Yun Zhao et al on Identity Construction of Suspects in Telecom and Internet Fraud (Social Semiotics)

"Identity construction of suspects in telecom and internet fraud discourse: from a sociosemiotic perspective"
Ning Ye, Le Cheng & Yun Zhao
Social Semiotics
Published online: 25 Mar 2019

Abstract: As a new kind of contactless crime, the telecom and internet fraud has become a public hazard, with criminals targeting massive numbers of innocent victims. It is a prominent criminal problem that currently affects social stability and the sense of security of the public. Since the six Ministries and Commissions jointly cracked down the crime in 2016, the number of cases and the number of people deceived have decreased, but the occurrence and frequency has still been at a high rate, and the situation is deteriorating. Regardless of the scientific and technological means used by fraudsters, the main medium is language. From a sociosemiotic perspective, this study identifies that the criminal suspects use the discourse resources to fabricate false information and construct false identities through discursive practice, with the aim of achieving the communicative purpose of obtaining victims’ trust, tricking, deceiving and manipulating their victims into giving out confidential information and funds. This study, taking telecom fraud discourse as one type of genre, examines the dynamic process of selecting and constructing identities by manipulating related discourse resources and strategies in the social-cultural context. This study further provides a sociosemiotic solution to telecom fraud prevention.

New Book: Personal Injury Tables Hong Kong 2019: Tables for the Calculation of Damages, 5th edn ("Chan Tables")

Personal Injury Tables Hong Kong 2019: Tables for the Calculation of Damages, 5th edn

Neville Sarony, Wai-sum Chan, Felix W H Chan, Johnny S H Li

Sweet and Maxwell,
April 2019

Description: Continually cited in Hong Kong Courts as the “Chan Tables”, they are the authoritative and court-approved tables and provide the definitive starting point for all calculations for personal injury compensation claims in Hong Kong.

“I agree that the Chan Tables should be accepted as the starting point in Hong Kong…” 

  Justice Bharwaney, Chan Pak Ting (No.1) [2012] 1 HKCFI 1584; [2013] 1 HKLRD 643

Personal Injury Tables Hong Kong 2019 updates and revises the essential reference information for calculating damages in personal injury and fatal accident cases. The 2019 edition has been fully updated to take into account revised Hong Kong mortality projections by the Census and Statistics Department (Hong Kong Life Tables 2018-2066 and Hong Kong Population Projections 2017–2066), under which there is an increase in life expectancy. 

     Evaluating damages is no longer a time-consuming and challenging task. Its comprehensive contents include Hong Kong actuarial tables for the calculation of: 

• Inflationary rates for adjusting PSLA
• Wage statistics
• Retail price indices

“The quantification of damages in personal injury cases is not an exact science. Indeed Lord Bridge observed that it will never be so, and explained how the common law courts have been “traditionally mistrustful of reliance on actuarial tables”: Hunt v Severs [1994] 2 AC 350, 365. Lord Pearson placed more trust in the experience of practitioners and judges than relying on tables, as otherwise there would be “a false appearance of accuracy and precision in a sphere where conjectural estimates have to play a large part”: Taylor v O ‘Connor [1971] AC 115, 140. 

These days of judicial skepticism against mathematics and actuarial science are bygone.  It is now clear that our very own Chan Tables, much like the Ogden Tables in England, have become an indispensable part and the starting point of our law in this area (Chan Pak Ting v Chan Chi Kuen [2013] 1 HKLRD 634, [32]), and rightly so. As required by modern standards of civil justice, Hong Kong law now demands greater consistency, predictability, and efficiency in all types of cases. This need is particularly felt in personal injuries cases by reason of their very nature. Tables like the present publication assist greatly in achieving this goal. 

It is noteworthy that the Law Reform Commission’s recent consultation on periodical payments for future pecuniary loss could ultimately lead to some interesting changes in this area of law, and, perhaps, the role and the complexity of the future editions of this work. 

Whatever murky waters that may lie ahead, the general editor and the contributors should be congratulated again for their arduous work thus far, and their efforts to keep this valuable work up to date and relevant for practitioners and the courts alike.” 

  Andrew Cheung, Permanent Judge of the Court of Final Appeal, February 2019

About the Authors: Felix W H Chan is an associate professor in the Faculty of Law, the University of Hong Kong. Neville Sarony QC, SC is a respected and experienced personal injury practitioner in Hong Kong. Wai-Sum Chan is a Professor of Finance at the Chinese University of Hong Kong. Johnny SH Li is a Professor of Actuarial Studies at the University of Melbourne, Australia, and a Professor of Actuarial Science at the University of Waterloo, Canada.

Melissa Loja on International Agreements between Nonstate Actors as a Source of International Law (ASIL Proceedings)

"International Agreements between Nonstate Actors as a Source of International Law"

Melissa Loja
2018, Vol 112, pp 151-5
Proceedings of the 112th Annual Meeting of The American Society of International Law

Abstract: International issues that are resolved traditionally through agreements between states are managed currently through agreements between government agencies and corporate entities. Government agencies1 and corporate entities are nonstate actors that have no formal capacity to engage in international lawmaking. Are their international agreements a source of international law? 

     The question is addressed in a case study of petroleum agencies and corporations in ninety-eight countries. These agencies and corporations are authorized to conclude agreements to settle disputes over petroleum resources that are shared by states across maritime zones and boundaries (shared resources). Their agreements are subjected to linguistic and procedural criteria for purposes of identification as a source of international legal rules on shared resources. The present paper summarizes some of the data and findings in the case study.

Haochen Sun on Copyright Law as an Engine of Public Interest Protection (NW J Tech & IP)

"Copyright Law as an Engine of Public Interest Protection"

Haochen Sun

Northwestern Journal of Technology & Intellectual Property
2018, vol 16, p 123
Abstract: Courts around the world have been confronted with bewilderingly complex challenges in protecting the public interest through copyright law. This article proposes a public interest principle that would guide courts to settle fair use cases with better-informed decisions. I argue that the proposed principle would legally upgrade fair use from serving as an engine of free expression to serving as an engine of public interest protection.

     Based on comparative study of the conflicting rulings handed down by the U.S. and Chinese courts on Google Library, the article first considers the necessity of adopting the public interest principle in guiding the judicial settlement of fair use cases substantively and procedurally. The article then canvasses the two substantive legal standards to be embodied in the public interest principle. First, the principle would create a public interest use standard for courts to utilize in weighing the first fair use factor without applying the dichotomy of transformative and non-transformative use. At the same time, it would also require courts to employ the significant market harm standard when considering the fourth fair use factor. Second, the public interest principle would also modify the procedural rules concerning the assignment of burden of proof in fair use cases. It would place only the burden of proving a public interest use under the first factor on the user of a work who is the defendant in the judicial proceedings at hand.

Karen Kong on Human Rights Activist Scholars and Social Change in Hong Kong: Reflections on the Umbrella Movement and Beyond (Int'l J H Rts)

"Human rights activist scholars and social change in Hong Kong: reflections on the Umbrella Movement and beyond"
Karen Kong
The International Journal of Human Rights
Published Online: 24 Jan 2019

Abstract: The Umbrella Movement in Hong Kong in 2014, which was the city’s largest scale civil disobedience movement, was first initiated by two university professors and a Baptist Reverend. They advocated the use of non-violent civil disobedience to fight for universal suffrage and genuine election of the Chief Executive in Hong Kong. Though the Umbrella Movement did not end up in successfully changing the electoral system of Hong Kong, its impact on students, academics and the civil society was far beyond the few months of occupation. At the same time, activist scholars had to pay the price for their political activism outside the academia. This paper reflects on the experience of activist scholars in the Umbrella Movement, evaluates their roles in pursuing social change, the challenges they faced, and their impact on students, the academia, and the civil society.

New Book: Hybrid Constitutionalism, The Politics of Constitutional Review in the Chinese Special Administrative Regions (Eric Ip)

Hybrid Constitutionalism: The Politics of Constitutional Review in the Chinese Special Administrative Regions
Eric C Ip
Cambridge University Press
April 2019

Description: This is the first book that focuses on the entrenched, fundamental divergence between the Hong Kong Court of Final Appeal and Macau's Tribunal de Última Instância over their constitutional jurisprudence, with the former repeatedly invalidating unconstitutional legislation with finality and the latter having never challenged the constitutionality of legislation at all. This divergence is all the more remarkable when considered in the light of the fact that the two Regions, commonly subject to oversight by China's authoritarian Party-state, possess constitutional frameworks that are nearly identical; feature similar hybrid regimes; and share a lot in history, ethnicity, culture, and language. Informed by political science and economics, this book breaks new ground by locating the cause of this anomaly, studied within the universe of authoritarian constitutionalism, not in the common law-civil law differences between these two former European dependencies, but the disparate levels of political transaction costs therein.

New Book: Constitutional Remedies in Asia (Editor: Po Jen Yap)

"Constitutional Remedies in Asia"
Edited by Po Jen Yap
Routledge

March 2019, 194 pp.

Description: Many jurisdictions in Asia have vested their courts with the power of constitutional review. Traditionally, these courts would invalidate an impugned law to the extent of its inconsistency with the constitution. In common law systems, such an invalidation operates immediately and retrospectively; and courts in both common law and civil law systems would leave it to the legislature to introduce corrective legislation. In practice, however, both common law and civil law courts in Asia have devised novel constitutional remedies, often in the absence of explicit constitutional or statutory authorisation. Examining cases from Hong Kong, Bangladesh, Indonesia, India, and the Philippines, this collection of essays examines four novel constitutional remedies which have been judicially adopted - Prospective Invalidation, Suspension Order, Remedial Interpretation, and Judicial Directive - that blurs the distinction between adjudication and legislation.​

'By taking us on an eye-opening tour of constitutional remedies in Asia, this fascinating collection of essays broadens the landscape of comparative constitutional analysis. Not only does it open up new territory, it also deepens our understanding of remedies by highlighting the multiple ways in which judges seek to engage political actors in the joint endeavour of making rights real.' - Aileen Kavanagh, Professor of Constitutional Law, University of Oxford, UK

'This volume brings important developments in Asia into comparative constitutional debates that have overwhelmingly focused on the U.K., Canada, and New Zealand. Combining theoretical engagement with on-the-ground experiences, it makes a valuable contribution and will broaden the scholarly conversations.' - Robert Leckey, Dean of the Faculty of Law and Samuel Gale Professor, McGill University, Canada

'A fascinating and rich systematic study of the under-studied but vital topic of comparative constitutional remedies. Constitutional Remedies in Asia is path-breaking scholarship which makes many deep connections between various remedies devised by courts and the political systems within which they operate. Essential reading for those interested in comparative constitutional law.' - Kent Roach, CM, FRSC, Prichard Wilson Chair in Law and Public Policy, University of Toronto, Canada

'Combining careful legal analysis with a realistic understanding of courts' positions in different national legal system, these essays are important contributions to the growing field of comparative constitutional studies.' - Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School, USA

'Constitutional Remedies in Asia is a sophisticated collection of chapters on an understudied aspect of judicial power and creativity. The volume illustrates the power of comparative analysis, integrating diverse country experiences into a common framework, and opens up new angles for courts and scholars.' - Tom Ginsburg, Leo Spitz Professor of International Law, University of Chicago, USA​

New Book: Mediation and ADR Confidentiality in Hong Kong (Gary Meggitt)

Mediation and ADR Confidentiality in Hong Kong

Gary Meggitt

Wildy, Simmonds and Hill Publishing

March 2019, 288 pp

Description: It is generally accepted in Hong Kong and many other jurisdictions that mediation is ‘confidential’. This book examines the three non-statutory components of mediation confidentiality in Hong Kong:-

• contractual or equitable confidentiality;
• the without prejudice doctrine;
• and legal professional privilege – together with the Hong Kong Mediation Ordinance.  

This study looks at the protection which each of the components and the Ordinance affords to the participants in mediation and the deficiencies in the same.

     The author argues that the justification for a specific mediation confidentiality may be found in the very nature and philosophy of mediation itself and, in particular, its distinctive empowerment of the parties and its independence from the litigation process. It is contended that, to the extent that they share these qualities, other forms of ADR should be similarly protected.

    This book will interest and be useful to academics, students and legal practitioners interested in mediation and ADR in Hong Kong and elsewhere. The thesis upon which this book is based was awarded the University of Hong Kong’s prestigious Li Ka Shing Prize.

Amanda Whitfort Interviewed on Pangolins: The World’s Most Trafficked Mammals Slipping Into Extinction (Earth.Org)

"Pangolins: The World’s Most Trafficked Mammals Slipping Into Extinction"

Samantha Topp
Earth.Org

25 Feb 2019

For most of us the thought of wildlife crime brings to mind ivory and rhino horns, yet in reality the most trafficked mammal in the world remains relatively unknown. An animal ranging from the size of a common house cat to a medium sized dog, but covered in hundreds of scales and found only in Asia and Sub-Saharan Africa: the pangolin ...

     Associate Professor at Hong Kong University (HKU) Amanda Whitfort explains that all eight species of pangolin are in high demand for traditional Chinese medicine in China. “Hong Kong is the fifth busiest container port in the world and only about 1% of our containers are inspected. Given the low risk of detection it is not surprising that we are used by traffickers seeking an easy gateway to China.”

      Currently, wildlife trafficking offences are listed under legislation aimed to protect endangered species of animals and plants in Hong Kong: Cap.586. However, many have pushed for it to be now listed as under the Organised and Serious Crime Ordinance (OSCO). Whitfort says that this legislation change would allow investigators to use more coercive powers when investigating wildlife crime operations.

     Alexandra Andersson, founder of the conservation group Hong Kong for Pangolins, also stresses the importance of listing wildlife offences under OSCO, saying that the Hong Kong government needs to “increase associated penalties, close various loopholes in the law, and work with forensic scientists to develop tools to detect laundering.”

     In traditional Chinese medicine, some practitioners prescribe pangolin scales to cure ailments from rheumatism, soreness and itchiness to cancer and impotence. However, activists like Andersson argue that scales are proven to be made of keratin, the substance of human fingernails.

     In 2008 a global NGO focused on illegal wildlife trade, TRAFFIC, found that pangolin scale alternatives include Wang Bu Lui Xing (Vaccaraie semen) and dried seeds of cowherb (Vaccaria segetalis). Within the study it was found that the medicinal effects of both alternatives were classed as being equally as effective as pangolin scales.

     Whitfort says that many traditional Chinese medicine practitioners publicly support the use of alternatives to endangered species, though it is evident that pangolin products are still in high demand both for its scales and its meat. “No species should go extinct for traditional Chinese medicine,” says Whitfort. ...“Eventually we will have the correct laws,” Whitfort says. “Unfortunately, for some species, those laws will come too late.”  Click here to read the full text. 

HKU Class of 2018 Law PhD Graduates

Congratulations to our 12 PhD graduates who had their degrees conferred upon them at the 200th Congregation on 30 November 2018 at the University of Hong Kong. The newest members of our RPg alumnae family include the following:

1. Dr. AMESHEVA Inna Ilieva, Unravelling Differential Treatment: From Coexistence to Cooperation in International Climate Change Law. Supervisor: Dr James Fry

2. Dr. CHEN Zhijie, Application of Intellectual Property Rights to Outer Space Activities: An Adaptive Regulatory Approach in the Context of Space Commercialization.  Supervisor: Professor Yun Zhao

3. Dr. CHONG Agnes, The Non-Hierarchical Norms of No-Harm and PhD Equitable Utilization in International Watercourses Law. Supervisor: Dr James Fry

4. Dr. FEI Mengtian, An Analysis of Modernization and Law concerning Same-sex Sexuality in China.  Supervisor: Mr Benny Tai

5. Dr. LEJOT Paul Louis, The Place of Law Legal and Regulatory Influences on Financial Sector Agglomeration. Supervisor: Professor Douglas Arner

6. Dr. LONG Jie, China's Space Station in Light of Long-term Sustainability of Outer Space Activities: Cooperation, Law, Reality and Potential. Supervisor: Professor Yun Zhao

7. Dr. REPOUSIS Odysseas, The Rise of Multilateral Investment Treaties: International Investment Law Between Codification and Progressive Development. Supervisor: Dr James Fry

8. Dr. RUANGSAWASDI Chernporn, The Virtue-Based Paradigm of Judgment in the World of Investment Disputes.  Supervisor: Professor Hualing Fu

9. Dr. SPINA ALI Gabriele, Article 39(3) TRIPS: Understanding the Obligations, Exploiting the Flexibilities.  Supervisor: Ms Alice Lee

10. Dr. WEST Michael John, Federal Frontiers: the Constitution of Hunan Province in 1920s Republican China.  Supervisor: Professor Hualing Fu

11. Dr. ZHANG Xiaohan, The Application of the Consumer Protection Principle in the UNCITRAL ODR Rules and Its Implications for the ODR Practice in China. Supervisor: Professor Yun Zhao

12. Dr. ZUO Anlei, Institutional Fragmentation of International Intellectual Property Law in a World Society: Ontological Ethos, Structural Biases and Regime Interaction.  Supervisor: Dr. Li Yahong

Guanghua Yu on Open Access Order and Interconnected Institutions in Brazil (Law & Development Rev)

"Open Access Order and Interconnected Institutions in Brazil: A Challenge"
Guanghua Yu
Law and Development Review
Published Online: 2018-05-10
Abstract:

This article examines the evolution of democratic practice in Brazil. The article begins with a discussion on the country’s performance in terms of social equality, violence, and weak economy after the consolidation of democracy in 1985. Based on historical evidence, the article offers explanations concerning the weak performance in Brazil. The case of Brazil provides a challenge to the theory of open access order of North and his colleagues in the sense that open access to political organizations and activities does not necessarily lead to either better political representation or better economic performance. The case of Brazil also shows that open access to economic organizations and activities in the absence of the necessary institutions in the areas of property rights protection and contract enforcement, the financial market, the rule of law, and human resources accumulation does not lead to long-term economic growth.

Hualing Fu on Social Organization of Rights: From Rhetoric to Reality (UCLA Pacific Basin Law Journal)

"Social Organization of Rights: From Rhetoric to Reality"
Hualing Fu
UCLA Pacific Basin Law Journal
2019, Volume 36, Issue 1

Abstract: Public interest litigation (PIL) is a form of socio-legal activism. PIL originated in the United States, and spread, through the aggressive promotion of U.S.-centric rule of law, to China, where it has had a significant impact on socio-legal activism since the 1990s. This Article explores both the process through which human rights discourse is translated into practice by activist lawyers and human rights defenders, as well as the circumstances that cause socio-legal mobilization to fail or succeed. This Article examines the collective and sustained endeavour by human rights lawyers and other activists to advocate for the rights of specific communities through a rights complex, composed of activist lawyers, NGO leaders, and citizen journalists, as well as supporters within state institutions, Chinese society, and the international community. This Article looks at the institutionalized manner through which legal cases facilitate socio-legal mobilization to serve the broader objectives of educating citizens, enhancing the capacity of civil society, and making the government more accountable and responsive. The principal argument is that once citizens are endowed with legal rights and institutions are put in place for their implementation, the remaining issue is raising rights-awareness among rights-bearing citizens and generate demand for rights in society and channel those rights to institutions. Lawyers and other rights defenders play an indispensable bridging function in translating rhetoric to practice.

David Law Interviewed on Huawei’s Lawsuit Against the US Government (VoA)

"China's Huawei Sues US Government Over Ban"
Bill Ide & Joyce Huang
Voice of America
7 March 2019

Chinese tech giant Huawei has sued the U.S. government, arguing that legislation Congress passed last year restricting its business in the United States is "unconstitutional."

     The case, which analysts see more as a public relations move, is the latest in an intensifying effort by the telecommunications company to fight U.S. security concerns that Huawei argues are unfair and unfounded.

     In its lawsuit, Huawei argues that Section 889 of the National Defense Authorization Act violates the constitutional principles of separation of powers and due process. By singling out the company and punishing it without a trial, the company also argues that the law violates the Constitution's the bill of attainder clause...

     Legal analysts said it is unlikely the case will even go to trial. "As a PR matter, this is brilliant, the fact that we are just talking about this now, tells you this is a great PR move, as a legal matter, this is a reach, to put it charitably," said law professor David Law of Washington University in St. Louis and the University of Hong Kong. "I just can't see how a federal district judge in Texas is going to let this go to trial much less hand Huawei a win."...

HKU Team Wins Hong Kong Regional Jessup Round 2019

For the third consecutive year, the HKU Jessup Team won the Regional Champion title in the 60th Philip C. Jessup International Law Moot Court Competition on 29th February 2019. The Team was also awarded the Best Written Memorial Prizes for both the Applicant and Respondent.

     The Team consists of five students – Kaley Chan Yauting (LLM), Harrison Chung Wing Fung (PCLL), Jonathan Hsu Yau Yung (PCLL), Mathilda Kwong Yuan Shang (LLB5) and Myranda Lai Wun Chi (PCLL). Since October 2018, the Team intensely discussed and researched this year’s moot question on state responsibility for corporate actions, human rights violations, environmental degradation and appropriation of traditional knowledge for commercial purposes. By drafting two 9,000 word memorials and numerous advocacy trainings, the Team improved substantially their writing, researching and advocacy skills. 

     The Team takes this opportunity to express their sincere gratitude to the team coaches Ms Astina Au and Ms Natalie So for their valuable feedback and helpful guidance throughout. The Team would also like to thank the guest judges, Mr Victor Lui, Mr Jeff Chan, Ms Alice Leung, Ms Angel Cheng, Mr Sunny Hor, Mr Henness Leung and Mr Jason Ko, for their kind assistance. The Team will continue to work hard in preparation for the international rounds in Washington DC in April 2019, in which they will represent Hong Kong in competing against fellow advocates from nearly 100 countries and jurisdictions around the world. 

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

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 9, No. 1: Feb 22, 2018

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

1. Fintech for Financial Inclusion: A Framework for Digital Financial Transformation

Douglas W. Arner, The University of Hong Kong - Faculty of Law

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)

2. Imposed Constitutions and Romantic Constitutions

David S. Law, Washington University in St. Louis - School of Law, The University of Hong Kong - Faculty of Law, Washington University in St. Louis - Department of Political Science

3. Constitutional Dialects: The Language of Transnational Legal Orders

David S. Law, Washington University in St. Louis - School of Law, The University of Hong Kong - Faculty of Law, Washington University in St. Louis - Department of Political Science

Advances in Comparative and Transnational ADR: Research into Practice Conference (8-9 March 2019, HKU)

"Advances in Comparative and Transnational ADR: Research into Practice"

8, 9 March 2019; 11th Floor Cheng Yu Tung Tower, Faculty of Law, University of Hong Kong, Hong Kong SAR

Speaker's Bio

Preliminary Program

Friday March 8th
08:40	Registration
09:00	Welcome: Dean Michael Hor, University of Hong Kong, Faculty of Law Opening remarks: Shahla Ali, University of Hong Kong
09:15 – 10:15	Session 1 – Methodological Considerations in Comparative and Transnational ADR Chair: Zhao Yun Discussant: Lola Akin Ojelabi ·Matthew Erie, “The Third Eye: The Problem of Method in the Study of Transnational Dispute Resolution” ·Michael Palmer, “Modes of Dispute Response: Reconnecting the Range” ·Shahla Ali, “Advancing Research and Practice in Dispute Resolution Institutions through Inclusive Devolved Reflection”
10:15 – 10:35	Morning Break
10:35 – 12:10	Session 2 – Comparative ADR Ethics, Standards and Jurisprudential Ideals Chair: Keith Hawkins Discussant: Kerstin Bree Carlson ·Deborah Hensler, “Re-Inventing Arbitration: How Expanding the Scope of Arbitration is Re-Shaping its Form and Blurring the Line Between Private and Public Adjudication” ·Michal Alberstein, “Between Summary Trials and ADR” ·Lola Akin Ojelabi, “The Challenges of Developing Global Ethical Standards for ADR Practice” ·Zachary R. Calo, “Legal Ethics and Transnational Dispute Resolution” ·Dorcas Quek, “A New Chapter in the Cross-Border Enforcement of Mediated Settlement Agreements: The Elevated Role of Mediation Standards in Procedural and Substantive Justice”
12:10 - 13:20	Lunch for Speakers/Chairs
13:20 – 14:20	Session 3 – Comparative Approaches in Conciliation and Arbitration Chair: Tania Sourdin Discussant: Luigi Cominelli ·Anselmo Reyes, “The Use of Conciliation and Litigation by the Hong Kong Equal Opportunities Commission” ·Manuel Gomez, “Talk to Me: The Upsurge of International Arbitration-Related Conferences and their Impact on Academia, the Industry and the Legal Profession” ·Gu Weixia, “Arbitration in Comparative Perspectives”
14:20 – 15:35	Session 4 – Comparative ADR in Peace building, Health Care and Disasters Chair: Eric Feldman Discussant: Matthew Erie ·Kerstin Bree Carlson, “Peace Through Law: A Hybrid Tribunal for Divided South Sudan” ·Eric Feldman, “Recent Developments in Victim Compensation for the Fukushima Disaster” [TBC] ·Nadav Davidovitch, “Dealing with Conflicts in Health Care Systems: Form Clinical Medicine to Public Health Settings” ·Martin Lau, “TBC: ADR in Pakistan”
15:35 - 16:00	Break
16:00 – 17:50	Session 5 – ADR Developments and Reform in Mainland China Chair: Michael Palmer Discussant: Sida Liu ·He Xin, “Flexibility and Authority: Resolving Labor Disputes in a County Government in Western China” ·Kwai Ng, “Wearing Two Hats – Problems of Judicial Mediation as Seen from China” ·Chao Xi, “Negotiations in the Shadow of Shareholder Activism” ·Sida Liu, “The Spaces of Global China: Hong Kong as a Frontier for Chinese Law Firms” ·Ling Zhou, “Forum Shopping in a World of Mixed Processes: China’s Professional Litigants” ·Yang Lin, “New Developments in Online Dispute Resolution in China”
17:50	Closing remarks
18:30	Dinner hosted by HKU (by invitation only)

Saturday March 9th
09:30 – 11:20	Session 6 – Mediation Developments in the Context of Civil Justice Reforms Chair: Mark Feldman ·Tania Sourdin, “When is the Best time to Mediate? Considering Early Mediation” ·Luigi Cominelli, “Mediation Models and the Impact of the 52/2008 Directive on Civil and Commercial Mediation in Europe” ·Pablo Cortes, “Imbedding Mediation in the Civil Justice System” ·Nadja Alexander, “International Comparison of Regulatory Systems for Mediation” ·Francis Law, “TBC”
11:20 - 11:50	Break
11:50 - 12:00	Closing remarks and next steps
12:00	Lunch hosted by HKU (by invitation only)

Conference Theme:

The focus of the forum is on exploring the challenges and opportunities in understanding and assessing developments in systems of dispute resolution in diverse social and political contexts through comparative research. Papers may cover topics such as practical considerations in conducting comparative work in the field of transnational and comparative dispute resolution, insights from recent studies, and consideration of how research may inform policy reform in ADR institutions regionally and transnationally. We hope the forum will facilitate research collaboration that will also translate into positive policy applications and directions for future study.

*Transnational Dispute Management (TDM, ISSN 1875-4120) is a comprehensive and innovative information service on the management of international disputes, with a focus on the rapidly evolving area of investment arbitration, but also in other significant areas of international investment (such as oil, gas, energy, infrastructure, mining, utilities etc).

It deals both with formal adjudicatory procedures (mainly investment and commercial arbitration), but also mediation/ADR methods, negotiation and managerial ways to manage transnational disputes efficiently. See www.transnational-dispute-management.com for more information. You can apply for a free OGEMID trial membership and students can sign up for Young-OGEMID (which is free)

Registration

Please register through the following link: https://goo.gl/Beo8bZ

Media Partner

Alex Schwartz on Judicial Power and Consociational Federation: The Bosnian Example (Federal Law Review)

"Judicial Power and Consociational Federation: The Bosnian Example"

Alex Schwartz

Federal Law Review
2018, v. 46 n. 4, pp. 631-644

Abstract: 

An influential theory, sometimes called the ‘fragmentation hypothesis’, proposes that divided political systems will tend to empower courts because they make it more difficult for political elites to coordinate court-curbing retaliation. Another influential perspective proposes that federal systems are conducive to judicial empowerment because they create a demand for the authoritative adjudication of jurisdictional boundaries and/or they facilitate judicial supremacy over constitutional meaning. If both of these theories are correct, we might expect consociational (ie, power sharing) federations to be especially hospitable to the emergence of powerful courts. With reference to the example of Bosnia-Herzegovina, this article questions this conclusion; it is theorized here that core features of consociational federation will tend to undermine the growth and maintenance of judicial power.

Weixia Gu Interviewed on the First “Belt and Road" Case in Hong Kong (SCMP)

"Legal bump in the belt and road? A Mideast port giant, a Chinese rival and a Hong Kong lawsuit over a Djibouti deal"

Kinling Lo
SCMP

17 February 2019

A lawsuit against China’s main state-owned port builder by the Middle East’s largest port operator in the tiny African nation of Djibouti – to be thrashed out in Hong Kong’s High Court – underscores the legal risks Beijing faces in its massive global infrastructure plan, the “Belt and Road Initiative”.

...

DP World, a global port operator owned by the United Arab Emirates, is suing Hong Kong-based China Merchants Port Holdings (CM Port), a unit of state-owned China Merchants Group, for allegedly infringing DP World’s exclusive port agreement with Djibouti, which sits on the Horn of Africa near some of the world’s busiest shipping lanes.

    According to court papers filed in August, CM Port allegedly caused the Djibouti government to revoke DP World’s exclusive right to run the country’s ports. If the case were to go to trial, it would be the first involving a Chinese belt and road project to be ruled on in the city’s courts, FactWire News Agency reported. Hong Kong’s legal jurisdiction is separated from mainland China’s under the city’s mini constitution.

     “The nature of the dispute and the fact that the defendant CM Port is a leading state-owned conglomerate based in Hong Kong expanding their port business around the world, has made this case particularly interesting,” said Gu Weixia, a University of Hong Kong associate law professor.

     “The case could significantly affect the investment behaviour [especially in a legal sense] of Chinese companies investing in the ‘Belt and Road Initiative’ in the future.”

... Click here to read the full text. 

New Book: Transparency Challenges Facing China (Palmer, Zhang & Fu)

Transparency Challenges Facing China
Editors: Michael Palmer, Xianchu Zhang, Hualing Fu
Wildy, Simmonds and Hill Publishing
January 2019

Description: The concept of transparency has grown exponentially in importance around the world as a principle of good governance over the past two decades.

     Openness in the manner in which governments, social institutions and business corporations conduct themselves, and their willingness to disclose important information about themselves or about other actors in which they have an interest, are important features of this growth. However, greater commitment to transparency may present difficulties for an authoritarian system’s political leadership.

     Such reform is likely to lead also to demands for political and governance change and similarly radical ideas that foster stability problems for an authoritarian political and legal system, as they enable civil society to scrutinize better the conduct of that authoritarian leadership and its institutions. On the other hand, when transparency is only partial, the government might use it as an instrument of propaganda, shaping public opinion and forestalling structural reform.

     The chapters in this book address the situation in mainland China where economic reform policies and a drive to gain a stronger place in the global economy have encouraged a complex and sometimes ambiguous approach to transparency. The essays explore the manner in which, and the degree to which, greater transparency in governance has emerged in the PRC.

     They also assess the impact of greater transparency in terms of accountability, decision-making processes, and responsiveness in the Chinese governance system. The papers in this volume have their origins in a 2016 conference on transparency issues in China held at the University of Hong Kong’s Faculty of Law under the guidance of the editors, and bringing together scholars with interests in the emergence of transparency in some of the most important areas of Chinese governance.

Yahong Li and Weijie Huang on Taking Users' Rights Seriously: Proposed UGC Solutions for Spurring Creativity in the Internet Age (QM J of Intell Prop)

"Taking users' rights seriously: proposed UGC solutions for spurring creativity in the Internet age"

Yahong Li and Weijie Huang

Queen Mary Journal of Intellectual Property

February 2019, Volume 9, Issue 1 

Abstract: The past three centuries have witnessed copyright owners competing with distributors for the flow of income generated by new technologies. However, users have largely been excluded from this cake-cutting copyright game. The neglect of users’ interests has posed a serious challenge in the user generated content (‘UGC’) age. New technologies have empowered users to create UGC, whereas the existing law entitles copyright owners to block users’ access to source materials and allows UGC platforms to exploit UGC without remuneration. This article proposes a two-pronged solution in attempting to strike a better balance between copyright owners, UGC platforms and UGC creators. The first is an ex-post remuneration rule that confers on UGC creators the legal right to use copyrighted work without asking for permission but imposes an obligation to pay remuneration, both of which pass to future UGC creators. This rule incorporates elements of Creative Commons and compulsory licensing as part of the copyright rules generally applicable to all UGC creators. The second solution proposes a community-based approach, which imposes upon UGC platforms a common-law duty of monitoring infringement and includes some legal standards that ensure fair implementation of the terms of use/service of UGC platforms.