Trevor Wan on Unshackling from Shadows of the Anisminic Orthodoxy: Reconceptualising Approaches to Ouster Clauses in Hong Kong (AsJCL)

"Unshackling from Shadows of the Anisminic Orthodoxy: Reconceptualising Approaches to Ouster Clauses in Hong Kong"
Trevor Wan
Asian Journal of Comparative Law, First View, pp. 1 - 27
Published online: October 2024

Abstract: Ouster clauses have perennially borne the mantle of a ‘litigation minefield’, where clashes between legislative and judicial powers unfold in open fora. Recent jurisprudential advancements in the United Kingdom and Singapore demonstrate how judicial approaches to ouster clauses can evolve in the face of constitutional developments. Hong Kong has, however, remained muted while these jurisprudential advancements bear fruit in other parts of the common law world, notwithstanding the fact that its constitutional framework, umpired by the Basic Law, has been in existence for over twenty-five years. This article argues for the need to reconceptualise approaches to ouster clauses in Hong Kong, grounded firmly in its post-1997 constitutional framework. Drawing on comparative jurisprudence, it presents a spectrum of approaches, animated by the dynamic interplay between various ‘macrocontextual’ and ‘microcontextual’ factors, ranging from a localised version of Anisminic, remedial interpretation, and invalidation of ouster clauses on the grounds that they impermissibly affront the constitutional right of access to courts, allocation of judicial power, and constitutional supremacy.

Congratulations to Professor Michael Ng!

Congratulations to Professor Michael Ng on his promotion to full professorship! Professor Ng is a legal historian specialising in modern China and colonial Hong Kong history. He has an impressive publication record and has published in top-tier peer-reviewed journals both in the legal and history field. Professor Ng's work, which has been cited by renowned legal scholars and historians at top international universities, has earned him strong international recognition. This is a testament to the global impact of his research. He is a valuable member of our faculty, and this promotion is a well-deserved recognition of his achievements.

HKU Law’s Inaugural ASEAN Academic Fellow Lecture

LL.M. Arbitration and Dispute Resolution

HKU Law’s Inaugural ASEAN Academic Fellow Lecture

Resolving Disputes Regarding Business Involvement in Arbitrary Land Takings: Lessons from Cambodia

Speaker: Dr. Sao Socheata
Date: 31 October 2024
Time: 1:00pm – 2:00pm
Venue: Room 824, 8/F, Cheng Yu Tung Tower, Centennial Campus, HKU
Moderator: Prof. Shahla Ali
For Registration, please click here.

About the Speaker:

Socheata Sao is the Deputy Director of the English Language-Based Master of Law (ELBML) Programme at the Royal University of Law and Economics in Phnom Penh, Cambodia. She teaches Legal Research and Business and Human Rights. Socheata is also a member of the Global Business and Human Rights Scholars Association, a business and human rights researcher, and a commercial arbitrator at the National Commercial Arbitration Centre of Cambodia (NCAC). Socheata completed her Ph.D. in Law at Monash University, Australia. Her thesis assessed avenues for access to effective remedies for land-grabbing victims in the Association of Southeast Asian Nations (ASEAN). She obtained her LL.M. in International Commercial Law (Distinction) from the University of Kent (the United Kingdom) and bachelor’s degrees in Law (Cambodia), Business Economics (Cambodia), and Business Administration (France). Prior to pursuing her Ph.D. at Monash, she worked as a legal associate in the corporate practice group at a leading regional law firm in Phnom Penh.

Edward Lui on A limited case for the closed material procedure: natural justice, open justice and the clear advantage variation (Legal Studies)

"A limited case for the closed material procedure: natural justice, open justice and the clear advantage variation"
Edward Lui
Legal Studies
Published online: October 2024

Abstract: The closed material procedure (CMP) – ever since its introduction to English law – has been subjected to a very significant amount of academic criticism. But over time, the CMP has become increasingly settled as a fixture in English law. Whilst the existence of the CMP per se in English law seems settled, the extent of its deployment is not. Given this development, it seems important and constructive to examine whether – and the conditions under which – a CMP can ever be normatively justified, all things considered. Two propositions will be made. First, a common argument for the CMP – the maximising argument – does not demonstrate that the CMP is normatively justified, all things considered, for it does not sufficiently mitigate the two main objections to the CMP, based respectively on the principles of natural justice and open justice. Secondly, where the clear advantage variation is deployed – ie when a CMP allows the excluded party to make use of material that: (a) clearly advantages him; and (b) would otherwise be unavailable for the court's consideration – both objections are sufficiently mitigated. In such a case, the CMP is normatively justified, all things considered. This constitutes a limited normative case for the CMP.

Daisy Cheung on The fatal shooting of a man with mental illness shows Hong Kong police need a better response to such crises (HKFP)

"The fatal shooting of a man with mental illness shows Hong Kong police need a better response to such crises"
Daisy Cheung
Hong Kong Free Press
Published online: October 2024

The recent incident in North Point involving the death of a man with mental disorder at the hands of police responding to an emergency at his home is tragic, but unfortunately not uncommon worldwide.

In jurisdictions all over the world, police often act as first responders in cases involving mental health crises, even though in most cases they severely lack training on how best to support such individuals. A quick search reveals the names of countless vulnerable individuals who met untimely deaths due to interactions with police over just the past year. 

As the number of such deaths increase, places around the world are beginning to take a long, hard look at the suitability of police involvement in situations involving people with a mental disability.

Many countries are calling for police reform, and in some cases, even the police themselves have concluded that they may not always be the most appropriate responders, since their presence may be an “escalating factor” itself.

What lessons can Hong Kong learn from the experiences of these countries? First, the issue of police inadequacy in the face of mental health crises must be recognised and squarely confronted, rather than swept under the rug as merely another incident where the fatality was unfortunate, but the use of force justifiable in the circumstances. 

Concerns about how police in Hong Kong deal with people with mental disability are not new. In 2015, an autistic individual was wrongfully charged with manslaughter......(Please click here to view full text.)

Yi Tang on General Public Policy Exceptions in International Investment Agreements (IIAs): Opportunities and Challenges in Times of Global Health Crisis (AJWH)

"General Public Policy Exceptions in International Investment Agreements (IIAs): Opportunities and Challenges in Times of Global Health Crisis"
Yi Tang (PhD Candidate)
Asian Journal of WTO & International Health Law and Policy
Published online: Oct 2024

Abstract: This article delves into the efficacy of general public policy exceptions within International Investment Agreements (hereinafter “IIAs”) against the backdrop of the unprecedented global health crisis precipitated by the COVID-19 pandemic. By empirically surveying the use of general public policy exceptions in IIAs, the research highlights a discernible trend towards the incorporation of such exceptions in new-generation IIAs, aimed at reconciling investment protection with the host state’s regulatory autonomy for public welfare. However, the examination of arbitral jurisprudence reveals the tribunals’ challenges in coherently and effectively applying these exceptions, often resulting in outcomes that diverge from the contracting states’ expectations and the objectives underlying these treaty innovations. This analysis is particularly important and timely in the context of the COVID-19 crisis, where the potential surge in investor-state disputes arising from pandemic-related regulatory measures poses pressing questions about the efficacy and scope of general public policy exceptions. However, the prevailing uncertainties in arbitral interpretations may cast a significant shadow on the prospective utility of these exceptions. In light of these challenges, this article calls for a holistic reform of IIAs and a recalibration of arbitral practice, advocating for enhanced engagement with World Trade Organization (hereinafter “WTO”) jurisprudence and the provision of explicit clarifications within IIAs to ensure that general public policy exceptions fulfil their intended purpose.

Please click here to view the full article on SSRN.

New Issue of Hong Kong Law Journal (Vol. 54, Part 2 of 2024)

HONG KONG LAW JOURNAL
Vol. 54, Part 2 of 2024

Editor-in-Chief: Prof. Eric C Ip

Publisher: Sweet & Maxwell

TABLE OF CONTENTS

Articles

Never say Never: Equity’s Reach in the Modern Age
Lord Briggs of Westbourne...291

Crime and Punishment – The Birth of Justice?
Kemal Bokhary...309

All Roads Lead to Rome? Carving an Inclusive Path towards Global Regulation of State-owned Enterprises
Ying Bi...317

Liability of Remote Controller in Unmanned Ship Carriage
Zikun Chen...351

Bridging the Gap: Exploring the Co-ordination between China’s Foreign Investment Legal Regime and International Investment Treaty Practice
Tianjie Gu...363

When China’s Wealth Management Products Become Vulnerable to Runs: From Liquidity Management to Sponsor Support
Longjie Lu...395

Error of Law in Hong Kong Administrative Law: A Doctrinal Reappraisal
Edward Lui...429

Revisiting the Concept of Effective Nationality in International Investment Law
Kim Anh Dao and Hyokwon Kim...453

The Recording and Review System in Hong Kong: Formation, Evolution and Improvement
Cheng Sun and Fan Xiang...475

Improving the Management System of the Guangdong-Macao in-Depth Co-operation Zone in Hengqin According to Law
Shihai Zhu, Lejuan Zhou and Zhengmin Xu...503

Tying up Your Camel: Rethinking “Self-determination” for Digital Financial Consumer Data Protection
Zi-he Guo and Charlie Xiao-chuan Weng...525

Reconceptualising the Role of Actual Causation in Criminal Law
Dennis J Baker...555

Kemal Bokhary on Crime and Punishment – The Birth of Justice? (HKLJ)

"Crime and Punishment – The Birth of Justice?"
Kemal Bokhary
Hong Kong Law Journal, Vol. 54, Part 2 of 2024, pp.307 - 313

Abstract: Even more than they treasure justice, people abhor injustice. There is substance in the proposition that crime and punishment is the birthplace of judicial justice, for historically leaders paid more attention to suppressing offences than to resolving private disputes. The quality of criminal justice was a measure of the leader. Self-help between subjects was not frowned upon. But the taking of revenge by the victims of crime was always prohibited, for the taking of such revenge puts the law out of office. And it would lead to anarchy. The administration of criminal justice stood sorely in need of improvement. Much improvement has been made. But much more remains to be made. Two of the improvements made were surprisingly long in coming. One of these is an accused person’s right to counsel. If defence counsel’s incompetence deprives the accused of a fair trial, that is a ground for quashing a conviction. Prosecutors’ duty is to prosecute but they must do so fairly. Their failure to do so can lead to the quashing of a conviction. The other improvement that was surprisingly late in coming is the conferring of the right of criminal appeal. Exonerating the innocent and calling the guilty to account is the objective of the criminal justice system. Convicting the innocent and letting the guilty go free are both abominations. But the former is the worse. The presumption of innocence and the prosecution’s burden of proving guilt beyond reasonable doubt are directed to avoiding it. Sentencing involves bearing in mind various different interests and sentiments. The reformation of offenders is the main, but no sole, objective of punishment. Comparing Dudley and Stephen’ case with the Conjoined Twins’s case as thought-provoking. Stimulating thought is one of the best ways way of teaching.

Edward Lui on Error of Law in Hong Kong Administrative Law: A Doctrinal Reappraisal (HKLJ)

"Error of Law in Hong Kong Administrative Law: A Doctrinal Reappraisal"
Edward Lui
Hong Kong Law Journal, Vol. 54, Part 2 of 2024, pp.427 - 450

Abstract: English administrative law has once distinguished between jurisdictional and non-jurisdictional errors of law; establishing an error of law simpliciter was insufficient for an applicant. It is now trite that English administrative law has abandoned this historical distinction; an error of law simpliciter is reviewable. This investigation asks: has Hong Kong administrative law followed the modern English position, or has the historical distinction been retained? In an analysis that has been of influence in the academic literature, Thomson has concluded that the Hong Kong authorities are ambiguous on this point --- and that the doctrinal status quo is perforce problematic. This investigation reappraises Thomson’s conclusion, and contends that the doctrinal status quo is in fact clear: a clear line of authorities from the Hong Kong Court of Final Appeal affirms that an error of law simpliciter is reviewable, and the historical distinction is no longer relevant for Hong Kong administrative law.

Angus Young and Eurus Yiu on China Evergrande: Liquidation of a Chinese Company Listed in Hong Kong (International Corporate Rescue)

"China Evergrande: Liquidation of a Chinese Company Listed in Hong Kong"
Angus Young and Eurus Yiu
International Corporate Rescue (Vol 21 (2024) - Issue 5)

Synopsis: A legal action to wind up China Evergrande was triggered in Hong Kong where it is listed. This created several legal challenges because it tests the enforcement of Hong Kong court order in China. Furthermore, Hong Kong being an international financial hub, it has wider implications for the territory's reputation. This article will briefly probe into the legal actions that triggered the liquidation of the company, discuss the impact it is has on other stakeholders, the enforceability of Hong Kong's court order in China, and consider what future reforms is needed to improve creditors protection.

New book by Anupama Sharma: Implementation of Rights for Crime Victims in Theory and Practice Lessons from India

Implementation of Rights for Crime Victims in Theory and Practice Lessons from India
Anupama Sharma (PhD graduate)
Routledge
Published in September 2024
224 pp.

Description: There are many different ways in which victims’ rights can be implemented. The implementation pattern may vary depending on the type of rights a jurisdiction offers and the purposes it seeks to achieve via these rights. However, there are a few basic aspects that remain common to the variation in the implementation patterns across jurisdictions. This book provides a theoretical and practical overview of such implementation patterns, their features and underlying differences. It presents theoretical models capturing the different types of implementations of victims’ rights and the purposes that they can achieve. The book also offers a framework comprising the essential aspects involved in implementation of rights such as drafting and presentation, their visibility and accessibility to victims, enforcement of rights in case of breach, and assessment and evaluation of rights to ensure constant monitoring and improvement in implementation. The framework is tested by a sample case study in New Delhi, India, which showcases how the framework can be molded and applied to assess the existing implementation of victims’ rights and the scope for reform. The book will be of interest to those working in the areas of criminal justice, criminal procedure, victimology and human rights.

Scott Veitch et al on The Inhuman in the Human (CLT)

"The Inhuman in the Human"
Kathleen Birrell, Daniel Matthews and Scott Veitch
Critical Legal Thinking
Published online: 16 Sep 2024

"Law and the Inhuman" was the title of a workshop held at the University of Tilburg Law School in April this year. It addressed themes of climate change and the Anthropocene, of non-human agency, and of how the category of the human is becoming increasingly destabilized in legal and political thought and practice. In the dialogue linked here Professor Scott Veitch (HKU Law) and Dr Daniel Matthews (formerly HKU Law, now at Warwick University) explore the general theme through a discussion of "The Inhuman in the Human".

Please click here to view full text.

Weixia Gu became the first Chinese scholar to be appointed to the Academic Council (AC) of the Institute for Transnational Arbitration (ITA)

Congratulations to Prof. Weixia Gu on her appointment as the Academic Council of the Institute for Transnational Arbitration.

In June 2024, Weixia became the first Chinese scholar to be appointed to the Academic Council (AC) of the Institute for Transnational Arbitration (ITA), which is comprised of the top academics in the field of international arbitration. You can view the AC’s current membership online here.

Weixia Gu and Robin Hui Huang on China’s recognition and enforcement of foreign securities judgments against overseas-listed Chinese companies (OUP)

“China’s recognition and enforcement of foreign securities judgments against overseas-listed Chinese companies”
Robin Hui Huang, Weixia Gu
Journal of International Economic Law, Volume 26, Issue 3, September 2023, Pages 577–594
Published online: 26 May 2023

Abstract: Over the past decades, a growing number of Chinese companies have been listed overseas, notably in the USA and Hong Kong. They are subject to the securities regulation of listing places and can be sued thereunder against their securities misconduct. As overseas-listed Chinese companies usually have their main assets located in China, it is important that Chinese courts recognize and enforce foreign securities judgments. However, there are many difficulties in this area, which undermine the efficacy of the regulation of cross-border securities transactions. In quest of solutions, this article assesses the possibility of suing Chinese companies in the offshore financial centres where they are incorporated, finding that there would be similar issues with judgment enforcement in China. It also examines the viability of using arbitration as an alternative, arguing that arbitration may only supplement, rather than substituting, court litigation for resolving securities disputes. China should consider signing a bilateral treaty with the USA, clarifying the principle of reciprocity, and ratifying the 2005 Hague Choice of Court Convention and even the 2019 Hague Judgment Convention. Hong Kong is also advised to expand its current judgment recognition arrangement with Mainland China to cover securities judgments and join the relevant international conventions.