Wednesday, July 31, 2024

Ying Zhu on A quasi-normative conflict: Resolving the tension between investment treaties and climate action (RECIEL)

"A quasi-normative conflict: Resolving the tension between investment treaties and climate action"
Ying Zhu
Review of European, Comparative & International Environmental Law
Published online: July 2024

Abstract: The conflict between investment treaties and climate action is escalating due to recent investment arbitration cases challenging States' fossil fuel phase-out measures as violations of investment treaty obligations. As countries continue to implement climate mitigation and adaptation measures across various industries, this tension is expected to result in a rise in climate-related investment arbitration claims. The current literature has primarily presented the tension between investment and climate treaties as a vertical conflict, with investment treaties having a chilling effect on States' climate regulation. The common defence for States' regulation has been based on their ‘right to regulate’. It remains unclear whether there exists a horizontal conflict between investment and climate treaties, primarily due to the flexible nature of climate treaty obligations. However, a sovereignty-based justification fails to recognise the international obligation of climate action and is insufficient for reconciling the conflict. This article delves into the intricate nature of the conflict between States' climate measures and their investment treaty obligations and argues that the conflict exhibits a ‘quasi-normative’ nature, given the combination of binding climate obligations, permissive implementation methods and normative expectations of ambition. The article suggests that investment treaties should include clearly defined conflict clauses that outline the scope of the conflict between investment and climate treaties and establish specific mechanisms for resolving such conflicts.

Monday, July 29, 2024

Book review of Diamant Neil's Useful Bullshit: Constitutions in Chinese Politics and Society by Hualing Fu

"DIAMANT, Neil J. 2022. Useful Bullshit: Constitutions in Chinese Politics and Society. Ithaca: Cornell University Press."
Hualing Fu
China Perspective (Issue 137, 2024)

Book Review: The book, despite its provocative title and tentative claims that the Chinese Communist Party (CCP) used the constitution to manipulate emotions, that is to induce “feelings of uncertainty, jealousy, apathy, helplessness, fear, frustration, and confusion” (p. 192), sheds new light on popular constitutionalism. Ironically, it offers a hopeful perspective on the constitutional future in China, arguing that citizens can envision the utility of a constitution beyond its original intent. Focusing on the public consultation of the 1954 draft Constitution organised by the Party, the book presents a diverse range of public opinions, including frank, open, and lively criticisms that are not typically associated with authoritarian states. These opinions come from individuals with various political and economic backgrounds, actively utilising the constitution to their advantage.

The book makes three significant contributions to the academic study of the Chinese Constitution......(Please click here to view full text of the book review.)

Thursday, July 25, 2024

Raymond Wacks on Complicity or Complacency? Judging Judges in Authoritarian States (The Montréal Review)

"Complicity or Complacency? Judging Judges in Authoritarian States"
Raymond Wacks
The Montréal Review
Published online: June 2024

Courts personify the law. In the more grandiloquent accounts of the legal system, judges are depicted as its custodians, guardians of its values, sentinels of justice and fair play. They embody fairness, evenhandedness, and impartiality. And an independent judiciary is among the hallmarks of the rule of law. The jurist Ronald Dworkin memorably observed that ‘courts are the capitals of law’s empire, and judges are its princes.’

Judges are not, however, always perceived in these lofty terms. In the words of a distinguished English judge:

[T]he public entertain a range of views, not all consistent (one minute they are senile and out of touch, the next the very people to conduct a detailed and searching inquiry; one minute port-gorged dinosaurs imposing savage sentences on hapless miscreants, the next wishy-washy liberals unwilling to punish anyone properly for anything), although often unfavourable.

Judges are, like all of us, tainted by personal predilections and political prejudices. Yet occasionally it is asserted that to acknowledge judicial frailty is, in some sense, subversive, ‘as if judges’, as the illustrious American judge Benjamin Cardozo put it, ‘must lose respect and confidence by the reminder that they are subject to human limitations.’ They are, nevertheless, the archetypical legal institution. Their independence epitomises the very apotheosis of justice, and the ostensible demarcation between legislation and adjudication is one of the most cherished elements of a free society.

Lending legitimacy

Whatever their imperfections, independent judges perform another important role in a democratic society......(Please click here to view the full text of the article)

Monday, July 22, 2024

New Issue of Hong Kong Law Journal (Vol. 54, Part 1 of 2024)

HONG KONG LAW JOURNAL
Vol. 54, Part 1 of 2024
Editor-in-Chief: Prof. Eric C Ip
Deputy Editor-in-Chief: Prof. Julius Yam
Publisher: Sweet & Maxwell

TABLE OF CONTENTS


Obituary

In Memoriam: Professor Julius Yam (1992-2024), Deputy Editor-in-Chief of Hong Kong Law Journal 
Cora Chan and Hualing Fu...1

Articles
Kemal Bokhary...5
Wanli Wang...13
Han Zhu...53

Ting Zhou, Jingwen Chen and Qiuning Luan...65
Jie Long and Wenzhen Chen...85

Xingmei Zhang and Jieren Hu...109
Min Yan...133
Na Zhang and Li Liu...157
Tietie Zhang...179
Peter CH Chan and Wanqiang Wu...203
Dejian Li and Hui Jing...231

Book Review

Samuli Seppänen...285


Han Zhu on Macau and Hong Kong: Convergence or Divergence? An Analysis of the 2023 Macau National Security Law (HKLJ)

"Macau and Hong Kong: Convergence or Divergence? An Analysis of the 2023 Macau National Security Law"
Han Zhu
Hong Kong Law Journal, Vol. 54, Part 1 of 2024, pp.53 - 63

Abstract: On 18 May 2023, the Macau Legislative Assembly passed amendments to the Law on Safeguarding National Security (MANSL), drawing heavily on the 2020 Hong Kong National Security Law (HKNSL). This article examines the major modifications made to the MANSL in reference to the HKNSL, and demonstrates that the revised MANSL has deviated from its pro-liberal, narrowly defined precursor. The two distinct paradigms of national security legislation in Hong Kong and Macau reveal the increasingly muddled and complex constitutional relationship between the central authority and the two Special Administrative Regions.

Please click here to view the full article on SSRN.



Hui Jing and Dejian Li on The Accountability of Non-charitable Donation-based Crowdfunding Platforms in China (HKLJ)

"The Accountability of Non-charitable Donation-based Crowdfunding Platforms in China"
Dejian Li and Hui Jing
Hong Kong Law Journal, Vol. 54, Part 1 of 2024, pp.231 - 252

Abstract: Due to the wide application of internet tools, non-charitable donation-based crowdfunding platforms (NDCPs) serving personal requests for help have been developing rapidly in China. However, due to the lack of a specific regulatory framework for the administration of donation funds by NDCPs, risks regarding the misuse of donation funds by beneficial objects and the mismanagement of donation funds by NDCPs have been frequently realised. To address these risks, Chinese legislators intend to authorise the Ministry of Civil Affairs and related departments to establish a systemic regulatory framework for NDCPs. Against this backdrop, this article explores one specific question: What measures can be implemented to ensure that NDCPs are held accountable for their administration of donation funds in China? This is the first English-language article to explore this question in the Chinese law context. First, it analyses the emergence of NDCPs in China and identifies the problems inherent in the administration of donation funds by these NDCPs. Second, it proposes a trust law framework to regulate the administration of donation funds by NDCPs.

Please click here to view the full article on SSRN.

Sijuade Animashaun on Data Governance in China’s Digital Market Economy (HKLJ)

"Data Governance in China’s Digital Market Economy"
Sijuade Animashaun (PhD candidate)
Hong Kong Law Journal, Vol. 54, Part 1 of 2024, pp.253 - 284

Abstract: The article explores the extant literature to articulate the theories at the background of the fundamental dynamics and platform business models driving the Chinese digital economy. It further highlights the challenges and opportunities these data-driven innovators pose to Chinese consumers and financial market efficiency, particularly competition and competitiveness (monopoly), stability and consumer data privacy protection. To these concerns, it provides an overview of the consumer-centric framework in the recent Chinese Personal Information Protection Law and offers critical analysis of the possibilities and drawbacks of the newly introduced right to data portability in Art 45. The use of theories and critical analysis in the paper is intended to provide a deep understanding of the prospects and limitations of the consumer-centric framework within the Chinese data governance regime and the areas in need of further regulatory interventions.

Please click here to view the full article on SSRN.

Thursday, July 18, 2024

Congratulations to 6 HKU students being finalists in LRC Law Reform Essay Competition 2024

Congratulations to 6 HKU students being finalists in LRC Law Reform Essay Competition 2024:

Cheung Cheuk Yin Tammy
(Bachelor of Social Sciences (Government and Laws) and Bachelor of Laws)

Hong Ka Lam
(Juris Doctor)

Hu Chi Wai
(Bachelor of Social Sciences (Government and Laws) and Bachelor of Laws)

Ip Chin Victoria
(Bachelor of Social Sciences (Government and Laws) and Bachelor of Laws)

Lam Ka Ho
(Bachelor of Social Sciences (Government and Laws) and Bachelor of Laws)

Leung Ho Cheung
(Bachelor of Social Sciences (Government and Laws) and Bachelor of Laws)

Click here to view full text of their essays.

Wednesday, July 17, 2024

CMEL Newsletter (March - April 2024)

HKU CMEL has recently distributed its March - April 2024 Newsletter. It can be accessed here.

Tuesday, July 16, 2024

HKU Law Welcomes Prof. Florence Lee

Welcome to Prof. Florence Lee, who joins the Faculty of Law as an Assistant Professor. Florence completed her DPhil at the St Antony’s College, University of Oxford. Prior to her DPhil, Florence obtained her MSc in Criminology and Criminal Justice (with Distinction) at the Worcester College, University of Oxford and her BA from Fitzwilliam College, University of Cambridge, graduating with double first class honours.

Florence teaches and conducts research in criminal law and criminal justice issues. She is interested in theoretical criminal law, criminal justice, sentencing as well as questions around risk, security and justice. She has published in journals including the Criminal Law Review and Sentencing News, and she has contributed a chapter to Precursor Crimes of Terrorism: The Criminalisation of Terrorism Risk in Comparative Perspective (Edward Elgar Publishing). She is a certified mediator and was called to the English Bar as a member of the Honourable Society of Lincoln’s Inn in 2020.

Thursday, July 11, 2024

10th Asian Constitutional Law Forum: “Constitutional Change in Asia in the 21st Century”


10th Asian Constitutional Law Forum: “Constitutional Change in Asia in the 21st Century”

We are pleased to announce that the 10th Asian Constitutional Forum (ACLF) will be held in Hong Kong on December 9-10, 2024, under the auspices of the University of Hong Kong’s Faculty of Law and its Centre for Comparative and Public Law, with the support of the Association for Asian Constitutional Studies. The event is also part of the celebration of the 55th anniversary of our Faculty of Law. The overarching theme of the Forum is “Constitutional Change in Asia in the 21st Century“. We are honoured that Madam Justice Beverley McLachlin, Professor Cheryl Saunders, Professor Gerald Postema and Professor Han Dayuan have agreed to deliver the keynotes for us at this Forum.

The ACLF is held once every two years under the auspices of the Association for Asian Constitutional Law Studies. Our Faculty of Law hosted the 4th ACLF in December 2011; the Institutum Iurisprudentiae of the Academia Sinica in Taipei hosted the 9th ACLF in May 2022. The Forums provide a forum for dialogue among scholars interested in constitutional law, constitutional theory and constitutional developments in Asia.

The 10th ACLF (“the Forum”) will be divided into plenary sessions and parallel sessions. We now invite proposals to present individual papers, proposals for fully-formed panels, and applications to simply attend the Forum. Applications and proposals may be submitted by filling in the forms below and e-mailing them to Mr. Max Hsu (ccpl@hku.hk).

Please note the following:

  • The closing date for submission of proposals is 31 July 2024.

  • The Forum will be mainly in English (with several designated parallel sessions in Chinese). Proposals to present papers at the Forum and panel proposals (to be further explained below) should be written in English or Chinese. Oral presentations at the Forum should be in English (except for the parallel sessions designated to be in Chinese).

  • The proposed papers may relate to any aspect of constitutional law in Asia or related fields, and need not be limited to the general theme of the Forum (“Constitutional Change in Asia in the 21st Century”).

  • Every participant at the Forum (including paper presenters, chairpersons and discussants at the panels mentioned below who are not presenting papers themselves, as well as those (“attendees”) not in any of these roles but would like to attend the Forum) should submit a ‘Participation Proposal Form’ (which, in the case of paper presenters, includes the title of the paper and an abstract of not more than 200 words). Paper presenters will make an oral presentation at the Forum (approximately 10-15 minutes depending on the total number of speakers at the relevant panel). Submission of full papers is welcomed but not required. Each participant at the Forum may propose to submit one or two papers (i.e. it might be possible for one person to present two papers at two different sessions of the Forum).

  • Proposals to form a panel at a parallel session are welcomed. Panel organizers should submit a ‘Panel Proposal Form’. As mentioned above, each member of a panel should also (separately) submit ‘Participation Proposal Forms’ as mentioned above. Both forms can be found below. The ‘Panel Proposal Form’ should include the topic/title/theme of the panel, a description (in not more than 200 words) of the theme of the panel, the name of the organizer/chair of the panel, the names of the presenters of papers, the title of each paper, and the name of the discussant (commenting on the papers presented at the panel). The chair may also serve as a discussant, and may also serve as a paper presenter. The total number of persons speaking at the panel (including those speaking to present a paper or speaking as the discussant) should not be more than 5. As mentioned above, the same person may serve as both chair and discussant. The duration of each parallel session will be 75 minutes.

  • Panel proposers are encouraged to bear in mind gender parity in organizing panels.

  • The conference registration fee is waived for those presenting papers at the Forum or serving as chairs and discussants in panels if they submit their ‘Participation Proposal Form’ before 31 July 2024. The conference registration fee for those who are simply attending the Forum (i.e. the “attendees” mentioned above) is US$50 (HK$390). All conference participants who would like to join the Conference Dinner (on 9 Dec 2024) will be required to make a payment. Conference participants are responsible for their own travel and accommodation expenses. A list of recommended hotels will be provided in due course.

  • Inquiries may be emailed to Mr. Max Hsu (ccpl@hku.hk).
The Forum will be an excellent opportunity for you to meet fellow scholars in the field of Asian constitutional law to discuss topics of common interest. We hope you will be able to join us in Hong Kong!


Faculty of Law, The University of Hong Kong
April 2024

Appendix:
1. Participation Proposal Form
Please either (1) download the form [Link] and email it to us as mentioned above, or (2) fill in the form online [Link]
2. Panel Proposal Form
Please either (1) download the form [Link] and email it to us as mentioned above, or (2) fill in the form online [Link]


第十届亚洲宪法学论坛: “二十一世纪亚洲的宪法变迁”

第十届亚洲宪法学论坛(10th Asian Constitutional Law Forum)将于2024年12月9至10日于香港大学举行。此次会议由香港大学法律学院及香港大学比较法与公法研究中心主办,为香港大学法律学院建院55周年的庆祝活动之一。本次大会主题是:“二十一世纪亚洲的宪法变迁”(Constitutional Change in Asia in the 21st Century)。

亚洲宪法学论坛每两年在亚洲不同城市举行,每次论坛都有数十名或过百名来自亚洲以至西方国家的学者参加。2024年12月在香港大学法律学院举行的此次论坛将分为全体会议以及分组会议,申请参加论坛的报名表格见于本通告的附件,请填写附件表格并电邮给 Max Hsu 先生(ccpl@hku.hk)。

会议主办方现公开征集参加此次论坛的论文建议(可用中文或英文撰写,内容包括论文题目以及不超过中文400字或英文200字的摘要)以及组织分组会议的小组的建议。如有意参加本次论坛,请注意以下几点:

• 提交报名表格(包括“参加论坛表格”和“组织小组表格”)的截止时间为2024年7月31日。

• 会议语言主要是英文,但部分分组会议可采用中文发言(但会议主办方不提供翻译)。

• 会议论文可以是关于亚洲宪法学研究或相关领域的任何方面,并不限於本次论坛的主题(“二十一世纪亚洲的宪法变迁”)。

• 所有参加会议的学者(包括论文报告人、下述主持人、评论人,以及参加本论坛但不担任论文报告人、主持人或评论人的其他参加者)须提交“参加论坛表格”。会议主办方特别欢迎参加者自行组成小组(panel)参加分组会议(parallel sessions)。“参加论坛表格”及“组织小组表格”均见于本通知的附件。

• 我们将安排参加本次论坛的论文报告人在会议中作口头发言(约10-15分钟,视乎有关分组会议的报告人人数而定);大会不硬性要求参加者提交论文全文。每位参加本论坛的学者最多可提交两篇论文建议(即可最多在两个分组会议上担任论文报告人)。

• 参加自行组织的分组会议的每位学者仍须提交“参加论坛表格”,并同时由组建该分组会议的小组的学者提交“组织小组表格”;“组织小组表格”的内容包括分组会议的题目和不超过中文400字或英文200字的简介、主持人(即组建该小组的学者)及评论人姓名丶各位报告人(在分组会议宣读论文者)的姓名丶每位报告人的论文题目。分组会议的主持人可以同时兼任该分组会议的评论人及/或报告人之一。主持人、评论人及报告人均须另外提交上述“参加论坛表格”。在分组会议以报告人或评论人身份发言者的总人数不应超过五人,分组会议的时间长度是75分钟。会议主办方特别鼓励组建有男女学者共同参加的分组会议。

• 本次论坛的报名费(登记费)为港币390元,在7月31日前提交“参加论坛表格”的论文报告人、主持人和评论人可获豁免报名费。12月9日会议晚宴的所有参加者须缴付有关餐费,详情稍后公布。参加本论坛的旅费及住宿费自理,稍后将提供港大附近的酒店的资料。

• 如有查询,请电邮香港大学法律学院徐皓(Max Hsu)先生(电邮地址:ccpl@hku.hk)。

本次论坛将是研究亚洲宪法学的中外学者共聚一堂并探讨共同关心的研究议题的宝贵机会。我们期待在香港见到您!

香港大学法律学院
2024年4月

附件:
1. 参加论坛表格
您可以 (1) 下载此表 [链接] 并将其直接发送到上述电邮, 或者 (2) 直接填写在线问卷 [链接]
2. 组织小组表格
您可以 (1) 下载此表 [链接] 并将其直接发送到上述电邮, 或者 (2) 直接填写在线问卷 [链接]

Wednesday, July 10, 2024

HKU Law Welcomes Prof. Weilin Xiao

Welcome to Prof. Weilin Xiao, who joins the Faculty of Law as an Assistant Professor.

Weilin Xiao’s academic interests include family law, comparative law, and legal history, with a focus on the East Asian region. In 2021, Weilin’s paper, “Expansion and Restriction: A Comparative Study of Modernization of Family Laws in Japan and China,” was awarded the Colin B. Picker Graduate Prize by the American Society of Comparative Law.

His J.S.D. dissertation, currently undergoing revision for publication as a monograph, concerns the divergent approaches toward modernizing family laws in Japan and China. Through a comparative perspective, Weilin seeks to answer why Japan and China coordinated legal transplantation and their own customary family laws differently, and how such choices shaped the modernization of those countries in the twentieth century.

Weilin obtained his J.S.D. degree from Yale Law School in 2024, following his LL.M. degree earned in 2019. Weilin was a Yale Legal History Forum Fellow in 2023. During the 2022–2023 academic year, Weilin was a Yale Fox International Fellow at the School of Law, Waseda University. He spent the 2019–2020 academic year as a Visiting Researcher at the Institute for Advanced Studies on Asia, the University of Tokyo, under the International Dissertation Research Fellowship awarded by the Yale MacMillan Center. Prior to Yale, Weilin completed his LL.B. and first LL.M. degree at Peking University.

Monday, July 8, 2024

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Wednesday, July 3, 2024