HKU Law's SSRN Legal Studies Research Paper Series (May - Dec 2019)

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

Vol. 9, No. 7: December 10, 2019

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

Building Fin Tech Ecosystems:Regulatory Sandboxes, Innovation Hubs and Beyond

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

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

Robin Veidt, University of Luxembourg - Faculty of Law, Economics and Finance

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

UNCITRAL Model Law on International Commercial Arbitration: A Commentary

Ilias Bantekas, Brunel University London - Brunel Law School

Pietro Ortolani, Radboud University

Shahla F. Ali, The University of Hong Kong - Faculty of Law

Manuel A. Gomez, Florida International University College of Law

Michael Polkinghorne, White & Case LLP

Maintaining Institutional Strength: The Court, the Act of State and the Rule of Law

Johannes M M Chan, The University of Hong Kong - Faculty of Law

An Agent-Based Model of Judicial Power

Alex Schwartz, The University of Hong Kong - Faculty of Law

The U.S.-China Trade Negotiation: A Contract Theory Perspective

Angela Huyue Zhang, The University of Hong Kong - Faculty of Law

Constitutional Finance: The Roleof the Hong Kong Basic Law During the Global Financial Crisis

Eric C. Ip, The University of Hong Kong

Transnational Law and GlobalDispute Resolution

Shahla F. Ali, The University of Hong Kong - Faculty of Law

A Perfect Storm: Hong Kong -Mainland China Rendition of Fugitive Offenders 2019

Albert H. Y. Chen, The University of Hong Kong - Faculty of Law

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

Vol. 9, No. 6: Oct 31, 2019

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

Expropriation in the Name of Rights: Transferable Development Rights (TDRs), the Bundle of Sticks and Chinese Politics

Shitong Qiao, The University of Hong Kong - Faculty of Law

Non-Positivist Legal Pluralismand Crises of Legitimacy in Settler-States

Alex Green, Faculty of Law, University of Hong Kong

Jennifer Hendry, School of Law, University of Leeds

Successful Secession and theValue of International Recognition
Alex Green, Faculty of Law, University of Hong Kong

Remedial Discretion and Dilemmasin Asia
Po Jen Yap, The University of Hong Kong - Faculty of Law

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

Vol. 9, No. 5: Oct 17, 2019

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

Constitutional Implementation for Sustainable Peace

Anna Dziedzic, The University of Hong Kong - Faculty of Law, University of Melbourne - Melbourne Law School

Cheryl Saunders, University of Melbourne - Law School

Individual Income Taxation Reform in China: What Is the Real Change?

Jingyi Wang, Peking University - Peking University School of Transnational Law

Wilson Chow, The University of Hong Kong - Faculty of Law

Ten Days that Shocked the World: The Rendition Proposal in Hong Kong

Johannes M M Chan, The University of Hong Kong - Faculty of Law

Twenty Years of the Basic Law: Continuity and Changes in the Geoffrey Ma Court

Po Jen Yap, The University of Hong Kong - Faculty of Law

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

Vol. 9, No. 4: September 19, 2019

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

Requisites for Development of a Regulated Secondary Market in Digital Assets

Syren Johnstone, Department of Law, University of Hong Kong, Asian Institute of International Financial Law

Sustainability, FinTech and Financial Inclusion

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

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

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

Blockchain and Public Companies:A Revolution in Share Ownership Transparency, Proxy-Voting and Corporate Governance?

Federico Panisi, University of Brescia

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

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

Distributed Ledger Technology and Digital Assets - Policy and Regulatory Challenges in Asia

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

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

Anton Didenko, University of New South Wales (UNSW) - Faculty of Law

Cyn-Young Park, Asian Development Bank

Emilija Pashoska, Universite du Luxembourg - Faculty of Law, Economics and Finance

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

Bo Zhao, University of Hong Kong - Faculty of Business and Economics, Asian Development Bank - Economic Research and Regional Cooperation Department (ERCD)

Three Major Financial Crises: What Have We Learned

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

Emilios Avgouleas, University of Edinburgh - School of Law

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

Regulating LIBRA: The Transformative Potential of Facebook’s Cryptocurrency and Possible Regulatory Responses

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

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

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

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

Vol. 9, No. 3: June 11, 2019

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

Beijing’s 'Rule of Law' Strategy for Governing Hong Kong: Legalization without Democratization

Han Zhu, Centre for Chinese Law, The University of Hong Kong Faculty of Law

Optimal Deterrence, the Illegality Defence, and Corporate Attribution

Kelvin Hiu Fai Kwok, The University of Hong Kong - Faculty of Law

Ernest Lim, National University of Singapore (NUS) - Faculty of Law

The Oath-Taking Cases and the NPCSC Interpretation of 2016: Interface of Common Law and Chinese Law

Han Zhu, Centre for Chinese Law, The University of Hong Kong Faculty of Law 

Albert H. Y. Chen, The University of Hong Kong - Faculty of Law

The Concept of 'Agreement' Under Article 101 TFEU: A Question of EU Treaty Interpretation

Kelvin Hiu Fai Kwok, The University of Hong Kong - Faculty of Law

The Identity Challenge in Finance: From Analogue Identity to Digitized Identification to Digital KYC Utilities

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

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

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

Janos Nathan Barberis, The University of Hong Kong - Faculty of Law

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

Vol. 9, No. 2: May 10, 2019

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Table of Contents

The Future of Data-Driven Finance and RegTech: Lessons from EU Big Bang IIDirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)
Douglas W. Arner, The University of Hong Kong - Faculty of Law
Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law
Rolf H. Weber, University of Zurich - Faculty of Law

A Network Theory of PatentabilityLaura G. Pedraza-Farina, Northwestern University School of Law
Ryan Whalen, The University of Hong Kong - Faculty of Law

The Age of Remix and Copyright Law ReformYahong Li, The University of Hong Kong - Faculty of Law

Re-Conceptualizing ‘Object’ Analysis Under Article 101 TFEU: Theoretical and Comparative Perspectives
Kelvin Hiu Fai Kwok, The University of Hong Kong - Faculty of Law

What are Law Courses for? Striking a Balance between Professional and Liberal Education GoalsDanny Gittings, University of Hong Kong, College of Humanities and Law, School of Professional and Continuing Education, The University of Hong Kong, Faculty of Law

From Global to Anthropocenic Assemblages: Re-Thinking Territory, Authority and Rights in the New Climatic RegimeDaniel Matthews, The University of Hong Kong - Faculty of Law

Alex Green on 'Our Constitution, Accountability and the Limits of the Power to Prorogue' (UK Const L Blog)

"Our Constitution, Accountability and the Limits of the Power to Prorogue"
Alex Green
UK Constitutional Law Blog
26 September 2019

Constitutions do many things. They distribute authority amongst public bodies, enshrine important points of substantive principle, and cement relationships between rulers and the ruled. However, in a more abstract and fundamental sense, constitutions also tell us something about ourselves as political collectives: they express the kind of polity we embody and the kind of people we have come to be.

     Whether written or unwritten, constitutions establish the contours of our political communities. To use Hannah Arendt’s metaphor – borrowed from the Ancient Greek understanding of law as nomos – constitutions are the walls that encircle, define, and defend the everyday aspects of our political lives. It is against this normative backdrop that I want to reflect upon one element of what is expressed by the recent judgement of the United Kingdom Supreme Court in the cases of R (on the application of Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland. This element, which I contend is of fundamental importance to the overall justifiability of our constitutional order, is mentioned in paragraphs 46 and 47 of that judgement. It relates to the governmental accountability, and is expressed in the following terms... Click here to read the full blog post.

Alex Green on Successful State Secession and the Value of International Recognition (forthcoming book chapter)

"Successful Secession and the Value of International Recognition"
Alex Green
in Vidmar and Raible (eds), Research Handbook on Secession (Edward Elgar, forthcoming 2020)

Abstract: There is a strong positive correlation between secession movements that receive international recognition and those that successfully result in independent states. This chapter asks whether the seeming potency of recognition can be justified, or whether there can be nothing said for it, morally speaking. In so doing it critiques and dismisses putative justifications based on the values of democracy, distributive justice, and international stability, before advancing an alternative and more promising possibility: that formal recognition is conducive to the development of ethically valuable politics. This alternative is argued not only to justify the seeming influence that recognition enjoys over attempted secession, but also the liberty to refuse recognition enjoyed by established states under international law, as well as the duty of such states to engage in collective non-recognition under particular circumstances.  Click here to download the paper from SSRN.

Alex Green & Jennifer Hendry on Non-Positivist Legal Pluralism and Crises of Legitimacy in Settler-States (forthcoming journal article)

"Non-Positivist Legal Pluralism and Crises of Legitimacy in Settler-States"
Alexander Green and Jennifer Hendry
Journal of Comparative Law, forthcoming

Abstract: In this article we develop an original, non-positivist conception of legal pluralism, which we then deploy to identify and evaluate a particular type of legitimacy crisis. Such crises occur when settler-states attempt unilaterally to resolve conflicts between their own legal orders and indigenous legal orders, and thus treat the relevant indigenous communities unjustly. By identifying each legal order in terms of its morally valuable instantiation of the rule of law, we emphasise their equal normative status; the legitimacy crises we identify are typified by failures to acknowledge and respect this equality on the part of settler-states. Using case studies drawn from the United States of America and Australia, this article not only advances the first non-positivist theory of legal pluralism, but also demonstrates the utility of non-positivism as an analytical tool within socio-legal jurisprudence.  Click here to download the paper from SSRN.

RGC Awards $4.6 Million in Research Funding to HKU Law 2019/20

Congratulations to our 8 colleagues who were successful in the 2019-2020 round of research grant funding by Hong Kong's Research Grants Council (RGC).  For the first time, two colleagues (Johannes Chan and Frank He) were successful in obtaining the Humanities and Social Sciences Prestigious Fellowship (HSSPF), which provides recipients with the time and funding to pursue research in place of teaching and administrative duties over the course of 12 months.  Five General Research Fund (GRF) projects were funded to study money laundering offending in Hong Kong, law reform implications of disruptive technologies for finance, enforcement of the arbitral awards under the Belt and Road Initiative, elites and judicial power in the age of populism, and the establishment of British admiralty law in Hong Kong 1861 to 1943.  An Early Career Scheme (ECS) project was funded to study political community and the legal status of established states.  The details of the new funded projects are as follows:

HSSPF

• Johannes Chan, Constitutional Review and Judicial Independence underOne Country, Two Systems: Convergence or Divergence?, $508,949
• Frank He, Gendered Divorce Litigation in China, $494,000

GRF

• Simon Young, An Empirical Study of Money Laundering Offending in Hong Kong, $719,984
• Giuliano Castellano, Creating Credit: Law Reforms, Policy Tensions, and Disruptive Technologies, $686,476
• Weixia Gu, Enforcement of Arbitral Awards under the Belt and Road Initiative (BRI): Regional Harmonization of the Public Policy in Context of the BRI Asia, $449,000
• Alex Schwartz, Court Curbing: Elites and Judicial Power in the Age of Populism, $685,320
• Felix Chan, The Establishment and Administration of British Admiralty law in Hong Kong and Other Treaty Ports under the Treaty of Nanking: 1861-1943, $574,000

ECS

• Alex Green, Political Community and the Legal Status of Established States, $455,520

HKU Law Welcomes Two New Assistant Professors Specialising in IP, Innovation & Jurisprudence

We warmly welcome Dr Ryan Whalen, who joins us from Dalhousie University, and Mr Alex Green, who joins us from University College London, to the HKU Faculty of Law.

     Ryan Whalen’s research takes a data-driven approach to understanding the law and legal systems, with a particular focus on intellectual property law and innovation policy. This approach unites traditional doctrinal analyses with empirical techniques drawn from diverse fields including machine learning, natural language processing, network analysis, and data science.

     His work has appeared in a wide variety of journals including the Northwestern University Law Review, the Yale Law Journal Forum, the Michigan State Law Review, and the Journal of the Patent and Trademark Office Society. 

     Ryan holds a BA(hons) from Saint Mary’s University (Canada), an MA from National Chengchi University (Taiwan), a JD from the Northwestern University Pritzker School of Law, and a PhD from Northwestern University. While at Northwestern, Ryan served as the editor-in-chief of the Northwestern University Law Review. 

     Ryan joined the Department of Law in July 2017 and will be teaching classes on Intellectual Property and Information Technology, Patent Law, and Administrative Law.

     Alex Green joined the Department of Law in August 2017 as an Assistant Professor. His current research, which has been funded by the Modern Law Review, concerns the moral nature of legal statehood and its role in determining the content of public international law. More broadly, he is interested in legal and political theory, moral philosophy, private law, public international law and human rights. Alex will be teaching LLB and JD Tort Law and is Deputy-Director of the Outgoing Exchange Programme.