Thursday, May 12, 2022

Daisy Cheung on Control in the Community: A Qualitative Analysis of the Experience of Persons on Conditional Discharge in Hong Kong (International Journal of Law and Psychiatry)

"Control in the community: A qualitative analysis of the experience of persons on conditional discharge in Hong Kong"
Daisy Cheung
Volume 82
Published in March 2022
Abstract: Mandatory outpatient treatment schemes such as community treatment orders remain controversial despite being commonly used around the world. Given concerns about patient autonomy and civil liberties, such schemes need to be closely scrutinised. Though Hong Kong's mandatory outpatient treatment scheme, the conditional discharge (CD) regime, has a number of significant legal concerns, empirical research on how it operates on the ground remains limited, and data on the subjective experience of relevant stakeholders is limited to healthcare professionals. This two-part cross-sectional study, the first on the service user perspective in Hong Kong, rectifies this gap. Data was collected through a self-reported survey and semi-structured interviews. Results demonstrated that, while similar themes to those in the literature were raised, such as powerlessness, a lack of understanding about the regime and in particular their rights thereunder, concerns about restrictive aspects of the regime and poor attitudes of healthcare professionals, and in some cases positive sentiments about beneficial aspects, the Hong Kong experience differs in the significant extent to which many of these concerns are demonstrated. The insights which this data provides in relation to how the implementation of the CD regime can be improved prior to legal reform is discussed, and suggestions for the way forward are proposed.

Wednesday, May 11, 2022

Roda Mushkat on China, Hong Kong, and International Law: Rethinking Path Dependence (MSU Int'l L Rev)

"China, Hong Kong, and International Law: Rethinking Path Dependence"
Volume 30, Issue 3, pp. 443-503
Published in 2022
Abstract: International governance regimes, such as that underpinned by the Sino-British Joint Declaration on the Question of Hong Kong, feature prominently in the literature on international law and international relations. The efforts of scholars operating at the intersection of these two academic disciplines, however, are heavily geared toward creating and sustaining the “right” entities possessing these structural attributes with scant attention accorded to their demise. The unraveling of the Hong Kong “one country-two systems” governance regime, embodying the vision of the Chinese and British institutional architects who devised it, in the wake of Beijing’s recent imposition of a heavy-handed national security law on a capitalist enclave embedded in a common law setting featuring political checks-and-balances, offers an opportunity to methodically examine the intricacies of path dissolution/ governance regime demise, as distinct from path dependence. The results suggest that the analytical building blocks for exploring the subject do exist, but that the theoretical foundation on which they rest needs to be expanded and that they should be productively synthesized within a coherent multivariable framework.

Tuesday, May 10, 2022

Amanda Whitfort Meets Malaysian Prosecutors and Judges to Explain Species Victim Impact Statement (SVIS) Initiative

On 11 March 2022, Ms Amanda Whitfort gave a 1 hour presentation on the Species Victim Impact Statement (SVIS) initiative and how to sentence wildlife crime effectively to Malaysian prosecutors and judges in a training workshop organised by Panthera (USA NGO) and Justice for Wildlife Malaysia (NGO). For more information on the SVIS Initiative, you can access the website at https://www.svis.law.hku.hk

Nijman & Shepherd (2015)

Friday, April 29, 2022

Syren Johnstone on Blockchain as a Disruptor of Securities Regulation (HK Lawyer)

"Blockchain as a disruptor of securities regulation"
Syren Johnstone
Hong Kong Lawyer, 
April 2022, pp. 40-46
Abstract: While blockchain is often described as a disruptor and disintermediator of commercial activity, it is less common to ponder to what extent securities regulation, and how it is understood and expected to operate, might be disrupted by blockchain and the cryptoasset tokens (hereafter, “tokens”) built on it.

Thursday, April 28, 2022

Ryan Whalen on Defining Legal Technology and its Implications (Int'l J of L and Info Tech)

"Defining legal technology and its implications"
Ryan Whalen
Published on 5 April 2022
Abstract: Legal technological developments have been both lauded as the promising future of the law and derided as a danger to the fundamentals of justice. This article helps reconcile these divergent perspectives by providing a definition of legal technology and a framework through which to understand its different types and their potential implications for the legal system and society more generally. Mapping technologies according to how specifically they afford legal uses, and the directness with which they engage in unmediated legal activities reveals different technological categories and their differing propensities to have legal, functional or general implications. This framework can help inform discussions both about which types of legal technologies to be excited about, and which to be concerned about, while also helping guide research, policymaking, design and adoption considerations.

Sunday, April 24, 2022

Weixia Gu & Jacky Tam on the Global Rise of International Commercial Courts: Typology and Power Dynamics (Chicago J Int'l L)

Weixia Gu & Jacky Tam
Chicago Journal of International Law
Volume 22, Issue 2, pp. 444-493
Published in 2022
Abstract: Over the past decade, there has been a proliferation of International Commercial Courts (ICCs) across the globe. ICCs are specialized tribunals within the domestic court hierarchy tailored for the adjudication of complicated cross-border commercial disputes. Most ICCs share similar features, such as a set of flexible procedural rules comparable to those in international arbitration, multilingual court proceedings, and the recruitment of overseas judges or foreign legal experts.
     The global phenomenon calls for a systematic comparative study of the different generations of ICCs and their power dynamics. This Article will offer a unique typological framework to study the evolution of ICCs. In particular, emphasis will be placed on the power dynamics among the ICCs such as horizontal power dynamics among the ICCs inter se, and diagonal power dynamics between the ICCs and international arbitration. This Article argues that the most apt characterization of the two dimensions of power dynamics is “co-opetition,” a combination of “cooperation/collaboration/complementarity” and “competition.” While a race for cases and foreign litigants is inevitable, we argue that there is significant room for inter-regional cooperation and coordination to allow for and capitalize on different ICC niches and specialties.

Friday, April 22, 2022

Ying Sun & Hualing Fu on Judge Quota and Judicial Autonomy: An Enduring Professionalization Project in China (The China Quarterly)

"Of Judge Quota and Judicial Autonomy: An Enduring Professionalization Project in China"
Ying Sun & Hualing Fu
Published on 24 March 2022
Abstract: This article presents the findings of original research on “judge quota” reform. The reform's agenda was essentially aimed at professionalization: by edging out a given percentage of judges, only the better qualified judges would be re-appointed to create a more professionalized judiciary. A key component of the reform was to reduce the level and the intensity of both political and bureaucratic control over judges in adjudication and to decentralize judicial power to the rank-and-file judges, restoring individualized judging while enhancing judicial accountability. This article critically examines the potential and limits of the judge quota reform in the context of incremental legal reform in a party-state.

Wednesday, April 20, 2022

Alec Stone Sweet et al on Dissenting Opinions and Rights Protection in the European Court (EJIL)

"Dissenting Opinions and Rights Protection in the European Court: A Reply to Laurence Helfer and Erik Voeten"
Alec Stone Sweet, Wayne Sandholtz, and Mads Andenas
Volume 32, Issue 3, August 2021,
pp. 897–906, https://doi.org/10.1093/ejil/chab057
Published on 22 November 2021
Abstract: In their article ‘Walking Back Human Rights in Europe?’, Helfer and Voeten (hereinafter ‘H-V’) argue that a series of High Level Conferences (2012–2018), specifically Brighton (2012), dramatically altered the style of the European Court of Human Rights’ (ECtHR) decision-making. The Grand Chamber began to adopt judgments which, in turn, provoked an unprecedented wave of ‘Walking-Back Dissents’. Such dissents are separate opinions that, in effect, accuse the majority of a Grand Chamber of ‘tacitly overturn[ing] prior rulings or settled doctrine in favour of national governments’ (H-V, p. 823). In an expansive conclusion, H-V suggest that the ECtHR has also generated a rising number of ‘Walking-Back Judgments’, which lower standards of rights protection. We reject H-V’s major claims on the empirical evidence. The outcomes of Brighton and subsequent conferences did not pose a credible threat to the Court, and could not have induced it to ‘walk back’ rights protection. We also closely examined two sets of Walking-Back Dissents identified by H-V, focusing on judgments that would be ‘most likely to fit’ H-V’s ‘expectations’. We found that fewer than one in four judgments analysed actually contained a Walking-Back Dissent. And we identified only one plausible Walking-Back Judgment. We are confident that H-V’s results are inaccurate and cannot be reproduced by external analysts. We conclude by noting factors that H-V do not consider, but that are crucial to understanding the ECtHR’s decision-making. In appendices, posted online, we summarize and give reasons for our coding decisions.

Alec Stone Sweet on Intimations of Proportionality? The Singapore Constitution and Rights Protection. Wham Kwok Han Jolovan and Public Prosecutor (Singapore Journal of Legal Studies)

“Intimations of Proportionality? The Singapore Constitution and Rights Protection. Wham Kwok Han Jolovan and Public Prosecutor
Alec Stone Sweet
Singapore Journal of Legal Studies
Published in 2021
Abstract: Wham Kwok Han Jolovan v Public Prosecutor is potentially the most important constitutional decision ever rendered by the Singapore Court of Appeal, insofar as it heralds a new and more intrusive approach to the judicial review of rights claims in Singapore. The ruling expressly overturned deference postures associated with the "presumption of constitutionality," at least with respect to Article 14 of the Constitution; it consolidated dicta announcing the reconfiguration of separation of powers doctrines; and it developed and deployed a rudimentary, if yet incomplete, form of proportionality review to assess the legality of legislation adopted under Article 14's limitation clause. The note analyses these changes from a comparative perspective, in light of the difficulties foreign apex courts have had in fully transitioning to a more balancing-friendly approach to rights adjudication.

Monday, April 18, 2022

Eric Ip on The Natural Law Ethics of Public Health Lockdowns (Notre Dame J of Law, Ethics & Public Policy)

Eric Ip
Published online in 2022
Abstract: Contemporary ethical reflections on responses to public health crises center on the deontological, utilitarian, and principlist traditions, but not the more ancient tradition of natural law. Yet, as an alternative to the usual framing of public health moral dilemmas as a conflict between individual liberty and collective interests, or trade-offs in the maximization of the greatest health of the greatest number, natural law ethics deserves a hearing for focusing on human fulfilment instantiated in the irreducible human goods. The irreducible goods such as life and health, friendship and community, excellence and satisfaction in work and play, knowledge of the truth, experience of the beauty, and practical reasonableness, each features its own domain for people to flourish in, distinct from and incommensurable with all the other goods. This Article is the first to bring this neoclassical natural law ethical framework to bear on the morality of public health lockdowns––a previously unthinkable, blunt, but consequential emergency measure that originated with the Chinese government’s initial response in January 2020 to Wuhan’s COVID-19 outbreak, but subsequently spread to all inhabited continents, putting billions of people under mandatory quarantine over prolonged periods. This Article affirms that public health lockdowns are not intrinsically immoral, insofar as they meet several conditions required by the fundamental precepts of natural law.

Thursday, April 14, 2022

Calvin Ho et al on WHO Guidance on COVID-19 Vaccine Trial Designs in the Context of Authorized COVID-19 Vaccines and Expanding Global Access: Ethical Considerations (Vaccine)

Jerome Amir Singh, Sonali Kochhar, Jonathan Wolff, Caesar Atuire, Anant Bhan, Ezekiel Emanuel,  Ruth Faden, Prakash Ghimire, Dirceu Greco, Calvin Ho, Suerie Moon, Ehsan Shamsi Gooshkio, Aissatou Touré, Beatriz Thomé, Maxwell J.Smith, and Ross E.G.Upshur
Published on 28 February 2022
Abstract: While the degree of COVID-19 vaccine accessibility and uptake varies at both national and global levels, increasing vaccination coverage raises questions regarding the standard of prevention that ought to apply to different settings where COVID-19 vaccine trials are hosted. A WHO Expert Group has developed guidance on the ethical implications of conducting placebo-controlled trials in the context of expanding global COVID-19 vaccine coverage. The guidance also considers alternative trial designs to placebo controlled trials in the context of prototype vaccines, modified vaccines, and next generation vaccines.

Calvin Ho on Taking an Ethics+ Approach to Conceptualising Laws in Research Governance (new book chapter)

Calvin Ho
Published online on 23 December 2021
Summary: The lived experience of law in medical practice and research is typified by intricate, sometimes complex and often mundane (perhaps even ritualistic) procedural requirements. While some scholars have been content thus to limit the normativity of law, Graeme reminds us that law is interconnected with ethics and that its distinctiveness may be better understood as process, particularly in boundary or liminal spaces where the roles of ethics and law are blurred. This processual conception of law is in turn a component of governance regimes that he depicts as ‘Ethics+’. He argues that ethics is always a necessary component of a robust and defensible regime of health research that is rooted in the core values and principles at stake while concurrently enabling adaptation and accommodation. Law as an ‘Ethics+’ governance regime embraces uncertainty and the liminal nature of the health research journey, while admitting value-based objectives that can act as foci for stakeholders. The chapter shows the bright beacon dimension of Graeme’s legacy, which points the way to a rich, non-formalistic account of law – not simply as law in action or law on the books but as law subsisting in-between.

Calvin Ho et al on Streamlining Ethics Review for International Health Research (Science)

Published on 24 February 2022
Abstract: International biomedical research, in which projects span borders and engage participants from multiple countries, has increased substantially during the last several decades. Despite the proven value of large, geographically, and ethnically diverse studies, further advancements are being impeded by the burden of submitting separate, and often numerous, applications for research ethics approval in compliance with country-specific laws or varied policy frameworks. To address this, we see promise in applying the international concept of “adequacy,” contained in the European Union (EU) General Data Protection Regulation (GDPR) (1), to ethics review of international health research. We advocate for countries to publish their prior determinations about the adequacy of ethics review requirements in other countries to enable review by one institutional review board (IRB) or comparable body (“single-site” review) in the researcher’s country, streamlining ethics review while safeguarding the welfare of local research participants.

Tuesday, March 22, 2022

New Issue of Amicus Curiae (Vol 3, Issue 2)

Amicus Curiae
Series 2, Vol 3, No. 2, pp. 335-360
Published in 2022
3-2 Synopsis
Editor: Michael Palmer (Cheng Yu Tung Visiting Professor) 
In this issue, contributions by Inger Andersen (Under-Secretary-General of the United Nations and Executive Director of the UN Environment Programme), and the Rt. Hon. Lord Carnwath of Notting Hill examine the role of law reform in addressing the issues of climate change. The issue also offers second and final special section, guest-edited by Professor Carl Stychin, addressing questions of ‘Law, Public Policy and the Covid Crisis’. Justice Anthony J Besanko’s contributed essay ‘Legal Unreasonableness After Li—A Place For Proportionality’ considers the issue of substantive legal unreasonableness in the context of administrative law in Australia, especially judicial review of the exercise of an administrative discretionary power, following the 2013 case Minister for Immigration and Citizenship v Li. In his essay, ‘What is the Role of a Legal Academic? A Response to Lord Burrows’, Professor Geoffrey Samuel examines and challenges the arguments recently put forward by Lord Burrows, and argues against characterization of the role of legal academics as one in which scholars of law function primarily as servants of legal practice. In his contribution, ‘Possible Solutions for Protectionist Anti-Dumping Procedures’, Dr Abdulkadir Yilmazcan’s contribution examines issues in international trade negotiations on anti-dumping. In the contribution by Professor Christopher Waters, entitled ‘The Role of Border Cities in International Law’, and based on his presentation at IALS Director’s Seminar Series November 4, 2021, two fields of study are brought together, namely: cities as actors in international law, and international boundaries. He asks us to appreciate more fully that border cities have become important in respect of a number of legal issues often not anticipated in constitutions or municipal legislation, including climate change (especially post-COP 26), migration and sanctuary, human rights, and human development. In the Notes section, several examinations of recent law publications are offered. Barrie Nathan considers Jeffrey Hill’s study, The Practical Guide to Mooting, Nicola Monaghan evaluates Stephen Mason And Daniel Seng (eds)—Electronic Evidence & Electronic Signatures (Fifth Edition), and Professor Jaakko Husa assesses the study by Simone Glanert, Alexandra Mercescu, Geoffrey Samuel entitled Rethinking Comparative Law. ‘A Visual Autoethnography of a PhD Journey’ by Dr Clare Williams is this issue’s Visual Law article. Notes on and Events in the recent work of the Institute is provided by Eliza Boudier of the IALS.

Abdulkadir Yilmazcan on The Slow Train to Reforming Anti-Dumping Measures (Amicus Curiae)

"The Slow Train to Reforming Anti-Dumping Measures"
Abdulkadir Yilmazcan (PhD graduate)
Amicus Curiae
Series 2, Vol 3, No. 2, pp. 335-360
Published in 2022
Abstract: This essay examines the need for and slow progress towards a revision of the Anti-Dumping Agreement, but they are without positive outcomes. Several reasons account for this failure such as the deadlock in the Doha Development Round, mega trade agreements and the willingness of top anti-dumping users to engage in meaningful reform. In this paper, alternative solutions are proposed to settle the hidden trade protectionism in anti-dumping investigations. Normative solutions include a comprehensive reform of the Anti-Dumping Agreement. Such a revision has already been suggested in the literature, but this study departs from most others by prioritizing procedural issues rather than substantive ones. The study proposes changes to enhancing procedural justice in anti-dumping processes.

Friday, March 18, 2022

Law in a Goldfish Bowl (Henry Litton)

LAW IN A GOLDFISH BOWL
Henry Litton, Honorary Professor

Introduction
On 27 September 2021 the Court of Final Appeal (CFA) handed down a judgment, Secretary for Justice v Leung Kwok Hung [2021] HKCFA 32, which raises a troubling question: Is the highest court in the land concerned with, or even interested in the due process of law?
     The process in question was a simple prosecution for a statutory offence in a magistrates court. The incident giving rise to the prosecution took place way back in November 2016. When the matter eventually reached the CFA nearly five years later the facts constituting the offence had still not been established. Hence Fok PJ, who gave the only judgment, introduced the matter by setting out what he called “the alleged facts”.
     “Alleged facts”. Alleged by whom? Presumably the prosecution. But is the prosecution infallible? What if those facts were wrong, or through the passage of time could not be proved in court?
     What the CFA determined were pure matters of law. But they don’t float in the air, unattached to reality on the ground. If the underlying facts giving rise to questions of law had been admitted by the defence at trial, that would have been a different matter. That wasn’t so in this case. Hence the issues determined by the CFA were based upon mere supposition.
     Is this due process of law? Is the court not concerned that, in a criminal prosecution, the guilt or innocence of the accused had still not been ascertained after so many years?

The alleged facts
In November 2016, the appellant Leung was a Legislative Councillor. On 15th of that month, he was at a committee meeting in the Council chamber. A government servant Mr Ma Siu-cheung, Undersecretary for Development, was in attendance. He had with him a folder containing confidential papers. In the course of the meeting Leung asked Mr Ma to produce some documents; he then crossed over from his seat to Mr Ma and snatched the folder from him. He passed the folder to another Councillor Mr Chu for him to read. The chairperson repeatedly asked Leung to return the folder to Mr Ma and for him to resume his seat. Eventually the chairperson ordered Leung to withdraw from the chamber and suspended the meeting. Mr Chu having read the contents of the folder returned it to a security guard who gave it back to Mr Ma.
     If these facts were true, Leung had undoubtedly acted in a disorderly manner and created a disturbance which interrupted the proceedings of the committee while the committee was sitting.

The criminal charge
Arising out of this, on 12 May 2017, Leung was charged with an offence under s.17(c) of the Legislative Council (Powers and Privileges) Ordinance, Cap. 382. The section reads:
“Any person who creates or joins in any disturbance which interrupts or is likely to interrupt the proceedings of the Council or a committee while the Council or such committee is sitting commits an offence and is liable to a fine of $10,000 and to imprisonment for 12 months …….”.
The criminal proceedings
In January 2018 Leung appeared before a magistrate to face the charge. If the primary facts were proved, it would seem clear that he had indeed created a disturbance whilst the committee was sitting and that it interrupted those proceedings; and Mr Ma would presumably have testified as to that. The proceedings would not have lasted more than half a day.
     As it was, the hearing lasted four days 15-18 January 2018). No findings of fact were made by the magistrate. The only finding she made was this: that, as a matter of law, s.17(c) of the Ordinance was not applicable to Leung because he was a Legislative Council member. This was, in effect, a declaratory judgment which she had no jurisdiction to make. She then adjourned the hearing.

A magistrate’s jurisdiction
A magistrate derives his jurisdiction from the Magistrates Ordinance, Cap. 227. Nowhere else. A magistrates court is one of summary jurisdiction, unlike the High Court which is a court of unlimited jurisdiction. A High Court judge has an inherent jurisdiction derived from common law to protect the court’s process. In contrast, the proceedings in a magistrates court are bound by the four corners of the Magistrates OrdinanceSection 19 of the Ordinance lays down the process for summarily dealing with a criminal charge. It is comprehensive. There is no room for deviation.
     The substance of the complaint must first be read over to the accused, and he must be asked if he pleads guilty or not guilty. If he pleads not guilty, the magistrate shall, in terms of s. 19, proceed to hear the matter in support of the charge, and also hear the accused and such evidence as may be adduced in defence, and also to examine such other witnesses as the complainant may put forward in rebuttal.
     Section 19(2) goes on to say:
“The magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complainant or information, as the case may be”.
“Preliminary issue”
When Leung first appeared before the magistrate in answer to the charge, he asked the magistrate to give what Fok PJ described as “a ruling on preliminary issues regarding the ambit and constitutionality of section 17(c)". In particular she was asked to rule on whether the section applies to a member of LegCo and to proceedings other than those involving a person called to give evidence under oath. She was also asked to rule on whether the provision is unconstitutional in "violating the freedom of speech and debate of the member and/or LegCo’s exclusive authority over its internal affairs enshrined in the Basic Law”.
     Wherein lies a magistrate’s jurisdiction to give such “rulings”? Assuming she complied, did the “rulings” bind only the defendant or every other LegCo member?
     Order 15 Rule 16 of the Rules of the High Court empowers a High Court judge to make “binding declarations of right” whether some other relief is sought or not. This has no application to a magistrate exercising a criminal jurisdiction under the Ordinance.
     Of course, if a defendant were minded to have the criminal proceedings against him delayed – and perhaps derailed – such a manoeuvre would be a sure-fire way of achieving that objective. As demonstrated in this case.
     What should have happened in the magistrate’s court is this. The charge having been read to Leung, he should have been asked to plead to the charge: Guilty or not guilty. If he pleaded not guilty, or refused to plead, the magistrate should then have entered a Not Guilty plea and called upon the prosecution to begin its case. Any invitation to give so-called “preliminary rulings” should have been rejected outright.

The points of law
The points of law as put to the magistrate were jumbled and obscure. As eventually synthesized by Fok PJ, they boiled down to this: Leung was not subject to liability under s 17(c) because: (a) Article 77 of the Basic Law, together with sections 3 and 4 of the Legislative Council (Powers and Privileges) Ordinance, gave him immunity from legal action in respect of his statements, speeches and debates in Council or before a committee of LegCo; and (b) the “principle of non-intervention” precluded the courts from examining the conduct of LegCo members in proceedings in the chamber.
     These points verged on the absurd and should have been given short shrift. As to (a), the Ordinance laid down the framework for a secure and dignified environment for LegCo to carry out its constitutional role and penalised unruly conduct which interrupted proceedings. Leung’s behaviour was clearly unruly. He was charged not because of anything he had said in the course of debate, but because of his thuggish behaviour. If the facts as alleged were proved, he clearly came within the terms of s.17(c).
     As to (b), it is extraordinary that Leung, a lawmaker, should have argued that he was above the law. In fact, in a previous case in which Leung himself was again a party, the CFA had so ruled: Leung Kwok Hung v President of the Legislative Council ( No.1 ) [2014 17 HKCFAR 689.

Exercise of judgment
There are times when courts must examine propositions of law with deep application and care. There are other times when a robust approach is necessary. That, too, is an exercise of judgement, in distinguishing between the two situations. To entertain arguments with knitted-brow when a proposition should be dismissed out of hand is to degrade the discipline of law, and encourage forensic games being played in court – particularly in the lower courts. This was such a case. The harm lies open for all to see – if they chose not to close their eyes.

Leadership role
It must surely be the role of the CFA to show leadership in the administration of law; to demonstrate vigour and discipline in its processes; to decline entering into tortuous examination of legal propositions simply because counsel has raised them – particularly when such propositions involve contrived interpretations of the Basic Law.
     Simply see what Fok PJ said about the issues raised in the magistrates court:
“Despite the breadth of the questions for which leave to appeal was sought and granted, in light of the parties’ submissions in their respective written cases and at the hearing before this Court, the issues have been more focussed …”
     And when one reads the rest of Fok PJ’s judgment, it is clear that Leung simply had no case. Full stop. Anyone with a degree of common sense would have dismissed the propositions of law advanced by counsel out of hand.

Conclusion
All this raises an even wider question. Is the culture of the Judiciary in tune with the principle of One Country Two Systems? Is the energy of the Judiciary directed towards the effective and vigorous implementation of that principle? And what does it say about Hong Kong’s future as 2047 gets ever nearer and the answer is No?

Monday, March 14, 2022

Zhao Yun on The Singapore Mediation Convention: A version of the New York Convention for Mediation? (J of Private Int'l Law)

"The Singapore mediation convention: A version of the New York convention for mediation?"
Zhao Yun
Journal of Private International Law
Published on 20 January 2022
Abstract: Settlement agreements have traditionally been enforced as binding contracts under national rules, a situation considered less than ideal for the promotion of mediation. Drawing on the experience of the 1958 New York Convention on international arbitration, the 2019 Singapore Mediation Convention provides for the enforcement of settlement agreements in international commercial disputes. Based on its provisions and the characteristics and procedures of mediation, this article discusses the impact of the Singapore Mediation Convention on the promotion of mediation and its acceptance by the international community. It is argued that the achievements of the New York Convention do not necessarily promise the same success for the Singapore Mediation Convention.

Hualing Fu & Xianchu Zhang on Judging the Party: Public Law Wrongs and Private Law Remedies (Chinese J of Comp Law)

"Judging the Party: Public Law Wrongs and Private Law Remedies"
 Hualing Fu & Xianchu Zhang
The Chinese Journal of Comparative Law
Published on 23 February 2022
Abstract: This article offers a case study of civil litigation in which the decision of a Party organ or the application of Party rules in a decision have allegedly infringed the private law rights of individuals. Party organs have always performed civil activities and engaged with a wide range of civil legal relations affecting the rights and interests of various individuals and entities, resulting in occasional legal disputes between a Party organ and the aggrieved individuals or entities. After failing to challenge a Party organ’s decision within the political system, the affected member brings a case to court to challenge the validity of the decision. In the court process, legal rules are used primarily to deal with issues involving insignificant players in employment disputes with Party organs. For matters involving the Party’s own officials and those matters regarded as internal, legal rules are largely limited, if not dispensed with entirely, confirming the prerogative state’s superior position in the hierarchy above the normative state. Freedom of contract is more relevant and recognized for claims by individuals at the lower end of the political ecosystem, while politics is reserved for the elites of society and for issues where the Party is determined to maintain direct, hands-on control.

Friday, March 11, 2022

Professor Thomas Cheng Promoted to Full Professor (HKU Law)

Congratulations to Professor Thomas Cheng on his promotion to full Professor this year. Professor Cheng specialises in competition law. He has written extensively on competition law in developing countries and on the competition law of a number of Asian jurisdictions, including Hong Kong, China, and Japan. His research has appeared in respected specialist US journals, including Chicago Journal of International Law, Berkeley Business Law Journal, Virginia Law & Business Review, and University of Pennsylvania Journal of Business Law, and in leading competition law journals such as Journal of Antitrust Enforcement and World Competition
      Professor Cheng is a well-rounded colleague with strong research momentum and international recognition.  In 2020, he published Competition Law in Developing Countries, the first comprehensive monograph on the topic, with Oxford University Press. He also published The Patent-Competition Interface in Developing Countries, again the first comprehensive monograph on the topic, with Oxford University Press in 2021.  More recently, he published a co-authored book with Kelvin Kwok, Hong Kong Competition Law: Comparative and Theoretical Perspectives, with Cambridge University Press, in 2021.   He is among one of the very few Asian competition law scholars who publishes and is cited regularly in the UK as well as US law journals.
      Professor Cheng's research has been recognised internationally. He has been twice awarded the Jerry S Cohen Memorial Fund Writing Award in the vertical restraints and antitrust and IP categories. Apart from awards, his stature as a scholar has been recognized through appointments to the executive and advisory boards of a number of leading international competition law organizations such as the American Antitrust Institute and the Academic Society for Competition Law. He has made critical contributions to the development of competition law in Hong Kong. He advised the government extensively during the drafting of the city’s first competition law. He was a member of the inaugural Competition Commission and played a pivotal role in staff recruitment and setting up the Commission.  
      Professor Cheng is also the Co-founder and Director of the Faculty's JD programme. He has served as Deputy Head of the Department of Law since 2014.