Professor Albert Chen Conferred the Title of Chair Professor (HKU)

Congratulations to Professor Albert Chen, Cheng Chan Lan Yue Professor in Constitutional Law, on being conferred the title of Chair Professor in Constitution Law by the University of Hong Kong (HKU), with effect from 1 July 2021. Chair Professorships at HKU are reserved for world-class scholars of distinction. Such title signifies due recognition of outstanding academic leadership and excellence. As a top-rated researcher and academic leader, Professor Chen is held in high regard by peers globally, and his significant contributions and accomplishments have received international acclaim.  His many academic achievements and contributions can be found recorded here on the HKU Legal Scholarship Blog.

Richard Wu Awarded the HKU Law Faculty Knowledge Exchange Award 2021

The Faculty Knowledge Exchange (KE) Awards of The University of Hong Kong were introduced in 2011 to recognise each Faculty’s outstanding KE accomplishment that has made demonstrable economic, social or cultural impacts to benefit the community, business/industry, or partner organisations. Dr Richard Wu of the Department of Professional Legal Education received the Faculty Knowledge Exchange Award 2021 of the Faculty of Law for the project “From Research into Values of Future Lawyers to Promoting Legal Professionalism in Greater China Region: Informing and Implementing Legal Ethics Education in Mainland China, Hong Kong and Taiwan”.

     Dr Wu’s vision of promoting legal professionalism was key to the development of new legal ethics courses in three major universities in the Greater China Region: School of Transnational Law, Peking University in Mainland China, HKU Faculty of Law in Hong Kong, and National Yang Ming Chiao Tung University School of Law in Taiwan. As an Adjunct Professor in both Mainland China and Taiwan as well as Associate Professor in Hong Kong, he retains close ties with law schools in Greater China Region. Dr Wu’s research on the values of law students in the region has promoted awareness of the importance of legal professionalism and helped develop legal ethics education across the Greater China Region and his courses have been extremely well received by the law students who have taken them. The courses are designed on a value-based experiential learning model that includes innovative use of technology, sharing on legal ethics issues by global lawyers and global law professors, innovative reflective learning and pioneering visual teaching aids. ...Click here to read the full post.

Low, Wan & Chan on Private Takings of Land for Urban Redevelopment: A Tale of Two Cities (Am J of Comp L)

"Private Takings of Land for Urban Redevelopment: A Tale of Two Cities"

Kelvin F K Low, Wai Yee Wan, Alwin Chan

The American Journal of Comparative Law

Published on 8 November 2021

Abstract: In 1999, both Hong Kong and Singapore brought into force legislation that permitted a supermajority of apartment owners within a building development that met certain statutory criteria to force a minority of dissenters to sell the development as a whole. Both territories did so because, as land-scarce cities, it was considered that the redevelopment of aging buildings was an urgent imperative. In so doing, although they claimed to be following other jurisdictions, both Hong Kong and Singapore broke new ground in pioneering the private takings of land among common law jurisdictions. These developments have proven controversial in both territories, although the controversies have differed because of differences in implementation and historical background in both cities, despite their shared past as British colonies in Asia. This Article compares the two regimes to each other as well as to a more mature regime permitting private takings of shares in mergers and acquisitions law to highlight the lessons to be learned in order to prevent abuse.

Alex Schwartz on The Changing Concepts of the Constitution (OJSL forthcoming)

"The Changing Concepts of the Constitution"
Alex Schwartz
Accepted for publication, forthcoming in Oxford Journal of Legal Studies
Date Written: October 29, 2021

Abstract: There have been several important formal changes to the United Kingdom’s constitution over the past few decades, including devolution to Northern Ireland, Scotland, and Wales; the incorporation of the European Convention on Human Rights in domestic law; and the creation of a new Supreme Court. This article is about the informal semantic changes that may have accompanied these formal changes. It focuses on several central concepts: parliamentary sovereignty, the rule of law, the separation of powers, devolution, and human rights. Using a recently developed machine learning method to analyse a massive corpus of parliamentary debate, the article gauges the extent to which these concepts have become more (or less) related to the meaning of the United Kingdom’s constitution in parliamentary discourse. Ultimately, the analysis supports some important theoretical expectations about the changing nature of the constitution, including the claim that parliamentary sovereignty is now a less significant concept for the meaning of the constitution than it once was.

John Zhuang Liu et al on Precedents and Chinese Judges: An Experiment (Am J of Comp L)

"Precedents and Chinese Judges: An Experiment"
John Zhuang Liu, Lars Klöhn, Holger Spamann
The American Journal of Comparative Law
Published on 30 July 2021

Abstract: We experimentally study the decision-making process of judges in China, where judges are specifically prohibited from citing prior decisions as the basis for their judgments, and where, in past surveys, most judges explicitly stated that precedent played at most a marginal role in their decisions. In an experiment resembling real-world judicial decision making, we find, however, that precedent seems to have a significant influence on the decisions of the participating Chinese judges. Indeed, judges spend more time reading prior cases than statutes, and they typically read precedents before they access the statutes. On the other hand, judges rarely mention the precedent in their reasons. Our findings suggest that the Chinese judiciary operates much more similarly to its homologues in the United States and elsewhere than their written opinions and much folklore would suggest.

Eric Ip on The Political Economy of Anglo-American Administrative Law (British Ass'n of Comparative Law)

“Judging Regulators: The Political Economy of Anglo-American Administrative Law”

Eric Ip
British Association of Comparative Law

November 5, 2021
We tend to think of administrative law as an external constraint on politics, regulation, and public administration, and forget the fact that administrative law actually rests upon political foundations and is part and parcel of the political system. The overall insight of Judging Regulators is that administrative law is not an exogenous determinant of administrative behaviour. Administrative law, as developed by common law courts, will evolve in response to broader changes in the polity, subject to constraints imposed by political actors and the scarcity of judicial resources. Such changes are not necessarily constitutional shifts, but more subtle changes in the partisan and ideological composition of the legislature in particular, and the electorate in general.

     Judging Regulators derives insights from political science and economics to solve the mystery of why administrative law in the United States and the United Kingdom – the world’s two most influential common law countries – fundamentally diverges from each other on questions of law, fact, and discretion. Divergence was not always the case. From the founding of the American Republic in the eighteenth century to the immediate years after the Second World War, administrative law in these two English-speaking countries showed remarkable similarities. Judicial review of administrative acts grew exponentially in both jurisdictions as their administrative states became larger and more powerful during the second half of the twentieth century... Click here to read the full post.

HKU Law Welcomes Julius Yam, Assistant Professor

Welcome to Mr Julius Yam, our new Assistant Professor in the Department of Law. Julius studies constitutional law and courts from an interdisciplinary perspective. He is a Research Associate at the Programme for the Foundations of Law and Constitutional Government, University of Oxford. Prior to joining HKU, he was a visiting scholar at the Max Planck Fellow Group in Comparative Constitutionalism and Alexander von Humboldt Chair of Comparative Constitutionalism, University of Göttingen. His research areas are constitutional law, courts, and administrative law.

Daniel Matthews Awarded the 2021 Penny Pether Prize

Congratulations to our former colleague Dr Daniel Matthews whose recent book was awarded the 2021 Penny Pether Prize for Scholarship in Law, Literature and the Humanities. The monograph published by Edinburgh University Press is titled Earthbound: The Aesthetics of Sovereignty in the Anthropocene (EUP, 2021).The prize honours the late Penny Pether (1957-2013), an Australian scholar who "helped convene the first conference of teh Law and Literature Association and founded the interdisciplinary journal Law Text Culture". The prize is awarded by the Law, Literature and Humanities Association of Australasia to the author whose book has, in the judgement of the Committee, made the most significant contribution to the field of Australasian law, literature and humanities. Our colleague Professor Marco Wan was awardedthe 2017 Penny Pether Prize for his book Masculinity and the Trials of Modern Fiction.

Roda Mushkat on China and the Elusive Search for a Viable Governance Regime in the Era of Coronavirus (Eur J of Comp L and Gov)

"From China’s “Political Meritocracy” to “Just Hierarchy”: the Elusive Search for a Viable Post-Democratic Governance Regime in the Era of Coronavirus"
Roda Mushkat
European Journal of Comparative Law and Governance
Published online on 26 May 2021

Abstract: Students of comparative constitutional design grapple with myriad complex normative and empirical issues. Prominent among them is the relative effectiveness of different governance regimes. Concerns stemming from the perceived malfunctioning of modern democracies have intensified efforts to diagnose and rectify the supposedly proliferating ills. The seemingly solid post-1978 Chinese record of steadily managing intricate societal challenges has highlighted the possible advantages of the country’s tightly controlled top-down institutional apparatus and its potential value as a model worth broadly exploring and even embracing on a meaningful scale. This view, authoritatively and vigorously articulated by an influential and prolific political philosopher and his academic associates, has evolved to a point whereby the Chinese constitutional order and contemporary experience are portrayed as being capable of fruitfully supplanting democratic structures or, alternatively, productively revitalising them. Yet, on the whole, this remains a controversial politico-legal proposition, conceptually problematic and lacking sufficient factual support.

Stephen Thomson, Eric Ip & Shing Fung Lee on Comparisons of COVID-19 Data and the Effectiveness of Non-pharmaceutical Interventions (Journal of Biosocial Science)

"International comparisons of COVID-19 case and mortality data and the effectiveness of non-pharmaceutical interventions: a plea for reconsideration"
Stephen Thomson, Eric Ip and Shing Fung Lee
Journal of Biosocial Science

Published online on 27 October 2021

Abstract: International comparisons of the effectiveness of coronavirus disease 2019 (COVID-19) non-pharmaceutical interventions (NPIs) based on national case and mortality data are fraught with underestimated complexity. This article calls for stronger attention to just how extensive is the multifactorial nature of national case and mortality data, and argues that, unless a globally consistent benchmark of measurement can be devised, such comparisons are facile, if not misleading. This can lead to policy decisions and public support for the adoption of potentially harmful NPIs that are ineffective in combating the COVID-19 pandemic and damaging to mental health, social cohesion, human rights and economic development. The unscientific use of international comparisons of case and mortality data in public discourse, media reporting and policymaking on NPI effectiveness should be subject to greater scrutiny.

Simon Young on The Decision of the National People's Congress on Improving Hong Kong's Election System (ILM)

"The Decision of the National People's Congress on Improving the Election System of the Hong Kong Special Administrative Region"
Simon Young
International Legal Materials

Published online on 13 October 2021

Abstract: In 2021, Hong Kong's electoral system underwent its most significant reform since the People's Republic of China (PRC) resumed the exercise of sovereignty over Hong Kong on July 1, 1997. By a decision adopted on March 11, 2021 to “improve the electoral system of the Hong Kong Special Administrative Region and develop a democratic system suited to the actual situation of the Hong Kong Special Administrative Region” (HKSAR), the National People's Congress (NPC) decided to amend the methods of selecting the Chief Executive of the HKSAR and forming the Legislative Council of the HKSAR (LegCo). The existing Election Committee would be reformed and given a pivotal role in the elections of the Chief Executive and LegCo members. A new candidate qualification review committee would be established to qualify all candidates. The Standing Committee of the National People's Congress (NPCSC) was empowered to amend the first two annexes of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Basic Law), which specify the methods for selecting the Chief Executive and forming the LegCo. The HKSAR would amend local election laws to implement the reforms and organize future elections in accordance with the law. The Chief Executive would submit timely reports to the Central People's Government. The NPC Decision was adopted with 2,895 votes in favor and one abstention...

Call for Applications - Global Academic Fellows 2022 (HKU Law)

THE UNIVERSITY OF HONG KONG
Global Academic Fellows

Department of Law

Applications are invited for appointments as Global Academic Fellow in the Department of Law, to commence in August 2022 or January 2023, for a period of two years.

     The Global Academic Fellows Program was created to provide outstanding and aspiring legal academics with time and resources to transition into the global teaching market. Fellows will have access to an internationally leading faculty for mentorship, affiliation with related research centers, and funding for attending academic conferences to present their work. Other opportunities will include teaching Fellows’ own course or gaining experience in core courses, and organizing funded academic conferences in their field. Applicants should have completed their degrees (JD, JSD, or PhD) before the start of their appointments, unless they possess significant practice experience. Successful candidates will be appointed at the grade of Post-doctoral Fellow.

     One to three fellows will be appointed each year, and will be expected to be in residence at HKU and devote their time primarily to their own research and preparation for entering the international teaching market. Fellows will be provided shared office space and administrative support when needed. Information about the Department of Law and the Faculty of Law can be found at: www.law.hku.hk.

     A highly competitive salary commensurate with qualifications and experience will be offered, in addition to annual leave, housing subsidy, relocation expenses and full medical benefits. At current rates, salaries tax does not exceed 15% of gross income. Additionally, all shortlisted candidates will be nominated for HKU’s Presidential Post-Doctoral Fellowship. These nominations potentially represents additional salary, research funds and the optional extension of the fellowship for a third year. Address any specific questions to the Director at: jkroncke@hku.hk. 

     The University only accepts online application for the above post. Applicants should apply online and upload the following 4 components: 1) an up-to-date CV, 2) a 3-page research agenda (including past, current and future projects), 3) a list of at least three academic references, and 4) a writing sample (under 50 pages).  Applicants should apply at: https://jobs.hku.hk/cw/en/job/508741/global-academic-fellow-3-posts.  Closes 3 January, 2022.

Thomas Yeon & Diana Siu on Judicial Control and Interpretation of Emergency Powers: Lessons from Hong Kong (Oxford U Commonwealth LJ)

"Judicial Control and Interpretation of Emergency Powers: Lessons from Hong Kong"

Thomas Yeon (PCLL 2020) & Diana Siu (JD 2021)
Oxford University Commonwealth Law Journal
Published online: 26 Sep 2021

Abstract: This case note examines the judicial controls on emergency powers established by the Hong Kong Court of Final Appeal in Kwok Wing Hang v Chief Executive in Council [2020] HKCFA 42. It argues that, despite the Court’s promises to the contrary, none of those controls offer a meaningful constraint on the Chief Executive in Council’s power to enact regulations under the Emergency Regulations Ordinance (Cap 241). It also observes that the Court’s flawed articulation of the judicial controls is of cautionary value for courts in the United Kingdom interpreting the Civil Contingencies Act 2004.

Thomas Yeon & Trevor Wan on Comparative Constitutional and Administrative Law in Hong Kong: In Search of Coherence (Public Law)

"Comparative Constitutional and Administrative Law in Hong Kong: In Search of Coherence"

Thomas Yeon (PCLL 2020) and Trevor Wan (BSS(GL)&LLB 5)

Public Law

Published: 1 April 2021

Abstract: This commentary analyses the decision of the Hong Kong Court of First Instance (the court) in Kwok Wing Hang v Chief Executive in Council and critically analyses and evaluates the court’s approach to the limitation of executive powers and the protection of fundamental rights with respect to its approach in citing foreign jurisprudence from the UK, Australia and under the European Convention on Human Rights. The authors argued that while the court’s treatment of constitutional and administrative cases from common law jurisdictions is generally coherent (albeit with room for improvement in dissecting technical details), the court’s approach to Strasbourg jurisprudence is incoherent and fails to appreciate analytical nuances both as a matter of law and fact. A two-step approach will be proposed for Hong Kong courts’ future consideration in adopting constitutional and/or administrative jurisprudence from foreign jurisdictions.  Note that the Court of Final Appeal's decision in this case can be found here.

Simon Young on Money Laundering in International Law (Oxford Bibliographies)

"Money Laundering in International Law"
Simon Young
Oxford Bibliographies
Published on 27 October 2021

Introduction: The international law of money laundering is found in several United Nations (UN) crime suppression treaties, United Nations Security Council (UNSC) resolutions, and a body of soft law, some of which arguably has crystallized as customary norms. Beginning with the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention), states agreed to establish anti-money laundering (AML) measures in their domestic law for drug-related offenses. This was followed by AML measures against organized crime and corruption, respectively, in the 2000 UN Convention against Transnational Organized Crime (Palermo Convention), including its protocols and the 2003 UN Convention against Corruption (Merida Convention). The AML measures include the criminalization of money laundering, powers to freeze and confiscate the proceeds of crime, duties of the private sector to generate financial intelligence, the establishment of financial intelligence units (FIUs), and formal legal cooperation arrangements between states, necessary given the transnational dimension of money laundering. While AML originally covered only property derived from crime, its measures were extended to property used to finance or carry out crimes, most notably for terrorist acts and the proliferation of weapons of mass destruction. Though countries concluded a treaty against terrorist financing in 1999, it was not until after the events of 11 September 2001 that anti-terrorism financing norms, as part of the panoply of AML measures, were diffused around the world by UNSC resolutions. International bodies, including the United Nations Office on Drugs and Crime (UNODC), have prepared model laws to assist countries to incorporate AML measures. The Financial Action Task Force (FATF), established in 1989 by the G7 industrialized nations, is the most important and influential body in setting detailed international standards on AML. Through replication of its norms and functions by regional bodies, the FATF’s soft law of AML measures has hardened into near universal domestic AML laws, adopted to signify the integrity of a country’s financial systems. European nations extensively adopted AML measures by treaties and directives, sometimes going beyond FATF recommendations. As AML measures have grown in number and global significance, critical literature has grown, questioning their effectiveness, whether their benefits outweigh their costs, and whether they are justified from the standpoint of principles of criminal liability and human rights law. For more criminological literature, readers may wish to consult the Oxford Bibliographies in Criminology article Money Laundering...

PhD candidate Ms Zhang Hongjiao Awarded Third Place in ATRIP Essay Competition 2020

 

Congratulations to Ms Hongjiao Zhang, HKU PhD candidate under the supervision of Dr Yahong Li, on winning the third place at the ATRIP Essay Competition 2020 with her paper “A Typological Framework for the Implied License Doctrine in Copyright Law”.   

Abstract: In property law, the transfer of the possession of movable property and the registration system of real estate can demonstrate the transfer of property ownership. However, intellectual property, including copyright, is intangible. The ownership of copyright cannot be inferred from the possession of the material object in which the work is embodied because the ownership of copyright is distinct from the ownership of the material object. Thus, to enhance the predictability and certainty of copyright ownership, including exclusive licenses of copyrighted works, a signed document is required in many jurisdictions. Nonexclusive licenses, however, carry no such requirements and can be granted via oral expression or implied from conduct. The point of the leading copyright treaties that “a nonexclusive license may be granted via oral expression or implied from conducts” has been cited in many US copyright cases. In this sense, an implied license addresses a gap in copyright law.  The paper can be downloaded here.

International Conference: Intellectual Property, Covid-19, and the Next Pandemic: Diagnosing Problems, Developing Cures (5-6 Nov 2021)

Intellectual Property, Covid-19, and the Next Pandemic:

Diagnosing Problems, Developing Cures 

Dates: November 5 – 6, 2021 (Friday – Saturday) 

Time: 8am – 12:30pm (US Eastern Standard Time) 

This conference will be conducted via Zoom. 

This conference is co-organized by the Law and Technology Centre of the University of Hong Kong Faculty of Law and the Georgetown University Law Center.  It will be conducted via Zoom and prior registration is required.  More information is available on the conference website: https://www.covidip.hku.hk/.

 Conference organizers

• Madhavi Sunder, Professor of Law and Associate Dean for International and Graduate Programs, Georgetown University Law Center
• Haochen Sun, Associate Professor of Law, University of Hong Kong Faculty of Law
  

Keynote speakers

• Edward Kwakwa, Assistant Director General, Global Challenges and Partnerships Sector, World Intellectual Property Organization
• William Fisher, WilmerHale Professor of Intellectual Property Law and Faculty Director, Berkman Klein Center for Internet and Society, Harvard Law School
• Ruth Okediji, Jeremiah Smith, Jr. Professor of Law and Faculty Director, Berkman Klein Center for Internet and Society, Harvard Law School
  

Panel speakers & moderators

• Kashish Aneja, Consultant, O’Neill Institute for National and Global Health Law, Georgetown University Law Center
• Olufunmilayo Arewa, Murray H. Shusterman Professor of Transactional and Business Law, Temple University Beasley School of Law
• Anupam Chander, Professor of Law, Georgetown University Law Center
• Jorge L. Contreras, Presidential Scholar and Professor of Law and Director of Program on Intellectual Property Law & Policy, University of Utah S.J. Quinney College of Law
• Rochelle Dreyfuss, Pauline Newman Professor of Law and Co-Director, Engelberg Center on Innovation Law & Policy, New York University School of Law
• Lawrence Gostin, University Professor and Faculty Director, O’Neill Institute for National & Global Health Law, Georgetown University Law Center
• Calvin Ho, Associate Professor of Law and Co-Director, Centre for Medical Ethics and Law, University of Hong Kong Faculty of Law
• Eric Ip, Associate Professor of Law and Research Fellow, Centre for Medical Ethics and Law, University of Hong Kong Faculty of Law
• Amy Kapczynski, Professor of Law and Faculty Director, Global Health Justice Partnership, Yale Law School
• Matthew Kavanagh, Assistant Professor of Global Health and Director, Global Health Policy and Politics Initiative, O'Neill Institute, Georgetown University
• Priti Krishtel, Co-Founder and Co-Executive Director of Initiative for Medicines, Access & Knowledge (I-MAK)
• Sapna Kumar, Professor of Law, John Mixon Chair and Co-Director for the Institute for Intellectual Property and Information Law, University of Houston Law Center
• Peter Lee, Martin Luther King Jr. Professor of Law, University of California, Davis, School of Law
• Laura Pedraza-Fariña, Professor of Law, Northwestern University Pritzker School of Law
• Nicholson Price, Professor of Law, University of Michigan Law School
• Arti Rai, Elvin R. Latty Professor of Law, Duke University School of Law
• Jerome Reichman, Bunyan S. Womble Professor of Law, Duke University Law School
• Ana Santos Rutschman, Assistant Professor of Law, Saint Louis University School of Law
• Ken Shadlen, Professor of Development Studies, Department of International Development, London School of Economics and Political Science
• Jayashree Watal, Former Staff Member, WTO’s Intellectual Property Division and Honorary Professor, National Law University Delhi
• Peter Yu, Regents Professor of Law and Communication and Director, Center for Law and Intellectual Property, Texas A&M University School of Law

All are welcome!  More information about this event is available on the conference website.  Please register as soon as possible.

Please direct any inquiries to Ms. Grace Chan at mcgrace@hku.hk or (+852) 3917 4727.

Scott Veitch's Observations on Hong Kong (Critical Legal Thinking)

Observations on Hong Kong

by

 Scott Veitch
Published at Critical Legal Thinking

19 October 2021

It has been said that a poem is never finished, just abandoned. Academic writing has a touch of that too. The visions and revisions it has taken to get a text into decent shape could always do with one more run through, one more update, one more check for meaning and style. It is true also of research. It could be – it is – endless, but one must just stop somewhere otherwise the writing will never get done. If one is doing research on contemporary issues, a decision must be made about what to include and when to end the period for analysis. The process of selection and exclusion is one of the skills of judgement in research and writing one seeks to learn, test out, pass on, but always facing it afresh with each new project. For as Borges illustrates so well with Funes the Memorious – who remembers every detail but knows nothing of meaning, which only comes with generalization – without selection and exclusion, no sense will be possible. And if this is a concern that applies to research on current issues, it applies even more to historical research, since in addition to the question of when to stop, there is the much more challenging question of when to start. Each event, each effect, has a range of causes, and each of them in turn a further range. And so selection and exclusion – methodology – become key to making any sense, contested as that will always be. In the end perhaps, all you might say about your research and writing is that there are better and worse ways of abandoning it; and that what is offered in the text is the best you are able to do for now. ...Click here to read the full article.

Lusina Ho on The Mental Element in Equitable Accessory Liability (Current Legal Problems)

"The Mental Element in Equitable Accessory Liability"
Lusina Ho

Current Legal Problems

Published: 1 June 2021

Abstract: There has been heated debate over the test of dishonesty since it was first laid down in Royal Brunei Airlines v Tan. This paper argues that the essence of ‘dishonest’ assistance is willing participation in a breach of trust, that is, assistants endorse or accept their causal role in bringing it about. Three implications follow. First, the mental element should be fixed at the minimum level necessary to reflect endorsement rather than varying by the degree of causal contribution to the primary wrong. Second, the test of neither dishonesty nor knowledge fully captures the requisite mental element for endorsement. Third, a test framed in terms of intention and belief concerning the core elements of a breach would better identify the mental element of accessory liability in equity. This reformulated test would add much-needed transparency to mental element determination for equitable accessory liability.

New Book by Anselmo Reyes and Wilson Lui: Direct Jurisdiction: Asian Perspectives (Hart Publishing)

Direct Jurisdiction: Asian Perspectives

edited by Anselmo Reyes and Wilson Lui (BA&LLB 2019)
Hart Publishing

Publication Date: August 2021
440 pp

Description: The second thematic volume in the series Studies in Private International Law – Asia looks into direct jurisdiction, that is, the situations in which the courts of 15 key Asian jurisdictions (Mainland China, Hong Kong, Taiwan, Japan, South Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka, and India) are prepared to hear a case involving cross-border elements. For instance, where parties are habitually resident abroad and a dispute has only some, little or no connection with an Asian state, will the courts of that state accept jurisdiction and hear the case and (if so) on what conditions? More specifically, the book's chapters explore the circumstances in which different Asian states assume or decline jurisdiction not just in commercial matters, but also in other types of action (such as family, consumer and employment disputes).

     The Introduction defines terminology and identifies similarities in the approaches to direct jurisdiction taken by the 15 Asian jurisdictions in civil and commercial litigation. Taking its cue from this, the Conclusion assesses whether there should be a multilateral convention or soft law instrument articulating principles of direct jurisdiction for Asia. The Conclusion also discusses possible trajectories that Asian jurisdictions may be taking in respect of direct jurisdiction in light of the COVID-19 pandemic and the political tensions currently besetting the world. The book suggests that enacting suitable rules of direct jurisdiction requires an Asian jurisidction to strike a delicate balance between affording certainty and protecting its nationals. At heart, direct jurisdiction involves sometimes difficult policy considerations and is not just about drawing up lists of jurisdictional grounds and exceptions to them.