Ryan Whalen et al on Clearing Dense Drug-Patent Thickets (NEJM)

"Clearing Dense Drug-Patent Thickets"
Bernard Chao, Ryan Whalen, Aaron S. Kesselheim, and S. Sean Tu
The New England Journal of Medicine
Published online: November 2024

Brand-name drug manufacturers in the United States charge high prices during market-exclusivity periods, enabled by patents that block direct competition from generics and biosimilars. When bringing a generic or biosimilar drug to the market, potential competitors must avoid infringing on each patent protecting the brand-name drug by waiting for relevant patents to expire, making product-design choices to avoid overlap with patented inventions, or challenging patents and having them invalidated by a court. Successful drugs are frequently protected by a large number of often-overlapping patents, known as a patent thicket. These patent portfolios make it difficult for generics or biosimilars to enter the market and can extend market-exclusivity periods.

Under U.S. law, companies aren’t supposed to be awarded a patent if an invention is obvious, given existing knowledge. But there is one important exception...(click here to read the full text on NEJM)

David Kwok on Auction Houses in Britain and China: The History and the Law (Art Antiquity and Law)

"Auction Houses in Britain and China: The History and the Law"
David Kwok
Art Antiquity and Law (2024, Vol 29, Issue 3, pp.238)
Published online: October 2024

Abstract: The article "AUCTION HOUSES IN BRITAIN AND CHINA: THE HISTORY AND THE LAW" discusses the historical development of art auctions in Britain and China. In Britain, art auctions have a long history dating back to the seventeenth and eighteenth centuries, reflecting the rise of the middle class during the industrial revolution. In contrast, art auctions in China are a more recent phenomenon, emerging in the late 1980s and early 1990s after the country's transition to a market economy. Both English and Chinese laws protect auction houses from claims brought by buyers, emphasizing the principle of caveat emptor. The legal obligations of auction houses in both countries are similar, with courts often finding auction houses not liable for claims brought by buyers. The article highlights the complexities and uncertainties surrounding the art market, emphasizing the subjective nature of attributions and the challenges of tracing authenticity over time.

Xin He on The Judicial System of China (Oxford University Press)

The Judicial System of China
Xin He
Oxford University Press
Published in November 2024

Abstract: Grounded in both English- and Chinese-language sources, The Judicial System of China is a systematic study of Chinese courts after Xi Jinping took power and thoroughly reformed China’s judiciary. How have Chinese courts come to the shape they are in today? How are decisions made on the major categories of cases—civil, criminal, and administrative? What drives and explains the behavior of the judges? How do the common people view the law and courts? How are the legal professions developed, and what are their roles in court? How do the judges interact with other actors—their political bosses, the prosecutors, and the lawyers? Different from the judicial independence perspective and the rights-protection approach, this book presents a governance model for understanding the operation of the Chinese court system, under which the courts have two overarching characteristics—policy implementation and legitimacy enhancement. The various policies that the courts are tasked with implementing, and the approaches the courts use for enhancing the judiciary’s legitimacy— and, by extension, that of the state, have played key roles in the courts’ evolution. This book is as much an account of Chinese courts in action as a social ethnography of China in the midst of momentous social change.

Bifan Zhao won the First Prize for excellent papers in the seminar “The Integration of Socialist Core Values into the Rule of Law”

Congratulations to Mr. Bifan Zhao, our Ph.D. student, on receiving the First Prize for excellent papers in the seminar “The Integration of Socialist Core Values into the Rule of Law.” On behalf of all prize winners, he presented his paper, “The Meanings and Functions of Socialist Core Values in Legal Interpretation and Reasoning: Analysis Based on 5,028 Chinese Civil Documents,” at East China University of Political Science and Law (ECUPL) on 30 November 2024.

The seminar was jointly guided by the Publicity and Education Bureau of the Publicity Department of the CPC Central Committee and the Legislative Planning Office for the Legislative Affairs Commission of the National People’s Congress Standing Committee. This seminar was also jointly hosted by the Publicity Department of the CPC Shanghai Municipal Committee, the Legislative Affairs Commission of Shanghai Municipal People’s Congress Standing Committee, Shanghai Municipal Bureau of Justice, Shanghai Law Society, and ECUPL on 30 November 2024 in Shanghai. The awarded articles were selected from nearly 200 submitted articles after two rounds of anonymous reviews.

Mr. Bifan Zhao uses natural language processing techniques to count the number of phrases containing “Socialist Core Values” and construct a relevant semantic network to disclose the specific functions and potential problems of invoking Socialist Core Values in legal reasoning. Specifically, Socialist Core Values can play substantive functions in legal reasoning, such as moral evaluation, legal interpretation, and loophole filling. In addition, there are some problems, such as the lack of distinction between judicial reasoning and the judgment basis, the unclear relationship between the Socialist Core Values and the basic principles of law, and the inadequacy of judicial reasoning. He also proposes some measures to solve these problems.

Congratulation to Former AIIFL Postdoctoral Fellow Dr Kuzi Charamba

Congratulations to Former AIIFL Postdoctoral Fellow Dr Kuzi Charamba, whose sustainable finance startup “Tese”, was one of the three winning teams in the “G20 TechSprint 2024 – Technology for the Planet challenge”, a joint initiative between the G20 Presidency and the BIS (Bank for International Settlements) Innovation Hub to seek out best-in-class technological innovations aimed at solving challenges facing the global central banking and regulatory community. This year 15 shortlisted teams from around the world competed to develop innovative technological solutions to address sustainable finance challenges related to the United Nations Sustainable Development Goals (SDGs).

More details are available here.

Stephanie Biedermann awarded Early Career Teaching Award 2024

Congratulations to Ms. Stephanie Biedermann who was awarded the Early Career Teaching Award under the University of Hong Kong Teaching Excellence Award Scheme (TEAS) 2024.

Stephanie is a Senior Lecturer in the Faculty of Law, the Programme Director of the Master of Laws in Human Rights, and is a US-licensed lawyer. She specializes in international law, immigration, forced migration, and discrimination issues, particularly for refugees, asylum-seekers, and migrant workers. Her legal experience includes work in the US, the Middle East, and Hong Kong, with a focus on public interest law and access to justice issues as they relate to individual client services, policy decisions, and the development of clinical opportunities for law students. Stephanie teaches across a variety of subject areas at HKU. She is the course coordinator for the Legal Research and Writing programme for LLB students, is Co-Director of the Rule of Law Education project (ROLE), and also teaches courses in human rights and refugee law.

In her time at HKU, Stephanie has emphasized the practical applications of classroom learning, to encourage students to use their creativity, to take initiative to design their own projects, and to excite them about what is possible when they implement what they have learned. Stephanie’s teaching seeks to create opportunities for students to practice and demonstrate a full range of legal skills. She believes that balanced learning requires not only subject matter knowledge, but also practical awareness, understanding the needs of an audience or client, and developing good judgment. She has also incorporated the use of GenAI into to the legal writing curriculum to encourage thoughtful, critical use of this new tool. 

The Teaching Excellence Award Scheme (TEAS) aims to recognise, reward and promote excellence in teaching at the University. Under the Scheme, there are four categories of awards, viz. University Distinguished Teaching Award (UDTA), Outstanding Teaching Award (OTA), Early Career Teaching Award (ECTA) and Teaching Innovation Award (TIA). 

Click here to view the list of 2024 TEAS Winners.

Richard Cullen on Dicey in Hong Kong (new book chapter)

"Dicey in Hong Kong"
Richard Cullen
in Twenty-First Century Perspectives on the Scholarship of AV Dicey, edited by Catherine Marshall and Céline Roynier (Bloomsbury Publishing, December 2024), Chapter 13

Published online: December 2024

Abstract: When one reviews authoritarian jurisdictions with a positive history of adhering to Rule of Law shaped governance systems, Hong Kong is rightly regarded as an exemplar. British Hong Kong (BHK) provides a remarkable story of the effective development and consolidation of such a system, which has continued to apply since July, 1997, when BHK became the Hong Kong Special Administrative Region (HKSAR) within the People’s Republic of China (PRC) under the One Country Two Systems (OCTS) governing principle. This chapter: reviews how “Diceyan Constitutionalism” was fundamental, within the pivotal context of “Chinese Familism”, in shaping the development of governance institutions and pivotal operational procedures within this British Colony; and discusses how that system has coped with the most recent, radical political structure reforms imposed on Hong Kong by Beijing (following an extended period of exceptionally violent political disorder) as Hong Kong actively comprehends its future as an inalienable part of China.

Yanru Chen won the Second Prize in the 2024 Annual Conference of the Chinese Society of International Economic Law

Congratulations to Ms Yanru Chen, our Ph.D. student, on receiving the Second Prize for Excellent Papers for Young Scholars in the “2024 Annual Conference of the Chinese Society of International Economic Law”. Her paper “International Regulatory Cooperation Towards Good Regulatory Practices: Reflections Based on the Evolution of Norms” was presented during Panel I on the topic of “Theoretical Issues of International Economic Law with Chinese Characteristics”, on 2 November 2024.

This Annual Conference was hosted by the Chinese Society of International Economic Law (CSIEL) and jointly organized by the Law School of Xiamen University, from 1 to 3 November 2024, in Xiamen, Fujian Province. The awarded articles underwent anonymous review.

New Chinese book by Sida Liu: Letters on Sociology of Law (Peking University Press)

法社會學信札(Letters on Sociology of Law)
劉思達(Sida Liu)
北京大學出版社(Peking University Press)
出版日期 (Publication date)：Nov 2024

簡介(Description): 本書採用類似於《波斯人信札》的書信文體，通過一位法科學生與一位社會學教授的書信對話，深入淺出地闡釋法律社會學的發展歷史和經典理論、法律社會學的研究方法、論述法律系統的社會結構與變遷以及一些經典實證研究等，並應用這些理論與方法對中國法律實踐的種種現實問題進行探討，在看似大相徑庭的學術知識之間建立起關聯。

本書不同於一般的學術專著和傳統教材，更像是一個學習法律社會學的路線圖。文后還按信件順序給出了參考文獻，讀者可以按圖索驥汲取更多營養，不必拘泥於某種對理論或者學術傳統的通常解釋。

除了介紹和解讀法社會學，還有一個面向，就是書信體帶來的“符號互動主義”的展現。通過兩個人的對話，使理論的源流、意涵和指向更清晰，同時也展示了年輕學者的一些學術人生中的困惑、掙扎與努力。而且通信的過程，就是不斷建構兩個人之間的關係，這種人與人之間的關係是一直動態變化着的。

Shahla Ali's Project Update with the Institute for Transnational Arbitration (ITA)

With a growing attention to inclusivity and representation in the context of increased global integration, Professor Shahla Ali's research is inspired by the necessity to expand inclusivity and collaboration in the development of global legal instruments, as well as in the study and participation in cross-border dispute resolution and in the resolution of infrastructure disputes.

Her work includes "Forming Transnational Dispute Settlement Norms. Soft Law and the Role of UNCITRAL''s Regional Centre for Asia and the Pacific", "Comparative and Transnational Dispute Resolution", "Diversity in International Arbitration", and a recent article "The Seeming Paradox of Prevention".

To learn more about this, and to hear Professor Ali talk about her research on access to justice, watch this short video prepared for the ITA Academic Council "What I Am Working On" project.

(Please click here to view the original post prepared by ITA on LinkedIn.)

Po Jen Yap on Dialogic Judicial Review and First World Autocracies (new book chapter)

"Dialogic Judicial Review and First World Autocracies"
Po Jen Yap
in Madhav Khosla (ed),Vicki C Jackson (ed),Redefining Comparative Constitutional Law: Essays for Mark Tushnet (Oxford University Press),Chapter 19,pp.274 - 292
Published online: November 2024

Abstract: Dialogic or weak-form review is the only viable and effective path for courts operating in First World autocracies. The judicial use of strong-form review to address problems posed by sedition laws and restrictions on the franchise—as Mark Tushnet suggests—would be counterproductive as this would only be to the detriment of the courts. At the same time, I argue that dialogic review is not judicial abdication. I will also show how weak-form review has enhanced rights protection in Singapore and Hong Kong, and has imposed soft but meaningful controls on state power in these autocracies. Precisely because these autocracies want to remain First World, the perceived independence of the courts must be preserved for their governments to retain talent and continued investments in the economy. Governments in First World autocracies are sensitive to global businesses’ perception of the regime’s commitment to the rule of law as that directly impacts the entity’s economic future. This is unlike military dictatorships and banana republics, where the rent-seeking behavior of autocrats is driven primarily by the self-interest of its cabal. Therefore, in First World autocracies, so long as the courts respect the regime’s plenary agenda-setting powers, the government will in turn acquiesce to the judiciary’s calibrated show of force to preserve rights.

Julian Nowag and Carla Valeria Patiño on Enough of Fairness: Pre-Emption and the DMA (new book chapter)

"Enough of Fairness: Pre-Emption and the DMA"
Julian Nowag and Carla Valeria Patiño
in Annegret Engel(ed),Xavier Groussot(ed),Gunnar Thor Petursson(ed),New Directions in Digitalisation: Perspectives from EU Competition Law and the Charter of Fundamental Rights,(Springer, November 2024),pp. 61 - 74
Published online: November 2024

Abstract: This chapter looks at the DMA through the prism of pre-emption and the relationship between EU and national law. It explains the fundamentals of pre-emption in EU law and shows the consequences for the DMA and national rules that are to ensure fairness in the digital market space. It argues that fairness in the digital market with regard to business users and consumers has been exhaustively regulated by the DMA. Thus, existing and future national rules that aim to address additional fairness matters are pre-empted and cannot be applied to gatekeepers. The only option Member States have is to introduce further fairness related matters into their competition laws which elevates the well-known debates about the relationship between competition law and fairness to a new level.