HKU Law Welcomes Prof. Adrian Kuenzler

Welcome to Prof. Adrian Kuenzler, who joins the Faculty of Law as an Associate Professor.

Adrian Kuenzler is Associate Professor at the University of Hong Kong Faculty of Law and Affiliate Fellow at the Information Society Project, Yale Law School. His research focuses on technology, innovation policy and competition, and examines problems in antitrust, intellectual property and consumer law from a comparative and interdisciplinary perspective. Adrian graduated from the University of Zürich (M.A., Ph.D.) and from Yale Law School (LL.M., J.S.D.). He has served as a Professor in the Faculty of Law at Zürich University and has held visiting academic positions at New York University School of Law, the Max Planck Institute for Research on Collective Goods, Yale Law School, ETH Zürich, the European University Institute, the Weizenbaum Institute for the Networked Society and Oxford University. Adrian has held visiting professorship positions at Universidad de San Andrés (Buenos Aires) and the University of Münster. He has also been a Robert S. Campbell Visiting Fellow at Magdalen College, Oxford.

Adrian’s research on technology and digital markets is regularly relied on by governments and international organizations in debates around the interplay of competition law and data privacy and his work on how the design of online platforms shapes users’ behavior has been drawn upon by policymakers, think tanks and news outlets in different jurisdictions.

Adrian has received a number of prizes for his teaching and research, including the Young Scholar Prize of the International Association for Philosophy of Law and Social Philosophy and the University of Zürich Certificate of Distinction in Teaching. He has received major research grants and fellowships for his work from the Swiss National Science Foundation and Society in Science, among others. Adrian has also been invited to serve as an independent expert in international court proceedings.

Hong Kong Law Journal (Vol. 53, Part 3 of 2023)

HONG KONG LAW JOURNAL

Vol. 53, Part 3 of 2023

Editor-in-Chief: Professor Rick Glofcheski

Associate Editor: Professor Albert Chen

Publisher: Sweet & Maxwell

TABLE OF CONTENTS

Analysis

Foreign Law in Common Law Courts of Appeal: From Hong Kong to Jersey and Cayman Islands 

The Hon William Gummow AC...907

Articles

The Legal Response to Drugs and Social Supply: The Case of Hong Kong

Karen A Joe-Laidler, Kate Lowe, Simon NM Young and Tin H Cheung...913

A Tribute to the Late Sir Tl Yang (1929–2023)

Trailblazing the Colonial Judiciary: A Tribute to Hong Kong’s First Chinese Chief Justice

Chen Li...941

China Law

An Examination of the Power of the Central People’s Government to Issue Directives to the Chief Executive under the Hong Kong Basic Law

Fan Xiang...967

At the Crossroads? Assessing SEP Injunctive Relief under Patent Law and Competition Law in China

Bo Yuan and Peicheng Wu...995

OECD/G20 Pillar Two and Tax Laws of China: How to Harmonise? 

Xiaojing Cui and Yuan Liu...1027

Empirical Study of the Role of the Chinese Guiding Case System in Chinese Law 

Dong Yan and Jeffery E Thomas...1057

Focus: The Empirical Turn in Chinese Legal Studies

Introduction

Benjamin M Chen...1081

Empirical Legal Studies Made in China: An Empirical Study on Legal Doctoral Dissertations

Jinhua Cheng...1085

Quantitative Legal Research Based on China’s Adjudication Documents: The End of the Golden Era?

Ke Li and Yang Feng...1119

Problems and Misunderstandings in Chinese Empirical Legal Research: The Example of Papers Involving Judgment Documents 

Yu Zeyang and Yu Mengyao...1141

Monopoly and Fragmentation: Data Collection in Chinese Empirical Legal Study

Qin Ma...1171

The Application and Limitations of Survey Methods in the Quantitative Assessment of Justice in China

Hongqi Wu and Lin Haibin...1195

Trade-off Between “Big Data” and “Small Data”: a Simulation Study on The Application of Random Sampling in Chinese Empirical Legal Studies

Yiwei Xia...1215

Data Still Needs Theory: Collider Bias in Empirical Legal Research

Benjamin M Chen and Xiaohan Yin...1241

How to Do Empirical Legal Studies without Numbers? 

Sida Liu and Sitao Li...1259

Book Review

Haochen Sun, Technology and the Public Interest

Tap Huang...1275

Simon Young et al on The Legal Response to Drugs and Social Supply: The Case of Hong Kong (HKLJ)

"The Legal Response to Drugs and Social Supply: The Case of Hong Kong"
Karen A Joe-Laidler, Kate Lowe, Simon NM Young and Tin H Cheung
Hong Kong Law Journal, Vol. 53, Part 3 of 2023, pp.913 - 939

Abstract: Drug exchanges are often embedded in non-commercially oriented, informal arrangements among social networks. Such exchanges are based on a social supply paradigm where reciprocity and sharing are integral to obtaining and consuming drugs. This raises questions as to how the justice system responds to this type of engagement with the market. While some countries have accommodated to the realities of social supply with a comparatively lenient approach, others have taken a different route. We examine Hong Kong’s legal response to the emergence of social supply in the context of its common law system and prohibitionist drug policies. We draw on 96 legal cases involving social trafficking. In keeping with the common law system, Hong Kong courts draw on UK cases in considering social trafficking, but diverge in its rationale, finding that “trafficking is trafficking”. As such, the courts have not viewed social trafficking as a mitigating factor as elsewhere, but it has also not been seen as an aggravating factor. Our Analysis suggests that the mitigating effect of self-consumption is being offset by the consideration of latent risk. This legal response leads us to conclude that the emergence of social supply has not challenged but reinforced Hong Kong’s prohibitionist policies.

Benjamin Chen and Xiaohan Yin on Data Still Needs Theory: Collider Bias in Empirical Legal Research (HKLJ)

"Data Still Needs Theory: Collider Bias in Empirical Legal Research"
Benjamin Chen and Xiaohan Yin (PhD candidate)
Hong Kong Law Journal, Vol. 53, Part 3 of 2023, pp.1241 - 1258
Abstract: Big data is characterised not only by the amount but also the kinds of information that can be created, stored, and processed. This explosion of data, accompanied by the capacity to analyse them, has catalyzed large n, quantitative approaches to the study of law and legal institutions. But neither size nor quality guarantees the validity of causal inferences drawn from observational data. For example, although the inclusion of control variables can help isolate causal effects, not all variables are good controls. Bad controls are not harmless and can create the impression of a causal relationship where none exists. This spurious association is called collider bias. We introduce the concept of collider bias and give motivated examples of how it can arise in empirical legal research. The selection of good controls requires knowledge and assumptions about causal structures. Theory and domain knowledge are essential for quantitative analysis, even in the era of big data.

Please click here to view the full article on SSRN.

Sida Liu and Sitao Li on How to Do Empirical Legal Studies without Numbers? (HKLJ)

"How to Do Empirical Legal Studies without Numbers?"
Sida Liu and Sitao Li
Hong Kong Law Journal, Vol. 53, Part 3 of 2023, pp.1260 - 1273

Abstract: How to do empirical legal studies without numbers? This article addresses this methodological question at a crossroads of empirical legal studies in China. It does not aim to provide a normative defence for the value of qualitative methods. Instead, we demonstrate how a ‘scientific turn’ in the 2010s has made empirical legal research in China almost exclusively about quantitative research and then illustrate how qualitative methods can also benefit from the rise of digital technology. We draw on three recent studies as examples to compare and contrast the methodological challenges and opportunities for doing empirical legal studies without numbers: (1) Ke Li’s book Marriage Unbound as an example of ethnography in combination with archival research; (2) Sitao Li’s article ‘Face-Work in Chinese Routine Criminal Trials’ as an example of trial video observation; and, (3) Di Wang and Sida Liu’s article ‘Performing “Artivism”’ as an example of online ethnography. The discussion shows that, despite the rising popularity of ‘big data’ computational analysis in recent years, quantitative methods are not necessarily more technologically advanced than qualitative ones. Technology-assisted interviews and ethnography can open up many new possibilities in data collection and data analysis, sometimes resulting in more exciting and innovative research.

Please click here to view the full article on SSRN.

Yating Lin on ‘China’s Disequilibrium’ in ISDS: an interplay of China’s trade-offs and domestic institutions to investment treaty policy (Journal of International Dispute Settlement)

"‘China’s Disequilibrium’ in ISDS: an interplay of China’s trade-offs and domestic institutions to investment treaty policy"

Yating Lin (PhD candidate)
Journal of International Dispute Settlement, idae017
Published online: 6 August 2024

Abstract: This article explores China’s limited engagement in Investor-State Dispute Settlment (ISDS) despite its significant foreign investment inflows, termed “China’s Disequilibrium”. Despite having liberal ISDS provisions in its Bilateral Investment Treaties(BITs), China has faced only nine claims and has never lost a case. Using a political-economic framework, the article examines domestic factors influencing China's stance on ISDS, highlighting its shift from ideological resistance to acceptance. The paper argues that China’s ambivalent mood to ISDS render it to adopt a bifurcated strategy: internationally, it incrementally liberalizes investor-State Arbitration to protect Chinese investors abroad; domestically, it relies on local remedy to protect foreign investors and discourages the use of investment treaty arbitration. This approach contrasts with other jurisdictions and partly explains China’s Disequilibrium in ISDS.

Holly Leung on The Extended Continental Shelf in Nicaragua v Colombia: Identifying a Customary Rule Based on CLCS Submissions? (Ocean Development & International Law)

"The Extended Continental Shelf in Nicaragua v Colombia: Identifying a Customary Rule Based on CLCS Submissions?"
Holly Leung (PCLL Graduate)
Ocean Development & International Law (Volume 55, 2024 - Issue 1-2)
Published online: 25 July 2024

Abstract: In Nicaragua v Colombia, the International Court of Justice (ICJ) identified a rule in customary international law which prohibited a state from asserting an extended continental shelf (ECS) that encroaches on maritime areas within 200 nautical miles (NM) of another state. While the ICJ reached this conclusion based on the practice of states parties’ submissions to the Commission on the Limits of the Continental Shelf (CLCS), in which a vast majority of states parties had refrained from asserting an ECS that extends within the 200 M line of another state, the ICJ’s approach appears flawed. On an inductive examination of the existing CLCS submissions, it is evident that while a number of states have exercised restraint when asserting their ECS, the CLCS submissions do not indicate sufficiently widespread and uniform state practice nor opinio juris supporting the identification of a customary rule as asserted by the ICJ.

HKU Law Welcomes Prof. Kelvin F.K. Low

Welcome to Prof. Kelvin F.K. Low, who joins the Faculty of Law as a Professor. 

Kelvin read law at the National University of Singapore and Oxford University. Before his current appointment at the University of Hong Kong, he held previous appointments at National University of Singapore, Singapore Management University, and City University of Hong Kong. 

Kelvin's research interest spans the field of private law but with a particular interest in property, broadly defined. He has published internationally with leading journals such as the American Journal of Comparative Law, the International & Comparative Law Quarterly, Legal Studies, Lloyd’s Maritime and Commercial Law Quarterly, the Law Quarterly Review, the Melbourne University Law Review, and the Modern Law Review. He is a co-author (together with Michael Bridge, Louise Gullifer, and Gerard McMeel) of the 2nd and 3rd editions of The Law of Personal Property, and co-author (together with Tang Hang Wu) of the 3rd and 4th editions of Tan Sook Yee’s Principles of Singapore Land Law. His works have been cited by the courts in Australia, Canada, England and Wales, Hong Kong SAR, Malaysia, New Zealand, and Singapore as well as law commissions and law reform bodies in Australia, England and Wales, Ireland, New Zealand, Scotland, and Singapore.

Taorui Guan on Personalizing Patent Law with Social Credit Data (JIPEL)

"Personalizing Patent Law with Social Credit Data"
Taorui Guan
NYU Journal of Intellectual Property and Entertainment Law (Vol 13, no. 2, spring 2024)
Published online: July 2024

Abstract: In the era of digitization, data has become a pivotal force driving advancements across various sectors and transforming legal systems worldwide. China, in particular, is exploring new data-driven governance models. A prime example of this is its integration of the patent system with the Social Credit System (SCS). This paper aims to fill the void in theoretical research on this subject, moving beyond the prevalent narrative of the SCS as either a tool of state surveillance or a reputation-based regulatory mechanism. Instead, it introduces the concept of personalized law in the context of China’s patent system.

The paper suggests that the integration of social credit data within China’s patent law system aligns the system’s operations more closely with its objectives. This offers a personalized approach that provides individual market entities with tailored incentives based on their unique characteristics. To analyze this approach, the paper proposes a novel four-part analytical framework: profiling, personalization, communication, and adjustment. The paper then applies this framework to the two core mechanisms that result from the integration of the patent system with the SCS: the Reward and Punishment Mechanism and the Tiered Regulation Mechanism. This analysis reveals that these mechanisms are still in the stage of crude personalization and grapples with challenges such as narrow data scope, lack of transparency, and over-penalization.

The paper discusses two implications of personalized law reform: the redistribution of power toward administrative bodies—which necessitates a rebalancing of powers to avoid abuse and protect individual rights—and the possible expansion of the law’s functions—which might not align with existing normative theories and might have unintended consequences. The process of personalization requires scholars and policymakers to adapt and refine these theories as well as to identify and eliminate unintended consequences.