Philip K.H. Wong Centre for Chinese Law Newsletter (June 2022)

Centre for Chinese Law is Renamed Philip K.H. Wong Centre for Chinese Law

[read more]

Introduction to HKU Law Series (IV) Professor Douglas W. Arner’s Sharing

[read more]

Angela Zhang’s interview with Bloomberg TV on China’s Regulatory Easing

[video link]

RECENT PUBLICATIONS

  [read more]

Click here to read more.

Chinese Law | Philip K.H. Wong Centre for Chinese Law | Hong Kong (hku.hk)

New Regulatory Ramblings Podcast Features ex-Undercover Tackling Financial Crimes and Regulations (Arner & Shamdasani)

New Regulatory Ramblings  Podcast Features ex-Undercover Tackling Financial Crimes and Regulations

HKU has launched a new podcast,  Regulatory Ramblings, discussing topics on the intersection of all things pertaining to finance, technology, law and regulation. It is  now available on Spotify, Apple Podcasts, YouTube, and Bilibili. 

    Hosted by the HKU Reg/Tech Lab, the HKU-Standard Chartered FinTech Academy and the HKU-edX Professional Certificate in FinTech, the new podcast is a forum for those that appreciate long-form conversations, with new content available every middle and end of the month.

    In the first episode, former covert agent Bill Majcher revisits his detailed operations involving financial crimes across the globe, from anti-money laundering investigations, surveillances on terrorist activities and infiltrating drug cartel operations. Bill reveals the defining moments in his career, predicating his discussions on financial crimes and regulations. 

   Regulatory Ramblings Podcasts is led by Douglas Arner and Ajay Shamdasani. Ajay is a veteran writer, editor and researcher based in Hong Kong with extensive knowledge in regulatory developments in Asia. His experience comes from a 15-year long career as a financial and legal journalist, editor and former correspondent with Thomson Reuters’ Regulatory Intelligence/Compliance Complete. Douglas (Kerry Holdings Professor in Law, HKU Law) is a global expert and thought leader on issues relating to digital finance/financial technology, sustainability development and regulation. 

     Part Two of the Financial Crimes episode with Bill Majcher, focusing entirely on the money-laundering activities happening in Hong Kong and the region, will be released on 15 June 2022. Visit https://www.hkufintech.com/regulatoryramblings to find out more! Contacts: Ajay Shamdasani (ajayshk@yahoo.com) | Prof. Douglas Arner (douglas.arner@hku.hk) Note: All quotes from the podcast must be attributed to “Regulatory Ramblings Podcasts”.  Actual Podcast and Video links will be available through the website: www.hkufintech.com/regulatoryramblings

New Book by Haochen Sun: Technology and the Public Interest (Cambridge University Press)

Technology and the Public Interest
Haochen Sun

Cambridge University Press

Published in April 2022

Book description: In this groundbreaking work, Haochen Sun analyzes the ethical crisis unfolding at the intersection of technology and the public interest. He examines technology companies' growing power and their increasing disregard for the public good. To tackle this asymmetry of power and responsibility, he argues that we must reexamine the nature and scope of the right to technology and dynamically protect it as a human right under international law, a collective right under domestic civil rights law, and potentially a fundamental right under domestic constitutional law. He also develops the concept of fundamental corporate responsibility requiring technology companies to compensate users for their contributions, assume an active role responsibility in upholding the public interest, and counter injustices caused by technological developments.

Reviews: 

‘It’s hard to imagine a more timely intervention. In this important and urgent volume, prominent intellectual property scholar Haochen Sun sets out a compelling case for recognition of the human right to technology and a blueprint for defending that right against the assaults of Big Tech.’

Barton Beebe - John M. Desmarais Professor of Intellectual Property Law, New York University School of Law

‘In this foundational book, Haochen Sun builds a new vision of corporate social responsibility in the digital era. He uncovers a nearly forgotten human right to the benefits of science, and argues that technology companies need to better ensure broad distribution of the benefits of technology.’

Anupam Chander - Scott K. Ginsburg Professor of Law and Technology, Georgetown University Law Center

‘As backlash against leading technology firms grows, it is time to think big about the future governance of intellectual property and internet platforms. Technology and the Public Interest more than meets the challenge, offering a comprehensive vision for law and policy to promote fundamental corporate responsibilities to protect and promote human flourishing. Sun’s first-rate work squarely addresses contemporary concerns like COVID vaccine disparities, while developing a normative framework of lasting relevance. Read this important book for an erudite and inspiring perspective on technology governance.’

Frank Pasquale - Professor of Law, Brooklyn Law School

Three HKU Law Scholars Profiled in HKU Bulletin (May 2022)

The latest HKU Bulletin magazine (May 2022, Vol. 23, No. 2) features the accomplishments of several Faculty of Law colleagues: Dr Angela Zhang (Research, pp 28/29), Professor He Xin (Research, pp 30/31), and Dr Haochen Sun (Books, pp 44/45). 

"China's Jumpy Take on Tech"

For years, the Chinese government treated technology companies with kid gloves, encouraging them to get on the innovating and making money,  But in 2020, that changed.  Dr Angela Hueyue Zhang has been looking into the factors motivating the new hard-line regulation of techonlogy in Mainland China ...

'China's volatile style of policymaking is deeply ingrained in its authoritarian governance system, where regulatory authorities need to adhere to central policy initiatives and administrative power is subject to few institutional constraints.'  

~ Dr Angela Huyue Zhang

Dr Zhang also recently had a book published by Oxford University Press on the wide-ranging issues involved in China’s regulatory regime, Chinese Antitrust Exceptionalism: How the rise of China challenges global regulation.

"Men Win Out in Divorce in China"
Professor He Xin's research shows that a combination of institutional constraints on Chinese judges, traditional values about gender, and income inequality frequently result in divorce decisions that are more favourable to men than women.

'The judges follow strictly the law and the instructions of the Supreme People’s Court and they think their decisions are neutral. But they are ignoring the underlying socioeconomic inequality between the two genders, which affects the outcomes.'

           ~ Professor He Xin 

Divorce in China: Institutional Constraints and Gendered Outcomes was published by NYU Press in 2021.

"Your Right to Technology" 

Access to COVID-19 vaccines, broadband connections and other beneficial technologies should be a human right, argues legal scholar Dr Haochen Sun in a new book.

'Technology has become the major driver of our economic, cultural and political life. We have to talk about access to technology as a human right so that everybody can benefit and we can prevent serious harm caused by improper application of the technology.'

          ~ Dr Haochen Sun

Henry Litton Comments on Yeung Lai Ping v Secretary for Justice (CACV 206/2019)

Commentary on Yeung Lai Ping v Secretary for Justice (CACV 206/2019)

Henry Litton, Honorary Professor

HEALTH WARNING: Reading this article might arouse such sense of outrage it could damage your health, particularly for those suffering from high blood pressure.

Introduction

This is the story of a public health provider that cares neither for the welfare of its patients nor the health of its employees; and when an employee injured at work sought redress for harm done, the department deployed lawyers to crush her by the weight of black-letter law.

Background

Yeung Lai Ping (the plaintiff) qualified as a dentist when she was 23. She practised for about 4½ years, then resumed full-time studies, obtaining a Master of Dental Surgery degree when she was 30.

     In February 1997 she joined the Department of Health as a dental officer, and in the course of her practice performed a considerable number of surgical extractions (SX). This involved the removal of bone and cutting of teeth, operating in an awkward position and the use of some force. It also involved the use of hand-held drills for about 20-30 minutes in each session. The drill, inevitably, would transmit vibrations to the wrist.

     The wrist is prone to strain. The structure of the wrist comprises eight small bones, allowing it to be flexible. But sprain can easily occur, as typists and tennis players well know. The symptoms are pain, numbness and swelling. Repeated over-exertion might result in carpal tunnel syndrome and triangular fibrocartilage tear. These are very serious conditions.

Work at North District Hospital

In September 1998 the plaintiff was posted to work as a dental officer in the dental unit of North District Hospital (NDH): a newly opened hospital. The dental unit had only two dentists – the plaintiff and Dr Tsui, her supervisor.

     Prior to working in NDH the plaintiff had no problem with SX. Her patients were well-served by her exercise of skill in surgical extraction operations.

     Her work schedule at NDH was gruelling. Her appointment book was marked three months in advance. The number of SX required of her was far greater than that of Dr Tsui. Between October 1998 to September 1999 she performed 710 SX. Over the same period Dr Tsui did 479 SX.

    Her work in NDH over a period of 13 months resulted in her developing carpal tunnel syndrome and triangular fibrocartilege tear. This eventually ended her career as a dentist.

The legal proceedings

On 2 September 2002 the plaintiff issued a writ seeking damages against the government. It was not until 14 years later that the action was heard in court. That took place in December 2016 and March 2017. Judgment was delivered in April 2019. The judge found that the department had failed to maintain a safe and healthy workplace and had breached its duty of care to the plaintiff. She was awarded substantial damages and costs.

The findings of fact

The plaintiff first developed symptoms in her right hand and wrist in mid-1999. This was known to Dr Tsui who had monitored closely her appointments. As the judge found, a reasonable and prudent employer had the duty to consider the plaintiff’s capabilities and condition, and adjust her duties particularly as regards SX. Those capabilities had, of course, a direct impact on her patients’ welfare. Because the dental unit was so short-staffed and the demands of the patients so pressing, there was no real choice that her SX might have been lessened.

     From July 1999 the plaintiff wore a hand splint and sought medical and physiotherapy treatment. Her work schedule did not diminish. In October she took three weeks’ sick leave and returned to work on 25 October, with the symptoms only partially relieved. Dr Tsui made no inquiry of her condition and put her back onto the same gruelling schedule. Things came to a head on 30 October (a Saturday) when she was given three SX to perform. On the third SX she suffered excruciating pain in her right wrist and could not continue the operation (to the distress of her patient, of course). She was later diagnosed to have suffered carpal tunnel syndrome and a tear to the triangular fibrocartilage complex which effectively ended her career as a dentist.

     The judge found as a fact that, on the plaintiff’s return from sick leave, Dr Tsui told her he would not change her schedule; complaints from her would not have resulted in her rescheduling; and, in particular, the 3 SX fixed for 30 October. It would seem that Dr Tsui himself was under pressure. The fault was in the heartless system of the department which was interested in numbers and not in the welfare of people under its care.

     It was on these facts that the trial judge found for the plaintiff. What civilised legal system in the world would not have arrived at the same conclusion? And, it might be added, what caring public health provider in the world would not have felt sympathy for the plaintiff, accepted responsibility for the incident and moved on? Not the Hong Kong Department of Health.

Appeal

The Health Department launched an appeal, dealt with by the Court of Appeal (CA) by its judgment of 8 March 2021, comprehensively reviewing the judge’s findings and affirming his conclusions.

Application for leave to further appeal

On 7 April 2021 the department sought leave from the CA to take the matter to the Court of Final Appeal. The CA determined the matter a year later on paper, by its ruling of 20 May 2022.

     This is a 22-page document where the CA comprehensively disposed of the eight purported questions for the CFA’s consideration. They were all dismissed. The CA rejected the application for leave to appeal in its entirety.

     Beneath its dignified language, one can sense boiling outrage rightly felt by the CA. The trial judge, three years earlier, had made clear findings of fact, putting an end to litigation which started in 2002. The fact that the department had grievously failed to discharge its duty of care to the plaintiff could hardly be in doubt. The CA had affirmed those findings. And yet the Health Department was not satisfied; it wanted lawyers to engage in a point-scoring nit-picking forensic game to deprive the plaintiff of redress, as if the health and well-being of Yeung Lai Ying were of no account; it wanted the plaintiff back in the grinding forensic machine to face further delay and anxiety. Having been responsible for damaging the plaintiff’s health, ending her dental career, it cared not whether further proceedings might not damage her mental health as well.

The eight questions

The eight questions were farcical. Question 1 was a pure pleading point which no modern judge would for a moment entertain. Question 2 was this:

“Whether factual findings on the nature of injury suffered by a plaintiff employee, and causation between such injury and the alleged breach of duty committed by the defendant employer, may be made by resorting to ‘common sense’ to fill a gap not covered by the medical evidence, when the medical experts have not been asked to give an opinion on those issues?”

Common sense indeed. What is singularly missing is common sense in the department’s whole approach; common sense and compassion. The following six questions simply piled absurdity on absurdity and bear no examination.

Conclusion

The time limit for the department to seek leave from the Appeal Committee to take the matter to the CFA has yet to expire. Is it conceivable that the department would take this inhumane step? Is this trial by ordeal starting in 2002 not long enough?

     The Minister for Food and Health bears ultimate responsibility for the department. Is she aware of this outrage?

AIIFL Newsletter: Issue 8 (May 2022)

 AIIFL Newsletter: Issue 8 - May 2022

UPCOMING EVENT
Wednesday, 22 June 2022, 3:00 – 4:00 PM Hong Kong Time via ZOOM
The Future of Tax Jurisdiction
Professor Miranda Stewart, Melbourne Law School, University of Melbourne
Read More

FELLOWS’ PUBLICATIONS
Forming Transnational Dispute Settlement Norms: Soft Law and the Role of UNCITRAL's Regional Centre for Asia and the Pacific
Shahla Ali

Financial Data Governance: The Datafication of Finance, the Rise of Open Banking and the End of the Data Centralization Paradigm
Douglas W. Arner, Giuliano G. Castellano and Eriks K. Selga

Before Blockchain and Why it Matters (in English and Chinese)
Syren Johnstone

Blockchain as a Disruptor of Securities Regulation (in English and Chinese)
Syren Johnstone

Judging the Party: Public Law Wrongs and Private Law Remedies
Hualing Fu and Xianchu Zhang

Chapter 14: Bankruptcy Law in China
Company Law in Hong Kong – Insolvency 2022
Xianchu Zhang

MEDIA
NFT: 元宇宙中分布式数字认证是炒作, 还是希望? (in Chinese)
(NFT: Hypes and Hopes of Distributed Digital Certifications in the Metaverse)
Stefano Beghi and Giuliano G. Castellano

The Emergence of Financial Data Governance (Oxford Business Law Blog)
Douglas W. Arner, Giuliano G. Castellano and Eriks K. Selga

FELLOWS’ ACTIVITIES

• As part of the General Research Fund project “Creating Credit: Law Reforms, Policy Tensions, and Disruptive Technologies”, Dr Giuliano G. Castellano (Principal Investigator) has spent a semester as Visiting Scholar at Columbia Law School in New York from January to June 2022. During this period, Dr Castellano focuses on the notions of systemic disturbances in the context of credit markets.
•  Professor Douglas Arner participated in the 14th Annual G-24/AFI Policymakers' Roundtable at the 2021 International Monetary Fund (IMF) and World Bank Group (WBG) Spring Meetings held virtually on 26 April 2022 Watch HERE
• The UNIDROIT Factoring Model Law Working Group met on 16-18 May 2022 to continue its work on the development of international standards to facilitate access to credit via receivable financing and supply-chain finance. Dr GiulianoG. Castellano is one of the international experts appointed by the UNIDROIT Secretariat. More information on UNIDROIT Factoring Model Law Working Group can be found HERE.

PAST EVENTS
Book Talk: Hong Kong Competition Law - Comparative and Theoretical Perspectives
(28 April 2022)

Understanding the Momentous Mainland-Hong Kong Cross-Border Insolvency Arrangement (21 April 2022)

Blockchain Asset Registries-Freeing Crypto from Mania (12 April 2022)

Protecting Policy Holders’ Interests in Health Insurance (31 March 2022)

Peter Willoughby Memorial Lecture: China’s Rising (and the United States’ Declining) Influence on Global Tax Governance? Some Observations (3 March 2022)

Book Talk: Regulating the Crypto Economy - Business Transformations and Financialisation (24 February 2022)

Book Talk: Reforming Antitrust (24 February 2022)

Creating Equitable Tax Systems: Challenges Posed by Financial Markets (17 February 2022)

Visit & Explore AIIFL

Emily Lee on De-risking Practices in Hong Kong and Technological Responses (Common Law World Review)

"Technology-driven solutions to banks’ de-risking practices in Hong Kong: FinTech and blockchain-based smart contracts for financial inclusion"
Emily Lee
Common Law World Review, 
Published on 18 May 2022

Abstract:   This article examines banks’ de-risking practices inside Hong Kong's Anti-Money Laundering/Countering the Financing of Terrorism (AML/CFT) regime, a problem that has created considerable tension between the demands of AML/CFT prevention and those of financial inclusion. It unravels the public policy tensions stemming from a multitude of financial reform causes, namely the facilitation of AML/CFT regulatory compliance, the promotion of financial technology (FinTech) innovation and an ultimate expansion in financial inclusion. The article argues that tiered account services are an important first step towards financial inclusion, culminating in the introduction of simple bank accounts by some banks to mitigate the effect of de-risking. While proposed solutions such as the know-your-client utility system and central data repository may contribute to a digital financial inclusion framework, they are not tailored to solve a specific problem (de-risking). The article therefore proposes and evaluates whether FinTech and blockchain-based smart contracts qualify as alternative solutions to de-risking. The article aims to address those policy tensions and contribute to the regulatory policy formulation and the rule-making for financial law and regulation intended to facilitate financial inclusion.

CCPL Conference: Berkeley Centre on Comparative Equality & Anti-Discrimination Law (June 22-24, 2022)

About the Conference
The conference will focus on what the pandemic has revealed about the causes and nature of inequalities around the world. Calls to tackle deep-seated structural and intersectional discrimination have increased in recent years, but so has the backlash. In some places we see attempts to dismantle hard-won, progressive legal and policy change. In others, ongoing efforts to achieve reform have stalled.

With these realities in mind, the conference will consider possibilities for crafting effective responses as we move forward in a vastly unequal post-pandemic world.

The conference features 3 keynote presentations, 4 other plenary discussions, and 23 parallel workshops with 150+ experts from over 25 countries.

Keynote Speakers
New Directions for Equality in a Post Covid World
Jayna Kothari (Founder-Director Centre for Law and Policy Research, Bangalore)

Microverse, Mezzoverse, Macroverse: Protection against Discrimination in an Artificialized World?
Vitit Muntarbhorn (Professor Emeritus Faculty of Law, Chulalongkorn University, Bangkok)

From Disabled Justice to Disability Justice: the Practice of China
Zhang Wanhong (Professor of Jurisprudence Wuhan University School of Law, Wuhan, China)

Plenary Discussions
Judicial Perspectives on Tranforming Equality
Beverley McLachlin (Former Chief Justice of the Canadian Supreme Court)
Geoffrey Ma (Former Chief Justice of the Hong Kong Court of Final Appeal)

Let’s Get Equality Out of the Box!
Laura Carlson, Puja Kapai, Naina Kapur

[Book Talk] Exponential Inequalities: Equality Law in Times of Crisis
Shreya Atrey and Sandra Fredman (eds)
Alysia Blackham, Jessica Clarke, Beth Gaze, Kelley Loper, Jule Mulder, Colm O’Cinneide

UCLA WORLD Policy Analysis Center: Equal Rights and Discrimination Project
Jody Heymann

Conference Programme
The conference programme can be found here.

Registration
There is no fee, but all attendees must register in advance here.

New Book by Agnes Chong (PhD graduate): International Law for Freshwater Protection

International Law for Freshwater Protection
Series: International Water Law Series, Volume: 9
Agnes Chong (PhD graduate)
Brill
Published in April 2022

Description: International Law for Freshwater Protection traces the development of international water law on fresh water protection and demonstrates how the regime focuses on the utilisation and rights of sovereign states over the protection and sustainable growth of shared water resources. The evolving jurisprudence influenced by environmental law highlights the regime’s insufficient focus on the environmental protection of watercourses. This book argues that existing rules, mechanisms and norms within international law can address the regime’s imbalance and establish how these might be applied to improve freshwater protection.

Ryan Whalen on the What, Why and How of Automated Patent Decision-making (ALTI Forum)

The Amsterdam Law & Technology Institute’s team is inviting external faculty members to publish guest articles in the ALTI Forum. Here is the latest contribution authored by Ryan Whalen (The University of Hong Kong).

"The What, Why and How of Automated Patent Decision-making"

Ryan Whalen

9 May 2022

Introduction

The patent system is slow, expensive, and inaccurate. So much so that some refer to it as “broken.”1 Meanwhile, patent applications are increasing in number and complexity.2 Examiners are overworked, which leads them to make more incorrect decisions.3 This has led some to advocate for increased use of technologies, and in particular patentability classifiers, at patent offices.4

     This essay provides an overview of issues related to implementing automated patentability decision-making technologies within patent offices. It first briefly discusses the technologies in question, underpinned by advances in machine learning and natural language processing. The subsequent section explores why the patent system is a prime candidate for the adoption of increased automation. Finally, it turns to exploring different ways these technologies could contribute to existing patent examination processes, or enable the development of new categories of “machine examined” patent grants with distinct legal protections... Click here to view the full text. 

Norman Hui, Gary Meggitt et al: The Professional Conduct of Lawyers in Hong Kong, Issue 64 (LexisNexis)

The Professional Conduct of Lawyers in Hong Kong 
Norman Hui, Gary Meggitt et al

Issue 64

LexisNexis

Published in May 2022

The Professional Conduct of Lawyers in Hong Kong is an unrivaled text on professional conduct and ethics in Hong Kong, providing in-depth analysis on the application of the Bar Code, the Prosecution Code and the Solicitor's Guide to Professional Conduct  This 5 binder looseleaf title is intended to provide up-to-date information, discussion, and a thorough analysis of the practice, principle, and regulation of the legal profession in Hong Kong. Legal practitioners, be it solicitors, barristers, the judiciary, government officials, prosecutors, in-house counsel, foreign and overseas lawyers or students, have become particularly susceptible to the interplay of regulation with professional responsibility considerations when taking up the task of advising and representing clients. The text is aimed at assisting practitioners to stay alert of duties and responsibilities, and understand and maintain the high standards of conduct that is expected of the legal profession in Hong Kong.

Syren Johnstone on Before Blockchain and Why it Matters (HK Lawyer)

"Before Blockchain and Why it Matters"
Syren Johnstone
Hong Kong Lawyer,

May 2022, pp. 40-45 (in English and Chinese)

Abstract: To paraphrase a well-known concept, to understand the present and anticipate the future one needs to understand the past. Yet this has in general not been the case with most responders to the emergence of Bitcoin, Ethereum and the whole gamut of public, consensus based blockchain cryptoassets that have come after them.

HKU Law Collaborates with INTERPOL on the Use of Digital Evidence in Prosecutions in Asia (Report and Training)

The Use of Digital Evidence in Prosecutions in Asia

INTERPOL

February 2022
Executive Summary

Digital evidence has become an essential element of criminal investigations and prosecutions for all types of crimes. This research report by The University of Hong Kong, commissioned by the International Criminal Police Organisation, is a study of the laws governing the use of digital evidence in criminal cases in nine beneficiary countries in Asia, namely the People’s Republic of Bangladesh, the Kingdom of Bhutan, Brunei Darussalam, the Kingdom of Cambodia, the Republic of Maldives, Mongolia, the Federal Democratic Republic of Nepal, the Democratic Socialist Republic of Sri Lanka, and the Socialist Republic of Vietnam. The report also studies the existing legal arrangements that enable these countries to request and obtain digital evidence from abroad in cross-border cases.

      All nine countries are members of the Asia/Pacific Group on Money Laundering, five are members of the South Asian Association for Regional Cooperation (SAARC), four are members of The Commonwealth, and three are members of the Association of Southeast Asian Nations (ASEAN). Six of the countries have mixed common law legal systems, while the other three have civil law systems. The evidence laws of four of the mixed common law jurisdictions are based on or influenced by the Indian Evidence Act of 1872.

     This study has found that the laws and practices in all nine countries generally favour the admissibility and use of digital evidence in criminal cases. No instance was found of a court rejecting digital evidence merely on the grounds that the evidence was in a digital form... Click here to download the full summary.  Professor Simon Young led the HKU research team responsible for preparing the research report.  In May 2022, Professor Young and his team helped to organise the training of prosecutors and police across nine Asian countries in INTERPOL's e-Evidence Programme for Prosecution (Module 2: Legal framework on e-Evidence admissbility).

New Book edited by Stefan Lo: Company Law in Hong Kong – Practice and Procedure 2022 (Sweet and Maxwell)

Company Law in Hong Kong – Practice and Procedure 2022
General Editor: Dr Stefan H C Lo
Sweet and Maxwel1
January 2022

Preface by the General Editor

Company Law in Hong Kong – Practice and Procedure covers the main areas of core company law, including major parts of the Companies Ordinance (Cap.622) (“CO”).

     The main legislative development in 2021 in the company law field relates to commencement of some of the provisions of the CO that had not been commenced when the rest of the CO came into operation in 2014 (following enactment in 2012). These are the provisions introducing certain privacy protections for inspection of personal particulars of directors and others in the Companies Register (as maintained by the Companies Registrar), as well as in companies’ own registers of directors and secretaries. These provisions were not commenced in 2014 due to controversies arising at the time as to whether the new provisions unduly undermine transparency regarding company controllers. In the original public consultation on the topic in 2009 and 2010 (see Financial Services and the Treasury Bureau, CO Rewrite – Draft Companies Bill First Phase Consultation Paper (December 2009) and Consultation Conclusions (August 2010)), there was majority support for the new proposals from respondents to the consultation and the provisions in the Companies Bill were duly enacted by the Legislative Council. It was only when draft subsidiary legislation (setting out certain details of the new regime) was published for public consultation towards the end of 2012 (see Financial Services and the Treasury Bureau, New Companies Ordinance – Subsidiary Legislation for Implementation of the New Companies Ordinance Phase 2 Consultation Document (November 2012)) that the topic became controversial amongst the public. The Government could not reach a consensus with stakeholders at the time and the decision was made not to commence the relevant provisions (mostly contained in Parts 2 and 12 of the CO) when the rest of the CO commenced in 2014. The Government had then indicated that it will consult stakeholders and the public again at a later time, with the reforms to be revisited in due course. In the event, the Government in 2021 announced that the uncommenced provisions will now come into operation in three phases in the period 2021 to 2023. The first phase has been implemented, with the uncommenced parts of CO ss.643, 644 and 651 coming into operation on 23 August 2021, enabling companies to replace the residential address of directors in their registers of directors with a correspondence address and redacting part of the identification number of directors and company secretaries in the registers of directors and company secretaries. See further the Company Records (Inspection and Provision of Copies) (Amendment) Regulation 2021 and the Companies Registry’s External Circular No.1/2021 – Commencement of New Inspection Regime Phase 1 (16 August 2021).

     As is the case each year, there have been a number of new Hong Kong cases dealing with company law handed down in the past year. One interesting decision is that of the Court of Appeal in Wang Pengying v Ng Wing Fai [2021] 1 HKLRD 997, dealing with the common law derivative action pursuant to the fraud on the company exception to the proper plaintiff rule in Foss v Harbottle (1843) 2 Hare 461. Most derivative actions nowadays are commenced via the statutory route in CO ss.732 and 733. But the common law derivative action was not abolished when the statutory derivative action was introduced in Hong Kong and there are still cases on the common law action which arise from time to time in Hong Kong. In the Wang Pengying case, the court considered the scope and nature of the fraud exception under the common law, albeit the comments were by way of obiter. The case is discussed in Chapter 8. Other notable cases in the past year include Chen Pao Tzu v Chen Sheng Kuei [2021] 1 HKLRD 1071, dealing with the irregularity principle in the context of general meetings (see Chapters 5 and 8) and China Metal Recycling (Holdings) Ltd v Chun Chi Wai [2021] HKCFI 378, dealing with directors’ duties and liabilities of third parties involved in a director’s breach (see Chapter 11 in the context of recovery for improperly paid dividends).

New Book edited by Stefan Lo: Company Law in Hong Kong – Insolvency 2022 (Sweet and Maxwell)

Company Law in Hong Kong – Insolvency 2022
General Editor: Dr Stefan H C Lo
Sweet and Maxwel1
January 2022

Preface by the General Editor

Company Law in Hong Kong – Insolvency covers major aspects of corporate insolvency law in Hong Kong. As mentioned in the Preface to the 2021 edition of this work, reform in this area of law in Hong Kong has been ongoing in recent years. Following changes made by the Companies (Winding Up and Miscellaneous Provisions) (Amendment) Ordinance 2016 (14 of 2016) to the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap.32) (“CWUO”) in the “Improvement of Corporate Insolvency Law” reform exercise, the Government has been working on a bill for the new statutory corporate rescue procedure referred to as provisional supervision, together with new insolvent trading provisions. In late 2020, the Government had announced that the Companies (Corporate Rescue) Bill will be tabled in the Legislative Council in the first quarter of 2021. Alas, expectations were dashed and the Bill has still not been finalised. Aspects of the proposals on provisional supervision expected to be in the Bill are outlined in Chapter 13. It is to be hoped that the Government re-focuses priority on the Bill for introduction in the Legislative Council in 2022.

     There have continued to be a large number of cases handed down in the past year in Hong Kong on winding up law. Three specific areas are mentioned here. Firstly, the courts in recent times have developed and refined the principles on the duty of directors to take into account creditors’ interests when a company is insolvent or likely to be insolvent. Wing Hong Construction Ltd v Hui Chi Yung [2020] HKCFI 2985 is another case dealing with this duty. The case is particularly useful in discussing the test of insolvency in this context (see Chapter 1). Secondly, a number of cases in recent years have grappled with the intricacies of CWUO s.182, which voids dispositions of a company’s property following commencement of winding up (unless the disposition is validated by the court). The winding up of Hsin Chong Construction Co Ltd has spawned a number of such cases, including the Court of Final Appeal decision in Hsin Chong Construction Co Ltd (in liq) v Build King Construction Co Ltd [2021] 4 HKC 590 (nature of a disposition) and the Court of First Instance case of Re Hsin Chong Construction Co Ltd (No.3) [2021] 1 HKLRD 582 (whether mandatory MPF contributions are to be validated by the court): see Chapter 9. Thirdly, there has also continued to be new cases on cross-border insolvency, as discussed in both Chapters 4 and 12, dealing with winding up of foreign companies (Re China Huiyuan Juice Group Ltd [2021] 1 HKLRD 255) and recognition and assistance to foreign insolvency office-holders under the common law (Re FDG Electric Vehicles Ltd [2020] 5 HKLRD 701; Re Moody Technology Holdings Ltd [2020] 2 HKLRD 187; Re China Bozza Development Holdings Ltd [2021] 4 HKC 560). The past year also saw the entering into of a pilot scheme between the Supreme People’s Court (“SPC”) and the Hong Kong Government to facilitate mutual recognition of insolvency office-holders between Intermediate People’s Courts in certain designated pilot areas on the Mainland and the High Court in Hong Kong: see Chapter 12 and the Record of Meeting of the Supreme People’s Court and the Government of the Hong Kong Special Administrative Region on Mutual Recognition of and Assistance to Bankruptcy (Insolvency) Proceedings between the Courts of the Mainland and of the Hong Kong Special Administrative Region (14 May 2021). The scheme is the product of some years of negotiation between the SPC and Hong Kong’s Department of Justice. From the Hong Kong perspective, it is hoped that the scheme can assist in overcoming some of the difficulties which have faced Hong Kong liquidators in recovering Mainland assets of companies being wound up in Hong Kong. 

Chris Szabla on A New Foundation for Freedom of Movement in an Age of Sovereign Control: The Liberal Jurisprudence of August Wilhelm Heffter (Law and History Review)

"A New Foundation for Freedom of Movement in an Age of Sovereign Control: The Liberal Jurisprudence of August Wilhelm Heffter"
Christopher Szabla
Law and History Review, Volume 40, Issue 1, pp. 63-90, doi:10.1017/S0738248021000596
Published in February 2022

Abstract: This article addresses how a once influential jurist addressed a potential paradox in liberal thought—between democratic control over borders and transnational rights—as it arose in the mid-nineteenth-century, amid advocacy against authoritarianism and for free trade and movement, on the one hand, and the increasing calling into question of natural law theories that may have best facilitated free movement, on the other. While scholarship has increasingly shown how the boundaries between periods of natural law and positivist hegemony are difficult to distinguish, specific tensions in the mid-nineteenth-century called for an approach that preserved free movement in light of the growing appeal of empiricism and state sovereignty. In this context, August Wilhelm Heffter proposed that states were bound by higher law as a consequence of their free decision to enter international communities: these communities’ purpose, he wrote, bred customary laws facilitating interstate interaction. Heffter’s approximation of “natural” law in a more positivist context and his use of the period’s “customary” logic helps account for his influence not only in periods of free trade and movement’s ascendancy but also the survival of forms of his thought into periods of sovereigntist reaction against them. It therefore holds potential to address what scholarship has termed today’s “liberal paradox” between democracy and migration better than approaches that emphasize a more complete return to natural law.

Rebecca Lee: Towards a Unified Doctrine of Mistake (Trusts & Trustees)

"Towards a unified doctrine of mistake?"
 Rebecca Lee
Trusts & Trustees, 

https://doi.org/10.1093/tandt/ttac050
Published on 5 May 2022

Abstract: The concept of mistake permeates various areas of private law and performs a similar function in relieving errors in each. This article reviews the operation of the doctrine of mistake in different substantive areas of law, including contract, unjust enrichment and equity, and argues that the similarities in terms of the requirements for establishing a mistake and the role of assumption of risk in negating a mistake should not be overstated. It further argues that the distinction between gifts and bargains, as well as the proprietary consequences of equitable mistakes, makes it premature to postulate a unified doctrine of mistake.

Richard Cullen on US Abusing Global Dominance of Dollar (China Daily)

"US abusing global dominance of dollar"

Richard Cullen

China Daily
22 April 2022

The American assault on the American dollar

Richard Cullen

The Nobel Prize winning economist, Ronald Coase argued in 1960 that, if property rights are defined, secure and transferable, individuals will ensure that resources will go to their highest valued uses. Professor Daniel Benjamin, from the Property and Environment Research Center based in Montana, drew on Coase, in 2006, to reason vigorously that clear, enforced property rights are fundamentally important in shaping prosperity.

     A pivotal aspect of modern property rights is that they must be protected against any irregular expropriation by government, according to Benjamin. This is a widely accepted view across the developed world and well beyond. The right to be protected from the improper taking of property by government is enshrined in the US Constitution as it is in the Australian Constitution. Here in Hong Kong, property rights are protected under two separate articles in the Basic Law: Article 6 and Article 105.

     Property can be fixed and tangible, like real estate, moveable and tangible, like a TV set, or intangible, like the ownership rights to a TV program. Money can be used to buy property – but money is, itself, also property. It is the primary store of wealth used by everyone to cover ongoing expenses, to accumulate capital for future use and to help respond to potential crises. It is used in these ways by both people and institutions - and governments.

     The Investopedia Website explains how, during World War II, the US was a primary supplier of weapons to the Allies fighting Nazi Germany and Japan. Many of these purchases were paid for in gold. Under the 1944 Bretton-Woods agreement, the US dollar was selected as the outstanding candidate to become the global reserve currency, post-war, backed by the world’s largest gold reserves. After President Nixon removed the then gold-standard backing the dollar, in 1971, it still remained the world’s reserve currency. Modern economies depend hugely on having reliable access to a reserve currency which offers a stable trading regime - and against which the value of other currencies can be gauged. Such a currency also needs to provide a trustworthy store of wealth. There is still no established currency which can be used to take over this pivotal role played by the US dollar.

    Despite the insistent championing, dating back centuries, by the West of the paramount importance of property rights, there is deep and growing concern that Washington has now begun an assault aimed at the very foundations of this hallowed regime. There are two primary facets of this ambush: the way in which the US Dollar is being openly exploited; and the more direct attack on the core security expectations associated with property rights. In both cases, this recklessness is aimed at securing certain fervently-framed, political ends.

     Many commentators have looked askance, over the last several years, at how Washington has rashly and increasingly misused the immense economic power that comes from running the world’s established international currency.

     Curiously, flagship financial media outlets like the Wall Street Journal, the Financial Times and the Economist, have not been headlining these bleak developments. Rather, they have remained surprisingly unruffled, perhaps because they avidly support certain, related political ends advocated by Washington and its allies.

     In his first interview after the war in Ukraine began, Jim Rogers, a renowned American investment commentator, said, bluntly, that the US Dollar is now being used as an instrument of war - and it is set to die. Around the same time, Anthony Rowley, a veteran journalist specializing in Asian economic and financial affairs, castigated the Western world for what he argued was a resort to frenzied, vengeful sanctions, many dollar-related, in response to the same war.

     As the terrible conflict in Ukraine has developed, an intense rash of property confiscations related to very wealthy Russians living in the West, has unfolded. Around the world, property seizures, for the reasons set out above, normally need to follow detailed, sequential legal procedures. These owners are guilty-by-association, however, and those otherwise esteemed procedures are fearlessly bypassed in the name of applying swift justice. The end justifies the means.

     But let us return to investigate how the role of money, as a primary store of wealth, is now consciously being undermined. Consider two recent examples of rash, currency-based political leveraging which show what Washington thinks is acceptable, today, once it “unfriends” certain governments.

     In February this year Washington commandeered US$3.5 billion, or about half of all Afghanistan public reserves held in the US, to help families of victims of the September 11 terror attacks. This astonishing confiscation was legalized by using a White House Executive Order. The Taliban Government in Kabul, meanwhile, is still denied access to the other US$3.5 billion, while wretched, mass misery in Afghanistan has reduced families to selling their children in order to secure food.

     Next, according to the Financial Times, Russia’s foreign exchange reserves of over US$600 billion were recently largely rendered useless (a positive development, apparently) following the imposition of currency-related sanctions by the US and others, as the war in Ukraine began.

      As Jim Rogers notes, the world’s reserve currency is no longer what we thought it was, that is, a neutral store of value – it has been put to work as a weapon of war. The core aspects of property rights specified by Coase, definition, security and transferability, no longer apply, without reservation, to all owners of US Dollars. Certain owners may now abruptly discover that their rights have been gravely compromised because they fall into a denounced category, solely determined by Washington.

     Imagine the unholy uproar if certain foreign governments holding Renminbi deposits in Chinese banks were abruptly told by Beijing that access was now denied and confiscations may follow. “Unmitigated authoritarianism” is one of the more polite accusations we could expect to hear. Yet the US assumes that the rest of the world will go along with its own extraordinary, currency-based, imperial behavior, and will tolerate whatever may follow. Other states have already been advised (or threatened) that similar highhanded sanctions may be applied if they, too, are precipitously downgraded by the White House. Meanwhile, discussion is already underway about draining those Russian reserves to repair Ukraine.

     We should briefly note, too, how Washington has used the status of the US Dollar not just to borrow cheaply but also to borrow massively increased amounts: when you lend to America you lend to a borrower already burdened by eye-watering, increasing levels of debt.

     The US is progressively confirming that it is an untrustworthy steward of the world’s reserve currency. For now, though, there is no choice but to live with the dominant international standing of the US Dollar. The incentive to work on substitutes has, however, been hugely amplified. Various experiments are already afoot, including: potential direct currency swaps (India and Russia, for example); and the further development of sovereign-backed digital currencies. People are also studying the creation of new ratings agencies.

      The Renminbi, as the currency of the world’s largest trading economy, is almost certain to play some role in this coming transition, especially once it becomes fully convertible. One primary lesson to be learned from this alarming, politicized use of the US Dollar is that any future replacement needs to be robustly managed as a neutral global currency.

     How long before we see change? Sooner than expected, says Jim Rogers. This suggests how one of Churchill’s prominent observations can be adapted and applied. We still cannot sharply perceive the end of the international dominance of the US Dollar. And the beginning of that end is not yet clearly in view. But we are most probably witnessing the end of the beginning of this decline. 

Eric Ip and Daisy Cheung on Mapping the Legal Foundations of Planetary Mental Health (Global Mental Health)

"Mapping the legal foundations of planetary mental health"
Eric Ip and Daisy Cheung
Global Mental Health, First View , pp. 1 - 5

Abstract: Human health, including mental health, hinges on the integrity of the planetary biophysical environment and local ecosystems. Legal principles relevant to planetary mental health are currently scattered across the discrete bodies of human rights, health, and climate law, each of which go some way in creating twofold state obligations to take climate action for the purpose of attaining health and thereby mental health, and address mental morbidities resulting from the climate crisis. We argue that a ‘planetary mental health law’ already exists, albeit in preliminary form, and in great need of being developed into a clearer and more coherent regime. Prior to proposing fundamental changes to the international system, it appears to us that soft law should be resorted to as a complement to existing international obligations, whereas states should bolster their level of national commitment to defend the right to mental health on a healthier planet. Time is not on our side and the law must act now.