Weixia Gu on Issues of Extraterritorial Arbitration in Non-Foreign-Related Disputes (PKU LJ)

"Issues of Extraterritorial Arbitration in Non-Foreign-Related Disputes"
Weixia Gu
Peking University Law Journal （中外法学）
2018, Vol. 30, No. 3, pp. 651-670

Abstract: As China further liberalises and marketises, a new type of dispute has emerged. This type of dispute is domestic and has no foreign-related elements, but is submitted for arbitration outside China. The orthodox standard for determining whether a dispute is foreign-related — The Theory of “Three Essentials of Legal Relations” — is too simplistic and rigid. The addition of "catch-all provisions" in the evolution of laws and regulations demonstrates that China normatively foresees cases with unorthodox foreign-related elements. Specifically on the determination of foreign-related elements in arbitration, existing arbitration laws and rules in China have not expressly precluded disputes without foreign-related elements to be submitted to arbitration outside China. Despite this, judicial practice and judicial rationality tends to dismiss the validity of such arbitrations. 2015 was a watershed moment for the judicial attitude towards the issue. At the end of 2015, the Shanghai Golden Landmark case removed the restrictions to determination method of foreign-related elements that has been in place for decades, a breakthrough in recognising unorthodox foreign-related elements. From the perspective of interactivity between law and economic development, the arbitration system in China needs to open up further in the context of the Belt and Road Initiative and Free Trade Zones development, and the breakthrough in recognising new forms of foreign-elements has great implications on Chinese arbitration market.  Click here to download the paper in Chinese.

Farzana Aslam on Proper Care for Overseas Employees (China Daily)

"Employees working overseas must be properly cared for"
Farzana Aslam
China Daily
31 May 2016

With the impact of globalization resulting in increased transnational business opportunities, Hong Kong-based companies are faced with an ever-increasing requirement to send their employees abroad on business-related activities.

     Many employees are expected and required to be mobile, flexible and ready to travel at short notice in pursuit of business opportunities, or to manage operations, personnel or crises overseas. Others are required to spend longer periods of time on assignment or secondment in a foreign jurisdiction as part of their training, knowledge exchange or career development.

     While many employees welcome the prospect of overseas travel and assignments, employees traveling and working overseas may be exposed to a number of risks that fall outside of the scope of risks contemplated by health and safety management systems applicable to workplaces in Hong Kong. For instance, employees who contract an illness or pandemic disease may, in countries with weak healthcare infrastructure, be exposed to an increased level of risk. As borders open and markets emerge in areas that are politically, socially or economically unstable, risks related to personal safety and security present themselves alongside more readily assumed health-related risks.

     From a legal perspective there is a duty of care on employers to ensure the health and safety of their employees at work. The duty of care is a personal, non-delegable duty. It is thus no defense for an employer to say he has delegated his responsibility to the employee himself or to another company to which the employee is assigned, even if the workplace is located overseas. An employer’s breach of this duty will give an employee a right to bring a claim to recover damages for losses suffered as a result of the breach, for example for the pain and suffering of any personal injuries and for loss of earnings for any period of time which the employee was unable to work as a result of such injuries... Click here to read the full article.

CCPL White Paper on Employer's Duty of Care for Employees Working Overseas

"White Paper on Employer's Duty of Care for Employees Working Overseas"

Farzana Aslam
Centre for Comparative and Public Law
May 2016
Abstract: This paper presents the findings of a study to identify the nature of health and safety risks faced by Hong Kong-based employees who are required to travel and work overseas, together with human resource policies and procedures that are used by Hong Kong employers to manage and respond to such risks. The first part of this Paper discusses the extent to which a Hong Kong-based employer’s duty of care for the health and safety of its employees has extra-territorial application by reference to legal duties imposed upon an employer at common law and by health and safety-related legislation, as well as broader obligations arising from principles of corporate social responsibility. The second part of this Paper presents the research findings from the study together with recommendations to inform best practice human resource policies and procedures with a view to improving the management of health and safety for employees required to travel and work overseas.  Click here to download the full paper.  To read more about this project, click here.  Farzana presented her paper at a HKU talk and panel discussion on 24 May 2016. 

James Fry Interviewed on Hong Kong Investigation of 1MDB Scandal

"Former Malaysian official asks Hong Kong police to investigate 1MDB scandal"
Ben Westcott
South China Morning Post
3 September 2015
A former Malaysian official has filed a report with Hong Kong police to investigate the 1MDB scandal, after he said he lost faith that police in his homeland would uncover the truth.
     Both local businessman Jho Low and Malaysian Prime Minister Najib Razak have been implicated in the ongoing investigation.
     But a University of Hong Kong law expert said it would be very difficult for local authorities to enforce any punishment against those accused...
     HKU associate law professor James Fry said under international law the ability to enforce legislation in a particular case or against a particular person usually depended on them being in the same jurisdiction.
     “Enforcement will be difficult until the person actually arrives in Hong Kong, even assuming there exists the ability to prescribe certain behaviour in that case,” he said.
     “This is to say nothing about any immunity issues that might exist if you are dealing with a leader from a foreign country.”... Click here to read the full story.