Julius Yam's CCPL Working Paper: Response Paper to the Financial Services and the Treasury Bureau’s Public Consultation on Regulation of Crowdfunding Activities

Response Paper to the Financial Services and the Treasury Bureau’s Public Consultation on Regulation of Crowdfunding Activities

Julius Yam
February 2023

Executive Summary: The adoption of new technologies like crowdfunding in commerce and for social and political purposes has created new opportunities as well as risks. Crowdfunding fosters innovation, but can also be used for unlawful or illegitimate purposes.

      This paper responds to the Financial Services and the Treasury Bureau’s (“FSTB”) public consultation on regulation of crowdfunding activities, and considers whether it is necessary to introduce a new regulatory regime for crowdfunding. It argues that existing laws are capable of addressing most ⎯ if not all ⎯ of the risks that crowdfunding activities pose. Even if the government decides that regulatory intervention is necessary, this paper suggests that its approach should be guided by principles of regulatory certainty, minimizing user inconvenience and administrative feasibility. This enables the benefits crowdfunding offers to be maintained.

     The paper identifies issues raised by the FSTB’s proposal for regulating crowdfunding (“the proposal”) that need to be addressed. It makes six broad recommendations which are summarized as

follows:

1. Identifying the specific risks posed by non-investment-based crowdfunding in Hong Kong and developing solutions that mitigate those risks [paras 14-16].

2. Narrowing the scope of the proposal, including, for example, by [paras 24-26]:

a. Covering only fundraisers that have Hong Kong bank accounts or are companies or other entities registered in Hong Kong.

b. Targeting campaigns that are expected to raise over a certain amount.

c. Broadly interpreting the exceptions proposed.

3. Clarifying the definition, the scope of responsibility and consequences of online crowdfunding platforms under the proposal [paras 31-33].

4. Streamlining the approval system’s procedures [para 44], for example, by:

a. Simplifying application processes.

b. Making assistance from regulators readily available.

c. Creating reasonable time frames for the application process.

5. Providing sector-specific agencies with regulatory powers instead of setting up a centralized approval system [paras 45-46].

6. Setting aside the issue of crowdfunding for litigation purposes [para 50].

We hope that this paper provides a constructive platform for all stakeholders involved to formulate an approach that best meets the interests of Hong Kong as an international financial center.

Richard Cullen on The Hong Kong and Greater China Response to COVID-19 (new book chapter)

"The Hong Kong and Greater China Response to COVID-19"
Richard Cullen
in How COVID-19 Took Over the World: Lessons for the Future, edited by Christine Loh (HKU Press, February 2023), Chapter Eleven, pp. 195-218

Introduction: This chapter examines how the Hong Kong Special Administrative Region (HKSAR) developed and managed its response to the COVID-19 pandemic starting in early 2020. This review includes a comparative discussion of COVID-19 responses in other jurisdictions in Greater China and Singapore. 

     In June 2020, the International Monetary Fund said that the COVID-19 pandemic had generated ‘a crisis like no other’. The investigative approach in this chapter relies on an event-based evaluation of how this crisis unfolded in the HKSAR. The aim is to form an understanding of certain key elements that shaped what happened and to use this to discuss serious ongoing challenges and future pandemic-related choices.
         The concept of the social contract, discussed more fully in Chapter 6, is used below to help inform how particular approaches to dealing with the COVID-19 pandemic have evolved, especially in East Asia. The US political sociologist Barrington Moore advanced a version of ‘class analysis’ that argues that certain societal structures influence the primary protocols of a given social contract. Briefly, this argument holds that operational political regimes are shaped by the social class structure of a given jurisdiction. 

        One feature that emerges from the following discussion is how decision-making during the pandemic in Hong Kong has been significantly shaped by the priority given to securing the health and well-being of the ‘grassroots’ or the working class in Hong Kong. Given that government in pre-1997 British Hong Kong was long seen to favour the needs of the professional and elite business class—a trend continued after the creation of the HKSAR—this prioritising of the needs of the very large, vulnerable, working class in Hong Kong is not, at first glance, what one might expect. Yet it has happened—and this pattern has significantly tracked the approach adopted in the mainland. This matter is discussed again in the conclusion. 

      The next part discusses certain initial challenges and how these were addressed before examining how the first four COVID-19 waves were tackled in Hong Kong prior to discussing Hong Kong’s struggle to cope with the devastating fifth wave in early 2022. A comparative review of basic responses in certain other jurisdictions (with a focus on Greater China) follows. After this, there is a wider review of the ‘zero-COVID’ and ‘living with COVID’ approaches, including a discussion of relevant political, social, and economic aspects. Finally, this chapter considers ongoing and future challenges faced by Hong Kong, and lessons learnt from the COVID-19 pandemic. 

Hualing Fu on Pandemic Control in China’s Gated Communities (new book chapter)

"Pandemic Control in China’s Gated Communities"
Hualing Fu

in How COVID-19 Took Over the World: Lessons for the Future, edited by Christine Loh (HKU Press, February 2023), Chapter Ten, pp. 169-194

Introduction: A key global strategy to contain the coronavirus disease 2019 known as COVID-19 has been the implementation of social distancing measures (SDMs), in particular Stayat-Home (SaH) orders. Given the epidemiological consensus at the time that social distancing significantly reduces transmission and that the ability of a country to contain the spread of infections depends on the degree to which SaH orders and other SDMs are enforced and complied with, few countries, if any, have not imposed lockdowns of sorts to some degree, in particular a range of SaH orders, placing a significant part of their population, if not all, under quarantine for various durations. To a large degree, the success or failure of these measures has depended on citizens’ willingness to change their behaviours to comply with SaH orders. 

     The existing literature indicates a range of factors, both subjective and objective, to explain compliance. Subjective factors include substantive support for the measures, trust in the government, political values, and obligations to obey regulations, broadly defined to include the impact of deterrence and the sense of fairness. Some studies show that civic and moral education, and the appeal to altruism or a sense of solidarity, have some short-term positive impact on compliance with SDMs; an invocation of a degree of fear is also found to have more explanatory power in motivating behaviour change. Others have pointed out that one’s political views (Democrat or Republican in the American context) have some predictive power on whether or not one will adhere to SDMs. 

      Compliance with SaH orders can hardly be achieved without coordinated action, effective enforcement, and adequate material and psychological support on the part of the government. In the United States, while people generally felt compelled to obey the law, supported the principle of social distancing, and were concerned with the consequences of non-compliance, ‘only a minority of Americans indicate that they always follow social distancing measures’. In Italy, public authorities struggled to deal with significant non-compliance with SaH rules. Sheth and Wright reported significant violations of the SaH order in California, concluding that relying on risk aversion or altruism would not achieve compliance.  Even in Canada, where compliance was high across all provinces, there was still a substantial proportion of norm-breakers.  

      In order to secure adequate compliance, objective factors also need to be factored in, including people’s capacity to follow SaH orders, opportunities to violate the measures, costs and benefits of adherence, and social norms in terms of adherence, i.e., whether others around are also in compliance. A key factor is the practical capacity to adhere to SDMs—people do not follow rules that are hard, if not impossible, to follow. Effective implementation of SaH orders demands support for residents in isolation and monitoring to enforce the orders. 

     This chapter examines the unique role that grassroots residential social organisations in China have played in supporting and enforcing pandemic control measures. In explaining China’s performance in containing the pandemic before the sudden reverse of the restrictive policy in November 2022 after a nationwide protest COVID restrictions, commentators have attributed this to the Chinese Communist Party’s decisive move to lock down cities at a high social and economic cost and to the capacity both to mobilise human and material resources to build hospitals to isolate those infected with the virus, and to send medics and support to the most infected cities to treat patients. Another feature that has characterised the Chinese strategy and is receiving increasing attention is the broad societal participation and the ability of residential communities to enforce SDMs and, in particular, SaH orders, enabling residents to respond to the pandemic and to comply with pandemic control measures with resources and confidence. In what was dubbed by the Party as the people’s war against the COVID-19 pandemic, Chinese urban communities showcased the effectiveness of the unique governance style in inducing compliance under certain political conditions. What makes Chinese urbanites more willing to participate in pandemic control enforcement and more compliant with SaH orders? And when will the willingness to comply and participate be withdrawn?

New Book in translation by Paul KC Chung Professor Scott Veitch in Jurisprudence et al: Jurisprudence: Themes and Concepts (3rd Ed., Peking U Press)

Jurisprudence: Themes and Concepts (3rd edition) by Professor Scott Veitch, Paul KC Chung Professor in Jurisprudence, and Emilios Christodoulidis and Marco Goldoni (of the University of Glasgow) has just been published in translation by Peking University Press in January 2023. The translator introduces the book in a recent issue of the Shanghai Review of Books.

To view the book, please click here. 

Albert Chen et al : Constitutional Politics in Asia (Oxford Bibliographies)

Constitutional Politics in Asia
Kevin Y.L. Tan, P.Y. Lo, Albert H.Y. Chen
Oxford Bibliographies 
Last Modified: 12 January 2023

DOI: 10.1093/OBO/9780199756223-0354

Introduction: The term “constitutional politics” is used far more often than it is defined. Many writers who use the term do not bother defining it, presuming its meaning to be self-evident. Thus, “constitutional politics” is not a term of art and has been used to describe various political or legal phenomena. Broadly speaking, “constitutional politics” may be used to refer to events or developments in which constitutional law interacts with, provides a setting for, or to some extent shapes political processes. In a sense, it deals with that intersection between constitutional law and politics in issues that are neither wholly legal nor political but a mix of both. Plainly, this may manifest when a country drafts its own constitution or undergoes profound changes in its constitutional arrangement. It also arises if political questions are contested in the courts, or where the judiciary takes on a particularly active role in determining constitutional questions of the day, or where a particularly contested constitutional change or amendment takes place. The nature of constitutional law and constitutional adjudication is such that it is impossible to make a clear distinction between law and politics when discussing constitutional law. Key political actions, decisions, and bargains are often enshrined in constitutions and contestations as to their meanings and ambit, lending a heavy air of politics to judicial decision-making. Whether an issue is one that falls within the realm of “constitutional politics” depends on the context in which it arises. Take for example the appointment of judges. In many jurisdictions, this is an uncontroversial matter. However, in some other jurisdictions where the court is highly politicized and where the elected representatives hold power by a tenuous thread, such appointments invariably involve constitutional politics. Asia is the world’s largest continent both in terms of land mass and population. In this bibliography, we will attempt to examine and recommend the relevant literature pertaining primarily to the regions broadly described as Northeast Asia, Central Asia, South Asia, and Southeast Asia. Jurisdictions surveyed include: China, Japan, Hong Kong SAR, Macau SAR, Mongolia, North Korea, South Korea, Taiwan, India, Pakistan, Bangladesh, Sri Lanka, Maldives, Nepal, Afghanistan, Bhutan, Indonesia, Thailand, Malaysia, the Philippines, Singapore, Myanmar, Vietnam, Cambodia, Laos, Brunei, Timor Leste, Afghanistan, Kazakhstan, Tajikistan, and Uzbekistan. We are fortunate that in recent decades, academia and academic publishers have taken a keen interest in constitutional law and politics in Asian countries, as demonstrated by the publication of several series of books such as Routledge Law in Asia (Routledge), Constitutionalism in Asia (Hart Publishing), Comparative Constitutional Law and Policy (Cambridge University Press), and Constitutional Systems of the World (Hart Publishing). It is possible to discuss constitutional politics in Asia in several ways. One possibility is to take a geographical country-by-country or region-by-region approach. Another is to do so on the basis of constitutional regime types such as democracies, socialist states, monarchies, and hybrid regimes. A further way is by grouping countries according to legal traditions. Having considered these possibilities, we felt it most logical to organize the bibliography along thematic or topical lines. This will make it easier for readers to use the bibliography and head straight for the topics that most interest them. We begin by looking at some general works dealing with the subject in the first two sections. The subsequent sections of the bibliography are organized thematically.

Overview of Individual Jurisdictions: The Constitutional Systems of the World series, published by Hart Publishing (Series General Editors: Peter Leyland, Andrew Harding, Benjamin L Berger, Rosalind Dixon, and Heinz Klug), is a series of introductory books featuring monographs of individual jurisdictions with accounts of how the constitutions are developed, interpreted, and utilized in their specific contexts. The studies on Asian jurisdictions deal with the constitution-making processes as well as the most important constitutional and political contests in each of these jurisdictions within their introductory chapters. These books are a good place to start for anyone hoping to know and understand the nature of constitutional politics in these countries. The Asian jurisdictions presented in this series of books include Central Asian States (Newton 2017), China (Zhang 2012), India (Thiruvengadam 2017), Indonesia (Butt and Lindsey 2012), Japan (Matsui 2010), Malaysia (Lee 2017, cited under Separation of Powers, Executive Power, and Inter-Branch Conflicts in Asian Jurisdictions), Myanmar (Crouch 2019), Pakistan (Aziz 2018), Singapore (Tan 2015); Taiwan (Yeh 2016), and Thailand (Harding and Leyland 2011).

HKU Law Welcomes Dr Ying Zhu, Assistant Professor

HKU Law Welcomes Dr Ying Zhu 朱颖, Assistant Professor in the Department of Law.  Dr Zhu’s research focuses on the interaction between international economic law and sustainable development. Her academic interests include international investment law, international trade law and environmental law. She has published articles on Harvard International Law Journal, New York University Journal of International Law and Politics, Columbia Journal of Environmental law, Natural Resources Journal and Nordic Journal of Commercial Law.

     Prior to joining the HKU, Dr Zhu was an assistant professor at Renmin University of China Law School, where she was the Deputy Secretary-General of the Institute of International Commercial Dispute Prevention and Settlement. Dr Zhu was a senior assistant to the president of the International Union for Conservation of Nature (IUCN). She has served as a legal expert in the Chinese delegation of the United Nations Commission on International Trade Law Working Group III (Investor-State Dispute Settlement Reform).

     Dr Zhu holds LL.M. and J.S.D. degrees from Yale Law School, and a LL.B. degree from China University of Political Science and Law. She received the Howard M. Holtzmann Fund in International Arbitration and Dispute Resolution and the Oscar M. Ruebhausen Fund at Yale Law School. Her doctoral dissertation “Too Much of Two Good Things: Reconciling the Tension between Investment Protection and Environmental Protection in International Law” won the William T. Ketcham Jr. Prize of the Yale Law School (awarded annually to the best student paper in the field of private international law).

Selected Publications
1. “A Bottom-up Dilemma: International Investment Law and Environmental Governance,” in Vol. 48 Columbia Journal of Environmental Law (forthcoming);

2. “Do Clarified Indirect Expropriation Clauses in International Investment Treaties Preserve Environmental Regulatory Space?,” in Vol. 60.2 Harvard International Law Journal, 377-416 (2019);

3. “Environmental Discrimination in International Investment Law,” in Vol. 51 New York University Journal of International Law and Politics, 385-433 (2019);

4. “Fair and Equitable Treatment of Foreign Investors in an Era of Sustainable Development,” in Vol. 58.2 Natural Resources Journal, 319-363 (2018);

5. “Corporate Social Responsibility and International Investment Law: Tension and Reconciliation,” in Vol. 2017/1 Nordic Journal of Commercial Law, 90-119 (2017).

Teaching
LLAW3153 China Investment Law
LLAW6186 China Trade Law

HKU Law Welcomes Interdisciplinary Postdoctoral Fellow Dr Shenghua Lu

HKU Law welcomes interdisciplinary postdoctoral fellow Dr Shenghua Lu! Dr Lu is a post-doctoral fellow in the Department of Law at the University of Hong Kong. He is an interdisciplinary researcher interested in the judicial politics, political economy, and urban studies. His work has appeared in a number of leading journals that specialize in urban studies and political science and in China studies, including Governance, China Quarterly, Urban Studies, Journal of Chinese Political Science, Land Use Policy, Asian Survey. He co-authored a book chapter in the The Palgrave Handbook of Local Governance in Contemporary China. He also writes in Chinese and publishes in top-tier journals in China. Shenghua received the B.A. (2017) and the Ph.D. (2022) from the School of Public Affairs, Zhejiang University. He was a visiting scholar in the Department of Economics, National Tsinghua University (2017) and the Department of Political Science, Yale University (2021-2022).

HKU Law Welcomes Professor Sida Liu, Professor of Sociology of Law

Welcome to Professor Sida Liu who joined the Faculty of Law as a Professor of Law! Professor Sida Liu 劉思達, LLB, Peking University Law School, 2002, PhD, The University of Chicago, 2009, also holds a courtesy appointment in the Department of Sociology. Professor Liu’s research interests include sociology of law, Chinese law and society, criminal justice and human rights, law and globalization, and sociolegal theory. He has conducted extensive empirical research on various aspects of China’s legal reform and legal professions. In addition to his empirical work, Professor Liu also writes on theories of law, professions, and social spaces.

     Professor Liu is the author of three books in Chinese and English, including The Lost Polis: Transformation of the Legal Profession in Contemporary China (Peking University Press, 2008), The Logic of Fragmentation: An Ecological Analysis of the Chinese Legal Services Market (Shanghai Joint Publishing Co., 2011), and Criminal Defense in China: The Politics of Lawyers at Work (with Terence C. Halliday, Cambridge University Press, 2016). He has also published many articles in leading law and social science journals, including Law & Society Review, Law & Social Inquiry, Law & Policy, Asian Journal of Law and Society, Wisconsin Law Review, Fordham Law Review, Yale Journal of International Law, Journal of Legal Education, Annual Review of Law and Social Science, American Journal of Sociology, Sociological Theory, European Journal of Social Theory, China Quarterly, etc. Most recently, Professor Liu has co-edited The Asian Law and Society Reader (with Lynette J. Chua and David M. Engel, Cambridge University Press, 2023).
     Professor Liu holds external courtesy appointments as Faculty Fellow at the American Bar Foundation, Affiliated Scholar of the U.S.-Asia Law Institute at New York University School of Law, Faculty Affiliate of the Center on the Legal Profession at Harvard Law School, and Vice President of the China Institute for Socio-Legal Studies at Shanghai Jiao Tong University. He has served as Chair of the Section on Sociology of Law at the American Sociological Association and Board Member of the Law & Society Association, the Asian Law & Society Association, the Canadian Law & Society Association, and the Consortium of Undergraduate Law and Justice Programs. Before joining the HKU faculty, Professor Liu taught at the University of Toronto and the University of Wisconsin-Madison. He received his LLB from Peking University Law School and his PhD in sociology from the University of Chicago. In 2016-2017, he was a Member of the Institute for Advanced Study in Princeton. His research areas include:

• Sociology of Law
• Chinese Law and Society
• Human Rights
• Law and Globalization

Welcome to Dr Menglu Wang, Postdoctoral Fellow

Welcome to Dr Menglu Wang who joined HKU Faculty of Law to be the postdoctoral fellow, under the RGC Senior Research Fellow Scheme (SRFS) project “Digital Finance, Financial Inclusion and Sustainability: Building Better Financial Systems”.

    Dr Menglu Wang is a Post-doctoral Fellow in the Department of Law, the University of Hong Kong. Her research interests include the development and regulation of financial technology (Fintech), with a particular focus on comparative law and Chinese issues. During the postdoctoral period, Menglu will conduct in-depth research on supervisory and regulatory issues relating to digital finance and sustainable development in major Fintech jurisdictions.

     Menglu received her Doctor of Philosophy in Laws from the Chinese University of Hong Kong, and participated in several research projects during her PhD. She holds a master’s degree (with distinction) from the University of Sydney Business School, specializing in finance and business law. Menglu passed the national judicial examination in China and obtained the legal professional qualification certificate.  Her research areas include:

• Commercial Corporate and Financial Law
• Comparative Chinese Law
• Information Technology

Shahla Ali et al on Introduction: Reaching Sustainable Diversity in International Arbitration (new book chapter)

"Introduction: reaching sustainable diversity in international arbitration"
Giorgio Fabio Colombo, Shahla F. Ali, Filip Balcerzak, and Joshua Karton

in Diversity in International Arbitration: Why it Matters and How to Sustain It,
ed. by Shahla F. Ali, Filip Balcerzak, Giorgio Fabio Colombo and Joshua Karton  (Edward Elgar Publishing, 2022), Chapter 1, pp.2-5

Introduction: For decades, arbitration has been a preferred means for settling cross-border business and investment disputes. Given its inter-, trans-, and to some extent a-national character, there has been a natural and mostly positive trend toward harmonization in the ways arbitration is practiced and in the laws that support the international arbitration system. 

HKU Research Awards in the Law Faculty in 2021-2022

Kerry Holdings Professor in Law Douglas Arner Awarded Outstanding Researcher Award

Congratulations to Kerry Holdings Professor in Law Douglas Arner who is the 2021-2022 award recipient of the Outstanding Researcher Award (ORA), in the Faculty of Law, awarded by The University of Hong Kong.  He is also  the recipient of  RGC Senior Research Fellow in 2020, Finalist for edX Prize in 2020, and Outstanding Young Researcher Award in 2007.   Currently, he is the Kerry Holdings Professor in Law, as well as the Director of LLM in Compliance and Regulation, and LLM in Corporate and Financial Law, and Law, Innovation, Technology and Entrepreneurship (LITE) Programmes, and is the former Director of the Asian Institute of International Financial Law at the University of Hong Kong, . He served as Head of the HKU Department of Law from 2011 to 2014 and as Co-Director of the Duke University-HKU Asia-America Institute in Transnational Law from 2005 to 2016. Douglas has published eighteen books, including most recently The RegTech Book (Wiley 2019), and Reconceptualising Global Finance and its Regulation (Cambridge 2016); Financial Markets in Hong Kong: Law and Practice (Oxford, 2d ed., 2016), Finance in Asia: Institutions, Regulation and Policy (Routledge 2013), From Crisis to Crisis: The Global Financial Crisis and Regulatory Failure (Kluwer 2011) and Financial Stability, Economic Growth and the Role of Law (Cambridge 2007), and more than 200 articles, chapters and reports on international financial law and regulation. His recent papers are available on SSRN at https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=524849, where he is among the top 75 authors in the world by total downloads. Douglas led the development of Introduction to FinTech – launched with edX in May 2018 and now with over 80,000 learners spanning every country in the world. He is a Senior Visiting Fellow of Melbourne Law School, University of Melbourne, and an Advisory Board Member of the Centre for Finance, Technology and Entrepreneurship (CFTE). Douglas was an inaugural member of the Hong Kong Financial Services Development Council (2013-2019) and has served as a consultant with, among others, the United Nations, World Bank, Asian Development Bank, APEC, Alliance for Financial Inclusion, and European Bank for Reconstruction and Development. He has lectured, co-organised conferences and seminars and been involved with financial sector reform projects around the world. He is currently leading a major 5 year Hong Kong Research Grants Council Senior Research Fellowship project on the role of FinTech and RegTech in financial inclusion and the UN Sustainable Development Goals as well as a 4 year RGC Research Impact Fund project focusing on FinTech policy and regulation. From 2012-2018, Douglas served as Project Coordinator of a major five-year project funded by the Hong Kong Research Grants Council Theme-based Research Scheme on “Enhancing Hong Kong’s Future as a Leading International Financial Centre”. He is currently one of the core team of another TRS project focusing on digital finance, financial stability and financial inclusion.  He has been a visiting professor or fellow at Duke, Harvard, the Hong Kong Institute for Monetary and Financial Research, IDC Herzliya, McGill, Melbourne, National University of Singapore, University of New South Wales, Shanghai University of Finance and Economics, and Zurich, among others. 

     Click here to view more on  Kerry Holdings Professor in Law Douglas Arner's work.

Dr Angela Zhang Awarded Outstanding Young Researcher Award

Congratulations to Dr Angela Zhang who is the 2021-2022 award recipient of the Outstanding Young Researcher Award (OYRA) in the Faculty of Law, awarded by The University of Hong Kong. She won the Research Output Prize in 2019, in the Faculty of Law, awarded by The University of Hong Kong, for her scholarly work entitled “The Role of Media in Antirust: Evidence from China,” (2018) 41 Fordham International Law Journal 473-530.

     Currently, she serves as Director of the Philip K. H. Wong Centre for Chinese Law at the University of Hong Kong, which promotes legal scholarship with the aims of developing a deeper understanding of China and facilitating dialogue between East and West.  She is an associate professor at the Faculty of Law in the University of Hong Kong. An expert in Chinese law, Angela has written extensively on Chinese regulatory issues. Her first book Chinese Antitrust Exceptionalism garnered significant attention during Beijing’s crackdown on Chinese Big Tech and was named a Best Political Economy Book of the Year by ProMarket in 2021. Angela is now working on her second book about China’s model of regulatory governance, which is expected to be released in 2023.

            With a broad research interests in the areas of law and economics, particularly in transnational legal issues bearing on businesses, she as a young researcher has massive research outputs appearing in leading international law reviews such as Harvard International Law Journal, Yale International Law Journal, Stanford International Law Journal, as well as top peer-reviewed journals from other disciplines such as Management Science and China Quarterly.

          She is a four-time recipient of the Concurrence Antitrust Writing Award, which selects the best articles published globally in the field of antitrust law each year. She received a British Academy/Leverhulme Small Research Grant (£10,000) in 2014 and two Hong Kong GRF grants, one (HK$637,440) in 2018 and the other (HK$ 656,825) in 2021.

      She is a highly sought-after commentator on Chinese regulatory issues. She often speaks at prestigious antitrust conferences in the United States, Europe, and Asia. She is also frequently interviewed by major international media outlets and regularly contributes commentaries to the popular press.

     Click here to view more on Dr Angela Zhang's work.

Thomas Cheng Awarded Research Output Prize

Congratulations to Thomas Cheng who is the 2021-2022 award recipient of the Research Output Prize  (ROP) in the Faculty of Law, awarded by The University of Hong Kong. The research output prize was for his book, The Patent-Competition Interface in Developing Countries, published by Oxford University Press, in 2021 (544pp). 

     Currently, he is a Professor in the Faculty of Law at the University of Hong Kong, who has written extensively on competition law in developing countries and on the competition law of a number of Asian jurisdictions, including Hong Kong, China, and Japan. His research has appeared in respected specialist U.S. journals, including Chicago Journal of International Law, Berkeley Business Law Journal, Virginia Law & Business Review, and University of Pennsylvania Journal of Business Law, and in leading competition law journals such as Journal of Antitrust Enforcement and World Competition. In 2020, he published Competition Law in Developing Countries, with Oxford University Press. 

     His research has been recognized internationally. He has been twice awarded the Jerry S. Cohen Memorial Fund Writing Award in the vertical restraints and antitrust and IP categories. Apart from awards, his stature as a scholar has been recognized through appointments to the executive and advisory boards of a number of leading international competition law organizations such as the American Antitrust Institute and the Academic Society for Competition Law (“ASCOLA”). He has made critical contributions to the development of competition law in Hong Kong. He advised the government extensively during the drafting of the city’s first competition law. He was a member of the inaugural Competition Commission and played a pivotal role in staff recruitment and setting up the Commission.

Kung Hei Fat Choy 2023

To mark the Chinese New Year, I share with you Professor Richard Cullen's annual new year drawings, "Year of the Rabbit", in three different color-papers. Professor Cullen's tradition of drawing his annual cartoon has been going on for over 20 years. He has not missed a year from when it started in 1994 (Year of the Dog).

HKU Legal Scholarship Blog wishes everyone a happy and healthy Year of the Rabbit.

CCPL Newsletter (January 2023)

Dear friends, 

Happy 2023!

This past Fall has been a rewarding and thought-provoking season for us at CCPL.

In this Newsletter, we are pleased to share with you highlights from the events we held last semester as well as information on upcoming events for Spring 2023.

We look forward to seeing you soon at our events - in person or on zoom!

With best wishes, 

Prof Po Jen Yap 

Professor of Law 

Director, Centre for Comparative and Public Law 

Faculty of Law 

The University of Hong Kong

***

Past Events:

28 July 2022 - Zoom Webinar Book Talk: Decoupling: Gender Injustice in China’s Divorce Courts (CUP, 2022) with the author – Ethan Michelson

6 September 2022 - Zoom Webinar Book Talk: Opposing Power: Building Opposition Alliances in Electoral Autocracies (University of Michigan Press, 2022) with the author – Elvin Ong

16 September 2022 - Zoom Webinar Book Talk: Governing and Ruling: The Political Logic of Taxation in China (University of Michigan Press, 2021) with the author – Zhang Changdong

27 September 2022 - Zoom Webinar: #RaceMeToo: Institutional Declarations of Anti-Racism, but Are They Listening, Do They Care?

24 October 2022 - CCPL Talk: Supreme Courts in the Age of Acute Political Polarization

27 October 2022 - Zoom Webinar Book Talk: Political Censorship in British Hong Kong: Freedom of Expression and the Law (1842–1997) (CUP, 2022) with the author – Michael Ng

9 November 2022 - Workshop on Hong Kong's Sedition Law

Upcoming Events:

February 2023 - Zoom Webinar Book Talk: Recentering the World: China and the Transformation of International Law (CUP, 2022)

February 2023 - Zoom Webinar Book Talk: A Pandemic of Populists (CUP, 2022)

March 2023 - Zoom Webinar Book Talk: Responsive Judicial Review: Democracy and Dysfunction in the Modern Age (OUP, 2023)

For more details, to view the CCPL newsletter, click here. 

Richard Cullen on The Remarkable Little Red Envelope (China Daily)

"The remarkable little red envelope"
Richard Cullen

China Daily

Published on January 19, 2023 

Introduction: Once upon a time, when I was still in primary school, some relatives visited us in the hot, dusty country town where we lived, about 200 kilometers north of Melbourne, where they also lived. It was shortly before Christmas. My kind, visiting auntie took me aside and gave me a Christmas card. I had never received a personal Christmas card before, so this was already a special day. I was encouraged to open it and when I did, inside there was a rather crisp, 10 shilling note ($0.62). It was a delightful and unique surprise. I had seen such notes before, of course, but I had never actually possessed one myself.

     The memory of this gift remains as vivid as ever. And it came to mind again recently as I prepared a red packet to give, on a special day, to someone close in Hong Kong. That got me thinking about what an uncommonly fine cultural creation the unassuming red envelope has turned out to be.
Click here to read the full text. 

Law Tech Talk: Data Protection and (In)accuracy Emotional AI as a Case Study by Dr Damian Clifford (ANU College of Law), Feb 9 (Thurs), 2023, HKT 1-2pm

Law and Technology Centre

Faculty of Law, the University of Hong Kong

Data Protection and (In)accuracy

Emotional AI as a Case Study

Dr Damian Clifford

Senior Lecturer, Australian National University College of Law

Date: Thursday, February 9, 2023

Time: 1pm – 2pm (Hong Kong Time)

This event will be conducted via Zoom. Prior registration is required. The link to the webinar will be provided upon successful registration.

Abstract: There is an increasing reliance on digital technologies. From smart phones to smart watches and other internet-enabled consumer products, we are increasingly reliant on technological developments. But these products and services also present challenges and there have been repeated scandals. Underlying such applications is the purported capacity to infer through intensive data processing whereby seemingly innocuous device-related data are processed to reveal sensitive personal inferences.

The purpose of this talk in particular is to explore how inaccurate inferences drawn through the use of such technologies may be understood in data protection law. To contextualise the discussion, this seminar will explore the rise of ‘emotional AI’ or the buzzword now used to refer to the affective computing sub-discipline and more specifically, technologies that aim to detect, classify and respond appropriately to users’ emotional lives thereby appearing to understand their audience in particular. There have been well documented concerns as to the accuracy of these technologies and therefore, they present an excellent case study to set the scene for this talk.

About the speaker: Damian Clifford is a senior lecturer at the Australian National University, College of Law and a chief investigator of the ANU Humanising Machine Intelligence Grand Challenge project and the Socially Responsible Insurance in the Age of Artificial Intelligence ARC Linkage Project. He is also an affiliate of the ARC Centre of Excellence for Automated Decision-Making and Society and the Institute of Advanced Legal Studies (University of London).

All are welcome!

Please register as soon as possible at
https://hkuems1.hku.hk/hkuems/ec_regform.aspx?guest=Y&UEID=86059 

To learn more about the HKU Law and Technology Centre, visit https://www.lawtech.hk.

For enquiries, please contact Ms. Grace Chan at mcgrace@hku.hk / 3917 4727.

Richard Cullen on Why Japan is Not an Acceptable Military Ally (Pearls and Irritations: John Menadue's Public Policy Journal)

"Why Japan is not an acceptable military ally"
Richard Cullen

Pearls and Irritations: John Menadue's Public Policy Journal
Published in January 2023

Introduction: There is some terrible double-foolishness afoot, that is certain to be widely noticed beyond the Western bubble. Australia is stepping forward with gusto to secure its position as a best-military-buddy not only with America, the most warlike nation in history, according to Jimmy Carter, but also with Japan, one of the 20th century’s most infamous warmongers, presently rearming with alarming relish. You are, as they say, known by the company you keep.

     America imposed a Pacificist Constitution on Japan in 1947, after it was defeated in World War II. Article 9 of this constitution outlaws the resort to war by Japan as a means to settle international disputes involving the state.

     There were very good reasons to impose this constitution at that time. And there are still very good reasons, explained below, why this constitution should apply today. But it is useful to consider, first, certain views on the Japanese economic miracle that unfolded following the last war.

     I visited Mainland China, over a period of years, interviewing Gaokao or final year High School students who were applicants to enter undergraduate study at Hong Kong University. We typically quizzed them in groups using a short debate topic. A popular, open-ended topic asked them to discuss their views on Japan. The loathing of Japan’s pitiless historical rule over much of China starting in the 1930s was sharply evident. But this stood alongside candid, pragmatic respect coupled with a measure of admiration for the economic achievements of Japan and the outstanding, reliable quality of the widest range of Japanese products. Furthermore, while Beijing’s influential China Central Television Service has covered the appalling horrors of the Japanese invasion and occupation of China in great depth it has also noted positive aspects of the industrial revolution imposed on China, by Japan.

     Moreover, as China’s open-door policy began to be applied over 40 years ago, after the death of Mao Zedong, Japan played a singular role in the rebuilding of China. Deng Xiaoping first encouraged Panasonic, for example, to come to China during a visit to Japan in 1978. According to a recent report, Panasonic, today, has around 80 subsidiaries in China, employs some 52,000 people and China business (at US$16 billion per year) accounts for about one third of all its business. There are many similar stories.

     We need now, however, to look further back in history.

Click here to view the full text.

Richard Cullen on Public Transport System is One of Hong Kong's Wonders (China Daily HK Edition)

"Public transport system is one of Hong Kong's wonders"

Richard Cullen

China Daily HK Edition

Published on December 15, 2022

Introduction: 

Bloomberg recently reported that Hong Kong has just been ranked as having the best metropolitan public transit system in the world, ahead of Zurich, Stockholm, Singapore and Helsinki. The study on which the report was based surveyed 60 major cities worldwide. It was carried out by the Oliver Wyman Forum and the Institute of Transportation Studies at the University of California, Berkeley.

     Reading this report prompted a short personal reflection. As age advances, I, along with many others, experience what I call “RTS” or “Roving Twinge Syndrome”. Recently, a fresh RTS experience signaled the need to visit a physiotherapist in Causeway Bay from home, also on Hong Kong Island. Within a short walk from our flat, I realized, I had access to two, frequent, virtually door-to-door minibuses; at least four similarly handy double-decker buses; plus another swift minibus ride offered an MTR option. All of these were available (another age factor) at HK$2 (26 cents) a ride. And if even more convenience were needed, there was a nearby taxi rank — with fares less than half those typically charged in other major global cities. Extraordinary, when you think about it. ... Click here to read the full text. 

Shiling Xiao (RPg) & Yang Lin (RPg) on Judicial Review of Administrative Rules in China: Incremental Expansion of Judicial Power (The Journal of Comparative Law)

"Judicial Review of Administrative Rules in China: Incremental Expansion of Judicial Power"
Shiling Xiao  (RPg: currently postdoc) & Yang Lin (RPg: currently ARO) 

The Journal of Comparative Law, Special Part: Issues in Administrative Justice, Volume XVII, Issue 2, pp. 371-392

published in 2022

Abstract: Since 1989 when China adopted its first Administrative Litigation Law (ALL), it had long excluded administrative rulemaking from the court’s purview in administrative litigation, known as the Chinese judicial review of government actions. The courts were not expressly vested with the power to review administrative rules until the first amendment to the ALL in 2014. This article examines the evolution of the Chinese judicial review of administrative rulemaking and the court’s practice in the last seven years (2014-2021). It argues that whereas the judicial empowerment in 2014 is a symbolically significant step toward improving Chinese administrative rulemaking, public accountability, and the rule of law, China has merely established a weak-form judicial review of administrative rules, and the timid and deferential approach of the courts to this new empowerment seriously limits the judicial function of supervising government’s policy-making. This article underlines that judicial review of administrative rules in China is tied to limitations with regard to the scope, intensity and effect of the review. Only administrative normative documents that are at the bottom of the hierarchy of the Chinese legal system and have the lowest legal force are amenable to judicial review. The courts are not expected to scrutinise the reasonableness and proportionality of these documents, and they cannot even strike down invalid ones. They employ the report and record procedure to transfer the decision power to high courts. In practice, the courts declined pleas for reviewing administrative rules in most cases. Even when they accepted the review requests, they seldom closely and effectively scrutinised the substantive content and merits of administrative normative documents. During administrative litigation, they also consulted with the executive authorities and deferred to their opinion. 

Alec Stone Sweet et al on Reversing Delegation? Politicization, De-delegation, and Non-majoritarian Institutions (Governance)

"Reversing delegation? Politicization, de-delegation, and non-majoritarian institutions"
Mark Thatcher, Alec Stone Sweet, and Bernardo Rangoni
Governance

Volume 36, Issue 1,
p. 5-22

Published in October 2022
https://doi.org/10.1111/gove.12709 

Abstract: Elected governments and states have delegated extensive powers to non-majoritarian institutions (NMIs) such as independent central banks and regulatory agencies, courts, and international trade and investment organizations, which have become central actors in governance. But, far from having resolved the balance between political control and governing competence or removed certain issues from political debate, NMIs have faced challenges to their legitimacy by elected officials and sometimes attempts to reverse delegation through “de-delegation”. Our special issue studies the politicization of NMIs, and then whether, why and how it leads to de-delegation through reducing the formal powers of NMIs or increasing controls over them. In this article, we examine how to analyze de-delegation, how politicization of NMIs has developed, and how it has affected de-delegation. We underline not only institutional rules that constrain elected officials but also the actions of NMIs themselves and their relationships with other NMIs as part of multi-level governance systems. We find that politicization has varied, but even when strong, elected officials have not introduced widespread and long-lasting de-delegation; on the contrary, they have frequently widened the powers of NMIs. Insofar as elected politicians have sought to curb NMIs, they have often preferred to use existing controls and non-compliance. Finally, we consider the wider implications of the combination of politicization and lack of de-delegation for broader issues of governance such as the division of powers between the elected and unelected and democratic accountability.

The Law and Technology Centre: the symposium “Regulating Social Media Algorithms,” Jan 17, 2023 (Tue), HKT 9am-12:40pm

The Law and Technology Centre is hosting the symposium “Regulating Social Media Algorithms” on Zoom on January 17, 2023. Below are the event details and the Zoom link. We look forward to seeing you at our Zoom event!

Date/Time:	Tuesday, January 17, 2023 | 9am - 12:40pm (Hong Kong Time)
Zoom link:	https://hku.zoom.us/j/96381811161
Program:	https://www.lawtech.hk/regulating-social-media-algorithms/

For enquiries, please contact Ms. Grace Chan at mcgrace@hku.hk / (+852) 3917 4727.