Cora Chan on Legal Pluralism and the Dual State: Evolution of the Relationship between the Chinese and Hong Kong Legal Orders (Law and Ethics of Human Rights)

"From Legal Pluralism to Dual State: Evolution of the Relationship between the Chinese and Hong Kong Legal Orders"
Cora Chan

The Law and Ethics of Human Rights, Issue16, Volume 1, pp. 99-135
Published in 2022

Abstract: This article provides the first-ever comprehensive analysis of how the relationship between the Chinese and Hong Kong legal orders has morphed in nature since China’s resumption of sovereignty over Hong Kong in 1997. It argues that the relationship has evolved from a form of legal pluralism found in the European Union to a monist but bifurcated system—to a “dual state,” to borrow from Ernst Fraenkel’s theory. Recent events, including Beijing’s imposition of a national security law on Hong Kong and its overhaul of Hong Kong’s election methods, have consolidated that evolution. The analysis herein not only enables us to make sense of the developments in the China-Hong Kong relationship, but has five wider theoretical implications. First, it suggests a way of distinguishing a dual state from a fully liberal legal system. Second, it discerns the similarities and differences between legal pluralism and dual state. Third, it connects the literature on theories of legal order and that on the dual state. Fourth, it clarifies the relationship between theories of legal order and regime types. Finally, Hong Kong’s experience reveals the challenges of and potential mechanisms for maintaining liberal values in an authoritarian regime.

Zetzsche, Annunziata, Arner & Buckley on The Markets in Crypto-Assets Regulation and the EU Digital Finance Strategy (European Banking Institute)

"The Markets in Crypto-Assets Regulation (MICA) and the EU Digital Finance Strategy"

Dirk A. Zetzsche, Filippo Annunziata, Douglas W. Arner, Ross P. Buckley

European Banking Institute Working Paper Series No. 2020/77

Published in November 2020

Abstract: The European Commission published its new Digital Finance Strategy on 24 September 2020. One of the centrepieces of the Strategy is the draft Regulation on Markets in Crypto-Assets (MiCA), designed to provide a comprehensive regulatory framework for digital assets in the EU.

    With MiCA the EU Commission has proposed bespoke regulation for utility tokens and stablecoins including payments tokens, asset-backed tokens and “significant” stablecoins (including “global stablecoins”). As to investment and securities tokens, the EU Digital Finance Strategy relies on the existing body of EU financial and securities law, with the Prospectus Regulation, the MiFID framework as well as the UCITSD and AIFMD at its core, with the intention to incorporate necessary changes as part of the existing ongoing amendment and review processes. MiCA provides for a bespoke prospectus regime for crypto-assets, with the issuing of e-money tokens (i.e. payment tokens), asset-referenced tokens (also known as stablecoins) and crypto-asset services being regulated activities subject to licensing. While supervision of crypto-asset service providers (CASPs) will rest with national authorities, supervision of significant asset-referenced and e-money tokens will rest mainly with the European Banking Authority.

     The EU Digital Finance Strategy marks a very important step for the EU in developing both innovation and the Single Market. At the same time, while MiCA is an ambitious legislative project, there is room for improvement. First, the scope of MiCA remains uncertain as the draft MiCA does not clearly delineate between utility tokens subject to MiCA and investment tokens subject to EU securities law. Second, a systematic approach to EU law is absent. Thresholds and concepts known from other EU laws should be firmly embedded in MiCA. Third, a framework for supervisory cooperation with regard to truly global stablecoins is missing.

Holning Lau & Kelley Loper on The European Union as Promoter of Equality in Asia: Beyond Economic Tools of Influence (new book chapter)

"The European Union as Promoter of Equality in Asia: Beyond Economic Tools of Influence"

Holning Lau & Kelley Loper

in Thomas Giegerich (ed), The European Union as Protector and Promoter of Equality (Springer 2020) pp 487-502
Published online in July 2020

Abstract: The European Union’s (EU’s) foreign policy objectives include promoting equality rights around the world. Commentary on such efforts in Asia has focused on the EU’s application of economic pressure to influence Asian states. This chapter seeks to shift the focus to a range of non-economic tools that the EU uses to promote equality rights in Asia. These “soft power” options include, but are not limited to, conducting official “human rights dialogues” with Asian leaders, providing technical assistance to government and civil society actors, developing social media campaigns, and setting positive examples through progressive law reforms in the EU. This chapter first explains why it is important for the EU to support equality rights through the exercise of soft power. It then specifically considers the EU’s highest court, the European Court of Justice (ECJ), as a source of soft power. Some Asian courts cite the ECJ as persuasive authority. The ECJ thus indirectly promotes equality rights in Asia by setting examples. It is problematic, however, that Asian courts learn from the ECJ while the ECJ and other EU institutions fail to reciprocate by learning from rights-protective Asian courts. This unidirectional flow of information reflects and reinforces neocolonial dynamics. The EU could allay concerns about neocolonialism, and perhaps increase its influence in Asia, by engaging Asian courts in a two-way dialogue on equality rights.

Douglas Arner et al on the Evolution and Future of Data-Driven Finance in the EU (Common Market Law Review)

"The Evolution and Future of Data-Driven Finance in the EU"

Zetzsche Dirk, Douglas Arner, Ross Buckley, Rolf H. Weber

Common Market Law Review, Issue 57, pp. 331-360
published in 2020

Abstract: Europe’s path to digitization and datafication in finance rests on four pillars: (1) extensive reporting requirements imposed after the global financial crisis to control systemic risk and change financial sector behaviour; (2) strict data protection rules reflecting European concerns about dominant actors in the data and technology industries; (3) the facilitation of open banking to enhance competition in banking and payments; and (4) systems for digital identification for individuals and legal entities designed to further the Single Market and enhance financial integrity and transparency. The article analyses these pillars and suggests that - together - they are triggering a transition to data-driven finance and will underpin the future of digital financial services in the EU. The pillars bolster an emerging ecosystem which aims to promote a balance among a range of sometimes conflicting objectives, including systemic risk, data security and privacy, efficiency, customer protection, and market integrity. As well as supporting digital financial transformation in Europe, the EU experiences provide important insights for other societies in developing regulatory approaches to the intersection of data, finance and technology.

Kelvin Kwok on the Meaning of Anticompetitive Object under Article 101 TFEU (Common Law World Review)

"Object and intention under Article 101 TFEU: Lessons from Australia, New Zealand and analytical jurisprudence"
Kelvin Kwok
Common Law World Review
First published on 20 September 2019

Abstract: What does it mean for an agreement to have an anticompetitive ‘object’ under Article 101(1) of the Treaty on the Functioning of the European Union? Can the European Commission support an ‘object’ case by reference to the agreement parties’ subjective intention, and if so, how? What exactly is the relationship between an agreement’s object and the parties’ subjective intention under competition law? This article is the first to bring insights from Australian and New Zealand cases, as well as analytical jurisprudence, to bear on these underexplored yet important questions affecting the European Union and common law jurisdictions around the world. Using Ronald Dworkin’s theory of legal interpretation as the analytical basis, this article argues for a ‘mixed’ conception of the ‘object’ concept which enables an anticompetitive object to be proven either objectively or subjectively. Anticompetitive subjective intention accordingly provides an independent, alternative basis for competition law liability for agreements; the lack of such intention, meanwhile, does not help exculpate parties who are liable based on their objective purpose to restrict competition. This article also argues that voluntariness and evidentiary limits ought to be imposed on the use of anticompetitive subjective intention in the ‘object’ analysis of agreements.

Kelvin Kwok on The Concept of 'Agreement' Under Article 101 TFEU (ELR)

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

Kelvin Kwok

European Law Review

2019, Vol 44, p 196

Abstract: Despite the importance of the “agreement” concept under art.101(1) TFEU, the concept remains underdeveloped by courts and commentators. This article reconstructs the “agreement” concept based on theories of legal interpretation and contract as well as comparative law insights. It argues, based on a theoretical framework for EU Treaty interpretation and a broad, objective conception of an antitrust agreement, that the objectivity and correspondence requirements for contractual agreements have continuing relevance, while the precision requirement should be appropriately relaxed, for antitrust agreements. Drawing on insights from US antitrust jurisprudence, it advances three concrete proposals emerging from the in-depth comparison between antitrust and contractual agreements, namely that the art.101(1) “agreement” concept embraces tacit collusion, encompasses concerted practices and decisions of associations, and is independent of subjective intentions. 

Kelvin Kwok on Re-conceptualizing ‘Object’ Analysis Under Article 101 of the TFEU (J Comp L & Econ)

"Re-Conceptualizing 'Object' Analysis Under Article 101 TFEU: Theoretical and Comparative Perspectives"
Kelvin Kwok
Journal of Competition Law & Economics
published on 20 December 2018

Abstract: Recent expansive applications of the ‘object’ prohibition under Article 101 TFEU have left the scope of ‘object’ restrictions in a state of uncertainty and incoherence. This article undertakes an unprecedented theoretical study of the ‘object’ test in comparison with US antitrust law. It re-conceptualizes ‘object’ analysis as a form of preliminary enquiry that serves a similar classificatory function as a US ‘quick look’ analysis, namely to distinguish naked restrictions from non-naked ones in order to determine whether summary condemnation or an effect-based analysis is called for. This normative theory rests on the important conceptual distinction between proximate and ultimate objects, and a detailed comparison of the methods of antitrust analysis under EU and US law. The article constructs a ‘quick look’ framework for ‘object’ analysis that combines both theoretical and comparative insights, and applies this framework to critically analyze joint venture restrictions, regulatory restrictions, vertical restrictions, and industry restructuring arrangements. This paper is nominated for the Concurrences Antitrust Writing Awards 2019 - you may read and vote for the article here.

Zhang, Liu & Garoupa on Judging in Europe: Do Legal Traditions Matter? (J of Competition Law & Econ)

"Judging in Europe: Do Legal Traditions Matter?"
Angela Zhang, Jingchen Liu & Nuno Garoupa
Journal of Competition Law & Economics
Published: 03 March 2018

Abstract: EU competition appeals typically involve applications by private businesses to annul decisions made by the European Commission. Moreover, these appeals are first assigned at random to a chamber, with a judge then designated as the rapporteur who will be most closely involved with the case. Using hand-collected original data on the background characteristics of EU judges and on competition judgments by the General Court between 1989 and 2015, we test the extent to which the legal origins of judges bear a statistically significant effect on case outcomes and that the rapporteur plays a crucial role in the decision-making process. In particular, if a rapporteur comes from a country whose administrative law has a strong French influence, the decision is more likely to favor the Commission than if he is from any other EU country. These results are robust to alternative political ideology variables, including left–right politics and a preference for European integration.

Angela Zhang on The Antitrust Paradox of China, Inc (NYU J Int’l L & Pol)

"The Antitrust Paradox of China, Inc"

Angela Zhang

N.Y.U. J. Int’l L. & Pol.

2018, Volume 50, Issue 1, pp. 159 -226

Abstract: Common ownership by the Chinese State recently caused a stir in Europe. During its review of a joint venture involving a Chinese nuclear power company, the European Commission (“Commission”) held that it would treat all Chinese state-owned enterprises (SOEs) in the energy sector as a single entity. This decision carries significant legal and practical implications for both businesses and the regulator. It also contradicts the Commission’s previous approach to European SOEs. In this Article, I argue that the legal framework under the E.U. Merger Regulation (EUMR) is unsuited to deal with the anticompetitive effects of state ownership. While the delineation of the boundary of an undertaking is a prerequisite for merger review, ownership and control are not absolute. Importantly, the extent to which the coordination by the Chinese State has lessened competition is a quantitative question rather than a qualitative one. Consequently, a bright-line approach to defining an undertaking is both over and underinclusive. To address the European Union’s dilemma in handling Chinese SOEs, I propose that the Commission should view national security review as a complement to its merger review. The optimal regulatory response to Chinese acquisitions hinges not only on economics but also, perhaps more importantly, on politics.

Alice Lee's Comparative Study of Well-known Trade Marks and Dissimilar Goods (HKLJ)

"Well-known Trade Marks and Dissimilar Goods: HK, UK and EU Law"
Alice Lee
Hong Kong Law Journal
2017, Vol. 47, Issue 1, pp 89-114

Abstract: The escalating complaints of international brands about unauthorised use of their trade marks or resembling marks on non-competing goods or services have provoked rethinking of trade mark law. In Hong Kong, as in most other jurisdictions, there are specific statutory provisions for the protection of well-known trade marks. Comparing Hong Kong, UK and European authorities, this article examines the scope of ss 18(4) and 12(4) of the Trade Marks Ordinance (Cap 559), explains why they should be construed as limited to dissimilar goods and services and concludes that the Trade Marks Registry Work Manual is in desperate need of revision.

Syren Johnstone on Hong Kong and the EU Credit Rating Regime (SSRN Paper)

"Does Hong Kong Remain an Equivalent Jurisdiction for the EU Credit Rating Regime?"

Syren Johnstone
SSRN HKU Faculty of Law Research Paper No 2017/
April 2017

Abstract: Credit ratings issued by credit rating agencies regulated in Hong Kong are serviceable in the European Union (EU) because Hong Kong is recognized for these purposes as an equivalent jurisdiction. The perimeter of Hong Kong’s credit rating regime has recently come under the scrutiny of the Securities and Futures Appeals Tribunal, which has established important boundary lines impacting on the authorization, supervision and enforcement of the credit rating industry in Hong Kong. This article analyzes the case and identifies four elements central to it, namely, the information-based, document-based and act-based perimeters of the Hong Kong regime as well as its primary regulatory objective. It is suggested that the Tribunal’s approach to these elements may represent a material departure of Hong Kong’s legal and supervisory framework from the regime in the EU that could adversely affect Hong Kong’s standing as an equivalent jurisdiction.  Click here to download the full paper.

Jurisprudential Reflections on European (Dis)Integration (Scott Veitch)

"Common Good No More?  Some Jurisprudential Reflections on European (Dis)Integration"

Scott Veitch

in Johan van der Walt & Jeffrey Ellsworth, Constitutional Sovereignty and Social Solidarity in Europe (Germany: Nomos, 2015) 139-164

Abstract: Does it make any sense to talk about a common good in modern large-scale capitalist societies?  On the other hand, does it make any sense not to talk about a common good in such societies?  This is our dichotomy.  The idea of law being an instrument and expression of the common good is an ancient and influential one in the western legal tradition.  Yet it seems to have become jaded, if not suspect.  This chapter analyses different meanings of the common good, its legal connotations, and the competing reasons of the common good, its legal connotations, and the competing reasons for its valorization  or decline .  It considers these further in the context of the European Union and contemporary processes of legal integration in order to shed some light on that dichotomy which arguably exists at the heart of the European political and constitutional project.