New Issue: SSRN Legal Studies Research Paper Series (HKU)

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

Vol. 7, No. 10: Dec 19, 2017

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

1. Moving Forward on Listing Reform
Syren Johnstone, Department of Law, University of Hong Kong, Asian Institute of International Financial Law

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

2. Law School Productivity & Impact–Evidence from the Legal Scholarship Network
Ryan Whalen, The University of Hong Kong - Faculty of Law

3. The ICO Gold Rush: It's a Scam, It's a Bubble, It's a Super Challenge for Regulators
Dirk A. Zetzsche, ADA Chair in Financial Law / Inclusive Finance, University of Luxembourg, Heinrich Heine University Duesseldorf - Faculty of Law - Center for Business & Corporate Law (CBC)

Ross P. Buckley, University of New South Wales (UNSW) - Faculty of La
Douglas W. Arner, University of Hong Kong - Faculty of La
Linus Föhr, Research Assistant @ ADA Chair in Financial Law (inclusive finance)

4. 2016年香港立法会选举及宣誓风波法律评析———历史和比较法的视角 (A Legal Analysis of the 2016 Hong Kong Legislative Council Oath-Taking Controversy: A Historical and Comparative Perspective)

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

5. The Developing Nature of Arbitration in Mainland China andIts Correlation with the Market: Institutional, Ad Hoc, and ForeignInstitutions Seated in Mainland China
Weixia Gu, University of Hong Kong - Faculty of Law

6. Judging in Europe: Do Legal Traditions Matter?
Angela Huyue Zhang, King's College London, The University of Hong Kong - Faculty of Law
Jingchen Liu, Columbia University
Nuno M. Garoupa, Texas A&M University School of Law, Catholic University of Portugal (UCP) - Católica Global School of Law

New Issue: SSRN Legal Studies Research Paper Series (HKU)

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES  DOUGLAS W. ARNER, EDITOR SIMON N. M. YOUNG, EDITOR

Vol. 7, No.5: Sept 12 2017 Table of Contents

1. Transparency of Information in the Market: The Citic Case Before the Market Misconduct Tribunal
Syren Johnstone, Department of Law, University of Hong Kong, Asian Institute of International Financial Law
Nigel Davis, University of Hong Kong

2. Diverging Trends in the Socialist Constitutionalism of the People's Republic of China and Socialist Republic of Vietnam
Fu Hualing, The University of Hong Kong - Faculty of Law
Jason G. Buhi, Peking University School of Transnational Law, The University of Hong Kong Faculty of Law

3. Armed Conflict and State Succession in Investor-State Arbitration
Odysseas G. Repousis, Quinn Emanuel Urquhart & Sullivan LLP
James D. Fry, The University of Hong Kong - Faculty of Law

Syren Johnstone & Nigel Davis Analyse the CITIC Case in the Market Misconduct Tribunal (HK Lawyer)

"Transparency of Information in the Market: the CITIC Case before the Market Misconduct Tribunal"

Syren Johnstone & Nigel Davis

Hong Kong Lawyer
July 2017, published online

Introduction: The Market Misconduct Tribunal recently found that a no material adverse change (“no-MAC”) statement published by CITIC Limited in 2008 did not constitute market misconduct under s. 277 of the Securities and Futures Ordinance (“SFO”) because the statement was unlikely to influence the market price of CITIC securities, and because it was not materially false or misleading.

     This came as a surprise to many because at the time of the statement, directors of CITIC were aware of but had not disclosed to the market that it was facing significant mark-to-market losses on foreign currency derivative contracts. When disclosed to the market weeks later, CITIC’s share price plunged, wiping out around HK$20 billion, or two-thirds, of its market capitalisation.  This article identifies some of the more important issues raised by the Tribunal’s findings and the SFC’s decision not to appeal.  Click here to read the full article.

New Issues: SSRN Legal Studies Research Paper Series (HKU)

Vol. 6, No. 6: 23 December 2016

Table of Contents

1.A Principles-Based Response to the Proposed Reform of the Governance Structure for Listing Regulation in Hong Kong

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

Nigel Davis, University of Hong Kong

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

2. The Limits of Critique and the Forces of Law

Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

Scott Veitch, The University of Hong Kong - Faculty of Law

3. Plasticity, Jurisdiction and the Interruption of Sovereignty: A Response to Catherine Malabou Via José Saramago's Seeing

Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

4. Narrative, Space and Atmosphere: A Nomospheric Inquiry into Hong Kong's Pro-Democracy 'Umbrella Movement'

Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

5. The Nomos of Hong Kong's Umbrella Movement

Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

6. A Spirit of the Common: Re-Imagining 'The Common Law' with Jean-Luc Nancy

Daniel Charles Matthews, The University of Hong Kong - Faculty of Law

Vol. 7, No. 1: 17 February 2017

Table of Contents

1. 'All for Some' or 'Some for All'? Assessing the Realisation of the Right to Social Welfare in the Retirement Protection Reform in Hong Kong 

Karen Kong, The University of Hong Kong - Faculty of Law 

2. Legal Origin and Corporate Governance for Chinese Family Business: Evidence in Hong Kong, Taiwan and Mainland China 

Hugo Ho-Ting Chu, The University of Hong Kong - Asian Institute of International Financial Law, The University of Hong Kong - Faculty of Law, University College Dublin (UCD) - Michael Smurfit Graduate School of Business, Hong Kong Polytechnic University - Department of Applied Social Sciences 

3. The Emergence of Transnational Environmental Law in the Anthropocene 

Jolene Lin, University of Hong Kong - Faculty of Law 

4. Towards Peer Presence in Post Disaster Governance: An Empirical Study 

Shahla F. Ali, Deputy Director, Program in Arbitration & Dispute Resolution, University of Hong Kong, Faculty of Law

Governance Structure Reform for Listing Regulation in Hong Kong (AIIFL Working Paper)

A Principles-Based Response to the Proposed Reform of the Governance Structure for Listing Regulation in Hong Kong

Syren Johnstone, Nigel Davis & Douglas W Arner

AIIFL Working Paper No. 19

November 2016

Abstract: The June 2016 joint consultation on listing regulation arises out of a renewed concern to ensure the Hong Kong market remains fit for purpose in meeting current and emergent challenges and demands. This paper undertakes an analysis of the consultation applying a law and principles based approach. This approach requires the listing regime to be suitable not only in view of market conditions but also in view of internationally accepted practices and standards concerning regulatory oversight. While it is recognized that regulatory evolution requires progressive innovation, the two new SEHK sub-committees envisaged by the joint consultation give rise to several areas of concern. The reasons for implementing the changes proposed are not well explained in the consultation and no clear case is presented as to why the sub-committee structure would provide improvements. Putting the SFC into a frontline decision-making role is problematic under the current statutory framework, and is not necessarily a forward moving step toward a system of statutory listing regulation. It implements changes that bypass legislative intent and renders certain statutory laws meaningless, it may subject the SFC to corporate laws that would impact on its ability to act as an independent regulator, and it would diminish regulatory accountability and clarity. The risk that the changes could be regarded as legislation by regulation would weaken, not strengthen, the SFC’s regulatory mandate over public listings. These problems run counter to the intent of the Proposal to improve listing regulation and carry the risk that Hong Kong’s governance of listings, particularly the role of the statutory regulator in it, would be at odds with international best practices. The conclusion of this paper is that progressing with the sub-committee proposal would not be a positive development unless and until the issues identified in this paper are properly addressed and resolved. It is suggested that a more holistic view of market development needs to be adopted that extends beyond the decision making mechanisms of the dual filing regime and identifies more precisely the specific issues that are problematic. Doing so would permit more targeted and sustainable oversight mechanisms to be developed.  Click here to download the full paper.

HKU Law Lectures for Practitioners 2016 (28 Oct 2016)

Faculty of Law, University of Hong Kong, 

on behalf of Hong Kong Law Journal Ltd

announces

LAW LECTURES FOR PRACTITIONERS 2016

28 October 2016 (Friday) 

11/F Academic Conference Room

Cheng Yu Tung Tower, Centennial Campus

University of Hong Kong

Programme

Morning Session (9:30 am - 12:45 pm)

9:00-9:30 am 

Registration 

9:30-10:30 am 

"Litigation and the Competition Commission" 

Lester Lee of the Competition Commission 

10:30-11:30 am 

"Privacy and Media Intrusion" 

Allan Chiang (former Privacy Commissioner for Personal Data) 

11:30-11:45 am 

Coffee Break 

11:45-12:45 pm 

"Periodical Payment Orders in Personal Injuries for Future Pecuniary Loss" 

Norman Hui of The University of Hong Kong 

12:45-2:00 pm 

Lunch 

Afternoon Session (2:00 pm - 5:15 pm)

2:00-3:00 pm 

"Current Issues on Takeover Regulation" 

Gail Humphryes of The Securities and Futures Commission 

3:00-4:00 pm 

"The HKEX/SFC Joint Consultation on Listing Regulation" 

Syren Johnstone of The University of Hong Kong/Asian Institute of International Financial Law 

4:00-4:15 pm 

Coffee Break 

4:15-5:15 pm 

"Market Misconduct - Recent Developments" 

Nigel Davis of The University of Hong Kong

Fees: Morning Session or Afternoon Session - HK$800 per session. Whole Day - HK$1,400 including lunch. For registration or enquiries please contact Ms Lydia Bute, 10/F, Faculty of Law Building, Centennial Campus, University of Hong Kong, Pokfulam, Hong Kong. Tel: 3917 4323 / Fax: 2559 3543 / Email: lbute@hku.hk.

Deconstructing Sponsor Prospectus Liability (HKLJ)

"Deconstructing Sponsor Prospectus Liability"
Syren Johnstone, Antonio Da Roza and Nigel Davis
Hong Kong Law Journal
2016, Vol. 46, Part 1, pp. 255-286

Abstract: The question of whether a sponsor of an initial public offering (IPO) is subject to the criminal and civil liability provisions of Hong Kong’s prospectus law has been debated for over 15 years and remains untested in court. The interpretation of the law provided by the Securities and Futures Commission (SFC) in August 2014 is that sponsors are subject to prospectus liability because they are persons who authorize the issue of the prospectus, an interpretation based on certain non-statutory considerations to which sponsors are subject. To examine whether the SFC’s position is supported in law, this article considers three possible routes by which legal liability might be established: through the relationship between non-statutory regulations and law, the law on authority, and the legal, regulatory and commercial context of sponsor work. However, none of these routes provide clear support. An unexpected finding was that elements underlying the SFC’s position could potentially apply to underwriters of an IPO. While the SFC has significant powers over sponsors outside the scope of prospectus law, the position under prospectus law of private civil litigants vis-à-vis sponsors remains uncertain. The options for resolving the current disjunct between prospectus provisions originally introduced in the context of a largely unregulated market and expectations under current regulatory architecture are considered.

HKU Teaching Excellence Awards 2015 - Law Faculty Wins Three Awards

Congratulations to Rick Glofcheski, Katherine Lynch and Marco Wan for winning University level teaching awards for 2015.  Here is an excerpt from the President, Professor Peter Mathieson's announcement:

"The Selection Panel was deeply impressed with the awardees’ dedication to teaching, their tireless and creative efforts to make learning enjoyable and challenging, and the impact that they have made on their students’ learning. Because of the eminent achievements of two candidates for the University Distinguished Teaching Award, the Panel decided unanimously to honour both of them. 

University Distinguished Teaching Award
Professor Joseph C.W. Chan, Department of Politics and Public Administration, Faculty of Social Sciences
Professor Rick A. Glofcheski, Department of Law, Faculty of Law [**Watch the video below demonstrating how Prof Glofcheski he has used the 'flipped classroom' method to advance teaching and learning at HKU. Click here to see and read more.]

Outstanding Teaching Award
Dr. Chun-kit Chui, Department of Computer Science, Faculty of Engineering
Ms. Katherine L. Lynch, Department of Law, Faculty of Law
Dr. Julian A. Tanner, School of Biomedical Sciences, Faculty of Medicine
Miss Nicole J. Tavares, Faculty of Education
Dr. Marco M.H. Wan, Department of Law, Faculty of Law 

Teaching Innovation Award
Dr. Michael G. Botelho, Faculty of Dentistry

The awardees will be honoured at a presentation ceremony on Monday May 9, 2016. Please do join us for that if you can. Their names will be posted on the Teaching Excellence Awards Honour Board."

At the Faculty level earlier this year, the following three colleagues were awarded Faculty of Law Outstanding Teaching Awards by the Dean in February 2016:

1. Dora Chan, Principal Lecturer, Department of Law

Dora is an exemplary teacher. She has helped junior-year students overcome the daunting task of acquiring legal skills that are crucial to their future success as a lawyer, designed a postgraduate JD course that suits the needs of the students, and taken up the shepherding role of Deputy Head (Student Affairs) in the Department of Law. 

2. Chen Jianlin, Assistant Professor, Department of Law

Jianlin is a dedicated, enthusiastic and gifted teacher. He has designed new courses and used innovative teaching methodology in his teaching. He has also taken the initiative to organize seminars and workshops to promote research and presentation skills among undergraduate and postgraduate students.

3. Nigel Davis, Principal Lecturer, Department of Professional Legal Education

Nigel is one of the e-learning pioneers in the Department of Professional Legal Education. As a member of two e-learning committees, he has reviewed and promoted e-learning initiatives including MOOCs. He has also designed and implemented a new elective for the Postgraduate Certificate in Laws.

AIIFL Report on IPO Liability Featured in Global Capital Asia

"HK IPO sponsors could escape the prospectus noose"
Philippe Espinasse
Global Capital Asia
29 September 2015

As Hong Kong IPOs start to make a timid comeback after a long summer lull, I unearthed an interesting working paper entitled “IPO sponsors and prospectus liability: the bridge too far?”, published in August by the Asian Institute of International Financial Law (AIIFL) of the University of Hong Kong.

     Its authors, Syren Johnstone (in the interest of full disclosure, co-author with me of the study manual for IPO sponsor examinations published by the Hong Kong Securities and Investment Institute), Antonio da Roza and Nigel Davis (who runs a course at HKU where I teach as a honorary lecturer), are all members of the university’s faculty of law.

     They argue at some length that, contrary to the conclusions reached by the Securities and Futures Commission (SFC) in August 2014, there appear to be no clear legal grounds supporting the SFC’s view that sponsors are subject to statutory civil and criminal liabilities in respect of material mis-statements made in Hong Kong IPO prospectuses.

     "Criminal liability is as serious as it gets, but the SFC's two-page conclusion falls well short of explaining to sponsors on what basis they should fear criminal penalties" said the authors, in an interview with Clawback.

     Their findings could prove to be ground-breaking, and help to topple the SFC’s position. In such a case, it would then be up to the courts to determine the responsibility of sponsors on a case by case basis, a much more palatable outcome for brokers and investment banks accused of having been involved in sponsoring work of sub-standard quality... Click here to read the full article.  Click here to download the IPO report from the AIIFL website.