HKU Legal Scholarship Blog: November 2023

Friday, November 17, 2023

Eric Ip on An Emergent Planetary Health Law (International & Comparative Law Quarterly)

"An Emergent Planetary Health Law"
Eric Ip
International & Comparative Law Quarterly, Volume 72, Issue 4, p. 1047 - 1067
Published online: October 2023

Abstract: The health of the planet and its life forms are under threat from anthropogenic climate change, pollution and biodiversity loss, and the extreme weather events, heatwaves and wildfires that accompany them. The burgeoning field of planetary health studies the interplay between humanity and the Earth's biosphere and ecosystems on which human health depends. Scholarship on law from a planetary health vantage point remains scarce. This article fills this gap by delineating the conceptual building blocks of a planetary health law, which, in its latent form, is dispersed across various hard and soft sources of international environmental law and global health law that converge on the right to a healthy environment, and, to a lesser extent, rights of nature emerging in various domestic jurisdictions. It elucidates how the fragmented regimes of international environmental and global health law could be developed in more coherent ways, driven by an overarching concern for the integrity of the planetary foundations of life.

Thursday, November 16, 2023

Jamieson Kirkwood on Characterization (and Registration) of a “BRI Dispute” (Asian Journal of International Law)

"Characterization (and Registration) of a “BRI Dispute”"
Jamieson Kirkwood
Asian Journal of International Law, First View
Published online: October 2023

Abstract: This article explores the terms “BRI dispute” and “BRI jurisprudence”. It undertakes a practical and theoretical analysis that considers whether “BRI disputes” have distinct and visible characteristics and are capable of being identified in a legal sense. This is important since practitioners – arbitration centres and law firms – use the term broadly and without specific criteria. By exploring the customary usage and the approach of legal scholars to the term, presenting examples of “BRI disputes” and examining their unique features, and constructing a theoretical approach (utilizing the concepts of ratione materiae, ratione loci, ratione temporis, and ratione personae; and considering the jurisprudence of the ICSID), this article moves from a broad to a narrow analysis to develop both a definition and a system of registration of “BRI disputes” for use by academics, practitioners, and policymakers.

Tuesday, November 14, 2023

Massimo Lando on The Limits of Deduction in the Identification of Customary International Law (Asian Journal of International Law)

"The Limits of Deduction in the Identification of Customary International Law"
Massimo Lando
Asian Journal of International Law, First View
Published online: October 2023

Abstract: Much scholarship on customary international law has examined the merits of induction, deduction, and assertion as approaches to custom identification. Save for where international tribunals identify custom by assertion, writers have viewed custom identification that does not rely on evidence of State practice and opinio juris as an example of deductive reasoning. However, writers have stated that, at best, deduction is reasoning from the general to the particular. This article draws on legal philosophy to define the contours of deductive reasoning and argues that pure deduction, namely deduction not combined with other forms of reasoning, is an unsound approach to custom identification. This argument is tested by reference to cases of custom identification by the International Court of Justice, categorised according to three types of deduction: normative, functional, and analogical. This article also explores the authority and utility of custom identification by pure deduction and its impact on content determination.

Monday, November 13, 2023

Ying Xia on Environmental Advocacy in a Globalising China: Non-Governmental Organisation Engagement with the Green Belt and Road Initiative (Journal of Contemporary Asia)

"Environmental Advocacy in a Globalising China: Non-Governmental Organisation Engagement with the Green Belt and Road Initiative"
Ying Xia

Journal of Contemporary Asia

Published online: October 2023

Abstract: Although the Belt and Road Initiative presents growth opportunities for less developed regions, it also raises concerns about negative environmental impacts and sustainability. Despite proliferating academic interest in China’s efforts to green the Belt and Road Initiative, the engagement of non-governmental organisations in policymaking has been understudied. This research marks the first empirical effort to examine the interactions between environmental non-governmental organisations and the Chinese government under the banner of a green Belt and Road Initiative. It finds that non-governmental organisations have employed four strategies to engage with the state-led initiative – civil diplomacy, development partnership, service provision, and outside reform – and that development partners and service providers have been more active than the others in shaping China’s Belt and Road Initiative-related environmental policies. This article elucidates civil society actors’ opportunities and constraints in greening the Belt and Road Initiative and non-governmental organisations–government dynamics in a non-democratic context.

Friday, November 10, 2023

Calvin Ho on Generative AI and the Foregrounding of Epistemic Injustice in Bioethics (The American Journal of Bioethics)

"Generative AI and the Foregrounding of Epistemic Injustice in Bioethics"
Calvin Ho
The American Journal of Bioethics
Volume 23, 2023 - Issue 10
Published online: October 2023

Introduction: OpenAI’s Chat Generative Pre-training Transformer (ChatGPT), Google’s Bard and other generative artificial intelligence (GenAI) technologies can greatly enhance the capability of healthcare professionals to interpret data across different data sources and locations with a simple query, as well as advance medical research through its ability to generate synthetic data (The Lancet Regional Health-Europe 2023). However, the performance of these technologies depends on the data they are trained on. Existing data may be seriously biased due to a lack of gender, ethnic, racial, social and/or religious diversity, and is a concern that the Global Alliance for Genomics & Health (2023) seeks to address in a recent initiative to promote global diversity in datasets within genomic research. If used in clinical medicine, the results from GenAI technologies present serious normative challenges that Cohen (2023) has clearly and succinctly set out, quite aside from the direct impact that they could have on human health and wellbeing.

While it should come as no surprise to anyone that emerging health technologies tend to present normative and regulatory challenges, many of the “new-ish” problems that are anticipated to arise from the use of GenAI technologies in healthcare and research foreground intransigent concerns with epistemic injustice. I provide three reasons why GenAI’s clinical use is a big deal in bioethics. First, it highlights that bioethics does not adequately account for the impact that power dynamics and system biases have in knowledge production and dissemination. Marginalized individuals and communities still lack the capability to participate…Click here to read the full text.

Wednesday, November 8, 2023

Jiahui Duan on Sexual Harassment in Irregular Chinese Workplaces: Business Dinners, Team-Building Activities, and Social Media (Law & Social Inquiry)

"Sexual Harassment in Irregular Chinese Workplaces: Business Dinners, Team-Building Activities, and Social Media"
Jiahui Duan
Law & Social Inquiry
First View , pp. 1 - 32
Published online: October 2023

Abstract: Much of the social and economic inequality that sexual harassment perpetuates is created in the workplace. But research has not always acknowledged the fluid and changing nature of workspaces. This article argues that irregular workspaces and activities—bars and other social drinking sites at which yingchou (business drinking activities) take place, team building, and the WeChat social media platform—are significant sites of sexual harassment in China. These irregular workplaces play a significant role in working life in China, and their informality has made them prone to sexual harassment in the context of deeply entrenched gender norms and vertical power hierarchy.

Tuesday, November 7, 2023

Hualing Fu interviewed on Innovating Legal Education at HKU (Hong Kong Lawyer)

"Innovating Legal Education at HKU"
Doris Yu
Hong Kong Lawyer
October 2023

As Dean of the Faculty of Law at The University of Hong Kong, Fu Hualing is keenly aware of the importance of innovation in legal education. His job is important in guiding and shaping the next generation of legal professionals. Effectively doing this requries hiring high quality professors, restructuring curricula and incorporating technology into course work that allows both faculty and students to keep up with new emerging practice areas and the changing demands on the legal profession. The past few years have been marked by change, and those that lead the education of legal professionals have to adapt to the new environments, the confluence of Chinese law and common law, new technologies and new ways of working for the legal profession...Click here to read the full interview.

Monday, November 6, 2023

Jamieson Kirkwood on Constructing a Theoretical Framework for a Rules-Based Approach in BRI Dispute Resolution (Sing JLS)

" Constructing a Theoretical Framework for a Rules-Based Approach in BRI Dispute Resolution"
Jamieson Kirkwood
Singapore Journal of Legal Studies
Published online: September 2023

Abstract: This article constructs a theoretical framework that sets out the basis for instituting a rules-based approach in BRI dispute resolution. This article is a response to the fact that there have been numerous calls for instituting a rules-based approach in BRI dispute resolution, but there has been little written in terms of laying a theoretical foundation for doing this. In such way, this article fills this gap by analysing what a rules-based approach to dispute resolution means, exploring what the BRI actually is and considering why rules are understood to be necessary in BRI dispute resolution. Although the article principally adds to the ongoing academic discussion regarding the reform of BRI dispute resolution it is also of use to practitioners and policy makers active in this field.

Friday, November 3, 2023

Massimo Lando on Reframing the English Foreign Act of State Doctrine (The Modern Law Review)

"Reframing the English Foreign Act of State Doctrine"
Massimo Lando
The Modern Law Review (Vol. 86, no. 5, Sep 2023)
Published online: 29 September 2023

Abstract: This article proposes a way to reframe the English foreign act of State doctrine. The doctrine is an established rule of English common law but its contours and application remain ill-defined, despite the Supreme Court's restatement in Belhaj v Straw. The doctrine in its current form emerges from the accretion of precedents over some 350 years, but still lacks a unifying framework bringing its different strands together. This article argues that English courts should reframe the doctrine by reference to the distinction between elements of a rule that are embedded in its definition, called ‘limitations’, and elements of a rule that exist separately from it, called ‘exceptions’. This distinction has been developed in legal philosophy to classify the elements of wrongs as definitional elements, constitutive of liability, and defences, defeating liability. Reframed according to this distinction, the English foreign act of State doctrine can be streamlined into one, single rule, instead of the three rules set out in Belhaj v Straw. This reframing has implications for the doctrine's characterisation as one of justiciability, abstention or restraint, and its compatibility with the duty to do justice, including under the European Convention on Human Rights.

Thursday, November 2, 2023

Benjamin Chen et al on The Silent Influence of Guiding Cases: A Text Reuse Approach (The ECLR Hub)

"The Silent Influence of Guiding Cases: A Text Reuse Approach"

Benjamin Minhao Chen, Zhiyu Li, David Cai and Elliott Ash
The ECLR Hub

Published online: September 2023

Guiding Cases no. 19 and no. 24 both concern traffic accident liability disputes and are among those most often referred to.

What are Guiding Cases?

As a matter of doctrine, cases are not a source of law in socialist legal systems. In the People’s Republic of China, judges are generally not required to adhere to or cite prior judicial decisions. These principles have, however, been qualified—some say violated—by the Supreme People’s Court’s designation of Guiding Cases to be followed by all courts when adjudicating similar disputes.

The Guiding Case (指导性案例) system was introduced in 2011 “[i]n order to summarize adjudication experiences, unify the application of law, enhance adjudication quality, and safeguard judicial impartiality” (Provisions of the Supreme People’s Court Concerning Work on Case Guidance, 2010, English here). Guiding Cases are based on judgements selected from courts nationwide and address a wide variety of legal topics ranging from breach of contract to homicide to unfair competition to liability for traffic accidents. A Guiding Case consists of seven key sections, namely “Title”, “Keywords”, “Main Points of the Adjudication”, “Related Legal Rules”, “Basic Facts of the Case”, “Results of the Adjudication”, and “Reasons for the Adjudication”. Beginning in 2015, the “Main Points of the Adjudication” of Guiding Cases – abstract rules distilled by the adjudication committee of the SPC from the original judgments – must be referred to (参照) by courts at all levels when adjudicating similar cases (Detailed Rules for the Implementation of the ‘Provisions of the Supreme People’s Court Concerning Work on Case Guidance’, 2015, English here).

Guiding Cases have therefore been characterized by some as “a new source of ‘judge-made law’ in China” (Liu 2021) and ‘the remarkable terminus a quo’ of the trend ‘toward embracing case law’ (Wang 2020). The true impact of Guiding Cases on judicial practice has however been called into question by many legal scholars and commentators. Previous studies almost uniformly find that citations to Guiding Cases are sparse, and many Guiding Cases are not cited at all (Daum 2017; Zhang 2018). The ‘extremely low’ incidence of citations is taken as symptomatic of ‘the dysfunction of the [G]uiding [C]ase system as a type of case law’ (Wang 2019) and as proof of the incongruity of case-based adjudication in China (Ahl 2014; Zuo & Chen 2015; Finder 2017; Jia 2016).

How to measure their influence?

However, citations might not be an accurate measure of the influence of cases, especially in jurisdictions that do not recognize judicial decisions as a source of law...

Please click here for full article.

Wednesday, November 1, 2023

Richard Cullen reviews C. L. Lim's Treaty for a Lost City: the Sino-British Joint Declaration (HKLJ)

Review Article: "Treaty for a Lost City: the Sino-British Joint Declaration"
Richard Cullen
Hong Kong Law Journal, Vol. 53, Part 2 of 2023, pp.797 - 813

Abstract: This book provides a welcome, well-informed review of the essential nature of the Joint Declaration and its political-legal role over time. China maintains that once it implemented the “basic policies” spelled out in the Joint Declaration it had already performed its treaty obligations in full. The case challenging this view, drawing on the Joint Declaration, is not composed of empty arguments. But these are essentially moral (and debatable) arguments linked to the (international law) legal language found in the Joint Declaration. This case is actively shaped to fit within the on-goingongoing Western media campaign arguing that China is failing to meet geopolitical behaviour standards stipulated by the West, which are embodied in that narrative. The intensifying political role of the Joint Declaration is, thus, set to be confirmed as the primary reason it will remain significant, looking forward.

Edward Lui on First Aid Administrative Law: Patching the Conditional Discharge Regime (HKLJ)

"First Aid Administrative Law: Patching the Conditional Discharge Regime"
Edward Lui
Hong Kong Law Journal, Vol. 53, Part 2 of 2023, pp.701 - 731

Abstract: The conditional discharge regime – contained in s 42B of the Mental Health Ordinance (Cap 136) – is an important aspect of Hong Kong’s mental health law. It provides that patients falling within its scope may be discharged into the community, whilst being held subject to specified conditions. But this regime has been subjected to significant academic criticism, including in relation to its relative lack of substantive and participatory safeguards for the patients involved. This article argues that in the absence of statutory reform, the well-established principles of administrative law can offer a valuable mitigation of some of the problems observed under the regime.

Johannes Chan on Responsive Judicial Review without Democracy: The Hong Kong Experience (HKLJ)

"Responsive Judicial Review without Democracy: The Hong Kong Experience"
Johannes Chan

Hong Kong Law Journal, Vol. 53, Part 2 of 2023, pp.507 - 538

Abstract: This article argues that Professor Dixon’s theory of responsive judicial review works reasonably well for Hong Kong between 1990 and the mid-2010s, even when the monopoly of anti-democratic powers, one of the democratic dysfunctions, is a systemic issue in Hong Kong. However, without a democratic system, responsive judicial review may be unstable and precarious when the political climate changes. When the conditions for responsive judicial review no longer exist, judicial choices are dominated by considerations of law and order at the expense of protecting core democratic values and in so doing, the judiciary is running the risk of becoming abusive.

Ju Liu on The Ouster Clause and the Amendment to the Legal Practitioners Ordinance: an Analysis (HKLJ)

"The Ouster Clause and the Amendment to the Legal Practitioners Ordinance: an Analysis"
Ju Liu (PhD candidate)
Hong Kong Law Journal, Vol. 53, Part 2 of 2023, pp.451 - 467

Abstract: In late 2022, Beijing issued its first interpretation of the National Security Law of Hong Kong, concluding that the admission of overseas counsel to appear in national security-related cases would involve national security and thus a certificate issued by the Chief Executive would be required. In May 2023, the Legal Practitioners (Amendment) Ordinance 2023 passed all the legislative proceedings and was gazetted on 12 May. In accordance with Beijing’s interpretation, the Ordinance introduces a parallel criterion for admitting overseas counsel in national security cases. This article looks into s 27F of the amended Ordinance, an ouster clause excluding any judicial challenge against a Decision made by the Chief Executive concerning the admission of overseas counsel. First, this article identifies three types of ouster clauses operating in Hong Kong. It then contends that, even though art 47 of the National Security Law is intertwined with s 27F of the amended Ordinance, the former does not necessarily supply the latter with full precluding force, and the latter gains its ousting force independently. Finally, this article argues, by reference to the English legal jurisprudence, that the Hong Kong courts might still be able to judicially review the Chief Executive’s Decision, but the scope would be rather limited and of low intensity.