HKU Law Champion in HSF Competition Law Moot 2024

The oral rounds of the 2024 Herbert Smith Freehills Competition Law Moot were held at King’s College London on 14-15 June 2024. The HKU Team consisted of Chan King Hei (BBA (Law) & LLB 3), Connor Gregory (LLM (CFL)), Lee Zee Faith (LLB 4), and Wong Ching Ho (PCLL). Based on EU competition law, the moot problem raised several issues concerning potentially abusive practices under Article 102 of the TFEU, the scope of the single economic entity doctrine under Article 101 TFEU, and the applicable standard of proof in EU competition law proceedings.

After surviving the preliminary rounds and two elimination rounds, the HKU Team advanced to the final round against Utrecht University from the Netherlands. There, the Team defended its case against a series of challenging questions from the judging panel, chaired by The Right Hon Lady Rose of Colmworth, Justice of the UK Supreme Court. The HKU Team ultimately emerged as the Champion, marking the fourth time HKU has won the competition since its inauguration in 2015. 

The HKU Team with the judges of the final round.
(Left to right): Ronan Flanagan (judge), Connor Gregory, Chan King Hei, Lee Zee Faith, Wong Ching Ho, The Right Hon Lady Rose of Colmworth (judge), Professor Alison Jones (judge),  William Kovacic (judge), Stephen Wisking (judge) 

In addition, the Team took home 3 individual awards in recognition of their advocacy skills, including Best Advocate for Connor Gregory and honourable mentions for Lee Zee Faith and Wong Ching Ho. The team’s written pleadings were also ranked 2nd out of 49 participating teams.

The Team would like to express their sincerest gratitude to Professor Thomas Cheng, Professor Kelvin Kwok, and Ms Allison Wong for their support and guidance. The Team would also like to thank the practice moot judges, Mr Byron Chiu, Mr Peter Dong, Mr Alex Yeung, Ms Clara Wong, Mr Martin Lau, and Mr Zixin Jiang, for their kind assistance and constructive feedback.

(Left to right): Professor Thomas Cheng, Chan King Hei, Connor Gregory, Lee Zee Faith, Wong Ching Ho, Ms Allison Wong

HKU Awards for Research Excellence 2023-24

Congratulations to all Faculty of Law colleagues who were recognised in HKU Awards for Research Excellence 2023-24:

Outstanding Researcher Award 2023-24
Thomas Cheng

Outstanding Young Researcher Award 2023-24
Zhuang Liu

University’s Research Output Prize 2023-24 (Faculty of Law)
'The Governance of Chinese Charitable Trusts'

By Hui Jing, published by Cambridge University Press in September 2023

More details of the HKU Awards for Research Excellence can be found here. 

Thomas Cheng on Competition Law and AI (CUP book chapter)

"Competition Law and AI"
Thomas Cheng
in Ernest Lim (ed), Phillip Morgan (ed), The Cambridge Handbook of Private Law and Artificial Intelligence, (Cambridge University Press, March 2024), pp. 472-491
Published online: March 2024

Summary: The legal treatment of autonomous algorithmic collusion in light of its technical feasibility and various theoretical considerations is an important issue because autonomous algorithmic collusion raises difficult questions concerning the attribution of conduct by algorithms to firms and reopens the longstanding debate about the legality of tacit collusion. Algorithmic collusion, namely, direct communication between algorithms, which amounts to express collusion, is illegal. Intelligent and independent adaptation to competitors’ conduct by algorithms with no direct communication between them, which is tacit collusion, is generally legal. There should be ex ante regulation to reduce algorithmic collusion.

RGC Awards $4.8 Million in Research Funding to HKU Law 2023/24

Congratulations to our eight colleagues who were successful in the 2023-2024 round of research grant funding by Hong Kong's Research Grants Council (RGC). Six General Research Fund (GRF) projects were funded to study the abuse of dominance in the digital age; to examine the reformation of administrative law for the coming age of algorithmic government in Hong Kong; to evaluate the process of transnational law-making and its boundaries in trust and succession planning in Hong Kong and Singapore; to conduct field experiments of using cameras in Chinese trials; to study the implications for enhanced intellectual property protection in China through the Chinese music streaming market; to explore possible changes and impacts on the Hong Kong tax system after the social unrest, COVID-19 and PRC factor. Two Early Career Scheme (ECS) project were funded to study political crowdfunding in authoritarian regimes and to conduct a comparative study (Hong Kong, Australia, and England) of trustees’ discretionary powers in express private trusts and their possible control. The details of the new funded projects are as follows:

GRF:

Professor Thomas Cheng

Abuse of Dominance in the Digital Age, HK$664,340

Professor Eric C. Ip

Judging the Automated State: The Reformation of Administrative Law for the Coming Age of Algorithmic Government in Hong Kong under Chinese Sovereignty, HK$457,140

Ms. Rebecca Lee

Trust and succession planning in Hong Kong and Singapore: a critical evaluation of the process of transnational law-making and its boundaries, HK$405,800

Dr John Zhuang Liu

Cameras in the Courtroom: Field Experiments in Real Trials, HK$848,000

Professor Haochen Sun

The Rise of the Chinese Music Streaming Market: Implications for Enhanced Intellectual Property Protection in China, HK$608,400

Mr. Wilson Chow

Hong Kong tax system: New Era! New Wine in New Bottle?, HK$850,000

ECS:
Dr Julius Yam
Political Crowdfunding in Authoritarian Regimes, HK$570,000

Dr Hui Jing

Controlling Trustees’ Discretionary Powers in Express Private Trusts: A Comparative Study of Hong Kong, Australia, and England, HK$473,000

HKU Research Awards in the Law Faculty in 2021-2022

Kerry Holdings Professor in Law Douglas Arner Awarded Outstanding Researcher Award

Congratulations to Kerry Holdings Professor in Law Douglas Arner who is the 2021-2022 award recipient of the Outstanding Researcher Award (ORA), in the Faculty of Law, awarded by The University of Hong Kong.  He is also  the recipient of  RGC Senior Research Fellow in 2020, Finalist for edX Prize in 2020, and Outstanding Young Researcher Award in 2007.   Currently, he is the Kerry Holdings Professor in Law, as well as the Director of LLM in Compliance and Regulation, and LLM in Corporate and Financial Law, and Law, Innovation, Technology and Entrepreneurship (LITE) Programmes, and is the former Director of the Asian Institute of International Financial Law at the University of Hong Kong, . He served as Head of the HKU Department of Law from 2011 to 2014 and as Co-Director of the Duke University-HKU Asia-America Institute in Transnational Law from 2005 to 2016. Douglas has published eighteen books, including most recently The RegTech Book (Wiley 2019), and Reconceptualising Global Finance and its Regulation (Cambridge 2016); Financial Markets in Hong Kong: Law and Practice (Oxford, 2d ed., 2016), Finance in Asia: Institutions, Regulation and Policy (Routledge 2013), From Crisis to Crisis: The Global Financial Crisis and Regulatory Failure (Kluwer 2011) and Financial Stability, Economic Growth and the Role of Law (Cambridge 2007), and more than 200 articles, chapters and reports on international financial law and regulation. His recent papers are available on SSRN at https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=524849, where he is among the top 75 authors in the world by total downloads. Douglas led the development of Introduction to FinTech – launched with edX in May 2018 and now with over 80,000 learners spanning every country in the world. He is a Senior Visiting Fellow of Melbourne Law School, University of Melbourne, and an Advisory Board Member of the Centre for Finance, Technology and Entrepreneurship (CFTE). Douglas was an inaugural member of the Hong Kong Financial Services Development Council (2013-2019) and has served as a consultant with, among others, the United Nations, World Bank, Asian Development Bank, APEC, Alliance for Financial Inclusion, and European Bank for Reconstruction and Development. He has lectured, co-organised conferences and seminars and been involved with financial sector reform projects around the world. He is currently leading a major 5 year Hong Kong Research Grants Council Senior Research Fellowship project on the role of FinTech and RegTech in financial inclusion and the UN Sustainable Development Goals as well as a 4 year RGC Research Impact Fund project focusing on FinTech policy and regulation. From 2012-2018, Douglas served as Project Coordinator of a major five-year project funded by the Hong Kong Research Grants Council Theme-based Research Scheme on “Enhancing Hong Kong’s Future as a Leading International Financial Centre”. He is currently one of the core team of another TRS project focusing on digital finance, financial stability and financial inclusion.  He has been a visiting professor or fellow at Duke, Harvard, the Hong Kong Institute for Monetary and Financial Research, IDC Herzliya, McGill, Melbourne, National University of Singapore, University of New South Wales, Shanghai University of Finance and Economics, and Zurich, among others. 

     Click here to view more on  Kerry Holdings Professor in Law Douglas Arner's work.

Dr Angela Zhang Awarded Outstanding Young Researcher Award

Congratulations to Dr Angela Zhang who is the 2021-2022 award recipient of the Outstanding Young Researcher Award (OYRA) in the Faculty of Law, awarded by The University of Hong Kong. She won the Research Output Prize in 2019, in the Faculty of Law, awarded by The University of Hong Kong, for her scholarly work entitled “The Role of Media in Antirust: Evidence from China,” (2018) 41 Fordham International Law Journal 473-530.

     Currently, she serves as Director of the Philip K. H. Wong Centre for Chinese Law at the University of Hong Kong, which promotes legal scholarship with the aims of developing a deeper understanding of China and facilitating dialogue between East and West.  She is an associate professor at the Faculty of Law in the University of Hong Kong. An expert in Chinese law, Angela has written extensively on Chinese regulatory issues. Her first book Chinese Antitrust Exceptionalism garnered significant attention during Beijing’s crackdown on Chinese Big Tech and was named a Best Political Economy Book of the Year by ProMarket in 2021. Angela is now working on her second book about China’s model of regulatory governance, which is expected to be released in 2023.

            With a broad research interests in the areas of law and economics, particularly in transnational legal issues bearing on businesses, she as a young researcher has massive research outputs appearing in leading international law reviews such as Harvard International Law Journal, Yale International Law Journal, Stanford International Law Journal, as well as top peer-reviewed journals from other disciplines such as Management Science and China Quarterly.

          She is a four-time recipient of the Concurrence Antitrust Writing Award, which selects the best articles published globally in the field of antitrust law each year. She received a British Academy/Leverhulme Small Research Grant (£10,000) in 2014 and two Hong Kong GRF grants, one (HK$637,440) in 2018 and the other (HK$ 656,825) in 2021.

      She is a highly sought-after commentator on Chinese regulatory issues. She often speaks at prestigious antitrust conferences in the United States, Europe, and Asia. She is also frequently interviewed by major international media outlets and regularly contributes commentaries to the popular press.

     Click here to view more on Dr Angela Zhang's work.

Thomas Cheng Awarded Research Output Prize

Congratulations to Thomas Cheng who is the 2021-2022 award recipient of the Research Output Prize  (ROP) in the Faculty of Law, awarded by The University of Hong Kong. The research output prize was for his book, The Patent-Competition Interface in Developing Countries, published by Oxford University Press, in 2021 (544pp). 

     Currently, he is a Professor in the Faculty of Law at the University of Hong Kong, who 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 U.S. 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. In 2020, he published Competition Law in Developing Countries, with Oxford University Press. 

     His research has been recognized 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 (“ASCOLA”). 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 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.

HKU Law Research Output Prize Winners 2020-21

Congratulations to the following University and Faculty of Law Research Output Prize Winners 2021-2022:

• Thomas Cheng has been awarded the University’s Research Output Prize 2020-21 (Faculty of Law) for his book Competition Law in Developing Countries (Oxford University Press, 2020)

• Dr Eric Ip was awarded a Faculty's Research Output Prize 2021 for his book Judging Regulators: The Political Economy of Anglo-American Administrative Law (Edward Elgar, October 2020)
• Professor Lusina Ho, with Professor Richard Nolan, was awarded the Faculty's Research Output Prize 2021 for their article The Performance Interest in the Law of Trusts (Law Quarterly Review, Vol. 136, pp. 402-426, July 2020)
• Dr Haochen Sun was awarded the Faculty's Research Output Prize 2021 for his work Reinvigorating the Human Right to Technology (Michigan Journal of International Law, Vol. 41, pp. 279-326, 2020) 
  

The Selection Panel, comprised of the members of the Faculty Research Committee, was deeply impressed with the awardees’ quality of outputs, especially their original insight and thoughtful presentation.

New Book by Thomas Cheng & Kelvin Kwok: Hong Kong Competition Law: Comparative and Theoretical Perspectives (Cambridge University Press)

Hong Kong Competition Law: Comparative and Theoretical Perspectives

Thomas Cheng & Kelvin Kwok
Cambridge University Press

Published in October 2021

Book Description: This is the first academic monograph on the new competition law in Hong Kong. It provides an overview of the historical background of the Competition Ordinance, highlighting the debate and the process that led to the adoption of the Ordinance. It offers detailed comparative and theoretical analysis of the key provisions of the Ordinance, focusing on the First Conduct Rule, the Second Conduct Rule, the exclusions and exemptions, and the procedural provisions. It draws on overseas legislation and jurisprudence that inspired the provisions in the Ordinance and incorporates a detailed examination of the latest cases decided by the Competition Tribunal. It engages in relevant academic debates and theoretical analysis of how competition law in Hong Kong should develop in light of its unique economic and political contexts. It concludes by setting forth of a set of recommendations for further reform.

New Book by Thomas Cheng: The Patent-Competition Interface in Developing Countries (Oxford University Press)

The Patent-Competition Interface in Developing Countries
Thomas Cheng
Oxford University Press

Published in December 2021

Overview:

• Proposes a development stage-specific approach to the patent-competition interface in developing countries, taking into account their technological capacity
• Offers a detailed illustration of the approach with a wide range of patent exploitation practices, including analysis of the relevant theoretical issues and a survey of the relevant case law from the US, the EU, and select developing countries
• Provides an in-depth study of the meaning and relevance of innovation in developing countries and its implications for competition law regulation of patent exploitation practices

Book Description: This book proposes an approach to the patent-competition interface for developing countries. It puts forward a theoretical framework after canvassing relevant policy considerations and examines the many reasons why patent protection is not essential for generating innovation incentives in developing countries. These include the tendency of the patent system to overcompensate innovators, the availability of other appropriation mechanisms for innovators to monetize their innovations, and the lack of appropriate technological capacity in many developing countries to take advantage of the incentives generated by the patent system. It also argues that developing countries with a small population need not pay heed to the impact of their patent system on the incentives of foreign innovators. It then proposes a classification of developing countries into production countries, technology adaptation countries, and proto-innovation countries and argues that dynamic efficiency considerations take on different meanings for developing countries depending on their technological capacities.

    For the vast majority of developing countries bereft of meaningful innovation capacity, foreign technology transfer is the main vehicle for technological progress. The chief dynamic policy consideration for these countries is hence incentives for technology transfer instead of innovation incentives. There are three main means of voluntary technology transfer: importation of technological goods, foreign direct investment, and technology licensing. Competition law regulation of patent exploitation practices interacts with these three means of technology transfer in different ways and an appropriate approach to the patent-competition interface for these countries needs to take these into account.

     Distilling all these considerations, the book proposes a development stage-specific approach to the patent-competition interface for developing countries. The approach is then applied to a number of patent exploitation practices, including unilateral refusal to deal, patent tying, excessive pricing for pharmaceuticals, reverse payment settlements, and restrictive licensing practices.

HKU Celebrates (Another) Victory in the HSF Competition Law Moot 2020

Congratulations to the HKU Law team, consisting of Jason Louie (LLB IV), Adrian Mak (PCLL), Clara Wong (PCLL), and Alex Yeung (PCLL), for winning the Herbert Smith Freehills Competition Law Moot 2020 hosted by King's College London! This is the third time HKU has won the championship in the Moot since its inauguration in 2014, and the first time that the oral rounds were held virtually via Microsoft Teams. The team was coached by Associate Professor Thomas Cheng, Assistant Professor Kelvin Kwok, and alumnus Allison Wong. We are particularly grateful to the practice moot judges, most of whom are mooting alumni representing HKU in past competitions, for their generous time and support.

New Book: Competition Law in Developing Countries (Thomas Cheng)

Competition Law in Developing Countries

Thomas Cheng

Oxford University Press

Published in May 2020

608 pp.

Synopsis: This book brings together perspectives of development economics and law to tackle the relationship between competition law enforcement and economic development. It addresses the question of whether, and how, competition law enforcement helps to promote economic growth and development. This question is highly pertinent for developing countries largely because many developing countries have only adopted competition law in recent years: about thirty jurisdictions had in place a competition law in the early 1980s, and there are now more than 130 competition law regimes across the world, of which many are developing countries.

     The book proposes a customized approach to competition law enforcement for developing countries, set against the background of the academic and policy debate concerning convergence of competition law. The implicit premise of convergence is that there may exist one, or a few, correct approaches to competition law enforcement, which in most cases emanate from developed jurisdictions, that are applicable to all. This book rejects this assumption and argues that developing countries ought to tailor competition law enforcement to their own economic and political circumstances. In particular, it suggests how competition law enforcement can better incorporate development concerns without causing undue dilution of its traditional focus on protecting consumer welfare. It proposes ways in which approaches to competition law enforcement need to be adjusted to reflect the special economic characteristics of developing country economies and the more limited enforcement capacity of developing country competition authorities. Finally, it also addresses the long-running debate concerning the desirability and viability of industrial policy for developing countries. 

"This book is a must-read. It is the first comprehensive multidisciplinary discussion of the contribution of competition law to economic development. Building on an extensive analysis of the relationship between economic competition, growth, innovation, and development, the author explores how the competition law instrument should be adapted to the specificities, limitations, and goals of developing countries. Thanks to his deep knowledge of competition law, profound understanding of the challenges faced by developing countries, and pragmatic approach to competition, Thomas Cheng's unconventional call for a contextualized application of competition law in developing countries is compelling." - Professor Frédéric Jenny, Chairman OECD Competition Committee

"This is a compelling and ground-breaking book that will be important to the competition/antitrust community, to the law and development community, and to all those interested generally in law, economics, and poverty alleviation. Cheng systematically links economic growth, economic development, and competition policy for developing countries, and he suggests answers to the question, 'How should developing countries adjust their competition policy to address their needs for development and growth?" - Professor Eleanor M. Fox, Walter J. Derenberg Professor of Trade Regulation, New York University School of Law

HKU Law First Runner-up in the HSF International Competition Law Moot 2019

Continuing the proud tradition of HKU’s prior achievements in competition law mooting, the HKU team placed First Runner-up in the Herbert Smith Freehills Competition Law Moot 2019, which was held in King’s College London from 13 to 15 June 2019. The team consisted of four students: Ferrida Chan (PCLL), Matthew Chung (LLB 4), Rafael Pang (BBA(Law) & LLB 3) and Cherry Ng (BSc(G&L) & LLB 3). Rafael and Matthew also earned special commendation for their excellent advocacy skills, being the top 5 speakers in the preliminary rounds. 

   The team’s journey began in November 2018, where all four speakers were selected after a rigorous selection process. The team ranked third in its written pleadings and advanced to the oral rounds in London together with 11 other teams. Prior to travelling, the team underwent multiple practice moots to further improve their advocacy skills. Special thanks go to various practitioners and past mooters including Sunny Chan, Tinny Chan, Tommy Cheung, Byron Chiu, Peter Dong, Brian Fan, Joshua Kanjanapas, Martin Lau, Grace Lee, Euchine Ng, Michael Ng, Sakinah Sat, Howard Wong and Tiffany Wu for their invaluable assistance and feedback. 

   Most importantly, thanks must be given to the team coaches, including Thomas Cheng, Kelvin Kwok and Allison Wong for their unending support and guidance throughout the competition.

HKU Law Students Excel in Mooting Competitions (Maritime Law and Competition Law)

L-R: A Fung, J Ma, K Lee, F Chan,
R Cheung

The 19th International Maritime Law Arbitration Moot 

Competing against 29 universities from 14 overseas jurisdictions, the HKU Maritime Law Moot Team was awarded the 1st Runner-Up of the Oral Hearings held in Brisbane, Australia from 29 June to 3 July 2018. The 2018 Maritime Law Moot Team consisted of Alex Fung (PCLL), Justin Ma (PCLL), Ferrida Chan (BBA-Law) and Ryan Cheung (LLB), coached by Mr. Ken Lee. 

L-R: K Lee, R Cheung, A Fung, J Ma,
F Chan

    During the group stages, the Team came in 6th overall and later defeated both the National University of Singapore and University of Malaya to advance into the grand finals held in the Federal Court of Australia in Brisbane. Our heartfelt thanks go to Professor Anselmo Reyes, Dr Felix Chan, Mr. Winky So and the previous award-winning team for their comments in various practice sessions; and Mr. Ken Lee, our team coach, for his unwavering support throughout the year. 

HKU Competition Law Team Captured Best Written Pleadings Award 

The HKU Competition Law Team won the Best Written Pleadings Award for the written round on route to the semi-finals of the annual Herbert Smith Freehills Competition Law Moot from 15 to 16 June 2018. Guided by Mr. Thomas Cheng and Mr. Kelvin Kwok, the 2018 Competition Law Moot Team comprised of 4 PCLL students –Yuet Yi Cheng, Law Wai Tsun Hazel, Ng Chun Wai Jonathan and Karen Tsang Nga Yue. The Team advanced to the oral rounds hosted by King’s College London based on the strength of its written memorandum. 

L-R: J Ng, H Law, T Cheng, YY Chen,
K Tsang

     After winning all its moots in the preliminary stage with Wai Tsun Hazel capturing an oralist award, the Team subsequently lost in the semi-finals to KCL which was ultimately the winner of this year’s competition. The Faculty is grateful for the valuable support from team coaches Thomas Cheng and Kelvin Kwok and various practitioners and ex-mooters including Mr. Sunny Chan, Ms. Tiffany Chan, Ms. Jasmine Cheung, Mr. Tommy Cheung, Mr. Byron Chiu, Mr. Joshua Kanjanapas, Mr. Kevin Lau, Mr. Joe Lee, Ms. Rosa Lee, Ms. Allison Wong, and Ms. Stephanie Wong for their kind assistance. 

RGC Awards $6 Million in Research Grant Funding to HKU Faculty of Law

Congratulations to our 11 colleagues who were successful in the 2018-2019 round of research grant funding by Hong Kong's Research Grants Council (RGC).  The success rate for General Research Fund (GRF) projects was 73%, a little better than last year.  The projects cover a range of legal topics of importance to Hong Kong, China and beyond.  This year the largest grant was awarded to Dr Richard Wu for his ongoing and expansive study of law student values.  This is the fifth RGC grant Dr Wu has received in support of his comparative study of law students in 14 jurisdictions.  The details of the new 11 GRF projects are as follows:

• Weixia Gu, The (Recognition and) Enforcement of Mainland Judgments in Hong Kong: A Regional Conflict of Laws Study, $590,000, 36 months 
• Angela Zhang, Antitrust and the Rise of China: An Institutional Analysis, $637,440, 36 months 
• Shahla Ali, Soft Law from the Ground Up: The Role of the UNCITRAL Regional Centre for Asia and the Pacific in the Formation of Transnational Dispute Settlement Norms, $688,080, 36 months 
• Thomas Cheng, Anti-Monopoly Law Enforcement in China, $594,100, 36 months 
• Rebecca Lee, Rationalising Recovery for Mistaken Transfers at Common law and in Equity?, $347,200, 24 months 
• Haochen Sun, Buildinga Robust Trademark Fair Use Mechanism in China, $540,500, 36 months 
• Albert Chen, Constitutional governance in ‘Greater China’ and the Unfinished Project of Chinese Constitutionalism, $491,980, 24 months 
• Peter Chau, Examining non-instrumental justifications for tort compensation, $260,000, 24 months 
• Shitong Qiao, Eminent Domain in Chinese Courts: An Empirical Study, $450,653, 36 months 
• Lusina Ho, Legal Reform of Enduring Powers of Attorney: A Comparative Analysis, $434,298, 24 months 
• Richard Wu, An Empirical and Comparative Study of Law Students’ Perceptions of Their Values in Four Emerging and Transitional Economies: China, Russia, South Africa and Kazakhstan, $918,160, 36 months

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

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

Vol. 8, No. 3: Mar 14, 2018
Vol. 8, No. 4: Arp 20, 2018

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

Vol. 8 No. 3: Mar 14, 2018

1. Legalizing Politics: An Evaluation of Hong Kong's Recent Attempt at Democratization

Cora Chan, The University of Hong Kong - Faculty of Law

2. Problems with Wednesbury Unreasonableness in Contract Law: Lessons from Public Law

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

Cora Chan, The University of Hong Kong - Faculty of Law

3. Priority Queuing on the Docket: Universality of Judicial Dispute Resolution Timing

Satyam Mukherjee, Northwestern University

Ryan Whalen, The University of Hong Kong - Faculty of Law

4. A Consumer Behavioral Approach to Resale Price Maintenance

Thomas K. Cheng, The University of Hong Kong - Faculty of Law

5. Rights-Weakening Federalism

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

6. Strategic Comity

Angela Huyue Zhang, The University of Hong Kong - Faculty of Law, King's College London

Vol. 8 No. 3: Apr 20, 2018

1. Competing Visions of the Western International Economic Order and the Chinese Belt and Road Initiative: Challenges and Opportunities

Uzma Ashraf Barton, AIIFL, Faculty of Law, The University of Hong Kong, Georgetown University Law Center, Law & Economics Center, George Mason University

2. Constitutional Inertia and Regime Pluralism in Asia

David S. Law, Washington University in St. Louis - School of Law, The University of Hong Kong - Faculty of Law, Washington University in St. Louis - Department of Political Science

Chien-Chih Lin, Institutum Iurisprudentiae, Academia Sinica, Institutum Iurisprudentiae, Academia Sinica

3. Is Distributed Ledger Technology Built for Personal Data?

Henry Chang, The University of Hong Kong - Law and Technology Centre

4. The Meaning of Restriction of Competition Under the Monopolistic Agreements Provisions of the PRC Anti-Monopoly Law: Convergence to International Mainstream or a Chinese Approach?

Thomas K. Cheng, The University of Hong Kong - Faculty of Law

5. Announcing the Death of Colgate: The Form and Substance of Vertical Price Fixing Agreements

Thomas K. Cheng, The University of Hong Kong - Faculty of Law

Thomas Cheng on the Death of Colgate (U Penn J of Business L)

"Announcing the Death ofColgate"
Thomas Cheng
University of Pennsylvania Journal of Business Law
Vol. 20, Issue 1
Spring 2018

Abstract: This Article examines the agreement requirement in resale price maintenance (“RPM”) cases and the longstanding exception to the ban on RPM under the Colgate doctrine. It argues for the abolition of the doctrine for a number of reasons. First, there are no persuasive theoretical justifications for requiring an agreement in RPM cases as the most relevant purpose served by an agreement requirement under antitrust law does not apply to RPM. Second, there is no logically coherent and theoretically sound theory of agreement under the doctrine, which means that there is no principled way to apply the agreement concept in RPM cases. Third, there is no sound economic basis for requiring an agreement in RPM cases as none of the main theories of harm and pro-competitive justifications of RPM is premised on an agreement. Finally, it is argued that the Colgate doctrine has provided a highly unsatisfactory safe harbor for businesses to implement RPM due to costs and manpower involved in complying with the jurisprudence under Colgate. This Article also argues that dealer termination requires a different treatment from that accorded by Monsanto and Business Electronics after Leegin and proposes a framework for determining the legality of dealer termination independent of the existence of an RPM scheme.

Thomas Cheng's Consumer Behavioral Approach to Resale Price Maintenance (Virginia Law and Business Review)

"A Consumer Behavioral Approach to Resale Price Maintenance"
Thomas Cheng
Virginia Law and Business Review

Fall 2017, Volume 12, Issue 1, pp 1-92

Abstract: This Article reexamines the various pro-competitive justifications and theories of harm for resale price maintenance (“RPM”), one of the most controversial practices in antitrust law. It argues that the existing literature overlooks three important issues regarding RPM, namely, the kind of retail service invoked in a justification, the kind of retailer at issue, and the prevailing model of consumer behavior. All three issues have important implications for the plausibility and validity of the various justifications and theories of harm for RPM. It argues that most of the existing literature presumes the inter-brand primacy model of consumer behavior. Once this model is not applicable, much of the prevailing analysis breaks down and the legality of RPM needs to be reconsidered. In particular, this Article demonstrates that many of the accepted justifications for RPM are of doubtful validity or are only valid under limited circumstances. This lends support to a more hostile view of RPM.  Click here to download the full article.

Thomas Cheng on Restrictive Agreements Under China's Anti-Monopoly Law (World Competition)

"The Meaning of Restriction of Competition Under the Monopolistic Agreements Provisions of the PRC Anti-Monopoly Law"

Thomas Cheng

World Competition

2017, Vol 40, Issue 2, pp 323-354

Abstract: International attention on the People's Republic of China PRC Anti-Monopoly Law (AML) has mostly focused on merger control and abuse of dominance. Enforcement against restrictive agreements and concerted practice seems to have been overlooked so far. This article examines how the Chinese courts and enforcement authorities have analysed restrictive agreements. Specifically, it focuses on how the courts and the authorities have applied the concept of restriction of competition in monopolistic agreement cases. With respect to horizontal cases, one largely unanswered question is whether anticompetitive effects need to be proved even in cartel cases or a proof of the mere existence of the agreement suffices. With respect to vertical cases, there remains much confusion as to the appropriate analytical framework for resale price maintenance (RPM), the per se rule or the Rule of Reason, and whether Article 14 of the AML applies to agreements beyond RPM. This article attempts to shed light on these important questions.  Thomas Cheng was recently featured in the German Antitrust Blog, D'Kart (26 June 2017).

Thomas Cheng Receives Award for Antitrust Scholarship (American Antitrust Institute)

Congratulations to Thomas Cheng who has been awarded the Best Antitrust and Intellectual Property Article by the American Antitrust Institute for his sole authored article, "Antitrust Treatment of the No Challenge Clause" (2016) 5 N.Y.U.J. of Intell. Prop. & Ent. Law 437.  The article was selected by the committee for the 15th annual Jerry S Cohen Memorial Fund Writing Award for antitrust scholarship.  The committee considered over 150 antitrust articles and books published in 2016.  The Jerry S Cohen writing award was established in memory of a former law partner at the law firm Cohen Milstein Sellers & Toll PLLC.  An award ceremony will be held at the American Antitrust Institute's annual conference on 21 June 2017 in Washington DC.  The article made a distinct contribution to antitrust literature by examining the harmful consequences of 'no challenge clauses' (clauses that prohibit patent licensees from challenging the validity of the licensed patent).  It was also shortlisted for the Antitrust Writing Awards 2017.

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

Vol. 7 No. 2: 14 April 2017

Table of Contents

1.  The Role of Hong Kong's Financial Regulations in Improving Corporate Governance Standards in China: Lessons from the Panama Papers for Hong Kong

Bryane Michael, University of Hong Kong Faculty of Law, University of Oxford

Say Hak Goo, The University of Hong Kong - Faculty of Law

2. Ex Turpi Causa: Reformation Not Revolution

Ernest Lim, University of Hong Kong - Faculty of Law

3. Establishing a Multi-Stakeholder Board for Multinational Corporations

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

4. Overstating Moral Hazard: Lessons from Two Decades of Banking Crises

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

Emilios Avgouleas, University of Edinburgh - School of Law

Evan Gibson, The University of Hong Kong - Asian Institute of International Financial Law

5. Sherman vs. Goliath?: Tackling the Conglomerate Dominance Problem in Emerging and Small Economies — Hong Kong as a Case Study

Thomas K. Cheng, The University of Hong Kong - Faculty of Law