Friday, January 22, 2021

Benjamin Chen & Zhiyu Li on How Technology Will Change The Face of Chinese Justice (Columbia J of Asian L)

2020, Volume 34, Issue 1, pp. 1-58
Abstract: The People’s Republic of China is embarking on an ambitious program to revolutionize its judicial institutions through information technology. Millions of cases have been published online as part of a move towards greater transparency. Courts are piloting artificial intelligence systems that promise to streamline adjudicatory processes and expand access to justice. Although other jurisdictions have employed statistical and computational methods to improve judicial decision-making, few have sought to exploit technology to the same degree. A way of understanding this exceptionalism is to view the integration of technology into law as a microcosm of China’s ambitions to emerge as a global artificial intelligence powerhouse and thereby establish itself in the first rank of nations.
     Seen from a different perspective, however, the technologization of the legal system responds to certain oppositions in Chinese justice. First, courts today are straining under the burden of their caseloads. The contemporary turn towards legality has swelled the number of lawsuits while the professionalization of the judicial corps also culled its ranks. Artificial intelligence enhances the speed and consistency of adjudication while online disclosure cultivates public trust in the courts. Second, adherence to legal rules and forms restored normality to a society upended by revolutionary struggle but its inflexibility also foments dissatisfaction and disrupts relationships. The ensuing governmental imperative for judges to mediate disputes has resulted in coerced settlements and delayed verdicts. Machine predictions of case outcomes, supplied by courts, guide parties to bargain in the shadow of the law, thereby preserving the voluntariness of peace and the sanctity of justice. Third, while the party-state encourages citizens to know the law and use it as their weapon, civil society and activist lawyers may rally behind a legal cause to challenge the ideological hegemony of the party-state. By helping citizens learn the law and claim their rights, databases and applications foster legal consciousness while disintermediating lawyers.
     Technological initiatives for administering justice simply, swiftly, and singly have thus blossomed in China because they relieve some of the tensions in its legal system. An original survey of roughly a thousand netizens and interviews of over a hundred legal aid seekers suggest that internet and artificial intelligence technologies have the potential to realize and refine a Chinese brand of authoritarian legality. But there is also a larger insight here that transcends jurisdictional boundaries and legal cultures. Obverse to the democratization of law is the marginalization of the legal profession. The advent of technology thus surfaces a tension between two dimensions of legality. The first dimension sees law as the disciplining of human conduct through rules. The second dimension, on the other hand, conceives of law as a dynamic force that, by responding to reason, has the potential to reshape the normative status quo. To the extent that lawyers are integral to the vitality of the legal order, innovations that displace them may also undermine one conception of the rule of law.

Thursday, January 21, 2021

Kerry Holdings Professor in Law Douglas Arner Awarded Inaugural RGC Senior Research Fellowship

 

Kerry Holdings Professor in Law Douglas Arner Awarded Inaugural RGC Senior Research Fellowship
Seven academics across different academic backgrounds from the University of Hong Kong (HKU) were awarded under the inaugural Research Fellow Scheme (RFS) and Senior Research Fellow Scheme (SRFS) of the Research Grants Council (RGC), for their distinguished research achievements and significant contributions to the higher education sector. Among them, four were conferred as Senior Research Fellows and three were conferred as Research Fellows, in an award presentation ceremony held by RGC in November 2020.
    The schemes aim to provide sustained support and relief from teaching and administrative duties to exceptionally outstanding researchers at Associate Professor or full Professor ranks at University Grants Committee (UGC)-funded universities in Hong Kong. Ten places across all academic disciplines are awarded under each scheme.

The seven HKU recipients are:
RGC Senior Research Fellow Scheme
Professor Douglas Wayne ARNER
Kerry Holdings Professor in Law and Director, Asian Institute of International Financial Law, Faculty of Law
Professor Giulio CHIRIBELLA
Professor and Director, QICI Quantum Information and Computation Initiative, Department of Computer Science, Faculty of Engineering
Professor Benjamin John COWLING
Professor, School of Public Health, Li Ka Shing Faculty of Medicine
Professor Chuyang TANG
Professor, Department of Civil Engineering, Faculty of Engineering
RGC Research Fellow Scheme
Professor David Alexander PALMER
Professor, Hong Kong Institute for the Humanities and Social Sciences / Department of Sociology, Faculty of Social Sciences
Dr. Shelley Xiuli TONG
Associate Professor, Academic Unit of Human Communication, Development, and Information Sciences, Faculty of Education
Professor Kevin Kin Man TSIA
Professor, Department of Electrical and Electronic Engineering, Faculty of Engineering

Biographies of the awardee:

RGC Senior Research Fellow Scheme
Professor Douglas Wayne ARNER, Kerry Holdings Professor in Law and Director, Asian Institute of International Financial Law, Faculty of Law
Project title: Digital Finance, Financial Inclusion and Sustainability: Building Better Financial Systems
Professor Arner is the Kerry Holdings Professor in Law and Director and co-founder of the Asian Institute of International Financial Law at the University of Hong Kong. Professor Arner has published 18 books and more than 200 articles, chapters and reports on international financial law and regulation, including recently Reconceptualising Global Finance and its Regulation (Cambridge 2016) and The RegTech Book (Wiley 2019). He is one of the top 1% of all authors on SSRN, where his work has been downloaded more than 100,000 times. From 2012-2018, Professor Arner coordinated an RGC Theme-based Research Scheme project on Hong Kong's role and future as an international financial centre. He leads Introduction to FinTech – launched with edX in May 2018 and now with over 80,000 learners spanning every country in the world. Professor Arner has advised on financial sector development projects around the world, as an advisor to, among others, the UN, World Bank, Asian Development Bank, APEC, Alliance for Financial Inclusion, and European Bank for Reconstruction and Development. He has lectured and co-organised conferences and events across Asia-Pacific, Europe, North America and Africa, and has been a visiting professor at Duke, Harvard, McGill, Melbourne, NUS, UNSW, and Zurich, among others.

Douglas Arner Discusses the Ant Group IPO Failure, FinTech 4.0 and the Effects of Covid-19 on Digital Finance (Video & Podcast)

Video - Looking Back Looking Forward: Ant Group & Global Digital Finance Platforms by Professor Douglas Arner

 
Summary: In this episode of Looking Back Looking Forward - the last of 2020 - Professor Douglas Arner discusses how COVID-19 has driven digitisation of finance to new levels, marking the emergence of FinTech 4.0. In finance, the impact of COVID-19 on digitisation can be seen in dramatic increases in e-commerce and digital communications, with particularly dramatic increases in: 1) electronic payment and digital currencies; 2) regulatory technology (RegTech); 3) non face-to-face transactions, and 4) data and concentration. FinTech 4.0 is characterised by the emergence of increasingly dominant digital finance platforms benefiting from network effect and economies of scope and scale while integrating finance and technology. The best example is China's Ant Group and the dramatic halt of its IPO - which would have been the world's largest - by Chinese regulators in November 2020 as a result of the fact that these platforms bring not only benefits but also huge new risks and concerns. 
     These concerns and possible approaches are highlighted in a new paper: 'Digital Finance Platforms: Toward a New Regulatory Paradigm', available at: https://papers.ssrn.com/sol3/papers.c... For more information on the University of Hong Kong's financial technology programme, visit http://www.hkufintech.com and discover the transformation of information technology's ever-growing impact on finance.
      Listen to the Podcast - All you need to know about Ant Group (and its canceled IPO) by Professor Douglas Arner. Arner joins the Fintech Beat podcast to talk about the origins of Ant Group, its regulatory shortcomings in the Chinese financial system, and when he expects to see an IPO. The paper 'Governing Global Digital Finance', available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3678518​ projects the background of both the video and the podcast.

Tuesday, January 19, 2021

Sean Yau (LLB 2016) on the Legality of the Use of Force for Self-Determination (Palestine Yrbk Int'l L)

Sean Shun Ming Yau (LLB 2016)
2020, Vol 21, Issue1, pp. 32-76
Introduction: Self-determination is a complex animal. It is the only principle in international law which is so antithetical to State centricity – the premise of the legal architecture – and yet is one of the most fundamental principles of the discipline. More than 70 years after the adoption of the United Nations (UN) Charter, when the principle of self-determination first became black-letter law, today almost every aspect of its scope and content remains highly unsettled. To some, this concern is immaterial because they consider the principle obsolete and no longer applicable in today’s world. Over the past decade, the International Court of Justice (ICJ), in its Advisory Opinions on Kosovo and recently on Chagos, has shown otherwise. It not only left the door open whether international law permits a right to secession; even more, it demonstrated that the process of decolonization might be void if unlawfully completed. The article taps into one of the biggest nuances in this area of law: the use of force in the exercise of the right to self-determination, with a particular reference to Palestine. This is not least because the use of force has often been the means resorted to in historical attempts to achieve self-determination. Nonetheless, neither courts and tribunals nor academic scholars have seriously studied the issue. The question whether or not the use of force for self-determination is lawful is also particularly interesting from a legal perspective. It is one of the few phenomena of international life where two legal norms, both with a hierarchical superiority – namely the prohibition on the use of force and the right to self-determination – seem to collide... Click here to read the full article.

Monday, January 18, 2021

RGC funded Collaborative Research Project on Insolvency Law Implications of Covid-19 in Hong Kong

Congratulations to the research team recently awarded a RGC Collaborative Research Fund (CRF) Grant of $3.11 million for the project "Hong Kong Insolvency and Restructuring Law and Policy in Times of COVID-19 and Beyond".  The project collects data on the impact of the pandemic on businesses in Hong Kong and considers whether reforms to Hong Kong's laws of insolvency and business restructuring are needed.  It is led by Professor Wai Yee Wan of City University of Hong Kong School of Law and includes Co-Principal Investigators from HKU Law (Mr Alwin Chan and Mr Kelvin Kwok) and City University of Hong Kong, and other collaborators from Oxford University and Leeds University.  This is yet another good example of a collaborative research project between HKU Law and CityU Law.  There are very few law-related projects supported by the CRF fund, so well done to the team and hopefully we will see more CRF collaborations between legal academics in Hong Kong.

Sunday, January 17, 2021

CCPL Newsletter Spring 2021

CCPL was established in 1995 as a non-profit virtual research centre in the Faculty of Law, The University of Hong Kong. Its goals are to (1) advance knowledge on public law and human rights issues primarily from the perspectives of international and comparative law and practice; (2) encourage and facilitate collaborative work within the Faculty of Law, The University of Hong Kong, and the broader community in the fields of comparative and public law; and (3) make the law more accessible to the community and more effective as an agent of social change.

Happy New Year from the Centre for Comparative and Public Law (CCPL) at The University of Hong Kong!  This is our latest CCPL Newsletter. We are pleased to share with you highlights from the events we held last semester as well as information on upcoming events for Spring 2021.  We look forward to seeing you soon at our events!

AIIFL Newsletter: AIIFL News Issue 1, Dec 2020

Director's Report
Welcome to the AIIFL Newsletter - the first issue of AIIFL News and to the end of 2020 – and best wishes from all of us at the Asian Institute of International Financial Law for a better 2021!

Douglas Arner
AIIFL Director
Douglas.arner@hku.hk

Announcements
Looking Back, Looking Forward
In January 2020 we launched a new series of videos looking at finance, technology and regulation.
The final episode of Series 1 is now out: Ant Group & Global Digital Finance Platforms.
The full Series 1 is available HERE.

Applications now open
Master of Laws in Corporate and Financial Law
Master of Laws in Compliance and Regulation
Our LLM CFL and LLM CR are today the premier postgraduate programmes for the study of corporate and financial law, regulation, compliance and technology in Asia. These two programmes highlight the key themes and issues driving global finance today: regulation, technology, sustainability, globalisation, fragmentation.
Both programmes are now accepting applications for the 2021-2022 academic year and are available to full and part-time candidates from across the world, from all backgrounds including those who have not studied law.
Deadline for application: 1 March 2021.

Events and Activities
HKU FinTech Day 2020 (3-4 November 2020)
The 4th Annual HKU FinTech Day was held online over the span of two days and attracted over 1400 registrations, with attendees from over 70 countries. | Recordings available at: hkufintech.com

Selected lectures, seminars and webinars
Security Token Offerings (11 December 2020) | Daniel Liebau, LightBulb Capital & Rotterdam School of Management, Erasmus University Video HERE
Tax Residency, Investment Opportunities and Retirement Considerations for the Expat post-COVID-19 (9 December 2020) | Sarah Hinchliffe, Long Island University Video HERE
Financial Inclusion, A Hong Kong Perspective (30 June 2020) | Emily Lee, Faculty of Law, The University of Hong Kong

Webinar series: Coping with legal challenges arising from the pandemic

COVID 19 - A Trigger for Mindset, Policy and Infrastructure Changes Regarding AI, LawTech and RegTech (6 May 2020) | Brian Tang, Executive Director, LITE Lab@HKU, Faculty of Law, HKU
Digital Finance & Crisis (15 April 2020) | Douglas Arner, Kerry Holdings Professor in Law and AIIFL Director, HKU

Publications and Reports
AIIFL books and papers
Elgar Research Handbook on Asian Financial Law | Douglas Arner, Wai Yee Wan, Andrew Godwin, Wei Shen, Evan Gibson
Joint Submission to HKEX's July 2020 Consultation Paper on Paperless Listing | Syren Johnstone, Frederick Long

Selected articles, books and reports from the AIIFL team
Stablecoins: Risks, Potential and Regulation | Douglas Arner, Raphael Auer, Jon Frost
The Dark Side of Digital Financial Transformation: The New Risks of FinTech and the Rise of TechRisk | Ross Buckley, Douglas Arner, Dirk Zetzsche, Eriks Selga
Coordinating Prudential Regulation and Secured Transactions Frameworks: A Primer | Giuliano Castellano, Pratibha Chhabra, John Wilson, Mahesh Uttamchandani
After Libra, Digital Yuan and COVID-19: Central Bank Digital Currencies and the New World of Money and Payment Systems | Anton Didenko, Dirk Zetzsche, Douglas Arner, Ross Buckley
Judicial Diplomacy in the Asia-Pacific: Theory and Evidence from the Singapore-Initiated Transnational Judicial Insolvency Network | Emily Lee, Eric Ip
Financial Inclusion and Bank Account Opening in Hong Kong | Emily Lee
Applying 'Deep ESG' to Asian Private Equity | Frederick Long, Syren Johnstone
Re-enfranchising the Investor of Intermediated Securities | Maisie Ooi
Rethinking the Characterisation of Issues Relating to Securities | Maisie Ooi
Joint Response to IOSCO Consultation with Public Comment on The Use of Artificial Intelligence and Machine Learning by Market Intermediaries and Asset Manager | Brian Tang
The Chiron Imperative – A Framework of Six Human-In-The-Loop Paradigms to Create Wise and Just AI-Human Centaurs The LegalTech Book: The Legal Technology Handbook for Investors, Entrepreneurs and FinTech Visionaries | Brian Tang
Artificial Intelligence in Finance: Putting the Human in the Loop | Dirk Zetzsche, Douglas Arner, Ross Buckey, Brian Tang

Selected Media
Podcast: All You Need to Know About Ant Group (and its canceled IPO) | Douglas Arner
OpEd: Hong Kong Possesses All Attributes for Full Recovery | Richard Cullen
How Financial Regulation Has Altered the Cryptoasset Landscape | Syren Johnstone
Hong Kong Authorities Release Recommendations for Regtech Adoption | Brian Tang

Research projects, honours and awards
HKU FinTech
The HKU-edX FinTech Professional Certificate was shortlisted for the 2020 edX Prize. The foundation course Introduction to FinTech now has over 80,000 learners spread across every country in the world except North Korea.

Research grants and projects
Hong Kong Research Grants Council Senior Fellowship (HKD7.8 million, 2020-2025): Digital Finance, Financial Inclusion and Sustainability: Building Better Financial Systems | Douglas Arner
Project Report: Financial Inclusion and Bank Account Opening: Deploying Financial Technology and Regulatory Technology for Improving Banking Services Accessibility inside Hong Kong’s Anti-Money Laundering Law [HERE] | Public Policy Research (PPR) Funding Scheme Project No.: 2017.A8.064.17C Emily Lee

BIS-HKMA TechChallenge
AIIFL’s Giuliano G. Castellano teamed up with the Kozolchyk National Law Center (NatLaw) and INVIOU to provide a legal, regulatory and technological solution to address the problems affecting trade-finance form small- and medium-sized enterprises (SMEs). Such a solution has been shortlisted for the TechChallenge of the Bank for International Settlements (BIS) and the Hong Kong Monetary Authority (HKMA). Their solution consists of a platform designed to operate across jurisdictions, flagging applicable legal rules, regulatory compliance issues, and fraud risks for a variety of trade-finance products. Through this product-neutral, scalable platform lenders are equipped with an effective and simple tool to manage risks associated with SME financing without changing their technology and processes. [HERE]

CLC Newsletter December 2020

Highlights
Recent Activities
Selected Webinars
Hong Kong National Security Law Webinar Series
International Speaker Series on China’s Law & Economic Governance
 
Recent Publications 
Selected Books & Articles
 
Publications of New CCL Faculty Members
Media Articles & Interviews
                 
Upcoming Events 
International Speaker Series on China’s Law & Economic Governance
Other speakers in the Spring Semester include Rachel Stern (Berkeley Law School), Ben Liebman (Columbia Law School) and Neysun Mahboubi (Penn Law School). Stay tuned for additional events and details.  

CMEL Newsletter December 2020

 

CMEL is established jointly by the Li Ka Shing Faculty of Medicine and the Faculty of Law at the University of Hong Kong. Its primary vision is:

  • to become a focal point for international research excellence in the area of medical ethics and law;
  • to co-ordinate and provide teaching and training to university students and professionals;
  • and to promote and disseminate its expertise to the benefit of the public.
The Centre’s objectives are to promote excellence in the fields of research, teaching, knowledge exchange and professional training. The Centre will collaborate, as appropriate, with institutions, professional bodies and scholars in Hong Kong and internationally in order to pursue these objectives. CMEL has recently issued the latest newsletter. To view click: CMEL December 2020 Newsletter.

Highlights of the December newsletter:

1.      Hong Kong doctor found guilty of manslaughter after administering contaminated blood product to patient in DR beauty blunder

2.      New statutory power to seal premises and restrict the movement of individuals in the fight against COVID in Hong Kong

3.      Video recordings of “Health and Artificial Intelligence: Law, Ethics and Society” Webinar

4.      Recent publications by CMEL members

5.      Master of Laws in Medical Ethics and Law of the University of Hong Kong

Wednesday, January 13, 2021

He Xin on Pressures on Chinese Judges under Xi (The China Journal)

The China Journal
Published in December 2020 online
Abstract: Drawing on interviews with Chinese judges, this paper reveals the major effects of judicial reforms during the past half decade. It focuses on the ramifications of a new quota and responsibility system for judges and on the strengthening of central-government controls over the judiciary. The paper differentiates between what the Party considers to be legitimate and illegitimate influences on judges, which sheds light on recent legal developments and the role of the judiciary in Chinese governance. The article finds that illegitimate influences on courts have declined palpably, but what the Party perceives to be legitimate influences have persisted and even been reinforced. More direct, comprehensive control over judges has replaced previously fragmented, multilayered mechanisms. Despite important changes, the reforms did not lead to institutional independence of Chinese judges, nor has the stature of the courts in China’s political landscape changed.

He Xin on Professor Sally Engle Merry: A Candid and Caring Giant (Law & Society Review)

"Professor Sally Engle Merry: A Candid and Caring Giant"
He Xin
Law & Society Review
Published on 18 December 2020
Introduction: According to a Chinese aphorism, one purpose of any mourning activity is to stage a show for those who are still alive.  I feel sorry if this short essay leaves such an impression.  I do not mean to do this.  I was not formally a student of Professor Merry, and so I may not be in the best position to document her achievements which include dispute resolution, mediation, legal consciousness, cultural hegemony, human rights, spatial governmentality, and more.  But what I wish to say is that, perhaps, no other scholars has been more influential and inspiring to me. 

Thursday, January 7, 2021

Anna Dziedzic on Foreign Judges and Hong Kong’s New National Security Law (Commonwealth Judicial Journal)

Commonwealth Judicial Journal
2020, Vol 25, Issue 2, pp. 27-33
Abstract: Foreign judges have had a longstanding role on Hong Kong’s Court of Final Appeal. In 2020, this tradition faced significant challenges as the People’s Republic of China enacted a new National Security Law for Hong Kong. This article examines the implications of the new law for the foreign judges on Hong Kong’s Court of Final Appeal. It tracks the debates about the potential exclusion of foreign judges from hearing national security cases and the difficult question of judicial resignations. The article explains how these issues take on greater significance because of the distinctive rationale for the use of foreign judges in Hong Kong, where foreign judges are understood to signify the distinctiveness of Hong Kong’s legal system as well as its quality.

Tuesday, January 5, 2021

Anupama Sharma on South Asian Perspectives of Gender Neutrality in Sexual Violence Laws (J Indian L & Soc)

"Addressing the Roadblocks to Gender Neutrality in Sexual And Domestic Violence Laws: A South Asian Perspective"
Anupama Sharma (PhD candidate)
Journal of Indian Law and Society
Winter 2020, Vol 11, Issue 2
pp 79-106
Abstract: Sexual and domestic violence laws across several countries in South Asia are gendered in nature. These legislation brand men as the perpetrator and women as the victim due to the wide prevalence of violence against women. In this paper, the author argues that gendered laws fail to accommodate abuse against men and other genders, as well as reinforce the one-dimensional image of women as a victim. In making this claim, the author addresses various counter-arguments made against gender neutrality and draws lessons from Bhutan, which has gender-neutral laws and also shares historical and social contextual similarity with other South Asian countries.  Click here to download the full article.

Sunday, January 3, 2021

Thursday, December 31, 2020

New Book: Archbold Hong Kong 2021 (Sweet & Maxwell)

Editor-in-Chief: The Hon Mr Justice Bokhary
General Editor: Professor Simon Young
Sweet & Maxwell
December 2020

Preface by the General Editor
Archbold’s first general editor was John Frederick Archbold. By analogy, Archbold Hong Kong’s first general editor would be considered Hong Kong’s Archbold. Sadly Hong Kong’s Archbold passed away on 28 April 2020. This is a fitting title for Dr Gerard McCoy SC. His encyclopedic knowledge of the law, especially the criminal law, was well known and undoubtedly a matter of judicial notice in many countries. Mr Justice Frank Stock, in his preface to the first edition of this work, described Dr McCoy as “a tireless worker, possessed of a meticulous eye and as well-versed in the principles and detail of the criminal law as one could wish”. Though he appeared for government in a good number of cases, he had a big heart for the underdog and an unrelenting sense of justice. He was also very much reform-minded, which I witnessed having the honour of working with him on two law reform committees and two landmark Court of Final Appeal cases on joint criminal enterprise and refugee non-refoulement. In court, he was as distinguished as any silk who has ever practiced in this jurisdiction, but he was also a compassionate leader who could instantly dissolve the nerves of a junior at the start of a hearing by offering a fist bump with the words ‘Go Team’. He was a lawyer’s lawyer, one who would not hesitate to offer advice, or a case reference, to any fellow member of the bar who sought his assistance. In his practice, he continuously prodded the law, and for that we got to learn so much more about the law, whatever may have been the result in the case. One need only have regard to the cases he handled in his last year to appreciate his unparalleled contribution to the criminal law in Hong Kong. Those cases enhanced our understanding of the right to interpreter assistance in criminal trials (CACC 135/2017; CACC 320/2016), the right to privacy and police searches of mobile phones (CACV 270/2017); remedial interpretation of the Interception of Communications and Surveillance Ordinance (CACC 237/2015), the rule in Browne v Dunn (CACC 65/2017), and the constitutionality of sentences for male buggery offences (CACC 361/2018). This is only a small sample of a corpus of law which he helped to generate. 
    In his preface, echoing the words of Archbold, Dr McCoy wrote that this work would aim “to become ‘a practically useful book’ which identifies and collates the current substantive, procedural, evidential and adjectival criminal law of Hong Kong”. In this spirit, the current edition collates the contents of 《中華人民共和國香港特別行政區維護國家安全法》(Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region), which was applied locally on 30 June 2020. This National Security Law (NSL) is the most important piece of criminal law legislation applied in Hong Kong in recent times, and practitioners are slowly coming to terms with it. The NSL is currently covered across Chapters 2, 5, 15, 19, 26, 41 and 42, but for the future the aim is to capture NSL jurisprudential developments mainly in Chapter 26, concerned with national security offences.
    Hong Kong’s Archbold ended his preface with the four Chinese characters, 金科玉律, which was likely a reference to Viscount Sankey’s “one golden thread” famously penned in Woolmington v DPP [1935] AC 462, 481. It is a fitting reminder that even in the post-NSL era persons charged with a criminal offence are always presumed innocent, the duty being on the prosecution to prove the person’s guilty beyond a reasonable doubt.
    I thank my three able assistant editors (Wilson Lui, Eric Chan, Josh Baker), the entire team of contributing editors who remain so dedicated to this work, the Editor-in-Chief for his wise counsel, and Thomson Reuters (Kevin Stokes, Stephen Blackwell, Abdul Azeem Ali) for all their assistance over the past year.

Professor Simon NM Young
Parkside Chambers
October 2020

HKU Law academics serving as Contributing Editors in this year's volume include Amanda Whitfort (1. The Indictment; 46. Animals), Simon Young (11. The Hearsay Rule; 19. Human Rights), and Michael Jackson (17. Principals and Secondary Parties; 18. Strict Liability).

Monday, December 28, 2020

New Issue of Asia-Pacific Journal on Human Rights and the Law (Issue 2, Dec 2020)

ASIA-PACIFIC JOURNAL ON HUMAN RIGHTS AND THE LAW


Editors-in-Chief: Simon NM Young and Kelley Loper
Publisher: Brill, Leiden

Table of Contents

Navigating Human Rights in a ‘Post-Human Rights’ Era
Mapping the Terrain through the Lens ofaseanStates
Authors: Rhona Smith and Sean Molloy
Pages: 139–194

The Right to Education in the Era of the ASEAN Community  [Open Access]
A Hope for the Regional Human Rights System
Author: Ratna Juwita
Pages: 195–236

The International Right to Housing, Evictions and the Obligation to Provide Alternative Accommodation
A Comparison of Indonesia and the Netherlands [Open Access]
Authors: Michel Vols and Erna Dyah Kusumawati
Pages: 237–269

Hans Kelsen and Court-Ordered Apology in Taiwan: A Critical Analysis of Judicial Yuan Interpretation No. 656 [2009]
Authors: David KC Huang and Nigel NT Li
Pages: 270–297

Religious Minorities’ Rights in the Iranian Constitution of 1906 and the Constitution of the Islamic Republic of Iran
Authors: Alireza Najafinejad and Masoumeh Rad Goudarzi
Pages: 298–325

Young, Hayward & Ip on Showing Arrested Youth Some Mercy, to begin the Healing Process in Hong Kong (SCMP)

Simon Young, William Hayward, and Paul Ip
2 December 2020 
The social unrest in Hong Kong since June 2019 has been heartbreaking. The scale of disruption and violence is unprecedented. People were harassed or attacked simply over the colour of their clothing. The verbal and emotional abuse arising from supporting the government or taking part in peaceful protest has been disturbing for all.
     The civil behaviour and good order that has characterised Hong Kong for generations seemed to disappear overnight. Road blocks, tear gas and confrontation between demonstrators and police became part of the lifestyle of the city during that period.
      There are many concerns in the community about the enactment of the national security law and its impact on many of Hong Kong’s freedoms. At least some of the violent confrontations have subsided for the moment, but the roots of the problems that led to them have not been addressed. Genuine reconciliation within society needs to occur, otherwise further social unrest might come back at any time.
      The local and central governments have a responsibility to lead in this process given their position of power. Such actions would be for the good of everyone in Hong Kong. One place to start is in resolving the status of those who were arrested... Click here to read the full text. 

Sunday, December 27, 2020

New Book: The Oxford Handbook of Comparative Administrative Law (co-edited by Eric Ip)

The Oxford Handbook of Comparative Administrative Law
Edited by Peter Cane, Herwig C H Hofmann, Eric C Ip, and Peter L Lindseth
Oxford University Press
Published in December 2020
1,168 pp.
Abstract: The comparative study of administrative law has a long history dating back more than 200 years. It has enjoyed a renaissance in the past 15 years or so and now sits alongside fields such as comparative constitutional law and global administrative law as a well-established area of scholarly research. This book is the first to provide a broad and systematic view of the subject both in terms of the topics covered and the legal traditions surveyed. In its various parts it surveys the historical beginnings of comparative administrative law scholarship, discusses important methodological issues, examines the relationship between administrative law and regime type, analyses basic concepts such as 'administrative power' and 'accountability', and deals with the creation, functions, and control of administrative power, and values of administration. The final part looks to the future of this young sub-discipline.
     In this volume, distinguished experts and leaders in the field discuss a wide range of issues in administrative law from a comparative perspective. Administrative law is concerned with the conferral, nature, exercise, and legal control of administrative (or 'executive') governmental power. It has close links with other areas of 'public law', notably constitutional law and international law. It is of great interest and importance not only to lawyers but also to students of politics, government, and public policy. Studying public law comparatively helps to identify both similarities and differences between the way government power and its control is managed in different countries and legal traditions.
    HKU Law colleagues contributed to three chapters of this important work co-edited by Eric Ip: Ch 4 "A Chinese Tradition" by Albert Chen, Ch 14 "Parliamentary Regimes" by Eric Ip, and Ch 17 "Authoritarian Regimes" by Po Jen Yap.

Tuesday, December 22, 2020

Legal Implications of China's Space and Moon Missions (Interview with Prof Yun Zhao)

China's Chang'e 5 space capsule returned to Earth on 16 December 2020, bringing back a sample of rocks and dust from the Moon all according to plan. HKU Legal Scholarship Blog asked our own resident space law expert, Dr Yun Zhao, who holds the Henry Cheng Professorship in Interational Law and serves as Head of the Department of Law, to explain some of the legal implications of the Chinese Lunar Exploration Programme.

(1) What are three basic principles of space law to help us understand the legal implications of China's recent space mission to the Moon?
Three basic principles defined in the 1967 Outer Space Treaty are: 1) The freedom of exploration and use of outer space (for the benefit and in the interests of all countries) (Art. I); 2) Non-appropriation principle (outer space is not subject to national appropriation) (Art. II); 3) peaceful uses of outer space (Art. VI).

Credit: Simona Young
(2) The Chang'e 5 returner brought back close to 2 kg of Moon rocks and dust ("Moon samples") for analysis. Who owns these Moon samples?
The non-appropriation principle prohibits national appropriation of outer space, including the Moon and other celestial bodies by claim of sovereignty, by means of use or occupation, or by any other means. The ownership issue has not been dealt with by any existing space treaties. However, it is helpful to make reference to the Moon Agreement (China and other major space-faring nations are not yet Members to this Agreement). Art 6.2 provides that 
“In carrying out scientific investigations and in furtherance of the provisions of this Agreement, the State Parties shall have the right to collect on and remove from the moon samples of its mineral and other substances. Such samples shall remain at the disposal of those State Parties which cause them to be collected and may be used by them for scientific purposes. States Parties shall have regard to the desirability of making a portion of such samples available to other interested States Parties and the international scientific community for scientific investigation. States Parties may in the course of scientific investigations also use mineral and other substances of the moon in quantities appropriate for the support of their missions.”

(3) At the press conference on 17 December 2020, it is reported the deputy director of the China National Space Administration said China would share the moon samples with scientists around the world. Is there any legal obligation on China to honour this promise to share the moon samples?
Article 6.2 of the Moon Agreement is the only legal source and no customary rules exist on this issue; the wording of this Article shows that sharing of the moon samples is not compulsory. It should also be borne in mind that China is not yet a State Party to the Moon Agreement.

(4) To what extent do patent laws apply to these moon samples? For example, what if scientists in Hong Kong develop new instruments or technologies to analyze these samples, can these new instruments and technologies be patented?
It is argued that patent laws do not apply to the moon samples per se. The moon samples, a kind of discovery, have nothing to do with invention/creation and thus do not fall within the scope for patent protection. But it is possible to patent new instruments or technologies (satisfying the element of creativity/originality) in accordance with national patent laws or international patent treaties. Scientists in Hong Kong developing new instruments or technologies may apply for patent protection in accordance with the Patents Ordinance (Cap 514). Relevant provisions include Part 1A, Division 1, Article 9A on patentable invention (if it is new, involves an inventive step; and is susceptible of industrial application).

(5) China is planning to establish an international research station on the moon by 2030. Are there any laws governing where it can set up this research station? Can China claim land rights on the area it has chosen to establish its research station?
The 1967 Outer Space Treaty is the most relevant document. In accordance with the non-appropriation principle, China cannot claim land rights on the space. Article XII of the Outer Space Treaty provides that 
“All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited.”

(6) On previous missions, China has left various objects on the moon including the Yutu rover. Are these objects considered abandoned property which anyone can now claim on the basis of 'finders keepers'?
Such objects should not be considered abandoned property which anyone can claim. Article VIII of the Outer Space Treaty provides that 
“A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.”

Credit: Simona Young
(7) Would the answers to the above questions be any different if a private enterprise was engaging in similar moon explorations? For example, would a private company have any stronger property interest claims over samples extracted from the Moon or to territory occupied?
The answer would be the same. Article VI of the Outer Space Treaty provides that States Parties shall bear international responsibility for national space activities, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the treaty. This provision further requires authorization and continuing supervision of the space activities of non-governmental entities by the appropriate State Party. 

(8) To what extent do national laws apply to things that happen in space or on the Moon? For example, do you know of any countries' criminal laws or civil laws applying to conduct occurring in space or on the Moon?
National space law or space-related laws (such as telecommunications law, remote sensing laws) shall apply to things or activities that happen in outer space. There are possibilities of applying other general laws (such as criminal laws or civil laws) to things or activities in outer space. A State should normally have personal jurisdiction over its own nationals. Moreover, Article VIII of the Outer Space Treaty provides for the retention of jurisdiction and control over space object and personnel thereof. This implies the possibility of applying national laws to the things or activities happening within the specific space object. However, this quasi-territorial jurisdiction is not ostensibly pronounced in the field of space law. The only relevant document is the International Space Station Intergovernmental Agreement (IGA) (1998). Article 5 states that each Partner shall retain jurisdiction and control over the elements it registers and over personnel in or on the Space Station who are its nationals. Article 22 deals with criminal jurisdiction, that the Partner States may exercise criminal jurisdiction over personnel in or on any flight element who are their respective nationals; an affected Partner State may exercise criminal jurisdiction over the alleged perpetrator who is not its national subject to certain conditions. 

(9) Can a country enact a law to enable the country to claim or confer rights to things that exist on the Moon? For example, can country X pass a law that says nationals of country X may have property rights to anything which those nationals extract from the Moon? 
It is possible for a country to enable its own nationals (not the country per se) to claim rights to things that exist on the moon. After the United States adopted the U.S. Commercial Space Launch Competitiveness Act on 25 November 2015, the International Institute of Space Law (IISL) released a Position Paper in December 2015. The document emphasizes the importance of the non-appropriation principle; however, it acknowledges that there is no international agreement governing whether the right of “free use” includes the right to take and consume non-renewable natural resources in outer space. Accordingly, the United States has not violated its international legal obligations. The IISL questions whether this legal situation is satisfactory. Another country that has adopted a similar national law is Luxembourg.

(10) Would such a domestic law, as described in Q(9), violate international law? Does China have such laws?
As mentioned in A(9), there is no violation of international law. China does not have such laws.

Monday, December 21, 2020

International Conference: Data Sovereignty along the Digital Silk Road (6-7 Jan 2021 on Zoom)

Data Sovereignty along the Digital Silk Road

Date: January 6 – 7, 2021 (Wednesday – Thursday)
Time: 8am – 12pm (US Eastern Standard Time)

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

Keynote Speakers:
Frank Pasquale, Professor of Law, Brooklyn Law School
Mark Wu, Henry L. Stimson Professor and the Vice Dean for the Graduate Program and International Legal Studies, Harvard Law School

Panel Speakers & Moderators:
Susan Aaronson, Research Professor & Director of the Digital Trade and Data Governance Hub, George Washington University Elliott School of International Affairs
Douglas Arner, Kerry Holdings Professor in Law, University of Hong Kong Faculty of Law
Mira Burri, Managing Director Steering Committee Internationalisation (SCI) & Senior Lecturer, University of Lucerne Faculty of Law
Anupam Chander, Professor of Law, Georgetown University Law Center
Anne Cheung, Professor of Law & Co-Director of the Law and Technology Centre, University of Hong Kong Faculty of Law
Théodore Christakis, Professor of International and European Law, Université Grenoble Alpes
Julie Cohen, Mark Claster Mamolen Professor of Law and Technology, Georgetown University Law Center
Jennifer Daskal, Professor of Law & Faculty Director, Tech, Law & Security Program, American University Washington College of Law
Henry Gao, Associate Professor of Law, Singapore Management University School of Law
Graham Greenleaf, Professor of Law & Information Systems, Faculty of Law, University of New South Wales
Lizhi Liu, Assistant Professor, Georgetown University‎ McDonough School of Business
Neha Mishra, Lecturer in Law, Australian National University
Kyung-Sin Park, Professor of Law, Korea University Law School; Open Net Korea
Shin-yi Peng, Distinguished Professor of Law, National Tsing Hua University
Thomas Streinz, Adjunct Professor of Law & Executive Director, Guarini Global Law & Tech, New York University School of Law
Haochen Sun, Associate Professor of Law, University of Hong Kong Faculty of Law
Dan Svantesson, Professor of Law & Co-Director, Centre for Commercial Law, Bond University Faculty of Law
Andrew Woods, Professor of Law, University of Arizona College of Law

All are welcome! Please register as soon as possible at https://docs.google.com/forms/d/1WARJ4wtlnSmJR_hR9vVfc6sNS9eGzY-K70env7Dskys/viewform?edit_requested=true. The link to the Zoom webinar will be provided upon successful registration.

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