwide pursuit of wrongfully obtained assets.

     As crypto-related frauds, such as those involving cryptocurrency theft, initial coin offerings (ICOs) and ransomware attacks, become more pervasive and sophisticated, lawyers, Internet security experts, regulators and law enforcement are under greater pressure to respond swiftly and effectively to a relatively new field they are still struggling to understand. Ultimately, it will require a multidisciplinary and multi-party approach to provide the victims of fraud with appropriate redress and make them whole.

     An alumna of The University of Hong Kong - Faculty of Law, she discusses crypto fraud, remedies for victims and the creation of the Hong Kong chapter of the Crypto Fraud and Asset Recovery (CFAAR) network as well as gives advice on law students about how to specialise in crypto as a lawyer.

     This podcast is brought to you by The Reg/Tech Lab, The HKU-SCF FinTech Academy and HKU-edX Professional Certificated in FinTech.  Listen to the podcast and let us know what you think.

Richard Cullen on The Hong Kong and Greater China Response to COVID-19 (new book chapter)

"The Hong Kong and Greater China Response to COVID-19"
Richard Cullen
in How COVID-19 Took Over the World: Lessons for the Future, edited by Christine Loh (HKU Press, February 2023), Chapter Eleven, pp. 195-218

Introduction: This chapter examines how the Hong Kong Special Administrative Region (HKSAR) developed and managed its response to the COVID-19 pandemic starting in early 2020. This review includes a comparative discussion of COVID-19 responses in other jurisdictions in Greater China and Singapore. 

     In June 2020, the International Monetary Fund said that the COVID-19 pandemic had generated ‘a crisis like no other’. The investigative approach in this chapter relies on an event-based evaluation of how this crisis unfolded in the HKSAR. The aim is to form an understanding of certain key elements that shaped what happened and to use this to discuss serious ongoing challenges and future pandemic-related choices.
         The concept of the social contract, discussed more fully in Chapter 6, is used below to help inform how particular approaches to dealing with the COVID-19 pandemic have evolved, especially in East Asia. The US political sociologist Barrington Moore advanced a version of ‘class analysis’ that argues that certain societal structures influence the primary protocols of a given social contract. Briefly, this argument holds that operational political regimes are shaped by the social class structure of a given jurisdiction. 

        One feature that emerges from the following discussion is how decision-making during the pandemic in Hong Kong has been significantly shaped by the priority given to securing the health and well-being of the ‘grassroots’ or the working class in Hong Kong. Given that government in pre-1997 British Hong Kong was long seen to favour the needs of the professional and elite business class—a trend continued after the creation of the HKSAR—this prioritising of the needs of the very large, vulnerable, working class in Hong Kong is not, at first glance, what one might expect. Yet it has happened—and this pattern has significantly tracked the approach adopted in the mainland. This matter is discussed again in the conclusion. 

      The next part discusses certain initial challenges and how these were addressed before examining how the first four COVID-19 waves were tackled in Hong Kong prior to discussing Hong Kong’s struggle to cope with the devastating fifth wave in early 2022. A comparative review of basic responses in certain other jurisdictions (with a focus on Greater China) follows. After this, there is a wider review of the ‘zero-COVID’ and ‘living with COVID’ approaches, including a discussion of relevant political, social, and economic aspects. Finally, this chapter considers ongoing and future challenges faced by Hong Kong, and lessons learnt from the COVID-19 pandemic. 

Hualing Fu on Pandemic Control in China’s Gated Communities (new book chapter)

"Pandemic Control in China’s Gated Communities"
Hualing Fu

in How COVID-19 Took Over the World: Lessons for the Future, edited by Christine Loh (HKU Press, February 2023), Chapter Ten, pp. 169-194

Introduction: A key global strategy to contain the coronavirus disease 2019 known as COVID-19 has been the implementation of social distancing measures (SDMs), in particular Stayat-Home (SaH) orders. Given the epidemiological consensus at the time that social distancing significantly reduces transmission and that the ability of a country to contain the spread of infections depends on the degree to which SaH orders and other SDMs are enforced and complied with, few countries, if any, have not imposed lockdowns of sorts to some degree, in particular a range of SaH orders, placing a significant part of their population, if not all, under quarantine for various durations. To a large degree, the success or failure of these measures has depended on citizens’ willingness to change their behaviours to comply with SaH orders. 

     The existing literature indicates a range of factors, both subjective and objective, to explain compliance. Subjective factors include substantive support for the measures, trust in the government, political values, and obligations to obey regulations, broadly defined to include the impact of deterrence and the sense of fairness. Some studies show that civic and moral education, and the appeal to altruism or a sense of solidarity, have some short-term positive impact on compliance with SDMs; an invocation of a degree of fear is also found to have more explanatory power in motivating behaviour change. Others have pointed out that one’s political views (Democrat or Republican in the American context) have some predictive power on whether or not one will adhere to SDMs. 

      Compliance with SaH orders can hardly be achieved without coordinated action, effective enforcement, and adequate material and psychological support on the part of the government. In the United States, while people generally felt compelled to obey the law, supported the principle of social distancing, and were concerned with the consequences of non-compliance, ‘only a minority of Americans indicate that they always follow social distancing measures’. In Italy, public authorities struggled to deal with significant non-compliance with SaH rules. Sheth and Wright reported significant violations of the SaH order in California, concluding that relying on risk aversion or altruism would not achieve compliance.  Even in Canada, where compliance was high across all provinces, there was still a substantial proportion of norm-breakers.  

      In order to secure adequate compliance, objective factors also need to be factored in, including people’s capacity to follow SaH orders, opportunities to violate the measures, costs and benefits of adherence, and social norms in terms of adherence, i.e., whether others around are also in compliance. A key factor is the practical capacity to adhere to SDMs—people do not follow rules that are hard, if not impossible, to follow. Effective implementation of SaH orders demands support for residents in isolation and monitoring to enforce the orders. 

     This chapter examines the unique role that grassroots residential social organisations in China have played in supporting and enforcing pandemic control measures. In explaining China’s performance in containing the pandemic before the sudden reverse of the restrictive policy in November 2022 after a nationwide protest COVID restrictions, commentators have attributed this to the Chinese Communist Party’s decisive move to lock down cities at a high social and economic cost and to the capacity both to mobilise human and material resources to build hospitals to isolate those infected with the virus, and to send medics and support to the most infected cities to treat patients. Another feature that has characterised the Chinese strategy and is receiving increasing attention is the broad societal participation and the ability of residential communities to enforce SDMs and, in particular, SaH orders, enabling residents to respond to the pandemic and to comply with pandemic control measures with resources and confidence. In what was dubbed by the Party as the people’s war against the COVID-19 pandemic, Chinese urban communities showcased the effectiveness of the unique governance style in inducing compliance under certain political conditions. What makes Chinese urbanites more willing to participate in pandemic control enforcement and more compliant with SaH orders? And when will the willingness to comply and participate be withdrawn?

New Book in translation by Paul KC Chung Professor Scott Veitch in Jurisprudence et al: Jurisprudence: Themes and Concepts (3rd Ed., Peking U Press)

Jurisprudence: Themes and Concepts (3rd edition) by Professor Scott Veitch, Paul KC Chung Professor in Jurisprudence, and Emilios Christodoulidis and Marco Goldoni (of the University of Glasgow) has just been published in translation by Peking University Press in January 2023. The translator introduces the book in a recent issue of the Shanghai Review of Books.

To view the book, please click here. 

Albert Chen et al : Constitutional Politics in Asia (Oxford Bibliographies)

Constitutional Politics in Asia
Kevin Y.L. Tan, P.Y. Lo, Albert H.Y. Chen
Oxford Bibliographies 
Last Modified: 12 January 2023

DOI: 10.1093/OBO/9780199756223-0354

Introduction: The term “constitutional politics” is used far more often than it is defined. Many writers who use the term do not bother defining it, presuming its meaning to be self-evident. Thus, “constitutional politics” is not a term of art and has been used to describe various political or legal phenomena. Broadly speaking, “constitutional politics” may be used to refer to events or developments in which constitutional law interacts with, provides a setting for, or to some extent shapes political processes. In a sense, it deals with that intersection between constitutional law and politics in issues that are neither wholly legal nor political but a mix of both. Plainly, this may manifest when a country drafts its own constitution or undergoes profound changes in its constitutional arrangement. It also arises if political questions are contested in the courts, or where the judiciary takes on a particularly active role in determining constitutional questions of the day, or where a particularly contested constitutional change or amendment takes place. The nature of constitutional law and constitutional adjudication is such that it is impossible to make a clear distinction between law and politics when discussing constitutional law. Key political actions, decisions, and bargains are often enshrined in constitutions and contestations as to their meanings and ambit, lending a heavy air of politics to judicial decision-making. Whether an issue is one that falls within the realm of “constitutional politics” depends on the context in which it arises. Take for example the appointment of judges. In many jurisdictions, this is an uncontroversial matter. However, in some other jurisdictions where the court is highly politicized and where the elected representatives hold power by a tenuous thread, such appointments invariably involve constitutional politics. Asia is the world’s largest continent both in terms of land mass and population. In this bibliography, we will attempt to examine and recommend the relevant literature pertaining primarily to the regions broadly described as Northeast Asia, Central Asia, South Asia, and Southeast Asia. Jurisdictions surveyed include: China, Japan, Hong Kong SAR, Macau SAR, Mongolia, North Korea, South Korea, Taiwan, India, Pakistan, Bangladesh, Sri Lanka, Maldives, Nepal, Afghanistan, Bhutan, Indonesia, Thailand, Malaysia, the Philippines, Singapore, Myanmar, Vietnam, Cambodia, Laos, Brunei, Timor Leste, Afghanistan, Kazakhstan, Tajikistan, and Uzbekistan. We are fortunate that in recent decades, academia and academic publishers have taken a keen interest in constitutional law and politics in Asian countries, as demonstrated by the publication of several series of books such as Routledge Law in Asia (Routledge), Constitutionalism in Asia (Hart Publishing), Comparative Constitutional Law and Policy (Cambridge University Press), and Constitutional Systems of the World (Hart Publishing). It is possible to discuss constitutional politics in Asia in several ways. One possibility is to take a geographical country-by-country or region-by-region approach. Another is to do so on the basis of constitutional regime types such as democracies, socialist states, monarchies, and hybrid regimes. A further way is by grouping countries according to legal traditions. Having considered these possibilities, we felt it most logical to organize the bibliography along thematic or topical lines. This will make it easier for readers to use the bibliography and head straight for the topics that most interest them. We begin by looking at some general works dealing with the subject in the first two sections. The subsequent sections of the bibliography are organized thematically.

Overview of Individual Jurisdictions: The Constitutional Systems of the World series, published by Hart Publishing (Series General Editors: Peter Leyland, Andrew Harding, Benjamin L Berger, Rosalind Dixon, and Heinz Klug), is a series of introductory books featuring monographs of individual jurisdictions with accounts of how the constitutions are developed, interpreted, and utilized in their specific contexts. The studies on Asian jurisdictions deal with the constitution-making processes as well as the most important constitutional and political contests in each of these jurisdictions within their introductory chapters. These books are a good place to start for anyone hoping to know and understand the nature of constitutional politics in these countries. The Asian jurisdictions presented in this series of books include Central Asian States (Newton 2017), China (Zhang 2012), India (Thiruvengadam 2017), Indonesia (Butt and Lindsey 2012), Japan (Matsui 2010), Malaysia (Lee 2017, cited under Separation of Powers, Executive Power, and Inter-Branch Conflicts in Asian Jurisdictions), Myanmar (Crouch 2019), Pakistan (Aziz 2018), Singapore (Tan 2015); Taiwan (Yeh 2016), and Thailand (Harding and Leyland 2011).