Wednesday, February 28, 2024

HKU Law Scholars Make Submissions on the 2024 Article 23 Consultation Paper

In January 2024, the Security Bureau of the HKSAR Government released its long-awaited Public Consultation Document on Basic Law Article 23 national security law proposals (“Safeguarding National Security: Basic Law Article 23 Legislation”). Scholars in the Faculty of Law have prepared written submissions (and articles) on the proposals contained in the consultation paper. This commentary can be accessed below.

Albert Chen: Ming Pao 1, Ming Pao 2
Simon NM Young: Submission

Friday, February 9, 2024

Kung Hey Fat Choy 2024

HKU Legal Scholarship Blog wishes everyone a Happy Chinese New Year 2024.
Thank you to Richard Cullen for drawing and sharing his traditional annual cartoon to mark
The Year of the Dragon.

Thursday, February 8, 2024

Shane Chalmers on The Rule of Law and International Development (OUP book chapter)

"The Rule of Law and International Development"
Shane Chalmers
in Ruth Buchanan (ed.), Luis Eslava (ed.), Sundhya Pahuja (ed.), The Oxford Handbook of International Law and Development (Oxford University Press 2023) Chapter 5
Published online: December 2023

Abstract: The aim of this chapter is twofold: to provide an overview of the international development project’s ‘rule of law’ agenda, and to do so in a way that shows its mythological character. In 1992 Peter Fitzpatrick published The Mythology of Modern Law, a work that exposed the constitutive relation between Europe’s racialised imperialism and its conception of modern law. In the three decades since, a renewed field of law and development has grown, this time in the name of ‘the rule of law’. This chapter shows how the mythology of modern law endures in this field of rule-of-law development. The analysis shows how the mythology of modern law, in its racialised imperial form, is integral to the work of international rule-of-law promotion. One consequence is the denial of ‘local’ law by a rule of law that obtains its authority by purporting to be responsive to legal pluralism.

Tuesday, February 6, 2024

Massimo Lando on Binding Advisory Opinions (CUP book chapter)

"Binding Advisory Opinions"
Massimo Lando
in Russell Buchan (ed),Daniel Franchini (ed),Nicholas Tsagourias (ed), The Changing Character of International Dispute Settlement: Challenges and Prospects, (Cambridge University Press, December 2023),pp. 106 - 134
Published online: December 2023

Summary: In this chapter, Massimo Lando focuses on the advisory jurisdiction of international courts and tribunals. This chapter explains that, traditionally, advisory opinions are not seen as a means of inter-State dispute settlement. However, it argues that recent developments justify re-assessing this traditional view. This chapter claims that the most significant development in this context is the judgment on preliminary objections delivered by the Special Chamber of the International Tribunal for the Law of the Sea in the maritime dispute between Mauritius and Maldives, which gave binding effect to the determinations made by the International Court of Justice in its 2019 advisory opinion concerning the decolonisation of Chagos. This chapter evaluates the Special Chamber’s decision by considering its impact on the Eastern Carelia doctrine and the Monetary Gold principle, as well as its implications for the legal effects of advisory opinions and for the legitimacy of exercising the advisory function.

Monday, February 5, 2024

Peter Chau and Lusina Ho on Agreement and Restitutionary Liability for Mistaken Payments (OUP book chapter)

"Agreement and Restitutionary Liability for Mistaken Payments"
Peter Chau, Lusina Ho
in Sagi Peari (ed.), Warren Swain (ed.), Rethinking Unjust Enrichment: History, Sociology, Doctrine, and Theory, (Oxford University Press,December 2023),pp. 181-200
Published online: December 2023

Abstract: This chapter considers two recent attempts that claim a defendant’s actual or hypothetical agreement as grounds for restitutionary liability for mistaken payments. With respect to Alexander Georgiou’s attempt based on an actual but tacit agreement, it argues that his account: (1) confuses the motivating causes of the payment with the terms of the payment; (2) rests on a long chain of inference that raises doubt as to the general applicability of his argument to cases of mistaken payment; and (3) offers little guidance on when restitutionary liability should be imposed. With respect to Titiana Cutts’s argument, which is inspired by TM Scanlon’s idea of reasonable agreement, the chapter argues that: (1) the principles considered in her contractualist pairwise comparison are unduly limited and (2) the considerations she takes into account in deciding between principles, such as the security of a party’s plans and the impact on people with limited means, are not specific enough for her conclusion. For example, these considerations cannot explain why reasonable people must choose a principle that gives payors who paid upon a relevant mistake a general right to restitution, but not when they paid upon a misprediction.

Friday, February 2, 2024

Massimo Lando on Three Goals of States as They Seek Advisory Opinions from ITLOS (AJIL Unbound)

"Three Goals of States as They Seek Advisory Opinions from ITLOS"
Massimo Lando
AJIL Unbound (Volume 117 , 2023 , pp. 282 - 286)
Published online: December 2023

Extract: In most international tribunals, states alone can submit requests for advisory opinions.1 This is also true of requests to the International Tribunal for the Law of the Sea (ITLOS) sitting in plenary composition. The United Convention on the Law of the Sea (UNCLOS)2 does not expressly confer advisory jurisdiction on ITLOS. In practice, the Tribunal's advisory jurisdiction is governed by Article 138 of its Rules of Procedure, under which international agreements can empower entities to request advisory opinions of the Tribunal. The process leading to the making of advisory requests to ITLOS includes the drafting of legal questions and is largely political.3 In this process, sponsoring states have three goals: first, get requests before ITLOS; second, ensure that requests are not thrown out on grounds of jurisdiction or discretion; third, mobilize the constituency having stakes in the requests. This essay explores each of these goals.

Thursday, February 1, 2024

New Book: Archbold Hong Kong 2024 (Sweet & Maxwell)

ARCHBOLD HONG KONG 2024
Editor-in-Chief: The Hon Mr Justice Bokhary
General Editor: Professor Simon Young
Sweet & Maxwell
October 2023

Preface by the General Editor

Hong Kong said goodbye to a legal giant on 24 June 2023. Sir Ti Liang Yang made enormous contributions to the law in Hong Kong before 1997, especially in criminal cases. In his 40 years of service in the Judiciary, he adjudicated criminal cases in all possible judicial roles in Hong Kong: magistrate, District Judge, Judge of the High Court, Justice of Appeal, Vice-President, and Chief Justice. Uniquely, he had a practice of visiting some of the defendants he had convicted to see how they were doing in prison.

    His vision of the law and the role of courts was articulated in a speech he gave at the Chinese University of Hong Kong in October 1984. He had no a priori concept of the place of law. Rather, he thought that society, as “the mother of law”, “determines the contents of its laws”. Believing a “particular type of society requires a particular law”, he was adamant that Hong Kong not simply copy English law but that it would take root and grow into something distinctively Hong Kong. He described the process in these terms, in his 1992 speech at the Opening of the Legal Year:

     “But the legal system that has taken root may still be regarded as an alien organism.  The final stage must be transformation – a process by which the spirit of the legal system is so intermingled with the culture and ethos of the new society that a new system emerges, still largely based on the ancestry whence it came, but evidencing a metamorphosis which has eradicated its foreignness.”

He believed this transformative process would not be insular but undergone with the benefit of talent and precedents from other common law countries, particularly “the United Kingdom, Australia, New Zealand or Canada”.  He thought that having foreign judges and lawyers serving in Hong Kong would help us “avoid being out of touch and at the same time enrich our own law”.

     As for the role of courts, it is the “judicial organ that breathes life and motion into our law”, whose aims include “to attain balance within the society”. He made the following insightful statement about the function of courts which is worth reflecting upon:

    “If the courts constantly let the people and the executive arm of government clearly understand the limits of their own rights and obligations so that all words and actions may be tested against the law, then the law will become something which is capable of life and movement, and it sets a standard of behaviour which everyone may rely on.”

     Many of his criminal law judgments have endured and demonstrated great foresight. For example, his judgments on attempts (The Queen v Chan Kwong [1987] HKLR 756 (CA)) and implied assertions in hearsay (The Queen v Ng Kin-yee [1994] 2 HKCLR 1 (CA)) are still assigned readings in our LLB/JD law curricula. His judgment on cross-examining police officers on lying in previous proceedings (The Queen v Lam Wai-keung [1994] 2 HKCLR 9 (CA)) resonates with the Court of Final Appeal (CFA)’s judgment in HKSAR v Wong Sau-ming (2003) 6 HKCFAR 135. One can trace the seeds of the Mushtaq direction to The Queen v Yu Ho-man [1995] 1 HKCLR 87, 89(ln 25) (CA). His judgment in Mohd. Daraiz v The Attorney General [1976] HKLR 386, 397 (HC), though overruled in Halim Sulman v The Queen [1977] HKLR 214 (CA), showed emergent recognition of a half-way house defence for offences of strict liability. His judgment on the co-conspirators’ rule (The Queen v Alick Au Shui Yuen [1993] 2 HKC 219 (CA)) has been highly influential and helped inform the later CFA judgments on the issue, e.g. HKSAR v Vivien Fan (2011) 14 HKCFAR 641.

     Sir Ti Liang had a strong view of judicial independence. He stated: “It is absolutely necessary that judicial work be carried out strictly in accordance with the law and be not influenced by outside factors in any way.”  Thus, despite receiving several threatening letters when he was trying the corruption case of former police superintendent, Peter Fitzroy Godber, they had no influence on him and he was not scared.  He also believed judicial independence “not only ensures impartial trials, it also has the effect of preventing abuses and excesses by the government so that the people may receive the protection of the law”.  Such view was reflected in his decision in The Queen v Li Wing-tat [1991] 1 HKLR 731 (HC), holding that the magistrate should have stayed the charges brought against protesters for using loudhailers and collecting donations without permit.  He found that it offended “the sense of fairness” for the police to suddenly change from a regular practice of giving violators a warning to prosecuting them, without prior notice of a change in practice.  Though the decision was overturned in The Queen v Soo Fat Ho [1992] 2 HKCLR 114 (CA), it demonstrates the former Chief Justice’s concern that prosecutorial power be not abused.

     I wish to thank all those who contribute to the continuing success of this publication including all the contributing editors, the Sentencing Editor, the Editor-in-Chief, my team of student editors, and the wonderful colleagues at Thomson Reuters.

Professor Simon NM Young
Ian Davies Professor in Ethics
Parkside Chambers
29 August 2023

Wednesday, January 31, 2024

New book by Eric Ip: The Law and Regulation of Public Health: Global Perspectives on Hong Kong (Routledge)

The Law and Regulation of Public Health: Global Perspectives on Hong Kong
Eric Ip
Routledge
Published in November 2023
264 pp.

Description: Public health law has been a subject of much controversy and contestation, especially since the COVID-19 pandemic broke out. This timely book inquires into the foundational principles of a form of public health law that takes seriously the inherent dignity of the human person. Written from a multidisciplinary perspective, this illuminating study makes the case that the rule of law, just as much as population health, is an essential determinant of human well-being. 

Choosing the case of the Hong Kong Special Administrative Region of the People’s Republic of China, where life expectancy is among the highest in the world, yet whose well-established rule of law tradition is oft perceived to be under strain, in describing the central dilemmas of public health law, it makes an original contribution to our knowledge of comparative public health law and public health ethics. Situating Hong Kong’s public health law in the context of global health, The Law and Regulation of Public Health should appeal across the world to students and scholars of public health, medical law, public law, comparative law, and international law. It accessibly explains the law to epidemiologists and public health policymakers, and public health to jurists and legal practitioners.

This book lucidly urges professionals of public health and law to reflect on how the myriad legal instruments and legal institutions should best be used to promote and protect public health in ways that are at once ethical and lawful. It is a must read for anyone who is interested in gaining insights into public health law and regulation in this highly internationalised Chinese Special Administrative Region.

Monday, January 29, 2024

Cora Chan on Scholarship in Times of Constitutional Transformation: A View from Hong Kong (Human Rights Law Review)

"Scholarship in Times of Constitutional Transformation: A View from Hong Kong"
Cora Chan
Human Rights Law Review, Volume 24, Issue 1
Published online: December 2023

Abstract: Hong Kong's constitutional order has been undergoing a momentous transformation since 2020. The introduction of the Hong Kong National Security Law and the use of a plethora of other security tools have pushed Hong Kong's largely liberal legal order in an increasingly authoritarian direction. This article examines the implications of these changes for academic freedom in the territory. Through the lens of Hong Kong, it examines the unique challenges facing constitutional law scholars in authoritarian or liberal backsliding contexts, as well as the distinct contributions they can make. It concludes with reflections on the relevance of arguments against `scholactivism' to authoritarian contexts. The analysis in this article will help us to understand what scholars should and can do in politically volatile environments more generally.

Friday, January 26, 2024

Ying Zhu Awarded 3rd prize of the 9th Qian Duan-sheng Award for Legal Research Achievement

Congratulations to Ying Zhu (朱颖), whose article “Do clarified indirect expropriation clauses in international investment treaties preserve environmental regulatory space?” was awarded the 3rd prize of the 9th Qian Duan-sheng Award for Legal Research Achievement. The article was published in the HARVARD INTERNATIONAL LAW JOURNAL, volume 60, issue 2, pp. 377-416, published in August 2019.

    Background on the prize: The biennial Qian Duan-sheng Award for Legal Research Achievement is a national award for legal research established by China University of Political Science and Law in memory of Dr. Qian Duan-sheng (1900-1990) for his remarkable contribution in advancing the law studies in China. The award was established in 2006 which aims to promote the development of law studies and the establishment of rule of law in China. The Award Committee is composed by leading Law experts in China. With significant global academic and social influences, the Qian Duan-sheng Award for Legal Research Achievement is one of the most important awards in Chinese law academia. For more information on the award, click here (in Chinese).


Monday, January 22, 2024

Julius Yam on Judging Under Authoritarianism (Modern Law Review)

"Judging Under Authoritarianism"
Julius Yam
Modern Law Review
Published online: December 2023

Abstract: Authoritarianism has significant implications for how judges should discharge their duties. How should judges committed to constitutionalism conduct themselves when under authoritarian pressure? To answer this question, the article proposes a two-step adjudicative framework, documents a variety of judicial strategies, and proposes how principles and strategies can and should be incorporated into the framework in different scenarios. The first step of the adjudicative framework involves judges identifying the ‘formal legal position’ while blindfolding themselves to extra-legal factors (such as potential authoritarian backlash). In the second step, depending on the level of risk incurred by maintaining the formal legal position, judges should lift the blindfold to check whether, and if so how, the formal legal position should be supplemented with or adjusted by judicial strategies. Through this analysis, the article offers a guide to judicial reasoning under authoritarianism.

Wednesday, January 17, 2024

Anaïs Mattez on Restitution of Cultural Property: the rise and fall of a cosmopolitan ideal (International Journal of Heritage Studies)

"Restitution of cultural property: the rise and fall of a cosmopolitan ideal"
Anaïs Mattez (PhD candidate)
International Journal of Heritage Studies
Published online: November 2023

Abstract: This paper provides a historical analysis of the peak and demise of the international view on cultural heritage. In the 1980s, cultural internationalism emerged as a conservative reaction against the adoption of the 1970 UNESCO Convention, which organises the restitution and return of stolen cultural properties. Internationalist and cosmopolitan scholars who have claimed that cultural heritage ‘belongs to humanity’, generally condemned restitution, and pushed back against the ratification of the Convention. The international view on cultural property became traditionally dominant in milieus such as universal museums, antiquity markets and some academic disciplines. However, over the past half-decade, the growing importance of research on provenance has challenged cultural internationalism in two areas. Firstly, research on provenance focused on art and archaeological crime has shown that artefacts allegedly excavated in the past are often the proceeds of recent looting, especially in conflict zones. Secondly, recent studies on historical provenance have revealed that many objects were collected using colonial violence. As a result, developments in criminology, postcolonial history, and indigenous peoples’ rights have generally led to the retreat of cosmopolitan narratives on cultural property. Ultimately, this paper highlights that cosmopolitanism in cultural heritage has historically hinged on the imperialist past.

Tuesday, January 16, 2024

Rebecca Lee on Transnational Legal Ordering of Modern Trust Law (CUP book chapter)

"Transnational Legal Ordering of Modern Trust Law"
Rebecca Lee
in Seth Davis (ed), Thilo Kuntz (ed), Gregory Shaffer (ed), Transnational Fiduciary Law, (Cambridge University Press, January 2024), pp. 169-187
Published online: 22 November 2023

Summary: This chapter studies transnational legal orders (TLOs) in the context of trusts and demonstrates that such ordering is evident in the processes through which modern trust norms develop and flow across borders to become a substantive body of transnational and comparative trust law. By reference to innovations and transformations in trust embraced by offshore trust jurisdictions and the rise of the civil law trust in East Asia, this chapter argues that modern trust norms produce multiplicities of legal orders that transcend both offshore and onshore jurisdictions, as well as both common law and civil law jurisdictions.

Thursday, January 11, 2024

2nd Runner-Up of the HK45 2023 Essay Competition (Asia Emerging Economies Category)

Congratulations to our RPG student Miss Prakritee Yonzon for winning this year's HK45 Essay Competition with 2nd Runner-Up in the Asia Emerging Economies Category. Miss Yonzon's article is about the jurisdiction v. admissibility debate in contractual pre-conditions and how it impacts the arbitral tribunal. HK45 Essay Competition was established in 2022 to promote interest in and knowledge of issues relating to arbitration. The prizes are categorized into Asia Emerging Economies Category, and Hong Kong / Global Category. Winning essays are selected by an esteemed panel of judges. The top essay from both categories will be considered for publication in Asian Dispute Review. The essay from 1st runner up and 2nd runner up will be considered for publication in the Kluwer Arbitration Blog.

Wednesday, January 10, 2024

New Book edited by Anselmo Reyes and Wilson Lui et al: Choice of Law and Recognition in Asian Family Law (Hart Publishing)

Edited by Anselmo Reyes, Wilson Lui (Pre-Doctoral Fellow) and Kazuaki Nishioka
Published in October 2023
512 pp.

Book Description: This thematic volume in the series Studies in Private International Law – Asia outlines the general choice of law and recognition rules relating to family matters of 15 Asian jurisdictions: Mainland China, Hong Kong, Taiwan, Japan, South Korea, Singapore, Malaysia, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Thailand, Sri Lanka and India. The book examines pressing questions and proposes ways in which their systems may be reformed. A concluding chapter considers the extent to which Asian cross-border family law systems can and should be harmonised.

The book provides a comprehensive analysis of cross-border family law challenges, including child surrogacy, child abduction, the recognition of same-sex unions, the recovery of maintenance, and the regulation of intercountry adoption. These are among the matters now testing Asian institutions of private international law and acting as forces for their modernisation.

With contributions by leading Asian private international law experts, the book proposes necessary reforms for each of the jurisdictions analysed as well as for Asia as a whole.

Wilson also contributed to Chapter 3 (pp. 51–80) on “Hong Kong”.

Tuesday, January 9, 2024

Wilson Lui on Treatment of Foreign Law in Hong Kong (Hart Publishing book chapter)

"Hong Kong"
Wilson Lui (Pre-Doctoral Fellow)
in Kazuaki Nishioka (ed), Treatment of Foreign Law in Asia (Hart Publishing: October 2023), Chapter 3, pp. 25–50

Summary: This chapter details the processes to plead and prove foreign law in Hong Kong courts, which follow the ‘traditional ’ or ‘ orthodox ’ views and approaches in common law closely. These processes have been reinforced and supplemented by a wealth of local and overseas authorities in recent years. There might be room for these processes to be further refined or expanded. This chapter argues that some relaxation from the traditional strictures in favour of a more malleable framework on the sources and methods of proving foreign law is not only normatively compelling but also practically sensible. However, it is unlikely that these adjustments will radically change the current regime, or impact greatly on the popularity of Hong Kong as a forum for litigation. Moreover, while an international or regional instrument unifying the treatment of foreign law might be useful, it is unclear how the position in Hong Kong can be reconciled with those in some other civil law jurisdictions in Asia and elsewhere, where a more active and aggressive approach in ascertaining foreign law is taken. Rather, interregional approaches within the Greater Bay Area or Greater China to access and ascertain foreign law might be worth exploring.

Friday, January 5, 2024

New Book Edited by Simon Young and Anna Dziedzic: The Cambridge Handbook of Foreign Judges on Domestic Courts

Edited by Anna Dziedzic, Simon Young
Published in October 2023
480 pp.

Book Description: Foreign judges sit on domestic courts in over fifty jurisdictions worldwide. They serve on ordinary courts, including apex and constitutional courts, as well as specialist courts, such as international commercial courts and hybrid criminal tribunals. This Handbook presents the first global comparative study of this long-standing, diverse and evolving practice, from colonial precedents to new forms of foreign judging in contemporary conditions of globalisation. Chapters by scholars of law, politics and history, and reflections by judges themselves, provide detailed information and critical analysis of foreign judging across Africa, Asia, the Caribbean, Europe, the Middle East and the Pacific. The chapters examine the notion and relevance of foreignness, rationales for foreign judges, and the implications for judicial identity, adjudication, independence and accountability. Focusing on an underexplored issue that features mainly in small states and jurisdictions of the Global South, this Handbook challenges assumptions and expands knowledge about courts and judges.

Simon Young on Domestic Criticisms of Foreign Judges (CUP book chapter)

"Domestic Criticisms of Foreign Judges"
Simon Young
in Anna Dziedzic (ed) and Simon Young (ed), The Cambridge Handbook of Foreign Judges on Domestic Courts, (Cambridge University Press, October 2023), pp. 284-299

Summary: This chapter discusses three common criticisms of using foreign judges on domestic courts. First, that the foreign judge, ignorant of local laws, customs and circumstances, will reach decisions that are legally wrong, assertive of colonial values and principles, or simply unacceptable to members of the local community. Second, the foreign judge, not being a citizen or resident of the local jurisdiction, has divided patriotic ties rendering him or her ill-suited to consider questions of constitutional significance, national security or foreign affairs. Third, the expertise of the foreign judge is no longer needed as there is already abundant domestic legal expertise. The chapter responds and reflects upon these criticisms in the context of the evolving system of overseas non-permanent judges of Hong Kong’s Court of Final Appeal since 1997.

Thursday, January 4, 2024

Richard Cullen on How the Chinese diaspora paved the way for BRI (Fridayeveryday)

"How the Chinese diaspora paved the way for BRI"
Richard Cullen
Fridayeveryday
Published online: October 2023

The biggest international trading venture in world history is 10 years old. 

But there’s an extraordinary tale behind the Belt and Road Initiative, or BRI. 

And that’s the story of the exceptional Chinese Diaspora experience, which laid the foundations for the infrastructure project’s success.  

This Chinese macro-migration endeavor, individual by individual, long predates the remarkable BRI, which is, today, measurably retracing the diaspora’s pioneering footsteps. Richard Cullen reports.

THIS YEAR, CHINA and the world are witnessing the 10th anniversary of the inauguration of the Belt and Road Initiative. The BRI is not a perfect success story, of course: nothing on this extraordinary scale could be. But the complications, obstacles and deficiencies have been worked-on as they have materialized.

Moreover, its overall positive, public infrastructure achievements, not least in Africa, have been extraordinary – and all secured within the span of a decade...Please click here for full article.

Wednesday, January 3, 2024

Kelvin Kwok on Abuse of Dominance in the Hong Kong Television Sector (World Competition: Law and Economics Review)

"Abuse of Dominance in the Hong Kong Television Sector"
Kelvin Kwok
World Competition: Law and Economics Review, Volume 45, Issue 4 (Dec 2022) pp. 445–472
Available on SSRN: November 2023

Abstract: This article critically evaluates legal developments in relation to the regulation of abuse of dominance in the Hong Kong television sector, focusing on the milestone case of Television Broadcasts Ltd (TVB). The TVB case was decided under the previous sectoral competition regime under the Broadcasting Ordinance (BO) and has since 2015 been replaced by the crosssector Competition Ordinance (CO). Nevertheless, the decisions of the Communications Authority (CA) and the Court of First Instance (CFI) in 2013 and 2016 respectively provided important insights on the application of the small but significant and non-transitory decrease in quality (SSNDQ) test in two-sided markets and the ‘purpose/object’ and ‘effect’ tests to exclusivity practices, and more generally, the analysis of abuse of buyer power in a labour market setting. Hong Kong competition authorities are likely to be confronted with similar issues as they gradually expand their enforcement activities into digital markets and abuse of market power scenarios beyond the broadcasting sector. The purpose of this article is to subject the TVB decisions, in respect of their analysis of market definition, market power, the abusive conduct, and the remedial aspect, to in-depth critique. It situates the issues in the broader context of the crosssector CO under which future cases of abuse of dominance in Hong Kong will be scrutinized. (Click here to view full article on SSRN.)