Sunday, July 9, 2017

Peter Chau Critiques Loss-Based Retributive Justifications of Punishment (OJLS)

"Loss-Based Retributive Justifications of Punishment"
Peter Chau
Oxford Journal of Legal Studies
May 2017, Advance Article
Abstract: Retributive justifications of punishment that focus on the gain of offenders, like those offered by Herbert Morris and Jeffrie Murphy, have been subjected to sustained and persuasive criticism. Three authors (Daniel McDermott, Richard Lippke and Göran Duus-Otterström) have, in their fairly recent works, offered retributive justifications of punishment that focus instead on the loss suffered by victims. I will argue that these loss-based justifications, despite their ingenuity, suffer from serious defects.

Saturday, July 8, 2017

Hualing Fu on President Xi Jinping's Visit to Hong Kong (ChinaFile)

Hualing Fu contributed to a ChinaFile Conversation on President Xi Jinping's recent visit to Hong Kong.  The full article can be accessed here.  In Hong Kong, a proper dose of cynicism is healthy and helpful in understanding Chinese politics, but excessive cynicism dampens Hong Kong’s spirit and impedes a constructive dialogue that is much needed for Hong Kong to move out of the current impasse. Did President Xi come to Hong Kong to deliver a harsh and intimidating message? Clearly not and there is no need for him to do so.
     Did Xi wag his finger at Hong Kong? Yes he did. He scolded those who advocate Hong Kong’s independence, he reaffirmed China’s broadly defined bottom-lines in relation to the authority of Central Authorities, national security and sovereignty; and he gave warnings to those who may use Hong Kong as a basis for political and religious infiltration and who contemplate and envisage color revolution. This is the first time for a state leader to use the term of infiltration/sabotage to capture the perceived risk that Hong Kong may pose to China. It is a significant expansion of the doctrinal concern that Hong Kong serves as a potential subversive base from which to challenge the Chinese political governance system.
     Having expressed these security concerns, Xi delivered three positive messages that are significant for Hong Kong. First, Xi reminded the people in Hong Kong of the city’s glorious past and of the fact that Hong Kong has made outstanding contributions to China. Xi could have gone one step further to make a stronger statement that China’s economic miracle would not have been possible without Hong Kong’s helping hands. Xi said China acknowledges and appreciates Hong Kong’s contributions. That thank-you note from Xi resonates well in Hong Kong. Personally, witnessing all the attacks and occasional insults from the Mainland in the past few years, I have been waiting for someone to acknowledge Hong Kong’s historical contributions. And Xi has now just done this... Click here to read the full article.

Hualing Fu's Essay on the Future of Human Rights Lawyering in China (Made in China)

"What Future is there for Human Rights Lawyering in China?"
Hualing Fu
Made in China
2017, Vol 2, Issue 2, pp 12-15
Abstract: In the aftermath of the latest wave of repression, Chinese human rights lawyers have started to reflect on their past successes and failures. They also began to express anxiety, frustration, and confusion about their work. Ultimately all the soul searching boils down to one question: is there a future for human rights lawyering in China as we know it? To answer this question, this essay analyses the practices of human rights lawyering, and examines the circumstances in which socio-legal mobilisation may fail or succeed.  Click here to download the full issue.

Friday, July 7, 2017

New Issue of Asia-Pacific Journal on Human Rights and the Law, 2017, Vol 18(1)

Editors-in-Chief: Simon NM Young and Kelley Loper
Publisher: Brill, Leiden

Articles

1. Inaccessible Public Bus Services in Thailand
Naparat Kranrattanasuit
Volume 18, Issue 1, pages 1 - 27, 2017

2. Indonesia’s Human Rights Court: Need for Reform
Yustina Trihoni Nalesti Dewi, Grant R Niemann and Marsudi Triatmodjo
Volume 18, Issue 1, pages 28 - 47, 2017

3. Expanding the Role of the Philippine Commission on Human Rights for the Protection of Gender Equality in the Workplace: Practical Lessons from Canada
Emily Sanchez Salcedo
Volume 18, Issue 1, pages 48 - 77, 2017

4. Human Rights between the Local and Global: A Case Study of the Seoul Human Rights Ombudsperson
Andrew Wolman
Volume 18, Issue 1, pages 78 - 107, 2017

Review Article

5. Analysis of Right to Water Needs Further Depth
Agnes Chong (HKU PhD Candidate)
Volume 18, Issue 1, pages 109 - 116, 2017

Thursday, July 6, 2017

Puja Kapai Interviewed on Hong Kong and the Torture Convention (JUST ASIA)


Puja Kapai was recently interviewed by the Asian Human Rights Commission's JUST ASIA programme.  The caption for the interview read as follows:
This week, to mark the International Day in Support of Victims of Torture, celebrated annually on June 26, Just Asia has a special report on Hong Kong’s plan to withdraw from the UN Convention against Torture.
  The reason for such a withdrawal is a misguided attempt to address the rise in torture protection claimants in Hong Kong and block“fake” refugees, as well as solve the issue of illegal workers.
  Just Asia speaks to three prominent persons in the city to discuss their views. Puja Kapai is the Director of Hong Kong University’s Centre for Comparative and Public Law; Mark Daly is a human rights lawyer with Daly and Associates; as is Patricia Ann Ho. The three discuss how such a withdrawal will impact Hong Kong’s international standing, Hong Kong’s human rights protections, and whether it will truly make a difference to the city’s numerous torture claimants.

Two New Scholars Join HKU Faculty of Law, Further Strengthening Research in Competition Law and Constitutional Law

Welcome to Dr Angela Zhang (张湖月) and Dr Alex Schwartz who have recently joined our Faculty as Associate Professor and Assistant Professor, respectively.  In 2017-2018, Dr Zhang will be teaching Introduction to Chinese Law (LLB/LLM/JD) and Competition Law and Policy in China (LLM), and Dr Schwartz will be teaching Business Associations (LLB), Guided Research (LLB) and Dissertation (JD).
    Dr Zhang's research focuses on applying economic analysis to the study of transnational legal issues. Specifically, she seeks to explore how institutional factors drive the legal outcomes affecting global businesses. She is currently working on two empirical projects: one on the clash between antitrust and China and the other on the behaviour of EU judges. Though on leave, Dr Zhang retains her appointment as Senior Lecturer in competition law and trade at King’s College London. 
     Dr Zhang's work has been published by academic journals including Stanford Journal of International Law, University of Pennsylvania Journal of International Law, Cornell International Law Journal and Journal of Competition Law and Economics. In 2014, she received the Concurrence Antitrust Writing Award for her study on bureaucratic politics in Chinese antitrust law. In 2015, her work on EU judges was chosen to be presented at the Stanford International Junior Faculty Forum. Angela is also frequently invited to speak at antitrust conferences in the United States, Europe and Asia. Her research has attracted media inquiries from The Economist, The New York Times and Reuters, and she regularly contributes op-eds to the popular press. 
     Before joining academia, she practiced bankruptcy law at Debevoise & Plimpton in New York and antitrust law at Cleary Gottlieb Steen & Hamilton in Brussels. She also has practice experience in Beijing, Hong Kong and London. She was admitted to the New York bar in 2009. 
     Dr Zhang received her LLB from Peking University in 2004 and her JSD (2011), JD (2008) and LLM (2006) from the University of Chicago Law School. While at Chicago, she wrote her doctoral dissertation under the supervision of Judge Richard A Posner.

Dr Schwartz’s research is focused on courts and judicial behaviour, particularly in the context of deeply divided and transitional polities. He was previously Lecturer in Law at Queen’s University Belfast, where he was also an Associate Fellow of the Senator George J. Mitchell Institute for Global Peace, Security and Justice. Before that, Dr Schwartz was a Banting Fellow with the Department of Political Studies at Queen’s University (Canada), a visiting scholar at the Centre for the Study of Social Justice (Oxford) and a postdoctoral fellow with the Canada Research Chair in Quebec and Canadian Studies at L'Université du Québec à Montréal. Dr Schwartz has published articles in Law & Society Review, Oxford Journal of Legal Studies, Ratio Juris, International Journal on Minority and Group Rights, and Government and Opposition and he is co-editor of Rights in Divided Societies (Oxford: Hart Publishing, 2012). In addition to research on courts and judicial behaviour, Dr. Schwartz has a broad and eclectic interest in empirical legal studies and welcomes collaboration on quantitatively oriented projects in all areas of law.

Wednesday, July 5, 2017

Hong Kong's Involvement with International Tax Reform and BEPS (TLRP Tax Comment 6)

Adrian Sawyer
TLRP Tax Comments, No 6
Abstract: The Hong Kong Special Administrative Region (HKSAR) was initially a reluctant participant in major international tax reforms initiated by the OECD, including (automatic) exchange of information (AEOI). In more recent times, as outlined in an earlier paper by the author, the HKSAR has become an active participant working at the forefront of the Base Erosion and Profit Shifting (BEPS) initiatives, including being part of the ad hoc group that developed a multilateral instrument under BEPS Action 15. This paper provides a forward-looking overview of BEPS, outlines the HKSAR’s engagement with BEPS and international tax reform, and offer some thoughts on where BEPS may take us.
    Author: Dr Adrian Sawyer is Professor of Taxation, and Research Director for the School of Business and Economics, at the University of Canterbury, Private Bag 4800, Christchurch, NZ. This paper draws upon earlier work by the author while he was a visitor hosted by the Asian Institute of International Financial Law (AIIFL) and Taxation Law Research Programme (TLRP) at the University of Hong Kong.
     This TLRP Tax Comments (TTC) is a Working Paper and is also published as an AIIFL Working Paper No 21. The Author welcomes comments on this TTC as it is developed further for later formal publication. Adrian Sawyer’s email address is: adrian.sawyer@canterbury.ac.nz.  Please download the paper from here.

Tuesday, July 4, 2017

Amanda Whitfort Advises Legislative Panel on New Measures Needed to Address Wildlife Crimes and the Ivory Trade in Hong Kong

At a meeting of the Legislative Council (LegCo) Panel on Environmental Affairs on 6 June 2017, Associate Professor Amanda Whitfort addressed LegCo members on the Administration’s proposal to phase out the ivory trade in Hong Kong and enhance penalties for wildlife crimes. Legally, Hong Kong has an obligation to observe the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (to which China is a signatory) and the UN Convention on Biological Diversity (CBD), extended to Hong Kong in 2011. Trade in pre-CITES ivory is prohibited, but Hong Kong traders continue to sell ivory stocks they claim to have been legally imported before the CITES ban in 1990. A recent investigation by the Agriculture, Fisheries and Conservation Department of a shop selling ivory purported to be pre-CITES found that the ivory for sale was in fact illegal. 
     Whitfort argued that allowing any market for ivory in Hong Kong encourages poaching and smuggling, and permits traders to argue their stock is ethically sourced. The African elephant population is now at its lowest numbers in history and continued poaching threatens to cause their extinction. Whitfort told legislators that only when the trade is banned completely can Hong Kong claim to have played a role in ensuring a sustainable future for Africa’s elephants.
     Whitfort also addressed the Administration’s proposal to raise the maximum penalty for trade in endangered species, under the Protection of Endangered Species of Animals and Plants Ordinance Cap 586. The intention to raise the maximum penalty for trade in endangered species to 7 years’ imprisonment presents an opportunity to bring Hong Kong’s sanctions in line with overseas jurisdictions. Globally, wildlife crime is the fourth most lucrative black market, after drugs, people and arms smuggling. In Hong Kong, the average value of seizures in endangered species is currently second only to seizures under the Dangerous Drugs Ordinance, Cap 134. 
     However, Whitfort cautioned that raising penalties will not be enough to address the problem in Hong Kong. Studies repeatedly show Hong Kong to be a regional hub for trade in endangered species. Whitfort urged the government to officially recognize wildlife crime as organized and serious crime, permitting investigators to access the full range of powers provided under the Organised and Serious Crimes Ordinance, Cap 455. These include the use of coercive investigative powers to gather intelligence, the right to confiscate the proceeds of crime in the District Court and the Court of First Instance and the power to seek enhanced sentences in cases involving criminal gangs. Classifying illegal trade in endangered species as a form of organized and serious crime would also allow the Hong Kong government to identify, freeze and forfeit the significant assets of criminal enterprises involved in the illegal wildlife trade (as is the case with drug trafficking).  A video of Whitfort's oral deputations in LegCo can be viewed here.

Thomas Cheng on Restrictive Agreements Under China's Anti-Monopoly Law (World Competition)

World Competition
2017, Vol 40, Issue 2, pp 323-354
Abstract: International attention on the People's Republic of China PRC Anti-Monopoly Law (AML) has mostly focused on merger control and abuse of dominance. Enforcement against restrictive agreements and concerted practice seems to have been overlooked so far. This article examines how the Chinese courts and enforcement authorities have analysed restrictive agreements. Specifically, it focuses on how the courts and the authorities have applied the concept of restriction of competition in monopolistic agreement cases. With respect to horizontal cases, one largely unanswered question is whether anticompetitive effects need to be proved even in cartel cases or a proof of the mere existence of the agreement suffices. With respect to vertical cases, there remains much confusion as to the appropriate analytical framework for resale price maintenance (RPM), the per se rule or the Rule of Reason, and whether Article 14 of the AML applies to agreements beyond RPM. This article attempts to shed light on these important questions.  Thomas Cheng was recently featured in the German Antitrust Blog, D'Kart (26 June 2017).

Monday, July 3, 2017

Congratulations to Our Two Outstanding Research Postgraduate Student Awardees

Congratulations to our two PhD graduates, Dr Maria Carrai and Dr Han Zhu, who were recently awarded 2015-16 Outstanding Research Postgraduate Student Awards from the University of Hong Kong.  Both students were supervised by Cheng Chan Lan Yue Professor in Constitutional Law, Professor Albert Chen. Only two other Faculty of Law students have received this award in the past. 
    Dr Carrai's thesis was titled A Genealogy of Sovereignty in Modern China, 1840-today, and her examination panel included Professor Yu Xingzhong of Cornell University and internal examiners Simon Young and Michael Ng.  Since graduation, Dr Carrai has been a Max Weber Fellow at the European University Institute.  
     Dr Zhu is currently an Assistant Research Officer in the Centre for Chinese Law at the University of Hong Kong.  Her thesis was titled Social Movements and the Law in Contemporary China: A Comparative Perspective, and her examination panel included Dr Eva Pils of Kings College London and internal examiners Hualing Fu and Richard Cullen.

RGC Awards $8.5 Million in Research Grant Funding to HKU Faculty of Law

The Faculty of Law has performed exceptionally well in the 2017-2018 round of research grants awarded by the Research Grants Council (RGC).  The RGC awarded more than HK$8.46 million in funding to 10 General Research Fund (GRF) projects and 3 Early Career Scheme (ECS) projects. This is more than double the amount awarded for the 2016-2017 year.  The success rate for this year was 71% (GRF) and 100% (ECS) respectively.  The projects tackle important issues in constitutional law, trust law, human rights law, legal education, legal history and theory, and land law.  Some are inter-disciplinary.  The largest grant of more than $1 million went to Professor Hualing Fu for his project on police power in transition societies including China.  Congratulations to the following 13 colleagues:
  • Po Jen Yap, Courts and Democracies in Asia, $736,600, GRF, 36 months
  • Hualing Fu, Police Power in Transition Societies: China in Comparative Perspectives, $1,058,488, GRF, 36 months
  • Rebecca Lee (Co-I: Lusina Ho), The Modern International Trust Under Siege: Legislature, Judiciary, and Theoretical Implications, $361,675, GRF, 24 months
  • David Law, The Language and Ideology of Constitutions: A Computational Linguistics Analysis, $784,538, GRF, 36 months
  • Lusina Ho (Co-I: Rebecca Lee), Developing Compensatory Remedies for Breaches of Trust and Fiduciary Duties, $512,198, GRF, 24 months
  • Eric Ip, The Constitutional Foundations of Free Markets: Economic Provisions of the Hong Kong Basic Law in Comparative Perspective, $892,484, GRF, 36 months
  • Kelley Loper, International human rights law and refugee protection in Asian states not party to the 1951 Convention Relating to the Status of Refugees, $563,640, GRF, 24 months
  • Jianlin Chen, Law, State and Emerging Natural Resources: Theoretical Perspective and Case Study of Climate Resource Management in China, $570,000, GRF, 36 months
  • Richard Wu, An Empirical and Comparative Study of Law Students’ Perceptions of Their Values in Four Fastest-Growing Asian Countries: China, India, Thailand and Philippines, $844,880, GRF, 36 months
  • Michael Ng, Freedom of Expression, Media Censorship and the Rule of Law in British Hong Kong (1850s-1980s), GRF, 36 months
  • Daisy Cheung, Finding the Right Balance: Constructing a Theoretical Approach for the Assessment of Guardianship Systems for the Mentally Incapacitated in East Asia, ECS, $446,560, 36 months
  • Dan Matthews, The Aesthetics of Sovereignty in the Age of the Anthropocene, $289,032, ECS, 24 months
  • Shitong Qiao, National Laws and Local Land Reforms: The Spectrum of Legality, $555,400, ECS, 36 months.

Tuesday, June 27, 2017

Looking at Hong Kong's Basic Law from a New Perspective (SCMP)

Simon Young
South China Morning Post
28 June 2017
Looking at the Basic Law from different perspectives may yield different results. For the past 20 years, most people, including myself, have understood the Basic Law to be a legal instrument intended to continue and preserve Hong Kong’s way of life for at least 50 years under Chinese sovereignty. I call this the internal perspective, which looks at how the Basic Law serves the interests of Hong Kong and Hong Kong people.
     However, the internal perspective has proven to be divisive, one that sees continuous tension and conflict between the “one country” and the “two systems”. The conflict is well known, if not tiresome. One sees it in recent speeches on the success or failure of the Basic Law.
     The side trumpeting the “one country” hails the Basic Law’s first 20 years, pointing to Beijing’s restraint and the many ways in which Hong Kong has been allowed to prosper. To this group, the Standing Committee of the National People’s Congress has made “only” five interpretations of the Basic Law, each measured and made for good reasons. Those calling for independence or self-determination are regarded as ungrateful, spoiled, and soon to be, if not already are, enemies of the state unless stronger measures are taken... Click here to read the full article.

Monday, June 26, 2017

Johannes Chan Interviewed on 20 Years of Rule of Law in Hong Kong (HKFP & RTHK)

Elson Tong
Hong Kong Free Press
25 June 2017
Eighteen years ago tomorrow, the Standing Committee of the National People’s Congress (NPCSC) – the top Chinese legislative body – handed down its first ever ruling to clarify a provision in Hong Kong’s mini-constitution, the Basic Law.
     A lengthy controversy on the right of mainland children to live in the city had culminated in a Court of Final Appeal ruling in January 1999, establishing that the children of all Hong Kong permanent residents would also automatically gain permanent residency.
     Security chief Regina Ip warned that 1.67 million mainlanders would rush across the border and overwhelm the city. Chief executive Tung Chee-hwa asked Beijing to intervene.
...
     For constitutional and human rights scholar Johannes Chan, Hong Kong’s legal system following the transfer of sovereignty in 1997 was burdened by fundamental tensions with the mainland, which the drafters of the Basic Law in 1985 never sought to resolve. The judiciary – and law itself – plays a different role in a common law system than in a socialist legal system.
     “The court makes a ruling and the government believes the people cannot accept it… This happens everywhere,” he says. “The solution is to get a democratically-elected legislature to pass a new law to overturn the ruling. That is totally acceptable.”
     “But [the Chinese legal system] doesn’t recognise the separation of powers. The NPCSC is simultaneously a legislative, executive and judicial organ. It has all the powers – what matters is that if you throw a problem at it, it solves the problem.”... Click here to read the full article.


26 June 2017
RTHK
Legal scholar Johannes Chan said on Monday that he has seen “worrying features” in the One Country, Two Systems policy in recent years, as Beijing exercises less self-restraint in exercising its powers and increases its interference in SAR affairs.
     “At the beginning of the handover, we have seen that China has exercised a high degree of restraint. There are a lot of issues where China was prepared to leave to Hong Kong to decide," Chan said.
     "In the last few years, we have seen increasingly that China feels that it can interfere with Hong Kong matters, it wants to have a say, it wants control ... it wants Hong Kong to do things in a Chinese way,” he said. 
     The law professor from the University of Hong Kong told RTHK's Janice Wong that Beijing’s tightening grip on the SAR will not doing anything to solve the territory's deep-rooted conflicts... Click here to watch the video interview.

Sunday, June 25, 2017

Hualing Fu Interviewed on Yu Huan's Sentence Reduction from Life to 5 Years (NY Times)

Javier Hernandez and Iris Zhao
The New York Times
23 June 2017
BEIJING — A Chinese court commuted on Friday the sentence of a man who had killed a creditor who had harassed his mother, in a closely watched case that has provoked a national debate about family honor and filial piety.
     The Shandong Higher People’s Court in eastern China sentenced the 22-year-old Yu Huan to five years in prison, overturning a lower court’s sentence of life in prison that had been widely condemned.
     Mr. Yu was working alongside his mother, Su Yinxia, at the family’s store last year when 11 debt collectors showed up seeking payment from Ms. Su on a high-interest loan.
     The men grew increasingly violent toward Ms. Su, cornering her and her son in a back office. When one of the collectors, Du Zhihao, yelled insults and exposed his genitals, Mr. Yu responded by stabbing Mr. Du and several other men. Mr. Du later died in a hospital...
     Fu Hualing, a law professor at the University of Hong Kong, said the case had posed a predicament. On the one hand, officials may have been eager to show some sympathy for the harsh circumstances the defendant had faced. On the other, Professor Fu said, the government most likely wanted to signal that it would not tolerate violent acts... Click here to read full article.

Saturday, June 24, 2017

Congratulations to Our Two PhD Fulbright Scholars 2017-2018

Congratulations to Ms Weijie Huang and Ms Xiaohan Zhang, our two PhD candidates, who were awarded the prestigious Fulbright - RGC Hong Kong Research Scholar Award (Junior Programme) 2017-2018.  Ms Huang, supervised by Dr Yahong Li, will spend 10 months at the UC Berkeley School of Law researching copyright law and the newly emerging phenomenon of user-remixed content.  Ms Zhang, supervised by Professor Yun Zhao, will spend 6 months at Harvard Law School researching the development of a Chinese online dispute resolution mechanism.  

Saturday, June 17, 2017

New Issue: SSRN Legal Studies Research Paper Series (HKU)

Vol. 7, No. 3: 7 June 2017
Table of Contents

Syren Johnstone, Faculty of Law, University of Hong Kong, Asian Institute of International Financial Law

Anne S. Y. Cheung, The University of Hong Kong - Faculty of Law

Dirk A. Zetzsche, ADA Chair in Financial Law / Inclusive Finance, University of Luxembourg, Heinrich Heine University Duesseldorf - Faculty of Law - Center for Business & Corporate Law (CBC)
Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law
Douglas W. Arner, University of Hong Kong - Faculty of Law
Janos Nathan Barberis, The University of Hong Kong - Faculty of Law

Wen-Chen Chang, National Taiwan University College of Law
David S. Law, Washington University in St. Louis - School of Law, The University of Hong Kong - Faculty of Law, Washington University in St. Louis - Department of Political Science

Thursday, June 15, 2017

Lusina Ho on Causation in the Restoration of a Misapplied Trust Fund (new book chapter)

"Causation in the Restoration of a Misapplied Trust Fund: Fundamental Norm or Red Herring?"
in S Degeling & JNE Varuhas (eds), Equitable Compensation and Disgorgement of Profit (Hart Publishing, 2017) ch 8
Introduction: When a beneficiary seeks relief for misapplied trust assets, the emerging if not prevailing view amongst commentators is that he is but exercising his primary right to performance of the trust. The beneficiary is not seeking compensation for the factual detriment caused by the breach. Thus, whether the claim assumes the form of taking a common account or equitable compensation (an unfortunate misnomer in this context), the substance of the ultimate monetary award is essentially one for an ‘equitable debt’, for which issues of breach or causation – whether factual or legal – are irrelevant. 
     The United Kingdom Supreme Court in AIB Group (UK) Plc v Mark Redler & Co, however, was not swayed by these advocacies. The Court subsumed substitutive performance and reparative compensation under a unitary principle that it considered fundamental to all remedies, namely that: ‘the basic purpose of any remedy [is] to put the beneficiary in the same position as if the breach had not occurred. It held that ‘but for’ causation applies to the accounting of misapplied trust funds. Lord Toulson dismissed arguments based on the orthodox accounting procedure as ‘fairy tales’. Lord Reed, in a more forward-looking approach, preferred to fashion remedies to reflect the characteristics of the particular obligation breached rather than its historical origin, albeit his Lordship did not explain how this was to be done. The reasoning in AIB Group has drawn considerable criticism, predictably from commentators who consider that the debt characterization self-evidently demonstrates the irrelevance of but-for causation. 
     Unfortunately, the impasse between the UK Supreme Court and its critics is due, in great part, to the failure to address the policy justification of the orthodox position. On the one hand, the switching of the label of the claim from account to equitable compensation has confusingly misled the Supreme Court into compensatory thinking. On the other hand, even if there is a grain of truth in analogizing the traditional accounting remedy with debt and specific performance, it does not prohibit fashioning equitable compensation to ameliorate any potential hardship and injustice that may be brought by a strict adherence to the analogy. 
     The chapter seeks therefore to reinforce the underlying policy justifications of the orthodox position, and at the same time investigate possible situations where modification of the orthodox position is called for. To achieve this task, the chapter will, first, examine the historical approaches in common accounts, whereby it observes that amongst the plethora of earlier cases cited by critics of the compensation view, only a few expressly pronounce on the irrelevance of but-for causation; but, notwithstanding the dearth of direct authority on causation, it is well established that the nature of falsification is performance of the trustee’s fundamental duty to account rather than compensation. Secondly, to bolster arguments based on the nature of the remedy as debt or specific performance, the chapter will take up Lord Reed’s appeal to fashion remedies based on the justification of the duties breached; such a line of inquiry will show the orthodox position to be fully justified, at least as a default rule. The chapter will also explore situations where these underlying policies justify modifying the orthodox position. Lastly, the chapter examines how the decision in AIB Group may be reconciled with existing orthodox rules that permit beneficiaries to adopt or ratify the breaches of defaulting trustees, albeit it could also have provided the occasion for modifying the orthodox rules.

Wednesday, June 14, 2017

Essays on the Hong Kong Umbrella and Taiwan Sunflower Movements (new book chapters)

Brian C Jones (ed)
2017, Routledge, 236 pp
4. "The Law and Politics of Constitutional Reform and Democratization in Hong Kong"
Albert HY Chen
Introduction: A few weeks after China’s National People’s Congress Standing Committee (NPCSC) promulgated its Decision of 31 August 2014 on the model for the election by universal suffrage of Hong Kong’s Chief Executive in 2017, the “Occupy Central” Movement – also known as the “Umbrella Movement” -- engulfed several key government and business districts in Hong Kong. As in the case of the “Sunflower” Movement in Taipei earlier in the same year, students played a very important role in the Hong Kong movement. Whereas the movement in Taipei was in protest against the ruling regime’s policy of economic cooperation with Beijing, the movement in Hong Kong was a popular protest against Beijing’s policy towards, or restrictions on, democratization in Hong Kong. 
     Beijing’s policy on Hong Kong’s democratization was purportedly based on the provisions of the Basic Law of the Hong Kong Special Administrative Region (HKSAR), which was enacted by the National People’s Congress (NPC) in 1990 and came into force when Hong Kong’s status changed from that of a British colony to a Special Administrative Region (SAR) of the People’s Republic of China (PRC) on 1 July 1997. Ironically, so were the demands of the protestors, who alleged that the NPCSC Decision of 31 August 2014 constituted a breach of Beijing’s promise to the people of Hong Kong that the democratic election of the Chief Executive (CE) of the HKSAR by universal suffrage would be introduced – a promise enshrined in the text of the Basic Law itself. In this sense, the “Occupy” Movement in Hong Kong can be considered a social movement that drew on legal norms as an important component of its strategy of mass mobilization. How then could both the legitimacy of the NPCSC Decision of 31 August 2014 and the claims of the protestors be simultaneously based on the Basic Law – the constitutional instrument of the HKSAR? This chapter seeks to answer this question by reviewing the evolution of Hong Kong’s political system and investigating into the different understanding and interpretations of the Basic Law on the part of the Chinese regime and on the part of democracy activists in Hong Kong. 
     This chapter consists of the following parts, apart from this Introduction. First it examines the development of Hong Kong’s political system since colonial times, and the provisions of the Basic Law governing the political order of the HKSAR. It then briefly reviews the movements towards democratization that took place since the establishment of the HKSAR in 1997. Next it considers developments since early 2013, when the “Occupy Central” campaign was launched to struggle for the realization of “genuine universal suffrage” in the election of the CE of the HKSAR. Finally, it concludes by reflecting on the contradictions and tensions inherent in the project of “One Country, Two Systems” that were revealed by the failure of the “Occupy” Movement in realizing its democratic aspirations, particularly the conflict between the Communist Party-led socialist political system in mainland China and the aspirations towards Western-style liberal democracy on the part of democracy activists in Hong Kong.

5. "Political Protest in High-Income Societies: The Case of the Occupy Central Movement in Hong Kong"
Introduction: Hong Kong is a metropolitan city that enjoys prosperity, freedom and the rule of law. It is also a city that recently (1997) came under China’s authoritarian rule. The tension in Hong Kong’s political system is manifested in the continued struggle to reconcile with its new political master and the corresponding demand for democratic advancement. As a “semi-democracy”, Hong Kong is constitutionally committed to universal suffrage, and there is a deeply felt passion and aspiration among residents in the city for liberal constitutional democracy. But the commitment to democracy is ironically made by a Communist Party authoritarian state that is fearful of, if not hostile to, the very concept. The fight for democracy in the sub-national unit within an authoritarian regime has defined and continues to define Hong Kong’s political landscape. 
     Hong Kong has been a difficult place for China to govern. Its political freedom and openness, independent and powerful legal system, and vibrant and challenging civil society are alien to the Central Authorities in Beijing. For them, Hong Kong remains uncharted water in many fundamental aspects. Yet as difficult and costly as it has been, China has grown confident in its ability to govern Hong Kong with a degree of effectiveness, and increasingly has resorted to constitutional rules and legal process in shaping Hong Kong’s political future. The Decision of the National People’s Congress Standing Committee on 31 August 2014, as discussed below, is the most recent example of how China suffocates Hong Kong’s democratic impulses through legal interpretation. But China’s rule of law concept is an authoritarian one. Will it prove effective in deflecting and silencing resistance from political and legal institutions in Hong Kong and in limiting Hong Kong’s constitutional options? 
    Deeply concerned with a real decline in Hong Kong’s way of life, frustrated by the authoritarian rule of law that the Central Authorities impose on Hong Kong, and desperate for the lack of democratic mandate that may entrench Hong Kong’s value and institutions, various groups in the city decided to make their political demands outside the established political and legal routes, launching the largest civil disobedience movement to date by occupying main streets at the heart of the city to protest against the 31 August Decision (the movement was referred to as the Occupying Central Movement, hereafter OCM). In doing so, Hong Kong residents took the constitution into their hands, insisting on their own alternative constitutional interpretation. 
    While the pursuit of democratic value through civic participation and the rule of law are both close to the heart of the Hong Kong people, the OCM, as the largest civil disobedience movement to date, reveals a rare moment of a clear tension between the ideals of democracy and the rule of law. The OCM clearly demonstrated Hong Kong’s democratic passion and resilience. For a brief period, the movement gathered so much momentum that the students appeared to be unstoppable. However, with the prolonged nature of the OCM, the movement started to show its adverse social and economic impact, leading to a split in the community which initially showed a high degree of support and solidarity. The democratic potential of civil disobedience for the OCM began to decline and diminish, and its potential instability started to come to the forefront. As time progressed, the OCM was associated more with frustration, fatigue and disorder, and even became linked with political conspiracy and a continued threat to Hong Kong’s rule of law. When pro-OCT activists struggled to cope with internal conflicts, anti-OCM forces were mobilized and brought the occupiers to courts to account. Ironically, it was a court order that drove a fatal wedge into the OCM, dividing the supporter community and undermining the moral of the occupiers. It was the authority of the court and the willingness of the people in the city to obey the rule of law that effectively suppressed citizens’ democratic impulses. 
    With the peaceful ending of the OCM, Hong Kong’s struggle for democracy has turned a new page. The two-and-a-half month display of mass civil disobedience was unprecedented in its scale, epic in its manifestation, and potentially lasting in its impact on Hong Kong’s constitutional development; but it was also highly controversial and divisive. There was the expectation that when all the dust settles, Hong Kong will have to do some serious soul-searching to rediscover its core values, redefine its identity, and locate itself within China. Unfortunately, the OCM has not brought political antagonism to an end. The OCM is much a reflection of divisive society as a catalyzer of a more radical movement, one that may spin Hong Kong out of control.

6.  "The Nomos of Hong Kong's Umbrella Movement"
Abstract: My claim here is that the great success of Hong Kong's pro-democracy "Umbrella Movement" was that it temporarily ruptured the background ordering of the city that we – as legal scholars – so often take for granted. This interruption of the existing normative order or nomos of the city re-posed the questions belonging and by paying due attention to the interruption that the movement enacted ​we can see its enduring significance for Hong Kong’s legal and political settlement. The argument proceeds by first setting out the shift that I propose to take: away from “law” and towards the “nomos”, a term that, as will become clear, opens our thinking to a broader and more dynamic sense of normative ordering than that afforded by a strictly legalistic lens. I then turn to two distinct senses of the “nomos” that I will discuss in relation to the Umbrella Movement. The first, inspired by the German jurist Carl Schmitt, foregrounds the normative force of spatial ordering and the second, inspired by sociologist Peter Berger and the legal theorist and historian Robert Cover, assesses the discursive dimension to normativity, stressing how shared normative commitments are central to the formation of community and a common identity. My claim is that, beyond raising technical, constitutional issues concerning voting rights, the Umbrella Movement’s interruption of the city’s existing spatio-normative distribution posed fundamental questions about the nature of identity and belonging in the territory that goes to the heart of its political significance.

Tuesday, June 13, 2017

Cora Chan Elected to Governing Council of the International Society of Public Law

Congratulations to Cora Chan who has been elected a member of the Governing Council of the International Society of Public Law (known as ICON-S), one of the largest and most prestigious academic associations in public law in the world. The post is an honorary position of “high distinction which entails responsibility for the intellectual guidance, advice and representation of the Society.” Twenty-six candidates ran for eight vacancies. Voting was open to the entire Society membership of more than a 1000 members. Three hundred and ninety members from around the world cast their votes from 21-31 May 2017. Cora received the 4th highest number of votes. More details about the election can be found here. Earlier this year, Cora was appointed to the Scientific Advisory Board of the International Journal of Constitutional Law.