DEPT OF LAW



Researcher : Ali S
Project Title:An Empirical Study of International Commercial Arbitration Practice in East Asia and the West
Investigator(s):Ali S
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:04/2009
Abstract:
The search for common standards to assess the procedures used in international commercial arbitration has become increasingly important, due to the growth and diversity of its global users. To date most research on “international” arbitration has focused exclusively on Western models of arbitration as practiced in Europe, America, France and Germany. While such studies accurately reflected the geographic foci of international arbitration practice in the mid 20th century, in recent years, the number of international arbitrations conducted in East Asia has grown steadily and on par with growth in Western regions. In 2005 the combined total number of arbitration cases received by international arbitration institutions based in Western nations (the AAA, ICC, LCIA, and the international arbitration centers in Stockholm, Vienna and Vancouver) was 1,407 nearly equal to the combined total number of cases received by international arbitration institutions located in East Asia (CIETAC, JCAA, HKIAC, and the institutions in Malaysia, Singapore, and Korea) which totaled 1,388. Surprisingly however, few, if any studies of international arbitration have included Asian nations among those surveyed. Research by Chinese scholars has mainly examined the theory of arbitration practice, enforcement issues, and the impact of the WTO on arbitration practice. Comparative studies have focused on nations within the Asian region. To represent the emergence of a truly global examination of the practice of arbitration, research on international arbitration must extend to include Asia. In order to address this gap, this study will compare survey data collected in 1992 by Christian Buhring – Uhle regarding the reasons why arbitration practitioners in America, Germany and Europe choose arbitration, the way in which amicable settlements are facilitated in arbitration, and the extent to which “alternative” procedures are employed with data collected from arbitration practitioners in China. Based on survey data, follow up interviews, and case studies I will examine two related questions: 1) Does diversity of culture and worldview, in particular, values and attitudes held in East Asia, translate into differing understandings and expectations of international arbitration procedure? If so, how do these differing expectations manifest themselves in international arbitration practice? 2) Are global economic and legal forces simultaneously exerting a harmonizing influence on arbitrator’s expectations through conventions such as the UNCITRAL Model Arbitration and Conciliation Rules? Based on survey data, I expect to find that participants in Chinese international arbitration proceedings exhibit a greater openness to exploring settlement options and a greater degree of support for arbitrator-initiated settlement discussions. In contrast to Uhle’s finding that European and American participants are generally hostile to the idea of interventions by arbitrators in the settlement process, I expect to find a greater degree of openness to such interventions. In addition, I expect that a higher percentage of Chinese participants will view arbitration as an effective means of facilitating voluntary settlement, in contrast to the 22% supporting this view in Uhle’s study. Further, I would predict a much higher incidence of participants observing arbitrators “splitting the difference” in China in comparison with the 2% who observed this happening “almost always” in Europe and America. As a result I would also expect to find a higher number of arbitrations in China settling, as compared to the 40.6% settlement rate in Europe and America, and a higher percentage of respondents reporting the exhaustion of settlement options prior to arbitration, as compared with the 28% reporting this to be the case in Uhle’s study. With regard to the second question of whether global economic and legal forces are simultaneously exerting a harmonizing influence on arbitration practices through conventions such as the UN Convention on Contracts for the International Sale of Goods and UN Model Law on International Commercial Arbitration, I would expect to find that international conventions generally harmonize key aspects of the procedure relating to the reasons why arbitration is chosen as well as the substantive legal rules regarding international contracting in comparison with arbitration as practiced in China prior to the accession of the NY Convention and the UN Convention on Contracts for the International Sale of Goods. In particular, I would expect to see greater harmonization of key aspects of the procedure relating to pre-hearing directives, party statement of claims and defenses, oral hearings, use of experts, taking of evidence, and issuing of awards as well as the reasons why arbitration is chosen, in comparison with arbitration as practiced in China prior to the promulgation of these UN conventions. Similar to Uhle’s findings, I would expect that surveyed arbitration participants would find that the two most significant advantages and presumably the two most important reasons for choosing arbitration as a means of international commercial dispute resolution are the neutrality of the forum, and the superiority of its legal framework, with treaties like the New York Convention guaranteeing the international enforcement of awards. In addition, I would also expect that participants would find that the next most important advantages of international arbitration, by order of relevance, as being the confidentiality of the procedure, the expertise of the tribunal, the absence of appeals, and the limited discovery available in international commercial arbitration. China presents an ideal context in which to examine this question as it is increasingly engaged in commercial pursuits with Western countries, yet is home to perhaps one of the most distinct systems of legal organization and has undergone perhaps the most radical series of legal transformations during the past three decades than any it has experienced since the inception of its first system of law over three millennia ago. By focusing on the role of the arbitrator and the aims of resolution of Eastern and Western arbitrators, this research seeks to contribute to the exploration of the impact of globalization on law by examining the question of how and to what extent global arbitration values respond to varying national legal contexts while providing standardized procedures to resolve transnational commercial disputes.


Project Title:Measuring Success in Sustainable Resource Dispute Resolution
Investigator(s):Ali S
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:11/2009
Abstract:
At present, within the realm of natural resource law and policy, there is an urgent need to identify and measure effective models of community-based decision making regarding sustainable resource use at the local level. In recent times, an increasing emphasis on participatory mechanisms of resource-based decision making emphasizing “place-based” collaborative processes has emerged. Such processes involve stakeholders from the public and private sectors who consult together in order to arrive at shared goals regarding resource use and planning. Such collaborative processes arise from a growing dissatisfaction with top-down centralized “announce and defend” decision making policies. International treaties such as the Convention on Biological Diversity also encourage the use of collaborative processes at the local level to manage and protect community resources. Yet, devolved collaboration is not without its challenges. Ensuring that such processes do not further entrench racial and economic-based procedural and distributional inequalities, scholars have identified that devolved collaborative processes must not be indifferent to social, structural, institutional conditions necessary to realize its potential for equitable decisions. In response, this research project will investigate a set of principle-based measures or indicators that can be used to assess whether benchmarks of equitable participation are being achieved at the local level. The concept of principle based indicators is a relatively recent one. Traditional performance based indicators of local justice sector development programs have focused on assessing quantity. For example, traditional indicators may measure the length of time to try a case or the total number and types of disputes reported. Useful as these measures are in assessing the development of particular aspects of the justice and policy-making system, nevertheless increasingly such measures are being recognized as inadequate tools to fully assess sustainable progress. Quantitative indicators are often based on “administrative databases used to organize systems or manage resources, and such databases tend to say little about the quality or experience of justice.” The project will examine how principle-based indicators can be used to measure and assess sustainable development outcomes and help ensure that the goals of transparency and cooperation are not overlooked in the development process. The Organization for Economic Cooperation and Development (“OECD”) has recently observed that, “as growing shares of aid resources, time and energy are being devoted to preventing conflict and building peace, more evidence demonstrating the effectiveness of these activities is essential.”


Project Title:Berkeley Journal of International Law's 2010 Riesenfeld Symposium on International Arbitration The Morality of Conciliation: An Empirical Examination of Arbitrator 'Role Moralities' in East Asia and the West
Investigator(s):Ali S
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:02/2010
Completion Date:02/2010
Abstract:
N/A


List of Research Outputs

Ali S., "Barricades and Checkered Flags: Examining Perceptions of the Roadblocks and Facilitators of Settlement Among Arbitration Practitioners in East Asia and the West" (Refereed article), In: Caitlin Morray, Pacific Rim Law and Policy Journal. Seattle, WA, USA, University of Washington School of Law, 2010, Vol. 18, No. 2: 243-278.
Ali S., Asian Journal of Criminology. 2009.
Ali S., Comparing Roadblocks and Facilitators of Settlement Among Arbitration Practitioners in East Asia, International Association of Conflict Management. 2009.
Ali S., Dong-A Journal of International Business Transactions Law. 2009.
Ali S., Ethics in International Mediation and Arbitration: A Cross Cultural Perspective, Hong Kong International Arbitration Center. 2010.
Ali S., Measuring Success in Devolved Collaboration, Annual Law and Society Association Meeting. 2010.
Ali S., Morality of Conciliation in International Arbitration, Advancing International Arbitration, UC Berkeley Reisenfeld Symposium. 2010.
Ali S., The Growth and Development of Legal Education in International Business Transactions and Dispute Resolution in Hong Kong, Dong A Journal of International Business Transactions Law Seminar, Busan Korea. 2010.
Ali S., “Ethics in International Mediation and Arbitration: A Cross Cultural Perspective” Hong Kong International Arbitration Center , 2010.
Ali S., “Morality of Conciliation in International Arbitration”, Advancing International Arbitration, UC Berkeley Reisenfeld Symposium, 2010.
Ali S., “Socio-Legal Perspectives on When Not to Use Mediation” Mediation Roundtable, Hong Kong International Arbitration Center , 2010.
Ali S., “Socio-Legal Perspectives on When Not to Use Mediation” , Mediation Roundtable, Hong Kong International Arbitration Center . 2010.
Ali S., “The Growth and Development of Legal Education in International Business Transactions and Dispute Resolution in Hong Kong” Dong A Journal of International Business Transactions Law Seminar, Busan Korea, 2010.


Researcher : Arner DW
Project Title:Financial regulation and the WTO: liberalisation and restructuring in China
Investigator(s):Arner DW, Hsu BFC, Bushehri MM
Department:Law
Source(s) of Funding:General Research Fund (GRF)
Start Date:11/2002
Abstract:
The project will analyse China's continuing financial services restructuring and liberalisation pursuant to its WTO commitments and international financial standards. Specifically, the project will analyse China's financial services commitments and the options available under international financial standards (respecting banking, securities, insurance and financial conglomerates) for their domestic implementation.


Project Title:Outstanding Young Researcher Award 2006-2007
Investigator(s):Arner DW
Department:Law
Source(s) of Funding:Outstanding Young Researcher Award
Start Date:11/2007
Abstract:
Nil


Project Title:Law, Policy and Development
Investigator(s):Arner DW
Department:Law
Source(s) of Funding:Seed Funding for Strategic Research Theme
Start Date:11/2008
Abstract:
n/a


Project Title:International Financial Law Network - Inaugural Conference Reforming the Architecture of the Global Financial System
Investigator(s):Arner DW
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:06/2010
Abstract:
N/A


List of Research Outputs

Arner D.W., Lim C.L. and Zhang X.C., Asian Commercial, Financial and Economic Law and Policy Book Series, Edward Elgar. 2009.
Arner D.W., Lejot P.L. and Wang W., Assessing East Asian Financial Cooperation & Integration, Singapore Year Book of International Law. 2010, 12: 42.
Arner D.W. and Norton J.J., Basel III: Capital, Leverage, Liquidity, Symposium on Managing Systemic Risk, Warwick Law School, Warwick University, Coventry, United Kingdom. 2010.
Arner D.W., Panton M.A. and Lejot P.L., Central Banks & Central Bank Cooperation in the Global Financial System , Pacific McGeorge Global Business and Development Law Journal. 2010, 23: 40.
Arner D.W., Developing Asia's Financial Norms and Standards, Evolution of Institutions for Regionalism in Asia and the Pacific, Asian Development Bank, Manila, Philippines. 2009.
Arner D.W., Emerging Financial Architecture: Implications for Islamic Finance, In: Islamic Financial Services Board, The Changing Landscape of Islamic Finance: Imminent Challenges and Future Directions. Kuala Lumpur, Malaysia, Islamic Financial Services Board, 2010, 51-83.
Arner D.W., Financial Liberalization, Integration and Regulation in Asia, Asia-Europe Meeting (ASEM) Conference: Beyond the Global Crisis: A New Asian Growth Model?, European Commission / Asian Development Bank / Bank Negara Malaysia, Kuala Lumpur, Malaysia. 2009.
Arner D.W., Financial Regulation and the Asian Growth Model Post-Crisis, Constitutional Reform and Financial Regulation, Annual Academic Conference of the Legal Research Centre of Peking University and the University of Hong Kong, University of Hong Kong, Hong Kong. 2009.
Arner D.W., Hsu B.F.C. and Da Roza A.M., Financial Regulation in Hong Kong: Time for a Change, In: Alexander Loke, Asian Journal of Comparative Law. Berkeley, California, National University of Singapore, 2010, 5: 1-48.
Arner D.W., Global Financial Regulation Post-Lehman, Local to Global: Rethinking Spheres of Authority after a World Financial Crisis, Global Center for Business and Development, McGeorge School of Law, University of the Pacific, Sacramento, California, USA. 2009.
Arner D.W. and Norton J.J., International Responses to the Global Financial Crisis, In: J. LaBrosse, R. Olivares-Carminal & D. Singh, Financial Crisis Management and Bank Resolution. London, United Kingdom, Informa, 2009, 11-30.
Arner D.W., Redesigning the Architecture of the Global Financial System: Implications for Asia, Multilateralism and Regionalism in Global Economic Governance: Trade, Investment and Finance, Inaugural Conference, Asian International Economic Law Network (AIELN), University of Tokyo, Tokyo, Japan. 2009.
Arner D.W. and Buckley R.P., Redesigning the Architecture of the Global Financial System, Conference on International Monetary and Financial Law, Heyman Center, Cardozo School of Law, Yeshiva University, New York, New York, USA. 2010.
Arner D.W., Chau K.W., Hsu B.F.C., Pretorius F.I.H. and Pu L., Regulating Credit Rating Agencies in Hong Kong: Lessons from the Global Financial Crisis, In: Professor Benjiman Geva, Banking and Finance Law Review. Toronto, Carswell, 2010, 25: 361-403.
Arner D.W., The Global Financial Crisis: Implications for Finance and Financial Regulation, International Corporate Rescue. London, United Kingdom, 2010, 7:1: 49-56.
Hsu B.F.C. and Arner D.W., Re-evaluating the Efficient Capital Markets Hypothesis: The Case of Hong Kong, In: Dean John Attanasio, The International Lawyer. Chicago, Illinois, American Bar Association, 2009, 43: 1429-1449.
Johnstone S. and Arner D.W., Study Manual for Paper 6 - Regulating Asset Management of the Licensing Examination for Securities and Futures Intermediaries. Hong Kong, Hong Kong Securities Institute, 2009, 1-190.
Taylor M.W. and Arner D.W., Global Regulation for Global Markets?, In: R. Kolb, Lessons from the Financial Crisis: Causes, Consequences and our Economic Future. New York, USA, John Wiley, 2010, 383-390.


Researcher : Brabyn JM
Project Title:Research Output Prize (Faculty of Law)
Investigator(s):Brabyn JM
Department:Law
Source(s) of Funding:Research Output Prize (in Faculty)
Start Date:11/2007
Abstract:
The Research Output Prize accords recognition to an author (or team of authors) of a single research output published or created in the preceding calendar year. Faculties are free to determine what form of research output best represents their research achievement and how it should be selected.




Researcher : Bushehri MM
Project Title:Applied research on China-WTO law
Investigator(s):Bushehri MM
Department:Law
Source(s) of Funding:The University of Hong Kong Foundation Seed Grant
Start Date:04/2002
Abstract:
To carry out applied research on China-WTO law.




Researcher : Carty JA
Project Title:New Paradigms for the Discipline of International Law in China and India as Rising Powers
Investigator(s):Carty JA
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:03/2010
Abstract:
The need is for a comprehensive critical review of the discipline of international law in China and India. The problem is that in both societies there is a mismatch between these countries rising rapidly to world prominence (China first, but India close second) and the languishing of the University disciplines of international law and the absence of any place for international lawyers in public affairs (see Symposium in 2001 Singapore Journal of International and Comparative Law and interviews with Chinese international lawyers in Hong Kong and Tsinghua University Beijing, May July 2009). There is a grave absence of expertise in international law to cope with the huge and sudden prominence of China and India at a time requiring global rethinking of the finance and trade order, the global threat to order from the conflict between the West and Islamic fundamentalism and terrorism from the West Bank of Jordan to Pakistan, the threats to international order from territorial disputes directly affecting China India relations, e.g. Kashmir and Tibet, and the North Eastern Tibet China India border. These are now simmering openly and in Delhi there is talk of war. The threats of an arms race between India and China following US nuclear accords with India and a US arms embargo on China show themselves in China's arms sales to India's arch enemy Pakistan. There is in place a common Indian-Chinese perspective on international law, recently summarized as Eastphalia Rising? (World Policy Journal summer 2009, Kim, Fidler and Ganguly), but this is a defensive reliance on a 19th century European idea of sovereignty as a shield, where the concept of domestic jurisdiction is used as a preserve against "foreign" interference. Neither country is able or willing to address creatively the need to resolve, through skilled management, any of the above difficulties, and the failure to develop a pro-active context related problem solving approach to international law is an aspect of this science, although not the whole of it. The preliminary stage of the research is to do a comprehensive trawl of the textbooks, journals and other publications in academic circles in the two countries; to investigate the participation of India and China in multilateral legal fora, such as the Human Rights Council of the UN, the Legal and Political Committees of the UN General Assembly, the International Law Commission, the International Court of Justice, the Doha Round and the Kyoto/Copenhagen Negotiations; to explore the published record of bilateral treaties, diplomatic correspondence and legal negotiations or disputes that India and China have with individual countries, limiting these to the most disputed and well known, with a special emphasis on disputes between China and India, e.g. Tibet and Kashmir question, US-India Nuclear Cooperation etc. Conclusions will be drawn from these investigations as to the extent of informed academic international law input into these legal activities, as distinct from mere reactions by Indian and Chinese officials to agendas set from outside. The next objective of the research is to identify the causes of the apparent absence of discipline of international law in shaping of foreign legal policy of China and India. The aim is to test various hypotheses as explanations. These include, inter alia, general deficiencies in university legal education, e.g. lack of resources; failure to include international law in legal education; traditional, authoritarian and repetition methods of learning not conducive to creative thinking - including a neo-colonial tendency simply to adopt or maintain standard Western texts on international law; education of academics in Western countries so that they come home with neo-colonial mentalities about their professional roles; hostility or simply distance between universities and government and civil service; whether this hostility or indifference is attributable in India to corruption and so lack of interest in disinterested or professional advice, or in China, attributable to authoritarian structures that do not want to see party hegemony affected; absence of a critical academic legal profession (or international law as a subset of this) participating in public debate of international affairs and the country's place in those; absence of critical public interest in the role of the country in international affairs. A primary objective of research would be to identify whether there is a dissatisfaction with this state of affairs and an interest in remedying it. The final objective of the research is to explore the possibilities of intellectual reconfiguring of international law in India and China from two broad sources. The first is to draw upon Western international law debates which have been critical of the late 19th century legal positivism favoured by India and China. Two particular schools will be canvassed, critical international legal studies and the Yale, New Haven approach. Both of these call for awareness of the policy and political context of legal decision making and formulation of legal futures. What would be the general obstacles to introducing these schools into general legal education and also to international legal education in India and China? Secondly, the question is to explore whether there are intellectual resources within China and India which could provide a reconfiguring of Chinese and Indian views of international order. Are there developments in political theory and international relations which could be adapted to international law? Do philosophy and religion concern themselves with views of India and China in the cosmos or globally, that could be adapted to legal thinking? What is the nature or shape of the role of the public intellectuals in the two countries and how much professional contact do they have beyond their country? Could a renewed international law discipline participate in wider transnational intellectual debates about China and India and global agendas?


List of Research Outputs

Carty J.A., From a Unipolar to a Multipolar World, A Post Bush Presidency for a Post-Western World, In: Marie -Luisa Frick Andreas Oberprantacher, Power and Justice in International relations, Interdisciplinary Approaches to Global Challenges. Farnham, Surrey, England, Ashgate, 2009, 16.
Carty J.A., International Law, In: Duncan Bell, Ethica and World Politics. Oxford, Oxford University Press, 2009, 18.
Carty J.A., Reputation and International Law, Melbourne Journal of International Law,. Melbourne, 2009, 10: 11.
Carty J.A., Vattel, 17th Century Wars of Religion and the Present, In: Yves Sandow, Reflections on the impact, influence and continuing relevance of Emer de Vattel's Law of Nations. Brussels, Bruylant, 2010, 13.


Researcher : Chan CSW
Project Title:The 7th Asian Law Institute (ASLI) Annual Conference 2010 Looking through a legal pluralist’s lens: insights from and for the “One Country, Two Systems” model in Hong Kong
Investigator(s):Chan CSW
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:05/2010
Completion Date:05/2010
Abstract:
N/A


Project Title:In search for a principled approach to judicial deference: constitutional rights review local and abroad
Investigator(s):Chan CSW
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:06/2010
Abstract:
Throughout the history of judicial review there have been concerns that courts might overstep the boundaries of separation of powers by substituting the merits of the executive/legislature’s decisions. The main factors that underlie this call for maintaining the separation of powers are: 1. the democratic legitimacy factor: that unelected judges should respect decisions that are made by a body democratically accountable to the people; 2. the institutional capacity factor: the idea that different branches of the government are institutionally capable and incapable of performing certain tasks, and courts should respect decisions which they are institutionally less capable than the government in reaching. Courts have invented various devices to maintain the proper boundaries of separation of powers. One such device is the justiciability doctrine, which demarcates certain issues that courts cannot review. Courts in the U.S. have called this doctrine the “political question doctrine”, the modern version of which enumerates factors that would render an issue non-justiciable. Such factors include: that the text of the constitution commits decision on that particular issue to another branch of the government; lack of judicial standards for making the decision; a judicial decision possibly demonstrating a court’s lack of respect for other branches of the government (Baker v Carr 369 U.S. 186 (1962)). U.K. courts have also adopted the language of justiciability, but have recently replaced such language with the language of “deference” in cases of review under the Human Rights Act 1998 (HRA). Since all subject areas are in theory reviewable by the court for compliance with the HRA, hence the demise of the justiciability doctrine as far as review under the HRA is concerned. Deference refers to the giving of appropriate weight to a government’s judgment in the court’s reasoning. The U.K. courts have developed certain principles to determine when and to what extent they should defer: greater deference should be paid where social/economic policy is involved, where the HRA requires a balance to be struck, (R v DPP, ex p Kebilene [2000] 2 AC 326) where the government has relative expertise, or where the matter is within the democratic powers’ constitutional responsibility. (International Transport Roth Gmbh v Secretary of State for the Home Department [2003] QB 728) In practice, these enunciated tests have failed to serve as a principled guide to court’s determination of whether a political question is involved or deference is due. These tests are vague, draw misleading dichotomies such as that of policy vs principle, and play up non-existent textual commitments. Thus, courts have been able to manipulate the doctrine as either a refuge for non-intervention or justification for intervention, depending on whether they desire to intervene. This unprincipled approach has led at times to over-deference and thus under-protection of rights, and at other times, over judicial activism, and in any case, inconsistent judicial reasoning that short-circuits detailed judicial scrutiny and obscures real reasons. Academics have engaged in the perennial search for an approach to deference/non-justiciability that is guided by principle and workable in practice. There is a spectrum of opinion of what this approach should be: some advocate for the demise of deference/non-justiciability altogether; some argue that factors of relative institutional capacity, such as whether the court has the relative information-gathering powers and expertise to handle the case, should govern; yet others argue that democratic legitimacy factors should also call for deference. The objective of the first part of this project is to outline a set of workable principles to guide the court’s decision regarding when and to what extent to defer, in a jurisdiction with some form of constitutional review. (The language of deference is to be preferred over the language of non-justiciability.) The focus will be on devising an approach to deference in constitutional rights review. Some of the principles of deference suggested to be applicable in the constitutional rights review context will be applicable generally to judicial review in other areas of law as well, but some principles will be unique to the context of constitutional rights review. There are several gaps in the current literature that I hope to be able to fill out, as part of the larger goal of devising a principled approach to deference: 1. Current discussions on deference/non-justiciability often either lose sight of its link with its underlying rationale (i.e. the separation of powers), or assume the normative value of such underlying rationale. There has thus been a lack of benchmark guiding the formulation and evaluation of principles of deference. I hope to argue for instead of assume the normative significance of the separation of powers, re-establish the link between deference and the point of separation of powers, highlight this underlying rationale as a standard for assessing principles of deference, and formulate an approach to deference that best fulfils such underlying rationale. 2. While it may safely be said that courts and scholars now by and large accept that institutional capacity factors are relevant for deference, it is still highly controversial whether courts should defer on democratic legitimacy grounds. This project aims to explore and answer this question. 3. There has been little sustained comparison of the contemporary U.S. (1962 (Baker v Carr) – 2010) approach to non-justiciability and the U.K. (2000 (HRA) – 2010) approach to deference. This project aims to take up such comparison and hopes to identify possible areas for cross-fertilisation. 4. One reason why courts have not adopted the alternative approaches to deference suggested by the academia is that there has yet to be a concrete, easily workable alternative for judges (as reflected in Lord Bingham’s recent criticism in Huang v Secretary of State for the Home Department [2007] UKHL 11 of deference as unnecessarily complex). To provide a detailed working manual for each factor guiding the court’s approach would be beyond the scope of this project, but this project aims to lay the foundations for such enterprise by providing an outline of a working guide of deference for judges. The principles proposed in the first part of this project will guide courts generally as to when to defer. These principles will contain a number of variables (e.g. the legislature/executive’s democratic legitimacy, the court’s relative expertise, degree of textual commitment), such that the application of these principles in different contexts and jurisdictions will call for varying degrees of deference. The second part of the project aims, first, to analyse the approach to deference that H.K. courts have taken since the introduction of constitutional rights review by the Bill of Rights Ordinance (BORO) (1991-2010), and second, to apply the findings of the first part to the context of H.K., assessing what the variables of the principles turn out to be in H.K., thus suggesting an approach to judicial deference that is tailored to suit the unique constitutional and political circumstances of H.K.


List of Research Outputs

Chan C.S.W., "The Core Values of Hong Kong's Legal System", Hong Kong Young Leaders Congress 2010, organised by The Hong Kong Special Administrative Region Outstanding Students' Union. 2010.
Chan C.S.W., Legal Pluralism and China's "One Country, Two Systems" Model, 7th Asian Law Institute Conference. 2010.


Researcher : Chan JMM
Project Title:Human rights and the Basic Law bulletin
Investigator(s):Chan JMM, Byrnes AC
Department:Law
Source(s) of Funding:Other Funding Scheme
Start Date:11/1991
Abstract:
To note and comment, on a periodical basis, on the latest developments of the Hong Kong Bill of Rights and the Basic Law.


Project Title:The Hong Kong Public Law Reports
Investigator(s):Chan JMM, Byrnes AC
Department:Law
Source(s) of Funding:Other Funding Scheme
Start Date:05/1992
Abstract:
To compile and edit a series of law reports on various aspects of public law in Hong Kong, and in particular, decisions under the Bill of Rights.


Project Title:Diversity Studies
Investigator(s):Chan JMM
Department:Law
Source(s) of Funding:Seed Funding for Strategic Research Theme
Start Date:05/2009
Completion Date:09/2012
Abstract:
n/a


Project Title:Visiting Research Professors Scheme 2009-10
Investigator(s):Chan JMM
Department:Law
Source(s) of Funding:Visiting Research Professors Scheme
Start Date:09/2009
Abstract:
To support the appointment of Professor Rolf H. Weber as Visiting Research Professor in the Faculty of Law.




Researcher : Chen AHY
Project Title:Third Asian Symposium in Jurisprudence Mediation, Litigation and Justice: Confucian Reflections in a Modern Liberal Society
Investigator(s):Chen AHY
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:10/2000
Abstract:
N/A


Project Title:21st World Congress of the International Association for Social Philosophy and the Philosophy of Law (IVR) Is China Moving Towards the Rule of Law?
Investigator(s):Chen AHY
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:08/2003
Abstract:
N/A


Project Title:The jurisprudence of "one country, two systems"
Investigator(s):Chen AHY
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:11/2004
Abstract:
To conduct a systematic survey of all the cases decided by the Hong Kong courts on the Basic Law as well as the above mentioned interventions of the Standing Committee.


Project Title:22nd World Congress of the International Association for Philosophy of Law and Social Philosophy - Law and Justice in a Global Society Culture, Democratization and Human Rights in Asia
Investigator(s):Chen AHY
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:05/2005
Abstract:
N/A


Project Title:Judicial interpretation and case law in the developing Chinese legal system
Investigator(s):Chen AHY
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:12/2007
Abstract:
Objectives: To investigate the extent to which documents of judicial interpretation and precedent cases constitute a formal or informal source of law in the contemporary Chinese legal system, having regard particularly to developments in the use of “reference cases” (参阅案例) at the national and provincial levels in recent years and the publication on the Internet of court judgments in certain areas of the law. The Chinese legal system is a socialist legal system which shares with continental European legal systems a number of characteristics, including the existence of comprehensive codes of law and the non-recognition of case law as a formal source of law. However, there has existed in China for decades a practice of judicial interpretation (in the form of documents containing general or specific rules issues by the Supreme People’s Court) which does not exist in continental European legal systems. Since 1985, “typical cases” (典型案例) have been published in the Gazette of the Supreme People’s Court. In 2005, the Supreme People’s Court included in the 5-year plan for judicial reform the development of “a system of guiding cases” (案例指导制度). At the provincial level, various experiments have been conducted on the use of “guiding cases” or “reference cases” by courts in their judicial decision-making. For example, in 2003 the Jiangsu Higher People’s Court issued a directive to Jiangsu courts regarding the compilation and use of “reference cases”. Since 2005, all intellectual property court judgments and selected court judgments in foreign-related economic cases have been published on the Internet as directed by the Supreme People’s Court. The proposed research project (in this grant application) attempts to study these developments, assess the extent to which the codified law in China is now supplemented by judicial interpretations and precedent cases, and explore the prospects for the development of case law in the Chinese legal system.


Project Title:Western Constitutionalism in Asia: Transplant and Adaptations
Investigator(s):Chen AHY
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:01/2010
Abstract:
Constitutionalism as a theory and practice first developed in Western Europe and North America in the 17th and 18 centuries. By the end of the 20th century, constitutionalism (at least as an idea) has spread to all continents of the world. Constitutionalism requires the Rule of Law, the separation of powers, checks and balances, judicial review of administrative action, the protection of civil liberties and human rights, and the non-intervention of the military in civil affairs. The successful practice of constitutionalism is usually associated with the establishment of a liberal constitutional democratic state. Yet in the world today, most countries are not long-established or well-established liberal constitutional democratic states. There are fragile postcolonial states, weak democracies, authoritarian states, one-party states, military dictatorships, communist states, façade democracies, quasi-democracies, and so on. All of them have written constitutions, but having a written constitution does not mean being able to practice constitutionalism. The proposed research project focuses on East and Southeast Asia, and examines the extent to which Western ideas and practices of constitutionalism have been transplanted to Asia, and the extent to which they have been modified or adapted in response to local sociopolitical circumstances. It will seek to understand and explain such phenomenon of transplant and adaptation of Western constitutionalism on the soil of East and Southeast Asia, and compare and contrast the relevant situations in different jurisdictions. The countries or jurisdictions selected for study in this project will include at least mainland China, Taiwan, South Korea, Japan. It will also include some of the following countries: Vietnam, the Philippines, Thailand, Malaysia, Singapore and Indonesia.


List of Research Outputs

Chan J.M.M., Chen A.H.Y., Lee A.S.C. and Luk A., In: Albert Chen, Johannes Chan, Alice Lee, Angelina Luk, General Principles Of Hong Kong Law. 香港法概論, Hong Kong, Joint Publishing (HK) Co Ltd, 2009, 2nd ed: 511+ xii.
Chen A.H.Y., "China’s March Towards the Rule of Law" (in Chinese) , TWENTY-FIRST CENTURY. 2009, No. 115: 4-13.
Chen A.H.Y., "Constitutional Developments in Autumn 2009", HONG KONG LAW JOURNAL . 2010, Vol. 39 (2009): 751-766.
Chen A.H.Y., "Emergency Powers, Constitutionalism and Legal Transplants: the East Asian Experience", In: Victor V. Ramraj and Arun K. Thiruvengadam (eds), EMERGENCY POWERS IN ASIA: EXPLORING THE LIMITS OF LEGALITY. Cambridge, Cambridge University Press, 2010, 56-88.
Chen A.H.Y., "Employment Law" (in Chinese) , In: Albert H.Y. Chen, Johannes Chan, Alice Lee and Angelina Luk (eds), GENERAL PRINCIPLES OF HONG KONG LAW. Joint Publishing, 2009, 459-490.
Chen A.H.Y., "International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong", NATIONAL TAIWAN UNIVERSITY LAW REVIEW. 2010, Vo. 4, No. 3: 237-333.
Chen A.H.Y., "International Human Rights Law and Domestic Constitutional Law: The Case of Hong Kong", Third Asian Constitutional Law Forum, National Taiwan University, 25-26 Sept 2009.
Chen A.H.Y., "Reflections on Administrative Law in China: A Hong Kong Perspective", HARVARD CHINA REVIEW . 2010, Vol. 6, No. 1: 66-78.
Chen A.H.Y., "Six Decades of Legal Development in Mainland China: Review and Reflections" (in Chinese), In: School of Law, National Taiwan University (eds), THE THIRD SERIES OF HERBERT MA LECTURES. Taipei, Ma Foundation, 2009, 129-168.
Chen A.H.Y., "Social Movements and the Law in Post-Colonial Hong Kong", In: Khun Eng Kuah-Pearce and Gilles Guiheux (eds), SOCIAL MOVEMENTS IN CHINA AND HONG KONG: THE EXPANSION OF PROTEST SPACE. Amsterdam, Amsterdam University Press, 2009, 65-90.
Chen A.H.Y., "The Basic Law Jurisprudence of the Court of Final Appeal 1997-2009", Conference on the Hong Kong Court of Final Appeal: The Li Court 1997-2010”, Centre for Comparative and Public Law, University of Hong Kong, 5-6 March 2010.
Chen A.H.Y., "The Concept of “Datong” in Chinese Philosophy as an Expression of the Idea of the Common Good", International Conference on the Common Good co-organized by Baptist University of Hong Kong and Notre Dame University, Hong Kong, 29-30 Oct 2009.
Chen A.H.Y., "The Law of Property (Wuquan fa) and the Evolving System of Property Rights in China" , International Conference on Property Law in Mainland China, Taiwan, Hong Kong and Macau organized by the Department of Real Estate, University of Hong Kong, 2-3 August 2009.
Chen A.H.Y., "The Protection of Human Rights Under the Hong Kong Basic Law" (in Chinese), University of Macau, 10 May 2010. 2010.
Chen A.H.Y., "The Reach and Limits of Western Models of Constitutionalism in Asia", International Conference on Constitutionalism in Asia, National University of Singapore, 17-18 Feb 2010.
Chen A.H.Y., "The Rule of Law Under One Country Two Systems: The Case of Hong Kong 1997-2009", Conference on the Rule of Law in Aisa organised by the Mansfield Foundation, National Taiwan University, 10-12 Sept 2009.
Chen A.H.Y., Chan J.M.M., Lee A.S.C. and Luk A., GENERAL PRINCIPLES OF HONG KONG LAW (in Chinese) , Hong Kong, Joint Publishing, 2009, xii + 511 pp.
Chen A.H.Y., HONG KONG’S EXPLORATIONS IN THE RULE OF LAW UNDER ONE COUNTRY TWO SYSTEMS (in Chinese) , Hong Kong, Chung Hwa Bookstore, 2010, xi + 296 pp.
Chen A.H.Y., Member of International Editorial Board, Journal of Comparative Law . 2010.
Chen A.H.Y., THE JOURNEY OF THE RULE OF LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION (in Chinese), Beijing, Chinese Democracy and Legal System Press, 2010, xv + 295 pp.
Chen A.H.Y., “Hong Kong’s Progress in the Rule of Law, Constitutionalism and Democracy: From Colony to Special Administrative Region” (in Chinese), In: School of Law, National Taiwan University (eds) , THE THIRD SERIES OF HERBERT MA LECTURES. Taipei, Ma Foundation, 2009, 171-226.
Chen A.H.Y., “Six Decades of Legal Development in Mainland China: Review and Reflections” (in Chinese) , In: Wong Yiu-chung and Chan Hor-yung (eds), CHINA: SIXTY YEARS IN REVIEW. Hong Kong, Fazhu Press, 2009, 237-273.
Chen A.H.Y., “The Theory, Constitution and Practice of Autonomy: The Case of Hong Kong”, In: Jorge Oliveira and Paulo Cardinal (eds), ONE COUNTRY, TWO SYSTEMS, THREE LEGAL ORDERS – PERSPECTIVES OF EVOLUTION. Berlin, Springer, 2009, 751-767.


Researcher : Cheng PSS
List of Research Outputs

Cheng P.S.S., Book Chapters 30 (Offenses Against Public Justice) and 40-45 (Public Order Offences), In: Editor-in-Chief The Honourable Mr Justice Bokhary PJ Court of Appeal General Editor Mr Clive Grossman SC Parkside Chambers Sentencing Editor Mr I. Grenville Cross SC, Archbold 2011. Hong Kong, Sweet & Maxwell, 2010, N/A: Not yet known.
Cheng P.S.S., Introduction to the Hong Kong legal system (2 lectures by me, 2 lectures by Richard Cullen), Santa Clara program at HKU. 2010.
Cheng P.S.S., Reporter, In: Behroze Jokhi, Hong Kong Law Reports and Digest. Hong Kong, Sweet & Maxwell, 2009.
Wan M.M.H., Veitch T.S. and Cheng P.S.S., Chair of session "The Legal Case and Fiction", HKU Law and Literature Colloquium on "The Legal Case: Interdisciplinary Perspectives". 2010.


Researcher : Cheng TKH
Project Title:Research Output Prize
Investigator(s):Cheng TKH
Department:Law
Source(s) of Funding:Research Output Prize (in Faculty)
Start Date:10/2008
Abstract:
To identify and recognize the best research outputs in different faculties.


Project Title:King's/HKU Fellowship Awards 2009-10
Investigator(s):Cheng TKH
Department:Law
Source(s) of Funding:King's/HKU Fellowship Awards
Start Date:09/2009
Abstract:
To visit the School of Law in King's College London to conduct research on the limitations of convergence of competition law.


Project Title:Competition and Environmental Sustainability in Hong Kongs Energy Market
Investigator(s):Cheng TKH, Lin JSW
Department:Law
Source(s) of Funding:Public Policy Research
Start Date:09/2009
Abstract:
1) To evaluate the performance of the energy sector against the policy objectives that Hong Kong’s energy needs are met safely, efficiently and at reasonable prices, and that the environmental impact of energy production is minimized. 2) To evaluate proposals for the introduction of market competition in the power sector with the aim of identifying the most appropriate implementing policies and measures for Hong Kong. 3) To identify and analyze the competition and environmental issues that may arise from the introduction of market competition in Hong Kong’s power sector. 4) To acquire the latest knowledge of the laws, policies and experience of other countries which have undertaken electricity market reforms, such as the United Kingdom, United States, Singapore and China. 5) To formulate recommendations for reforming or developing laws and policies to regulate the environmental and competition issues identified by this research, having regard for the need to balance environmental and economic concerns, energy security, the experience of other jurisdictions, and Hong Kong’s unique geo-political circumstances.


List of Research Outputs

Cheng T.K.H., Competition Law Enforcement in the Television Broadcasting Sector in Hong Kong: Past Cases and Recent Controversies , In: Jose Rivaz, World Competition. Kluwer Law International, 2010, 33(2): 317-43.


Researcher : Cheung ASY
Project Title:Outstanding Young Researcher Award 2007-2008
Investigator(s):Cheung ASY
Department:Law
Source(s) of Funding:Outstanding Young Researcher Award
Start Date:10/2008
Abstract:
The Awards are intended to recognize, reward, and promote exceptional research accomplishments of academic and research staff.


Project Title:HKU Overseas Fellowship Awards 2009-10
Investigator(s):Cheung ASY
Department:Law
Source(s) of Funding:HKU Overseas Fellowship Awards
Start Date:09/2009
Abstract:
To visit Birkbeck School of Law in the University of London, UK to conduct research with Professor Costas Douzinas on legal theory, and to develop intellectual exchange with international scholars for the proposed research project on "Privacy and its Discontents: The Exploitation of Shame and Fear and its Regulation in the Global E-Village".


Project Title:The 5th European China Law Studies Annual Conference Blogging and Blocking in China Cyberspace – A Study of Virtual Communities of Judges and Lawyers
Investigator(s):Cheung ASY
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:06/2010
Completion Date:06/2010
Abstract:
N/A


List of Research Outputs

Cheung A.S.Y., Blogging and Blocking in China Cyberspace – A Study of Virtual Communities of Judges and Lawyers, European China Law Studies - 5th Annual Conference. Denmark, Danish Institute for Human Rights, 2010.
Cheung A.S.Y. and Pun K.H., Comparative Study on the Liability for Trade Mark Infringement of Online Auction Providers , In: Hugh Brett, European Intellectual Property Review. United Kingdom, Sweet and Maxwell, 2009, 31:11: 559-567.
Cheung A.S.Y., Legal Voices behind China’s Great Firewall – A Study of Chinese Judges’ and Lawyers’ Blogs , Oxford Internet Institute, Oxford University. United Kingdom, 2010.
Cheung A.S.Y., Member of Editorial Board, International Journal of Law and Information Technology. United Kingdom, Oxford University Press, 2010.
Cheung A.S.Y., Rethinking Public Privacy in the Internet Era: A Study of Virtual Persecution by the Internet Crowd, In: Eric Barendt, The Journal of Media Law. United Kingdom, Hart, 2009, 1:2: 191-217.
Cheung A.S.Y., The Management of Gossips on the Internet: An Exploration of the Interrelationship between Reputation, Privacy, and Free Speech , Institute of Advanced Legal Studies, London. United Kingdom, 2010.
Cheung A.S.Y., Tort Law, 侵權法, In: Albert HY Chen; Johannes MM Chan; Alice Lee; Angelina MW Man, Hong Kong Law. 香港法概論, Hong Kong, Joint Publishing, 2009, 241-274.


Researcher : Choy PDW
List of Research Outputs

Choy P.D.W., The Shi Tao Case: its development in Mainland China, Journal of Contemporary China. 2009, 18(61): 517-539.
Choy P.D.W., 中港兩地囚犯移交問題初探, In: 趙秉志, 中國區際刑事司法協助新探, 北京, 中國人民公安大學出版社, 2010, 345-360.


Researcher : Da Roza AM
List of Research Outputs

Arner D.W., Hsu B.F.C. and Da Roza A.M., Financial Regulation in Hong Kong: Time for a Change, In: Alexander Loke, Asian Journal of Comparative Law. Berkeley, California, National University of Singapore, 2010, 5: 1-48.


Researcher : Emerton RG
Project Title:Trafficking in Persons Conference Trafficking of Women into Hong Kong for Purposes of Prostitution: A Critique of Law and Policy Responses
Investigator(s):Emerton RG
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:06/2003
Abstract:
N/A




Researcher : Fast S
List of Research Outputs

Ming Sing .., Lucy Cummings .. and Fast S., In: Sharron Fast, Constitutional Reform for Good Governance in the HKSAR. CCPL, 2010, 124.


Researcher : Fry JD
Project Title:Research Output Prize
Investigator(s):Fry JD
Department:Law
Source(s) of Funding:Research Output Prize (in Faculty)
Start Date:12/2009
Abstract:
To identify and recognize the best research outputs in different faculties.


List of Research Outputs

Fry J.D., Ambiguity in “Arising” Phrases: Caution for Drafters of Intended Narrow Arbitration Clauses (co-authored with Barry H. Garfinkel), In: Thomas E. Carbonneau and Jeanette A. Jaeggi , AAA Handbook on Commercial Arbitration (2nd edition) . American Arbitration Association, 2010, 127-134.
Fry J.D., External Editor, In: Editor-in-Chief: Alexander Lok, Asian Comparative Law Journal. 2010.
Fry J.D., External Reviewer, In: Editors-in-Chief: Laura Bellamy, Sara Dehm & Jeremy Leung , Melbourne Journal of International Law. 2010.
Fry J.D., External Reviewer, In: Editor-in-Chief: Garrett Ordower, University of Chicago Law Review. 2010.
Fry J.D., Gas Smells Awful: UN Forces, Riot-Control Agents and the Chemical Weapons Convention (lead article), Michigan Journal of International Law. 2010, 31: 475-559.
Fry J.D., RGC GRF Funded Project (Code 744310H) - HK$139,998 for 24 months, RGC - Protect entitled "Cleaved International Law: Complementarity and Conflict Between Branches of Public International Law". 2010.
Fry J.D., Research Output Prize, HKU - HK$120,000. 2009.
Fry J.D., Sovereign Equality under the Chemical Weapons Convention: Doughnuts over Holes, Journal of Conflict and Security Law . Oxford University Press, 2010, 15: 45-63.
Fry J.D., The Swindle of Fragmented Criminalization: Continuing Piecemeal Responses to International Terrorism and Al Qaeda (lead article), New England Law Review. 2009, 43: 377-436.
Fry J.D., Universitas 21 Fellowship, HKU - Visit McGill University, grant of HK$50,000. 2010.


Researcher : Fu H
Project Title:The Limits of Civil Justice Reform in China
Investigator(s):Fu H, Choy PDW, Cullen RW
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:05/2008
Abstract:
1. To document the development of civil justice reform from 1978 to 2008. 2. To understand the role played by judges at the higher level courts in civil justice reform. 3. To enhance our detailed understanding of the way in which legal transformation, in general, and judicial reform in particular are each shaped, and shaping, political reform in China. 4. To understand the limits and potential of courts in an authoritarian state.


Project Title:Civil Society Development in China: The Pivotal Role of Public Interest Lawyering
Investigator(s):Fu H, Cullen RW
Department:Law
Source(s) of Funding:General Research Fund (GRF)
Start Date:11/2008
Abstract:
1) To document the development of public interest lawyering in China. 2) To provide a comprehensive review of the way in which reform of the judicial and practicing arms of the legal profession are interacting. 3) To enhance our detailed understanding of the way in which legal transformation, in general, and the development of public interest lawyering in particular are each significantly reshaping civil society in China. 4) To understand the limit and potential of rights in an authoritarian state.


List of Research Outputs

Fu H., Book Review: China's Legal Soul., Hong Kong Law Journal. 2009, 39(2): 561-563.
Fu H., Book Review: The Politics Of Cross-border Crime In Greater China, The China Quarterly. SOAS, 2010, 201.


Researcher : Fung KH
List of Research Outputs

Chow W.S. and Fung K.H., Halsbury's Laws of Hong Kong, Vol 24: Taxation and Revenue (2009 Reissue), Hong Kong, LexisNexis, 2009, 480.


Researcher : Gao HS
List of Research Outputs

Gao H.S. and Lim C.L., Saving the WTO from the Risk of Irrelevance, In: Debra P. Steger, REDESIGNING THE WORLD TRADE ORGANIZATION FOR THE 21ST CENTURY. Waterloo, Laurier, 2009, 389-416.


Researcher : Ghai YP
Project Title:Ethnic conflict in Asia
Investigator(s):Ghai YP
Department:Law
Source(s) of Funding:Other Funding Scheme
Start Date:06/1992
Abstract:
An analysis of research and evaluation of policy measures.


Project Title:Constitutional development in Fiji
Investigator(s):Ghai YP
Department:Law
Source(s) of Funding:Other Funding Scheme
Start Date:05/1997
Abstract:
To examine the interaction between ethnicity and constitutional development and to analyze the new constitutional arrangements adopted in August 1997.


Project Title:Citizens' 1999 Elections Audit The Recommendations on the Electoral System: The Contribution of the Fiji Constitutional Review
Investigator(s):Ghai YP
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:07/1999
Abstract:
N/A


List of Research Outputs

Ghai Y.P., Woodman S. and Loper K.A., Is There Space for "Genuine Autonomy" for Tibetan Areas in the PRC’s System of Nationalities Regional Autonomy?, International Journal on Minority and Group Rights. 2010, 17: 137-186.


Researcher : Glofcheski RA
Project Title:Toward a Family-friendly Labour Law Regime in Hong Kong
Investigator(s):Glofcheski RA
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:11/2007
Abstract:
The compatibility of family and work life is an issue that cannot be overlooked in any society, no less so in those societies, such as Hong Kong’s, which place great importance on maintaining a competitive and growing economy. This is so because a successful economy requires population growth from within, not just from open immigration policies. Moreover, a happy and healthy workforce is a productive workforce, and contributes to economic growth. Not long ago the Chief Executive, in his then role as Chief Secretary, was widely quoted for his concerns about diminishing family-size and slowing population growth in Hong Kong, because in his view these were problems impeding Hong Kong’s future economic competitiveness and potential. Yet little has been done in the way of new policy or legislation to address the problem. Others have remarked how there is little in Hong Kong’s current labour regime to encourage child birth and the growth of families. The issue of a family-friendly labour environment is not peculiar to Hong Kong, but it is of immediate relevance in Hong Kong where family-friendly labour laws are not as advanced as in some other developed societies, and where government has long pursued a laissez-faire labour policy in the belief that a relatively unregulated labour market would maximize economic growth. The view is widely held amongst certain segments of the entrepreneurial classes that Hong Kong’s competitiveness is dependent on a relatively unregulated labour law regime. Yet the truth of this observation has never been tested. Certainly it is not borne out in the many successful European economies where there is in place a more developed system of family-friendly laws. The issue under consideration, although most relevant to women, who require protection from pregnancy and gender discrimination, is also relevant to men, in an era when fathers are more inclined to participate in family life. In fact, family-friendly labour laws are relevant to all workers. They help employees to balance work and family responsibilities (OECD Employment Outlook 2001), responsibilites that exist in relation to dependent children and other members of the immediate family in need of care and support (ILO Workers with Family Responsibilities Convention 1981, Art 1). Hours of work laws, job security laws and statutory entitlement to maternity, paternity, parental and other leave may have a role to play. The objective of this research is to canvass and assess Hong Kong’s current labour law regime for its family-friendly characteristics. This will involve an assessment of existing standards as contained in statutory provisions (of which there are many) and in the court decisions in which those standards have been considered and applied. Legislation is particularly important in Hong Kong where trade unions are few and are generally weak and have proved unable to achieve the rights and entitlements of their counterparts elsewhere. This study will also involve a comparison of local standards with those in selected relevant jurisdictions including at least one from the region, and with the standards propounded through the conventions and recommendations of the International Labour Organization. A review of scholarly literature will be the starting point, to achieve an understanding of what is being done elsewhere and how family-friendly laws can contribute to health in society and in the economy. An attempt will be made to objectively identify the practice in selected industries and professions in Hong Kong to achieve an understanding of what employers currently do to accommodate family life for employees. Recommendations will be made to government policy-makers to assist in the formulating of appropriate labour policy and laws.


List of Research Outputs

Glofcheski R.A., ILO Standards and Education in Hong Kong, Asian Society of Labour Law. 2009.
Glofcheski R.A., The Implications of and Possible Responses to the Mandated Use of Outcomes-Based Learning in a Law School – the case of the University of Hong Kong Faculty of Law, Hawaii International Conference on Education. 2010.
Glofcheski R.A., The Status and Protection of Migrant Workers in Hong Kong, Law and Practice of the Protection of Foreign Workers in Asia. Taipei, 2009, 55-78.
Glofcheski R.A., Tort Law in Hong Kong's Court of Final Appeal, University of Hong Kong Centre for Comparative and Public Law. 2010.
Glofcheski R.A., University Distinguished Teaching Award, University of Hong Kong. 2010.
Glofcheski R.A., “Job Security and Entitlements within Hong Kong’s Maternity Protection Legislation” (2009) 25 International Journal of Comparative Labour Law and Industrial Relations 327-345 (with Ho Yan Leung); , International Journal of Comparative Labour Law and Industrial Relations. kluwer, 2009, 25: 327-345.


Researcher : Goo SH
List of Research Outputs

Goo S.H., , In: General Editor: Professor Robert Merkin, Colinvaux’s Insurance Law in Hong Kong . Hong Kong, Sweet & Maxwell Asia, 2009.
Goo S.H., Corporate Governance in China: from state planning to market economy, Distinguished lectures series in Chuo University on 14 January 2010. 2010.
Goo S.H., Directors' Duties and Human Rights, Expert Consultation on Corporate Law and Human Rights: Opportunities and Challenges of using Corporate Law to Encourage Corporations to Respect Human Rights, held in Support of the Corporate Law Tools Project of the UN Special Representative (Professor John Ruggie of Harvard University) of the Secretary General of UN on Business and Human Rights, at Osgoode Hall Law School of York University, Toronto, November 5-6, 2009.. 2009.
Goo S.H., Internal Control System of Listed Companies in China, Staff Seminar. 2010.
Goo S.H. and Lee A.S.C., Land Law in Hong Kong (Practitioners' edition with Foreword by Lam J). Hong Kong, LexisNexis, 2010, lxxxv + 899.
Goo S.H., Member of Editorial Board. Other members include Roger Coterrell (London U), Susan Bright (Oxford U), Kevin Gray (Cambridge U), Joseph Singer (Harvard U), Gregory Alexander (Cornell U), Susan French (UCLA), and Honourable Justice Margaret Stone, Federal Court of Australia), Property Law Review. 2010.
Goo S.H., Multiple derivative action and common law derivative action revisited: a tale of two jurisdictions , In: Professor Eilis Ferran, Professor John Armour and Professor Jesper Lau Hensen, Journal of Corporate Law Studies. Oxford, Hart Publishing Ltd, 2010, 10: 255-264.
Goo S.H., Regulation of sale of off-the-plan property , In: Dr Martin Dixon, The Conveyancer and Property Lawyer. London, Sweet & Maxwell, 2010, 74: 129-145.
Goo S.H., The Granting of Land by the HKSAR Government: Should Government resume regular public land sale or should the current Application List System continue?, In: University of Macau and Land, Public Works, and Transport Bureau, Macau, International Conference on the New Trends of Land Law Reform. 2009.
Hong X. and Goo S.H., Derivative action in China: Problems and Prospects, In: Robert Merkin, Journal of Business Law. London, Sweet & Maxwell, 2009, 376-395.
Lee A.S.C. and Goo S.H., Land Law in Hong Kong (3rd edition). Hong Kong, LexisNexis, 2009, xci +742 pp.


Researcher : Gu W
Project Title:The Regulation of Arbitration Agreements in China: Practical Constraints and Prospective Reforms for Chinese Arbitration
Investigator(s):Gu W
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:02/2010
Abstract:
Disputes are an inevitable concomitant of international trade and cross-border investment. As the world has become more complex, countries are judged by the mechanisms that they put in place to resolve such disputes. Litigating cross-border business disputes in national courts poses various problems and uncertainties given the potential involvement of several different legal systems. Arbitration is today regarded as an indispensible tool designed to afford parties engaged in international trade and investment the requisite degree of certainty and confidence they rightly demand for dispute resolution in the international transactions. Development of international arbitration norms is largely fueled by the expectation of the global business community, and under heavy influence of the modernization and harmonization wave taken by UNCITRAL Model Law on International Commercial Arbitration of 1985 (ML) and International Chamber of Commerce Arbitration Rules of 1999 (ICC Rules). Historically, Chinese arbitration was scarred by the heavy-hand of governments as part of the administrative governance network. As China has clearly indicated its intention to move towards deepening marketization and globalization, provisions have to be made to ensure that Chinese arbitration system is consistent with international arbitration standards. A corresponding wave of reform was launched in 1995, when the first Arbitration Law (AL) was implemented beginning the trend of voluntary arbitration in China to facilitate economic development and attract foreign investment. Nevertheless, a system of arbitration rooted in a developing country which is undergoing social, political and economic transformation such as China remains plagued by many pervasive shortcomings: inadequate recognition of parties’ arbitral wishes, lack of competence and professionalism of arbitrators, arbitration rules tainted by local interests, and finally, favoritism and protectionism in outcome of arbitration. As the pioneer foreign expert involved in studying the modern arbitration system in China, Professor Jerome A. Cohen at the New York University Law School, sharply points out that the most contentious issue in the rising use of arbitration in China is the distorted regulation of arbitration agreements and hence, limited party autonomy and tribunal autonomy in Chinese arbitration, which opens the door for various improper interferences with arbitration. Arbitration agreements are traditionally considered as the threshold of arbitration processes where the parties show their willingness to arbitrate and arbitrators derive their jurisdiction from. To date, these agreements are more aptly identified as the core of an arbitration system because the regulation of them reflects the extent of party autonomy and tribunal autonomy. The international trend has been to provide parties with more freedom and wider scope in arbitration agreements so as to encourage the use of arbitration in resolving business disputes. Parties are free to stipulate in their arbitration agreements almost any matters such as disputes to be arbitrated, specifications on the arbitral procedure, formation and power of the tribunal. The definition of arbitration agreements in China is not much of an issue in the 1995 AL, but the regulation of them has been very distinctive. The scope of arbitral matters that may be included in the arbitration agreements in China is much more restricted. For example, the procedural details are controlled by rules of Chinese arbitration commission which parties are not allowed to deviate from; further, parties are not allowed to choose ad hoc arbitration. Other matters relating to arbitration agreements which have been well practised elsewhere however become sensitive issues in China such as the formation, jurisdiction and power of the arbitral tribunal. In China, parties are required to specify a definite Chinese arbitration commission in their agreements to arbitrate. The commission chosen will then determine the formation of the tribunal and procedure of arbitration. It thus raises the issue of quality and integrity of Chinese arbitration commissions. Another distinctive feature concerns the process of ruling on the validity of arbitration agreements and hence arbitral jurisdiction. It is the arbitration commission or people’s court, instead of the arbitral tribunal, that makes the ruling. Additionally, if competing jurisdiction arises between a court and an arbitration commission, it is the people’s court that prevails over the arbitration commission on jurisdiction determination. On the one hand, the Chinese way of dividing arbitral power between the arbitration commission and arbitral tribunal is reflected. In this regard, tribunals seem rather weak whilst the role of arbitration commissions has been prominent. On the other hand, the prevalent judicial power over arbitration is reflected. It therefore raises the issue of imbalanced power division among the three role-players in the Chinese arbitration system. The study on the regulation of arbitration agreements thus reflects the delicate relationship among the three key role-players in the Chinese arbitration system – the arbitration commission, arbitral tribunal and people’s court; the quality and integrity of the respective role-player; and how party autonomy and tribunal autonomy are to be affected by this tri-angular relationship. The key issues to be looked into are: - Validity scope of arbitration agreements; - Formation and competence of arbitral tribunals under arbitration agreements; - Arbitral power division between arbitration commissions and arbitral tribunals; and - Role of people’s courts and the judicial attitude towards arbitration. The issues above listed represent some of the thorniest problems of the 1995 AL and the current and most important issues facing arbitration in China today. Moreover, these issues exemplify the distinctive Chinese characteristics of arbitration law and practice, whilst reflecting to a more limited extent of international standards with respect to party autonomy and tribunal autonomy. On the basis of the foregoing, this research project has two primary objectives. First, it is to find out the practical constraints of the Chinese arbitration system by studying the evolving regulations on arbitration agreements and their practical implementations; what they are and why they constitute hidden obstacles to the functioning and development of the three arbitration role-players in China. Secondly, it is to propose some possible reforms for the Chinese arbitration regime by borrowing the experience of international arbitration norms for legislative reform to AL on the one hand, and by addressing the practical constraints identified for specific reforms of the role-players on the other hand.


List of Research Outputs

Gu W., Alternative Dispute Resolution in Hong Kong, Remin University Law School, Beijing. Beijing, China, 2010.
Gu W., Alternative Dispute Resolution of Financial Products: The Emerging Trend, International Conference on Financial Innovation and Judicial Review (Co-organized by Supreme People's Court and Shanghai Securities Exchange, Shanghai, China). Shanghai, China, 2010.
Gu W., China's Arbitration: Restricted Reform, The Development of the Chinese Legal System: Change and Challenge (Chinese Law Center Inaugural Conference, HKU, Hong Kong). Hong Kong, 2009.
Gu W., Civil Justice Reform in Hong Kong: Challenges and Opportunities to the Legal Profession, Journal of the Law of Civil Procedure. Seoul, South Korea, Korean Association of the Law of Civil Procedure, 2009, 13: 305-340.
Gu W., Judicial Review of Arbitral Awards in Hong Kong and the Mainland: Lessons and Convergence between Two Jurisdictions in China, Jurists' Review (Faxuejia). Beijing, Renmin University Press, 2009, 115: 108-120.
Gu W., Judicial Review over Arbitration in China: Assessing the Extent of the Latest Pro-Arbitration Move by the Supreme People's Court in the People's Republic of China, Wisconsin International Law Journal. Wisconsin, USA, University of Wisconsin, 2009, 27: 221-269.
Gu W., Legal Education Development in Hong Kong, Annual Cross-Strait Conference (Sinica, Taipei). Taipei, 2010.
Gu W., Mediation under the Civil Justice Reform in Hong Kong, International Conference on Mediation in Economic Transition (Southwestern University of Political Science & Law, Chongqing, China). Chongqing, China, 2010.
Gu W., Public Policy under New York Convention: Regional Development and Cooperation in Greater China, 《纽约公约》下的公共政策解读：两岸四地的区域性发展与合作, Journal of Comparative Law. 比较法研究, Beijing, China, Chinese University of Political Science and Law, 2010, 107: 90-99.
Gu W., Public Policy under New York Convention, Annual Cross-Strait Conference (University of Macau, Macau). Macau, 2009.
Gu W., Resolving Business Disputes through Cross-border Arbitration, 跨境商事争议的仲裁解决, In: Han Jian, Commercial Arbitration Review (Vol. 2). 商事仲裁评论（第2 辑）, Beijing, China, University of International Business and Economic Press, 2009, 2: 24-51.
Gu W., Securities Dispute Resolution in China, HKU-PKU Conference: Constitutional Reform and Financial Regulation (HKU, Hong Kong). Hong Kong, 2009.
Gu W., The Changing Landscape of Arbitration Agreements in China, New York International Law Review. New York, USA, New York State Bar Association with St. John's University, 2009, 23: 1-56.
Zhang X.C. and Gu W., Legal Development and Interaction in Greater China. 《两岸四地的法律发展与互动》, Hong Kong, China Review Academic Press, 2009, 388pp.


Researcher : Ho LKS
Project Title:Traditional rights of the New Territories indigenuous inhabitants and the Bill of Rights
Investigator(s):Ho LKS, Chan JMM
Department:Law
Source(s) of Funding:Other Funding Scheme
Start Date:06/1993
Abstract:
To investigate the nature and scope of the succession right of the New Territories indigenuous inhabitants to Tsos and Tongs and the compatibility of the preservation of these rights with the Bill of Rights.


Project Title:Trusting Trustees: A Comparative Study of the Legal Protection of Trust Assets in China, Asia, and the West
Investigator(s):Ho LKS, Lee RWC
Department:Law
Source(s) of Funding:General Research Fund (GRF)
Start Date:09/2007
Abstract:
To thoroughly examine the Chinese laws, regulations, and operational experiences pertaining to the protection of the segregated trust funds from trustee incompetence, disloyalty, or insolvency; to conduct a comprehensive comparison of similar legal rules in Taiwan, Japan, England, Canada, Australia, Hong Kong, Italy, and France; to identify and assess factors necessary for the efficacious protection of a segregated trust fund in China, by drawing upon international experiences and bearing in mind conditions of the Chinese legal, regulatory, financial, and socio-political systems; to apply the research findings and formulate recommendations for reforming the law (both Trusts and Trust-related laws and regulations) and institutional framework for the operation of trusts in China


List of Research Outputs

Ho L.K.S., China: Trust Law And Practice Since 2001, Trust and Trustees. London / New York, Oxford University Press, 2010, 16: 124-127.
Ho L.K.S., Good Faith And Fiduciary Duty In English Law, Journal Of Equity. Sydney, LexisNexis Butterworths, 2010, 4: 19-43.
Ho L.K.S., Review of Trustee Ordinance: Vision and Revision, Hong Kong, 2009.
Ho L.K.S., The Nature of the Beneficiaries' Rights in a Chinese Trust, Amakasu Charitable Trust Lecture. Tokyo, Japan, 2009.
Ho L.K.S., Trust Practices And Trust Industry In China, Trust. 信託 (Japanese), Tokyo, Japan, Trust Association of Japan, 2010, 242: 28-40.
Ho L.K.S., Trust practice and Trust industry in China, Amakasu Charitable Trust Lecture, Tokyo, Japan. Tokyo, Japan, 2009.
Ho L.K.S. and Luk A., Trusts and Succession, 信託法與繼承法, In: Albert Chen et al., General Principles Of Hong Kong Law. 香港法概論, Hong Kong, San Luen Publishing House, 2009, 333-375.
Ho L.K.S., Undue influence: a Hong Kong perspective, Hochelaga Law Seminar 2009. Hong Kong.
Ho L.K.S., 王永慶繼承人爭產糾紛的反思－－論受益人的信託知情權, 兩岸四地財產法研討會, Jiayi, Taiwan, 2010.


Researcher : Hong X
List of Research Outputs

Hong X. and Goo S.H., Derivative action in China: Problems and Prospects, In: Robert Merkin, Journal of Business Law. London, Sweet & Maxwell, 2009, 376-395.


Researcher : Jackson MI
Project Title:Regulating Covert Surveillance in an Age of Privacy
Investigator(s):Jackson MI
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:09/2005
Abstract:
Recent judicial decisions in HK have determined that covert surveillance operations conducted by HK's law enforcement agencies, including the ICAC, may in certain circumstances be illegal because they involve a breach of the constitutionally protected right to privacy enshrined in the Basic Law of HK and are not otherwise permitted and authorised by law. There is an urgent need for the Government of HKSAR to address this serious shortfall in law enforcement operations by proposing an appropriate regulatory system within which covert surveillance may be authorised without derogating disproportionately from respect for and compliance with constitutionally protected rights of privacy. Privacy rights, including their protection and enforcement, have been under consideration in HK for some time. In 1999 the Law Reform Commission of HK established a Sub-committee on Privacy, but to date it has not given formal consideration to the interrelationship between privacy rights and covert surveillance. This issue is now likely to fall within its remit for urgent consideration. Protecting privacy rights has also been one of the central considerations in the development of HK's cybercrime and e-commerce legislation. This project will examine covert surveillance regulatory systems in overseas jurisdictions from a theoretical and practical perspective with a view to formulating an appropriate regulatory model for adoption in HK. Of particular concern will be the control mechanisms designed to ensure compliance with and protection of privacy and other fundamental rights, including legal professional privilege.




Researcher : Johnstone S
List of Research Outputs

Johnstone S. and Arner D.W., Study Manual for Paper 6 - Regulating Asset Management of the Licensing Examination for Securities and Futures Intermediaries. Hong Kong, Hong Kong Securities Institute, 2009, 1-190.


Researcher : Jones OR
List of Research Outputs

Jones O.R., "Noxious Antiquity: Life in Hong Kong Without the Application of English Law Ordinance", In: Rick Glofcheski, Hong Kong Law Journal. Hong Kong, Thomson Reuters, 2009, Vol 39: pp 793-834.
Jones O.R., A Worthy Predecessor? The Privy Council On Appeal From Hong Kong 1853-1997, In: Yash Ghai, Simon Young, Hong Kong’s Court Of Final Appeal: The Andrew Li Court 1997-2010. Hong Kong, 27 pp.
Jones O.R., After the Decennial: the New Doctrine of Precedent in the Hong Kong Court of Appeal, In: Jessica Cheng, Malcolm Merry, Law Lectures for Practitioners 2009. Hong Kong, 57 pp.
Jones O.R. and Young S.N.M., Application by Centre for Comparative and Public Law to be made Amicus Curiae in litigation before Hong Kong Court of Appeal, In: Rogers VP, Hong Kong Court of Appeal. 2009.
Jones O.R., Seminar on the Constitutional Authority of the Legislative Council: The LegCo Powers Case, In: Simon Young, Centre for Comparative and Public Law. 2009.


Researcher : Kapai P
Project Title:Harnessing a Framework for Effective Remedies: A Comparative Analysis of theLegal Responses to Domestic Violence
Investigator(s):Paryani PK
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:01/2009
Abstract:
The HKSAR Government has recently amended the Domestic Violence Ordinance (DVO) in an attempt to remedy some of the problems faced by the victim community looking for protection against domestic violence under Hong Kong's legal system. Although the passage of the Domestic Violence (Amendment) Ordinance is a notable step in the right direction, various recommendations and proposals relating to the proposed reform of the DVO were not incorporated into the revised legislation. As such, the legislative regime remains inadequate and far behind our regional and former colonial partners. With a view to ensuring the effectiveness of the law in responding to domestic abuse, the continued appraisal of the law's response to domestic violence is critical in order to make calculated improvements and to move forward in the right direction. One way of doing this is to compare Hong Kong's progress as against regional counterparts that are comparable models for emulation. This project considers legal responses and approaches to domestic violence in Singapore and the United Kingdom and compares these approaches with the recent developments in Hong Kong. The study will consider and examine current legislation and case law in these jurisdictions in order to place Hong Kong in comparison to these countries to determine where Hong Kong stands on a spectrum of reform in domestic violence laws. The two countries are chosen because Singapore is socially and demographically similar to Hong Kong in key respects and therefore, can serve as a very useful comparative unit. The United Kingdom as a comparative unit is critical to determine the progress of Hong Kong and Singapore in many respects given that much of both, Hong Kong's and Singapore's legislation and common law developments have been modelled closely on their UK counterpart legislation and case law and continue to do so in many respects. Thus, the UK would serve as a very important comparator in this regard to gauge HK and Singapore's embrace of progressive approaches towards addressing domestic violence. In the proposed study, the term "legal responses" is defined to include the studying of relevant statutes, common law judgments and judicial attitudes with respect to use of the relevant legislation and case law as reflected in the judgments. Furthermore, as the concept of domestic violence is not legally defined under the law in Hong Kong, the scope of domestic violence in relation to Hong Kong includes the study of relationships between married/common law couple; parents and children; elderly and other family members; between siblings but excludes domestic helpers. Violence refers to charges of “assault”, “murder”, “manslaughter”, “provocation”, “threats”, “rape”, “criminal harassment”, “criminal intimidation” and “grievous bodily harm” covered under the Crimes Ordinance (Cap 200) and the Offences Against the Person Ordinance (Cap 212) and applications for injunctions under DVO (Cap189) The objectives of the study are to - 1. Examine the civil and criminal remedies currently available to protect victims from domestic violence in the three jurisdictions; 2. To evaluate the 'responsiveness' and effectiveness of these remedies; and 3. To assess indicators of success, i.e. by isolating factors (to the extent possible) which assist in achieving a reduced rate of occurrece in domestic violence.


Project Title:3rd Global Conference on Multiculturalism Belonging and Conflict The Doctrine of Substantive Equality and the Democratisation of Diversities
Investigator(s):Paryani PK
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:09/2009
Completion Date:09/2009
Abstract:
N/A


Project Title:Enhancing Legal and Policy Measures to Combat Domestic Violence Against Immigrant and Ethnic Minority Women in Hong Kong SAR
Investigator(s):Paryani PK
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:06/2010
Abstract:
Initiatives for eliminating violence against women took center stage with the historic passing of a convention dedicated to the plight of women in the form of the Convention for the Elimination of All forms of Discrimination Against Women ("CEDAW"), which came into force in 1979 and has now been acceded to by 186 states, inlcuding HKSAR. In furtherance of this international commitment, HKSAR has enacted domestic legislation to implement CEDAW at the local level in the form of various anti-discrimination legilsation (Sex Discrimination Ordinance and the Family Status Discrimination Ordinance) and the Domestic Violence Ordinance. Article 2(1) of CEDAW recognises and condemns violence against women as a rampant form of perpetual discrimination against women which obstructs the protection of the fundamental freedoms of women through the denial of equal rights, freedoms, and security. State parties to CEDAW are required to address violence against women by offering protection that is effective. The Secretary General of the United Nations has declared that under international law, states are required to exercise due diligence in their responsibility to protect women against acts of violence, to address such violence where it does occur and to provide a remedy, including against non-state actors when a state has failed in this duty. Numerous studies in other countries have revealed that immigrant and particularly ethnic minority women face various obstacles when suffering domestic violence in their non-native countries. They lack awareness of the systems in place to protect them but even when made aware of the services available, they are often unwilling or unable to engage these services for cultural, financial or practical reasons. HK's ethnic minorities constitute 5% of its population. Their plight has largely been ignored in Hong Kong mainly due to the lack of culturally-sensitive awareness of different family needs and dynamics in cultural contexts. Language, socio-economic barriers and social exclusion have exacerbated this gap. Approximately 46% of the marriages in HK entail the marriage of HK men to Mainland Chinese women. 50% the women who seek assistance at shelters in HK are reported to be Mainland women. The group has been known to suffer from discrimination in HK as have ethnic minority women. No refuge centers cater to their needs mainly due to cultural barriers, leaving them no option but to stay with their abusers. This is particularly so when they fear that they risk losing their children or being repatriated to their home countries. They lack awareness of their rights and this, too often results in their making poor choices for themselves. In the circumstances, there is virtually no information on the upkeep of statistics of domestic abuse reports by ethnicity or social grouping. In light of this critical gap, it is vital that we assess the needs of these women, discern the obstacles users face and map out adequate and effective responses. A study entitled "Inquiry as action: User Led Rsearch on State Policy and Practice Towards Immigrant Women Facing Domestic Violence in the UK" has recently been concluded in the UK in 2008 (Anitha S, Chopra P et al, 2008 "Forgotten Women: Domestic Violence, Poverty and South Asian Women with No Recourse to Public Funds," available at http://www.oxfam.org.uk/resources/ukpoverty/downloads/forgottenwomen.pdf). The study revealed the obstacles to service use in the event of domestic violence in the UK on account of lack of recourse to public funds once victims left abusive relationships and fear of repatriation to their home countries on loss of sponsorship. The study resulted in training and support by a multi-agency steering group and a change in policy and practice at the local and national level. As this and numerous other studies have shown, immigrant women are at a unique risk for violence in these circumstances. See also, Southhall Black Sisters Briefing to amend Domestic Violence, Crime and Victims Bill (2004) UK and for similar studies in America, see, West, Kantor & Jasinski, "Sociodemographic Predictors and Cultural Barriers to Help-Seeking Behaviour by Latina and Anglo American Battered Women", Yoshioka, DiNoia & Ullah, "Attitudes toward Marital Violence: An Examination of Four Asian Communities" (2005), Natalie Sokoloff & Christina Pratt, "Domestic Violence at the Margins" (2005) and Shakti's Domestic Abuse of Black / Minority Ethnic Women Education and Information Workshop (UK). Although a handful of studies have been conducted in Hong Kong, they are of limited use and applicability to the experience of ethnic minority and immigrant women given their focus on a specific district; a particular socio-economic group or the 'Chinese' community. To date, only one study has assessed the attitudes and help-seeking behaviours of 182 ethnic minority women experiencing domestic violence. This study reveals some of the factors which inhibit effective responses to combat domestic violence. However, to date, there is no study which critically examines the specific factors (disaggregated by origin, age, income-group, race, geographical district, years of residence, education level, employment, etc) which cause and perpetuate the inaccessibility of the system to the users in that the response mechanisms fail to account for the uniqueness of the circumstances of ethnic minority and immigrant women which make them unable or unwilling to approach the legal and policy helplines. For example, Tin Shui Wai has been singled out as the district which has topped all others in terms of reported domestic violence incidents per year 2002-2006) As such, it is vital that the specific needs and challenges presented to traditional legal and policy-driven responses be fully addressed through the careful study of the users of these laws and services to help lead the changes that are required in order to enhance protection and ensure effective prevention of domestic violence against vulnerable populations and to prevent its perpetuation. This study's objective is to focus on this law and service gap, highlighting the sources of the inaccessibility and to provide concrete recommendations of measures to improve the current situation to ehance accessibility and redress to prevent the problem of domestic violence within the ethnic community from spiralling out of control. Factors such as race, spatiality and rurality as well as culture and its impact on the capacities of users on drawing on available services and the law, will be used to test the responsiveness of the existing system. The objectives of this project are to: 1. Examine ethnic minority and immigrant womens' 'capacity' to engage legal, social and health services in the context of domestic violence by testing their knowledge of existing resources, their likely course of action if victimised or if a friend asks for direction and their reasons for their likely response behaviour; 2. Examine service-providers' (i.e. shelter, NGO) experiences with ethnic minority and immigrant women, detailing any difficulties in rendering services to victims of domestic violence; 3. To assess the impact of the user's choices as highlighted in (1) above on (2) and the impact of (1) & (2) collectively on the detection and prevention of domestic violence among immigrant and ethnic minority communities; and 4. Based on the findings of the project, to assess and evaluate inidicators of success / failure through disaggregation of risk-factors and their impact on user-capacity, to discern appropriate intervention models for immigrant and ethnic minority women.


List of Research Outputs

Kapai P., Building Strategies for Change to Foster Inclusion and Integration in a Diverse Society, Christian Action, EMpower Project. 2009.
Kapai P., Minority Rights and Public Interest Litigation in Aisa, Public Interest Litigation in Asia Conference 2009, Center for Comparative and Public Law. 2009.
Kapai P., The Challenge of Diversity: Minority Rights, Dignity and Liberal Democracies, Fourth International Conference on Interdisciplinary Social Sciences (2009), Athens, Greece. 2009.
Kapai P., The Doctrine of Substantive Equality and the Democratization of Diversities, 3rd Global Conference, Inter-Disciplinary.net: Multiculturalism, Conflict and Belonging, Mansfield College, Oxford, England, September 2009.


Researcher : Kong KY
Project Title:Public Interest Litigation in Hong Kong: A New Hope for Social Transformation?
Investigator(s):Kong KY
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:01/2008
Completion Date:01/2010
Abstract:
The primary objectives of this research are to study the theoretical foundation of Public Interest Litigation, and to evaluate the development of and the legal obstacles facing Public Interest Litigation in Hong Kong. Public Interest Litigation is an important tool for social transformation in many developed and developing countries. It is a type of legal action in which the claimant has no private interest in the subject matter of the case. Rather, the applicant is bringing the claim on behalf of the community at large or a sector of the community against the Government or public authorities, on a matter that has wide impact on the society. The claim usually concerns a public policy that violates the constitution, legislation or international treaty, in a wide variety of subject matters including the environment, consumer protection, education, health, and development etc. The aim of the claim is to seek the court to uphold certain rights as guaranteed under the law and to issue declarations or orders to bind the government in policies and actions to safeguard those rights, thereby benefiting the sector of the community whose rights had been neglected or ignored. Public Interest Litigation is often used by the underprivileged or the oppressed, whose voices are otherwise underrepresented in the democratic process, to vindicate their legal rights and to push for social change through the judicial process. Public Interest Litigation is a new departure from the traditional adversarial court system which was designed as a forum for dispute resolution concerning private rights where the claimant seeks compensation (often in monetary terms) from the defendant for a specific breach of the law. Public interest litigants in the common law system have to overcome various legal obstacles such as standing and evidential rules. The success of Public Interest Litigation requires a liberal court and activist judges who are willing to loosen traditional adversarial procedural rules in litigation and to allow for non-governmental organizations and individuals to bring public interest issues to court, which are often political. In Hong Kong, we see a surge of judicial review cases relating to issues of wide public interest in recent years that are similar to Public Interest Litigation in other jurisdictions, yet constrained by legal obstacles under the existing judicial review rules. Examples include: the complaint against the reclamation of the Victoria Harbour (2004); challenge to the Housing Authority’s power to dispose of its retail and car park facilities to the Link Real Estate Investment Trust (2005); complaint against the decision of the Town Planning Board and the Planning Department in allowing residential developments to be built in the West Kowloon area without height restriction (2007); protest against air pollution in Hong Kong (2007); and recently, the challenge against the decision to declare the Queen’s Pier a monument (2007). On the one hand, there has been a lot of resistance from the court in adjudicating on the essentially political questions raised by these public interest judicial review cases, for fear that judges might take over the role of the Legislature. On the other hand, despite the conservative views of the judges, there is a growing trend in the use of judicial review applications by non-governmental organizations and political activists as a means of raising public concern and framing political issues in terms of legal entitlements. This interesting phenomenon deserves more in-depth study. The research will focus on the analysis of the recent public interest judicial review cases in Hong Kong in light of its unique legal and political environment. The key issues and problems to be addressed are : - How have the judges in Hong Kong and other common law jurisdictions relied on different theoretical bases for the inclusion or exclusion of Public Interest Litigation in court? - How have the Basic Law, Bill of Rights and other legislation in Hong Kong enabled or disabled Public Interest Litigation recently raised? - What are the procedural legal difficulties faced by applicants, respondents and judges in Public Interest Litigation (e.g. standing, evidential rules, remedies available) and how might the reform of existing legal rules be able to resolve some of the current inadequacies? - In light of Hong Kong’s unique legal and political environment, how effective has Public Interest Litigation been in protecting socio-economic rights, in particular, health, environment, and development? To what extent will it bring about social transformation?


Project Title:2010 Annual Meeting of the Law and Society Association Adjudicating Social Rights in Hong Kong
Investigator(s):Kong KY
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:05/2010
Completion Date:05/2010
Abstract:
N/A


List of Research Outputs

Kong K.Y., Adjudicating Social Rights in Hong Kong, 2010 Annual Meeting of the Law and Society Association. 2010.
Kong K.Y., Costs in Public Interest Litigation: Whose Pocket Should Be Picked?, Public Interest Litigation in Asia organized by CCPL, The University of Hong Kong. 2009.
Kong K.Y., Costs in Public Interest Litigation: Whose Pocket Should be Picked?, Hong Kong Law Journal. 2010, 39(3): 767.
Kong K.Y., Funding Public Interest Litigation in Hong Kong, Hong Kong Lawyer. 2009.
Kong K.Y. and Loper K.A., GRF Incentive Award , University of Hong Kong . 2009.
Kong K.Y., The Right to Food and Social Inequality: Indian Perspectives, Launch Conference for the Journal of Asian Public Policy on “Governing the Asian Giants: The Search for Good Governance and Sustainable Development in China and India” . 2010.
Kong K.Y., The Right to Social Welfare: Some Challenges, Third Asian Forum for Constitutional Law. 2009.
Kong K.Y., The Right to Social Welfare, In: Professor Johannes Chan, Professor Lim Chin Leng, Hong Kong's Constitutional Law. Thompson Publisher, 2010.
Kong K.Y., 不能忽視的另一種人權, 明報, 2010, 法園地.
Yap P.J., Loper K.A. and Kong K.Y., GRF Incentive Award , University of Hong Kong . 2009.


Researcher : Lee ASC
List of Research Outputs

Chan J.M.M., Chen A.H.Y., Lee A.S.C. and Luk A., In: Albert Chen, Johannes Chan, Alice Lee, Angelina Luk, General Principles Of Hong Kong Law. 香港法概論, Hong Kong, Joint Publishing (HK) Co Ltd, 2009, 2nd ed: 511+ xii.
Chen A.H.Y., Chan J.M.M., Lee A.S.C. and Luk A., GENERAL PRINCIPLES OF HONG KONG LAW (in Chinese) , Hong Kong, Joint Publishing, 2009, xii + 511 pp.
Goo S.H. and Lee A.S.C., Land Law in Hong Kong (Practitioners' edition with Foreword by Lam J). Hong Kong, LexisNexis, 2010, lxxxv + 899.
Lee A.S.C., Copyright and Wikimedia, The Second Chinese Wikimedia Conference (jointly organized by Wikimedia Macau Association and Wikimedia Hong Kong, and held at the Institute For Tourism Studies, Macau, on 26 and 27 December 2009). 第二屆中文維基年會, 2009.
Lee A.S.C., Examination of Short-term Patents in Hong Kong, The Fourth Conference on European and Asian Intellectual Property Rights - The Enforcement of Patents: Comparing the Asian, European and American Experiences (jointly organized by Academia Sinica, National Taiwan University, and Max Planck Institute for Intellectual Property Law, Competition and Tax Law, and held at Academia Sinica, National Taiwan University on 5 and 6 February 2010) . 2010.
Lee A.S.C., In: Albert Chen, Johannes Chan, Alice Lee, Angelina Luk, General Principles of Hong Kong Law. Hong Kong, Joint Publishing (HK) Co Ltd, 2009.
Lee A.S.C., Intellectual Property Law (Chapter 12), In: Albert Chen, Johannes Chan, Alice Lee, Angelina Luk, General Principles of Hong Kong Law. Hong Kong, Joint Publishing (HK) Co Ltd, 2009, 415-435.
Lee A.S.C. and Goo S.H., Land Law in Hong Kong (3rd edition). Hong Kong, LexisNexis, 2009, xci +742 pp.
Lee A.S.C., Property Law (Chapter 8), In: Albert Chen, Johannes Chan, Alice Lee, Angelina Luk, General Principles of Hong Kong Law. Hong Kong, Joint Publishing (HK) Co Ltd, 2009, 275-301.
Lee A.S.C., Sharing under Copyright Law (著作权/版权法下之共享), 著作权/版权法下之共享, Comparative Conference on Copyright Law in China, Taiwan, Hong Kong and Macau (jointly organized by 北京大學智慧財產權學院, 國家數位版權研究基地, 北京大學法學院互聯網法律中心 and co-organized by 廈門大學智慧財產權研究院, 廈門市版權局, 福建省版權局, held at Xiamen University on 11 and 12 November 2009) . 兩岸四地版權法律制度研討會, 2009.


Researcher : Lee EH
Project Title:An Empirical Research on the Implementation of PRC Enterprise Bankruptcy Law and its Cross-Border Impact
Investigator(s):Lee EH, Aitken LJW
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:02/2010
Abstract:
The objects of our research project are: 1. to assess the practical implementation of the PRC (People’s Republic of China) Enterprise Bankruptcy Law (“the EBL”), by (a) analyzing the international standards on insolvency law and cross-border insolvency, namely (i) The UNCITRAL Legislative Guide on Insolvency Law and (ii) the UNCITRAL Model Law on Cross-Border Insolvency. (b) conducting first-hand interviews with insolvency practitioners based on our questionnaire (as attached); 2. to assess the effectiveness of China’s cross-border insolvency ("CBI") law, with a focus on CBI matters between mainland China and Hong Kong 3. to assess the prospect of extending the 2006 Regional Agreement between Mainland China and Hong Kong, on Reciprocal Recognition and Enforcement of Judgements in Civil and Commercial Matters, to cover cross-border insolvency matters. 4. to conduct a comparative study, based on (i) “Consultation on Implementation of UNCITRAL Model Law on Cross-Border Insolvency in Great Britain”, and (ii) “Australia CLERP Paper No. 8: Proposals for Reform – Cross-Border Insolvency”, for assessing whether China will follow suit by adopting the international standards on cross-border insolvency as did the United Kingdom in 2005 and Australia in 2008. China’s transition from a planned economy to a market economy forebodes the need for a more updated, comprehensive and systematic legal system to encourage and protect investments and business entities. At a national insolvency level, recent enactment of the EBL, inter alia, put China among the world’s top ten performers for pushing regulatory reforms, as part of China’s accession to WTO. The EBL was promulgated on 27 August 2006 and came into effect on 1 June 2007 after 12 years of deliberation and consultation. Despite numerous efforts and great intentions in enacting the EBL, the law is still quite undeveloped and will undoubtedly be tested as China’s corporate insolvencies continue to escalate, amid today’s global economic recession. Internationally, the UNCITRAL Legislative Guide on Insolvency Law (“the Guide”) was adopted on 25 June 2004 to assist the establishment of an efficient and effective legal framework to address the financial difficulty of debtors. It is therefore an important yardstick for evaluating the EBL. In parallel, the UNCITRAL Model Law on Cross-Border Insolvency (“the Model Law”), adopted by UNCITRAL on 30 May 1997, was designed to assist States to equip their insolvency laws with a modern, harmonized and fair framework to address more effectively instances of cross-border insolvency. The UNCITRAL alludes that the Model Law respects the differences among national procedural laws and does not attempt a substantive unification of insolvency law. Even so, China has not adopted Model Law as recommended by the Guide, despite the international recognition of the Model Law by China’s major trading partners, namely, the US, UK and Australia. The foreign expansion of Chinese corporations and establishment of overseas corporate affiliates, coupled with China’s accession to the WTO and its increasing role as a global trade nation, galvanizes the EBL to make provisions for cross-border insolvency (“CBI”), albeit with only one single article (Article 5). Article 5 thus embodies the evolutionary nature of China’s insolvency law, with changes to be expected in a matter of time. To critically assess the extent to which the EBL is implemented by insolvency judges and insolvency practitioners, we propose to carry out the research project in the manner and order as follows. (1) we will first examine the legislative interpretation by the Peoples’ Supreme Court of China, including “Provisions for the Appointment of Administrators for Trials of Enterprise Bankruptcies” and “Provisions for Determining the Remuneration of Administrators for Trials of Enterprise Bankruptcies”. The former sets out criteria provided for selection of administrators of enterprise bankruptcies, while the latter set caps on compensation for the People’s court to determine. (2) To better appreciate the insolvency practitioners’ dealings with insolvency matters, we have formulated a questionnaire, outlining the key aspects of the EBL. The tailor-made questionnaire was designed to seek the insolvency practitioners’ views on: (i) the implementation and impact of the EBL; (ii) the quantitative and qualitative quality of the insolvency cases and their asset-base; (iii) the insolvency tests adopted by the EBL (which deviates from the Guide); and (iv) the legal procedures and stipulated conditions for reorganization under the EBL. The CBI regime in China is embodied with one single article (Article 5 of the EBL), which already raises questions as to its effectiveness. The EBL provides for the recognition and enforcement of legally effective foreign judgments or orders made against debtor’s bankruptcy assets located in China, provided that there will be international treaties between the relevant foreign jurisdictions and PRC or on the grounds of comity on a reciprocal basis and provided that the foreign judgment or order does not (i) contradict the principles of the PRC law; (ii) violate China’s sovereignty, social security and public interests; nor (iii) impair the legal interest and rights of Chinese creditors. We will examine whether such broadly-defined and widely-captured restrictive terms can potentially jeopardize the effectiveness of the CBI. Particularly, we will focus on CBI matters between mainland China and Hong Kong. Generally speaking, all bankruptcy cases that have an effect upon assets outside a country (where the bankruptcy proceeding is taking place) can be considered as CBI. As a result of the Basic Law, the principle of “one country, two systems” is upheld, with implication that Hong Kong is a distinctive jurisdiction apart from China. Due to the close trade relationship between these two jurisdictions as well as the mandate in Hong Kong Basic Law (Article 95) to promote judicial cooperation between the Mainland and Hong Kong, it is crucial to examine the extent to which the 2006 Agreement will have an impact on the CBI between mainland China and Hong Kong. Provided that this 2006 Agreement only applies to civil and commercial matters, we will further assess the prospect of extending such judicial assistance or recognition of foreign judgments to insolvency matters. This issue is strategically important and has a long-term effect, given that there is currently no bilateral agreement between China and Hong Kong for CBI.


List of Research Outputs

Lee E.H., [Invited Lecture] Comparative Corporate Rescue Law in Hong Kong, China, the United Kingdom and the United States [Organization of Invited Lecture] National Taiwan University (Invitation extended by Professor Wen-Yeu Wang, Director of Centre for Corporate and Financial Law, National Taiwan University, Taiwan), 2010.
Lee E.H., 香港公司企業拯救法制的發展與未來, 明報 (法園地), Hong Kong, Ming Bao, 2010, 1.


Researcher : Lee RWC
Project Title:Underpinning charity work in China: the need for a legislative framework for charity development and governance in China
Investigator(s):Lee RWC
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:09/2007
Completion Date:08/2009
Abstract:
In 2005, China's Premier Wen Jiabao included the development of domestic charities in his Government Work Report, the first time the Chinese Government has taken this step (Shanghai Star, 12 May 2005). However, despite this modern call for the development of charities and a rich traditional culture of philanthropy, China's existing legal framework still fails to support an effective charitable sector. This is due to the following reasons. First, there is still no comprehensive law governing charities in China; the existing laws remain disparate and obsolete, notwithstanding a few recent attempts to reform some of them. Second, the existing legal rules often fail to facilitate the operation of charities or incentivise charitable giving. Last but not least, the charitable sector is plagued by bureaucratic modes of operation. Concerns over poor governance and lack of accountability are widespread. All of these undermine public confidence in the charitable sector. In light of these emergent trends, the Ministry of Civil Affairs of the PRC has been commissioned to draft the first-ever Charity Law of China to encourage and regulate the increasing momentum of the philanthropic movement in China. The Ministry has also developed the "Guidelines for Development of Charities (2006-2010)", which emphasises the potential for charitable organisations to plug gaps in the development of a state social welfare system. The draft Charity Law is currently under way (China Daily, 25 May 2007; International Symposium on Charity Legislation of China, Ministry of Civil Affairs, June 2007). Therefore, it is now a momentous time for charities in mainland China. While the laws governing charities must facilitate the development of the charitable sector, attention must also be given to charity governance and enforcement. Hence, the legal framework must strike a delicate balance between facilitation and flexibility for charity development on the one hand, and regulation and accountability for charity governance on the other. Not only must the forthcoming Charity Law seek to revive the sector's basic values, it must also foster a better public understanding of the sector's functions and role. Given these problems and challenges, the objectives of this project are: (1) to look into the current development of the charitable sector in China, taking into account questions like why do people give to charities (whether financially or in terms of providing volunteering service); how can the state encourage and regulate charitable behaviour etc; (2) to consider the international experience and best practices in developing a legal framework for charities, with a view to recommending how China may hammer out a Charity Law which is apposite in mainland China; and (3) to comment on the draft Charity Law.


Project Title:The Development of Social Enterprises in China: the Quest for Space and Legitimacy
Investigator(s):Lee RWC
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:10/2008
Completion Date:09/2010
Abstract:
In recent years, the mainland Chinese government has encouraged the development of the non-profit sector in China. This can be evidenced by the drafting of a Charity Law in China. The growth of charities in China has also contributed to the growth, albeit still slow, of social enterprises. Social enterprises in China mainly take the form of self-self community groups that provide job opportunities to women, the disabled and under-employed. Despite the concept of “social enterprises” is still relatively new in China, the potential of social enterprises in tackling social problems such as unemployment, discrimination and low income has been increasingly recognised. It is generally perceived that social enterprises can promote a strong, sustainable and socially inclusive economy. But notwithstanding these apparent benefits, the development of social enterprises in China is still at an embryonic stage. More significantly, the legal status of social enterprises in China is unclear. Unlike the UK which has afforded legal identity to social enterprises (see below) and where the government has pioneered studies on the development strategies of social enterprises (see, for example, UK Government, Social Enterprise, a Strategy for Success (2002); and Social Enterprise Action Plan: Scaling New Heights (2006)), there is a lack of a coherent legal and regulatory framework governing social enterprises in mainland China. The lack of a legitimate status for social enterprises in China has given rise to problems at two different levels. First, from the perspective of social enterprises, it hinders the development of social enterprises, for it is difficult for them to secure funding source in support of social enterprises start-ups and operation. On the other hand, the business sector and the wider community may consequently be reluctant to consider the potential of using social enterprises to pursue economic and social objectives. Given these problems and challenges, the objectives of this research project are to consider certain pertinent legal issues relating to the recognition and development of social enterprises in China, and to offer suggestions from a comparative perspective on how similar issues have been tackled by other jurisdictions. Accordingly, some of the legal issues that will be addressed include: (1) What legal forms can a social enterprise in China take? A company (limited by shares), a social organisation (shehui tuanti) with limited liability, or a trading arm of a charitable organisation? At the moment, it appears that social enterprises could take any legal forms. Consequently, the lack of a distinct legal identity has contributed to the public’s poor understanding of this form of institution. (2) What is the legal and regulatory framework governing social enterprises in China? For example, are there any restraints on assets and surpluses being used to pursue economic rather than social objectives? Because of the lack of sufficient governance and accountability requirements on social enterprises, lenders may find it difficult to assess the risk profile of social enterprises. Consequently, funding sources and options will be limited.


Project Title:In whom we Trust? Justifying Exemption Clauses in Modern Trust Deeds
Investigator(s):Lee RWC
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:10/2009
Abstract:
The increasing use of the trust in commercial context has resulted in the professionalisation of the trust industry, and consequently, the employment of professional trustees. Being professionals, these trustees usually require trust draftsmen to limit their liability as far as possible. This leads to the proliferation of trustee exemption clauses in modern trust deeds. Trustee exemption clauses are provisions in trust instruments that protect a trustee from liability for breach of trust or restrict the scope of his liability. These clauses now appear almost invariably in every trust instrument. Despite the prevalence of trustee exemption clauses, they are still viewed with circumspection, and have been under increasing judicial scrutiny. On the one hand, the law recognises that settlors should be given autonomy to create trusts that give them the power to exempt a trustee from liability. On the other hand, trustee exemption clauses are generally perceived as undermining the protection available to beneficiaries, in particular in view of the breadth of the scope of these clauses and the liberal interpretation by the courts. In the case of Armitage v Nurse, the English Court of Appeal upheld an exemption clause which purported to exonerate a trustee’s liability for breach of trust “no matter how indolent, imprudent, lacking in diligence, negligent or wilful”, so long as he has not acted dishonestly. The question of whether trustee exemption clauses should be subject to some statutory regulation has been considered by major common law jurisdictions, including the UK, Canada, New Zealand, Singapore etc. For example, the Law Commission of England & Wales initially recommended that some statutory regulation of was necessary (Law Commission Consultation Paper No 171 (2003), para 4.20), but ultimately concluded that the introduction of a rule of practice of limited effect would suffice (Law Commission Report No 301 (2006), para 6.65). Most recently, the Hong Kong Government published a Consultation Paper on “Review of the Trustee Ordinance and Related Matters” (Financial Services and the Treasury Bureau, June 2009) where the control of trustee exemption clauses is also one of the areas for proposed reforms. With the aim of modernising Hong Kong’s trust law in order to strengthen the competitiveness and attractiveness of Hong Kong’s trust services industry, and in turn, Hong Kong’s position as a major asset management centre in Asia, the Review recommends that trustee exemption clauses which exempt paid professional trustees should be subject to some statutory control, and that a code of best practices regarding their use by professional bodies be promulgated (Review of the Trustee Ordinance and Related Matters, para. 3.9). It can be seen that the primary concern of the Review in Hong Kong is to consider whether the extensive use of trustee exemption clauses may undermine the protection afforded to beneficiaries. This requires careful consideration of how a balance between the rights and interests of settlors, trustees and beneficiaries may be struck. Apart from this practical concern, however, the more significant question of whether the availability of trustee exemption clauses is compatible with the nature of a trust is rarely considered. In other words, would trustee exemption clauses be repugnant to the very trust relationship which settlors are purporting to create? This depends on the nature of the trust, as well as what the “irreducible core content of trusteeship” is. With regard to the former, traditionally, a trust relationship is one where the settlor transfers his property to the trustee who holds and manages it for the benefit of the beneficiary. It is more than a consensual relationship created by agreement. As such, the trustee is subject to stringent fiduciary duties. Thus, the theoretical implications of empowering the trustees by virtue of exemption clauses and whether they challenge the very nature of a trust will need to be addressed. As to the duties of the trustees, the obligation-based theory of a trust suggests that a trust is an equitable obligation, requiring the trustee ought to be expected to achieve a reasonable standard of care and competence. For example, Professor Hayton is of the view that “a trust is an obligation and so requires the trustee to owe duties to the beneficiaries who have a correlative right to make the trustee account to them for the carrying out of those duties” (D Hayton, “Developing the obligation characteristics of the trust” (2001) 117 Law Quarterly Review 96 at 97; see also Hayton, “The Irreducible Core Content of Trusteeship” in Oakley (ed), Trends in Contemporary Trusts Law (1996) Ch 3 at pp. 49-50;). Thus, the essential ingredient of trusteeship is the duty to account which is enforceable by the court on behalf of the beneficiaries if necessary. Conversely, Millett LJ in Armitage v Nurse considered the “irreducible core of obligations” owed to the beneficiary by the trustee, which was “fundamental to the concept of a trust” as consisting of a duty to “perform the trusts honestly and in good faith for the benefit of the beneficiaries”. Given these views, one may find it difficult to reconcile trustee exemption clauses which exempt a trustee’s liability for any loss or damage unless it was caused by his own “actual fraud” with the core content of trusteeship. In light of these practical and theoretical concerns, the prevalent use of trustee exemption clauses has challenged some of our fundamental understandings of the law of trusts. Given these challenges, the objectives of this research project are three-fold: (1) To consider the current scope for court intervention in trustee exemption clauses; (2) To consider what statutory reforms may be appropriate to prevent the abuse of express trusts; and (3) To consider whether trustee exemption clauses can be justified by the nature of the trust. Accordingly, some of the pertinent legal issues that will be addressed include: (1) Should a statutory regime for the regulation of trustee exemption clauses be introduced? If some form of statutory regulation is desirable, what is the permitted scope of trustee exemption clauses? (2) How to strike a balance between the rights and interests of settlors, trustees and beneficiaries? (3) Are trustee exemption clauses compatible with the fundamental nature of a trust?


Project Title:2nd International CIRIEC Research Conference on Social Economy 2009 The Emergence of Social Enterprises in China: the Quest for Space and Legitimacy
Investigator(s):Lee RWC
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:10/2009
Completion Date:10/2009
Abstract:
N/A


List of Research Outputs

Cheung E.T.M. and Lee R.W.C., “合約法” (“The Law of Contract”) published in 《香港法概論》(General Principles of Hong Kong Law, new edn) (三聯書店 Joint Publishing (H.K.) Co. Ltd; Albert Chen et al (eds)), co-authored with Ms Rebecca Lee , Hong Kong, 三聯書店 Joint Publishing (H.K.) Co. Ltd, 2009, 205-239.
Lee R.W.C., "The Emergence of Social Enterprises in China: the Quest for Space and Legitimacy", 2nd International CIRIEC Research Conference on Social Economy, Mid-Sweden University, 2009 . 2009.
Lee R.W.C., Country correspondent for Hong Kong, Trusts & Trustees . 2010.
Lee R.W.C., “Conceptualizing the Chinese Trust”, International & Comparative Law Quarterly. 2009, 58: 655-669.
Lee R.W.C., “Overview of the Trust Law Regime in Hong Kong: a Time for Change”, Trusts & Trustees . 2010, 16: 134-138.
Lee R.W.C., “Restraining Ex-employees: Conflicting Policy Considerations and the Proper Scope of Bolkiah”, Civil Justice Quarterly. 2010, 29: 155-158.
Lee R.W.C., “The Emergence of Social Enterprises in China: the Quest for Space and Legitimacy”, Tsinghua China Law Review. 2010, 2009: 79-99.
Young J.Y.K. and Lee R.W.C., In: Jessica Young & Rebecca Lee, The Common Law Lecture Series 2008-2009. Faculty of Law, The University of Hong Kong, 2010, 122.


Researcher : Lejot PL
List of Research Outputs

Arner D.W., Lejot P.L. and Wang W., Assessing East Asian Financial Cooperation & Integration, Singapore Year Book of International Law. 2010, 12: 42.
Arner D.W., Panton M.A. and Lejot P.L., Central Banks & Central Bank Cooperation in the Global Financial System , Pacific McGeorge Global Business and Development Law Journal. 2010, 23: 40.
Lejot P.L., Complex Instruments, Financial Re-regulation & Contractual Freedom , Current Issues in Financial Regulation colloquium, Faculty of Law, Chinese University of Hong Kong, January 2010.. 2010.
Lejot P.L., Complex Instruments, Mis-selling & Contractual Freedom, HKU Asian Institute of International Financial Law Seminar: Current Issues in Global Regulation. 2009.


Researcher : Leng J
Project Title:Regulatory Gaps between A-share and H-share Markets for Cross-listed Chinese Companies: Implications for Cross-border Regulatory Competition, Collaboration and Convergence between Mainland and Hong Kong
Investigator(s):Leng J
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:03/2008
Completion Date:02/2010
Abstract:
• Purpose This project seeks to achieve three purposes/objectives. (1) First, this project will review the material differences between major Hong Kong and PRC laws and regulations concerning key aspects of listing requirements and post-IPO corporate governance practices. On the one hand, by examining where discrepancies and/or conflicts of rules exist, this project seeks to assist cross-listed issuers in informed compliance via offering a general guidance. On the other hand, by analyzing whether rule inconsistency would warrant legislative and regulatory consideration on both sides in terms of reducing (if not closing) existing regulatory gaps, this project also tries to alert legislators and regulators to the underlining challenges and problems in regulating cross-border listing activities. (2) Second, this project will study practical consequences and implications of the rule gap from the issuer’s perspective, particularly by highlighting “areas of concern” in compliance which have recorded higher incidence of violation/non-compliance, deviation, and sub-standard compliance due to discrepancies or conflicts of rules. (3) Third, this project will call for a greater effort, to be made by legislators and regulators in both Hong Kong and mainland, in looking more closely into the issue of cross-border listing. Where appropriate, recommendations for proposed future reform to the existing framework of cross-border regulation will be provided, with the purpose of improving regulatory quality and market practices on both sides. This project will also contemplate possible ways or methods of reducing regulatory gaps and their feasibility in the immediate term, mid-term and long-term, such as rule accommodation (specified exemptions, or tolerance of deviations, from rule compliance), one-way rule convergence (one set of rules converging to the other), or two-way rule convergence (rewriting rules on a bilateral basis to achieve greater consistency). • Key issues and problems being addressed (1) What are the driving forces of cross-border listing between mainland and Hong Kong? What are the policy objectives of the central and Hong Kong governments in promoting cross-border listing of PRC companies? (2) What are the major benefits of cross-border listing in general, and for mainland China and Hong Kong in particular? (3) What are the material differences between major Hong Kong and PRC laws and regulations concerning key aspects of listing requirements and post-IPO corporate governance practices? What are the consequences and implications of these differences for both listed companies and regulators? (4) How listed companies have performed on compliance with two sets of regulation? What are the major difficulties in compliance? (5) Is it necessary to reform the current framework of cross-border regulatory collaboration to achieve a higher level of regulatory consistency? What would be the possible strategy for such reform? (6) What would be the prospects of future cross-border listing between mainland and Hong Kong if necessary reform takes place? What would be the future landscape and trend of regional competition for international capital, as chiefly reflected in regulatory competition among stock exchanges? Would one of the major international experiences in this regard, namely the ongoing effort in cross-border regulatory competition as well as regulatory collaboration between the US and the EU, offer any useful lesson?


Project Title:2009 Annual Meeting of the Law and Society Association Commercial Regulatory Reform in China during Transition: An Alternative Path to the Regulatory State
Investigator(s):Leng J
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:05/2009
Abstract:
N/A


List of Research Outputs

Leng J., "Going Out: Overseas Investment by Chinese Enterprises", The 11th Annual Academic Conference of the Legal Research Centre of Peking University and HKU (Theme: Constitutional Reform and Financial Regulation), December 12, 2009, Hong Kong. 2009.
Leng J., "New Developments in Insider Trading Regulation in PRC and Hong Kong" , The 2nd Regional Forum on Criminal Law of Greater China, December 18-19, 2009, Hong Kong . 2009.
Leng J., "Regulating Disclosure in Cross Border Listing between Mainland China and Hong Kong", presented at the 24th IVR World Congress (Theme: “Global Harmony and Rule of Law”), organized by the China Law Society (CLS) in collaboration with the International Association for Philosophy of Law and social Philosophy (IVR), 15-20 September 2009, Beijing . Beijing, 2009.
Leng J., Commentator, panel on “Real Estate Finance and Solution of Disputes”, at international symposium on “The Convergence of Property Rights among Mainland, Taiwan, Macau, and Hong Kong”, organized by Department of Real Estate & Construction, Faculty of Architecture and Asian Institute of International Financial Law, University of Hong Kong, 1-3 August 2009, Hong Kong, 2009.
Leng J., Hong Kong Law Journal, Hong Kong, Sweet and Maxwell Asia, 2009.
Leng J., Invited lecture, "Going Out: The Legal and Regulatory Issues in Outward FDI by Chinese Enterprises", "走出去": 关于中国企业赴海外直接投资的法律与监管问题, Research Division, East China University of Political Science and Law. 华东政法大学科研处, 2010.
Leng J., Invited lecture, "The Legal and Regulatory Aspects of Overseas Investment by Chinese Enterprises", 中国企业“走出去”(海外投资)之法律与监管问题, Law School, Zhejiang University. 浙江大学法学院, 2010.


Researcher : Lewis DJ
Project Title:Symposium on the Interface of Chinese Legal History and Contemporary Law in China Administrative Governance in China: Imperial Antecedents and Contemporary Correlatives
Investigator(s):Lewis DJ
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:03/2001
Abstract:
N/A




Researcher : Li Y
Project Title:The Implications of China's Anti-Monopoly Law to Intellectual Property Protection in China
Investigator(s):Li Y
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:05/2008
Abstract:
On 30 August 2007 China passed its first Anti-Monopoly Law. The law aims to protect market competition by regulating price-fixing and other forms of monopoly. It targets at anti-monopoly issues in general business term, not specifically at intellectual property ("IP"). In fact, there is only one out of total 57 articles refers specifically to IP. However, this very article has caused "fear" among IP sectors who worry that this article may undermine IP protection in China. According to this article, a company abuses its IP rights in order to prevent or restrict competition will be investigated and sanctioned under the anti-monopoly law. In other words, when a competitor is accused of IP infringement in China, it can raise an anti-monopoly defence, claiming that the other party has abused its IP rights and engaged in anti-competition practice. Some IP practitioners and scholars believe that this creates an "extra hurdle" for IP owners looking to protect their IPRs in China, and gives an infringer the legal right to challenge an IPR. Why has the law caused such "fear" in the IP sector? Is this "fear" justified, or just a pure exaggeration of a scenario which may never occur? This project undertakes to answer these questions through theoretical and empirical study of laws and cases concerning IP and competition in China. To answer the above questions, more specific issues concerning IP and competition need to be studied. These issues can be divided into three categories: (1) Theoretically what is the relationship between IP and competition? What are the respective purpose and benefits of protecting IPRs and protecting competition? How to balance the need to grant IPR holders monopoly and the need to restrain such monopoly and to encourage competition? What are the impact of IPRs on competition and, conversely, the competition on IPRs protection? (2) From the perspective of world market, what kind of activities of IPR holders can be normally considered as "abuse of IPRs" and consequently lead to anti-monopoly investigation or litigation? Is there any general consensus or an acceptable list of IP activities which are susceptible to anti-monopoly challenge? Are there criteria in deciding which kind of acts, e.g., patent pooling, cross-licensing, have amounted to monopoly? How are the IP-related anti-monopoly cases being decided in other countries, and what is the impact of such court decision on technological innovation and foreign investment? Are there IP-related anti-monopoly cases being decided in China and what impact have these decisions on the Chinese market? Who are the main targets of the anti-monopoly charges, the multilaterals, Hong Kong or other Asian businesses or China's state-enterprises? What are the strategies these companies are adopting, or should adopt, to deal with the monopoly charges? (3) This category concerns the PRC Anti-Monopoly Law itself. For example, how should the term "abuse" intellectual property rights in article 55 be interpreted, narrowly or broadly? Will there be any separate regulations or rules issued to interpret it? What is the connection between "abuse" IPRs and monopoly? Is the former a means and the latter an end? Should an intention for monopoly be required for the act of abusing IPRs to be actionable? In addition to article 55, which articles in the anti-monopoly law can be applicable to deal with IP abuse cases? Furthermore, what is the relationship between the anti-monopoly law and the existing IP laws? Should the IP laws be amended to address the competition issue? Or is it necessary for China to adopt a guidelines, similar to the "Guidelines for the Use of Intellectual Property under the Antimonopoly Act" issued by Japan Fair Trade Commission? Through studying these issues and finding answers for these questions, the project will make academic contributions as the literature on China's IP-related competition is still extremely scanty; and provide practical value to business sectors in designing their IP strategies and protecting their IPRs in their business operations in China.


Project Title:Writing a Casebook on PRC Intellectual Property Law
Investigator(s):Li Y
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:01/2010
Abstract:
The main purpose of this proposed project is to write a casebook on China's intellectual property (IP) law. With the rapid development of China's economy, intellectual property disputes have grown in an extraordinary rate. Important cases decided by the Chinese courts have great impact on how later cases are decided. The cases also serve as guidance for industries on how to protect their own intellectual property rights and how to avoid infringing IP rights of others, and for intellectual property lawyers on how to defend their clients' IP rights when disputes arise. Although most of cases are readily available to people capable of reading Chinese, they are not available in English, therefore not accessible to people who are not able to read Chinese. This has created a major obstacle for non-Chinese reading academics in their research on China's IP system, particularly for those common law lawyers who are used to the method of case study, and handicapped their ability to follow the development of China's IP system closely and to make sound judgment. This project intends to correct this situation by choosing and translating some important Chinese IP cases, and eventually producing a casebook with academic commentaries.


List of Research Outputs

Li Y., "Hong Kong and Innovation", 香港與創新, Mingpao. 明報, Hong Kong, 2010, Colume section: A29.
Li Y., Invited Speaker on the topic of “Development of Green Technology and Protection of Intellectual Property: the View of the United States” at “Technology Transfer in Post-Kyoto Protocol Era” High-Level Seminar, Fudan University, Shanghai, 2009.
Li Y., Invited Speaker on the topic of “Overview of Hong Kong Creative Commons” at “Remix and Share: CC Art Exhibition Opening Ceremony and Forum”, Remin University, Beijing,, 2009.
Li Y., Invited speaker on the topic of “Major Differences in PRC and Hong Kong Copyright Laws”, at the conference “Cross-Strait Copyright Forum”, Xiamen University, 2009.
Li Y., Invited speaker on “Reform of China’s Patent Law System: Some Observations”, at the conference "Intellectual Property Developments in China: Global Challenge, Local Voices" Conference, held at Drake University Law School, 2009.
Li Y., Patents and Innovation in Hong Kong, 8th Cross-Strait Intellectual Property Forum: Cross-Strait IP Strategies and Global Challenges. 第八届海峡两岸知识产权学术交流研讨会--两岸知识产权策略及全球接轨, Taiwan, 2010.
Li Y., Speaker on the topic of “IP strategy in China: from a business perspective” at the conference “IP and IT: Theory and Practice”, 2009.
Li Y., Speaker on the topic of “Transplantation and Transformation: 30 Years of Development of China’s IP System” at the conference “The Development of the Chinese Legal System: Changes and Challenges”, the University of Hong Kong, 2009.
Li Y., “Protecting and Managing PRC Intellectual Property,” Hong Kong Academy of Law CPD Course, August 19, 2009., 2009.
Li Y., “Protecting and Managing PRC Intellectual Property,” Hong Kong Academy of Law CPD Course, August 19, 2009., Hong Kong Academy of Law. 2009.
Li Y., “Protecting and Managing PRC Intellectual Property,” Hong Kong Academy of Law CPD Course, May 6, 2010., Hong Kong Academy of Law. 2010.
Lu J., Wei S., Li Y., Tao Z. and Chan P., Foxconn V BYD (A): Commercial Espionage or Learning by Hiring? Foxconn V BYD (A): Commercial Espionage or Learning by Hiring? Foxconn v. BYD (A): Commercial Espionage or Learning by Hiring? , Asia Case Research Center. 2010, 22.
Lu J., Wei S., Li Y., Tao Z. and Chan P., Foxconn v. BYD (B): Strategic Approach to Intellectual Property Management in Emerging Markets, Asia Case Research Center . 2010, 28.
Lu J., Wei S., Li Y., Tao Z. and Chan P., Viagra in China: A Prolonged Battle over Intellectual Property Rights, Asia Case Research Center. 2010, 32.


Researcher : Lim CL
Project Title:REGIONAL TRADE AGREEMENTS, WTO INSTITUTIONAL REFORM AND DEVELOPMENT
Investigator(s):Lim CL
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:05/2008
Abstract:
1. In the first phase of legal scholarship, much attention was paid to the legal permissibility, institutional supervision and economic wisdom of RTAs. In this, second phase of RTAs, attention has shifted to practical policy questions of WTO supervision and reform. This mirrors events in the “external world” – namely, the larger debate on WTO reform, and the new WTO transparency requirements in relation to RTAs entered into by WTO members. Regionally, legal research on the legal-institutional, design and architectural aspects of Asia Pacific regionalism is however still in its infancy, thus far having largely attracted the attention of economists, official (largely economic) research commissioned by international bodies, and specialists in strategic and area studies. This has neglected the critical role which legal design and architecture, and legal concepts play in the construction of Asian and Asia-Pacific trade regionalism. 2. The centre-piece of the research for which funding is presently sought is organized around the following issues: a. A United States regional trade policy which might fairly be described as lacking in ambition following the “death” of the Enterprise for ASEAN initiative, and the need for a proper appreciation of the real and potential significance of the FTAs with Singapore (USSFTA), Vietnam (US-Vietnam) and South Korea (KORUS). b. The thin regulation and supervision of RTA design and content at the multilateral level (i.e. the multilateral regulatory deficit). c. Points a. and b. above as factors in considering the assertiveness and “competitive liberalism” amongst the “big three” in East Asia (Japan, China and South Korea), the position of ASEAN, and India’s RTA policy. d. Design weaknesses in the Asian RTAs resulting from a combination of points b. and c. such as the use of umbrella RTAs with relatively few multilateralised concessions even amongst its members (e.g. the China-ASEAN FTA), or even substantive weaknesses such as the low rate of “FTA-returns” in the case of ASEAN (measured in terms of increases in intra-ASEAN trade etc.). e. Implications for Asia-Pacific trade, including an assessment of the feasibility of an APEC-wide 21-member RTA and the significance of that proposal for the EU especially in connection with the experience of the laggardly, but of late more promising, Doha Round of global trade talks.


List of Research Outputs

Lim C.L., Chinese Journal of International Law. Oxford, England, Oxford University Press, 2010.


Researcher : Lin JSW
Project Title:88th Annual Meeting of the American Branch of the International law Association China, International Law and Climate Change
Investigator(s):Lin JSW
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:10/2009
Completion Date:10/2009
Abstract:
N/A


Project Title:Climate Change and the Courts: the Emergence of Climate Change Litigation
Investigator(s):Lin JSW
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:03/2010
Abstract:
The purpose of this proposed project is to investigate the emergence of climate change litigation, and the consequent role that the courts and legal processes play in climate change governance. The key issues and problems that this project seeks to address are as follows: • Why has there been a need to resort to litigation to prompt or accelerate governmental responses to climate change? • How does litigation operate to put pressure on governments and private companies to take positive action on climate change? • Based on an analysis of a wide selection of cases from different jurisdictions, how is litigation being used to advance climate change mitigation and adaptation? • What are the factors that determine the success of litigation as a regulatory response to climate change? • Can the case law be classified in accordance to a typology that sheds light on this new area of the law?


List of Research Outputs

Lin J.S.W., China, International Law and Climate Change, 88th Annual Meeting of the American Branch of the International Law Association, New York City. 2009.
Lin J.S.W., Climate Change and the Courts, The European Union, Climate Change and Global and Environmental Governance Faculty of Law, University of Edinburgh. 2009.
Lin J.S.W., International Law and Climate Change: Making Carbon Markets Work , Singapore Society of International Law. Singapore, 2009.
Lin J.S.W., Private Actors in International and Domestic Emissions Trading Schemes, In: D. Freestone & C. Streck , Legal Aspects of Carbon Trading: Kyoto, Copenhagen and beyond. Oxford, United Kingdom, Oxford University Press, 2009.
Lin J.S.W., Study of the Legal Framework on Human Rights and the Environment Applicable to European Enterprises Operating Outside the European Union (Case Study: China), Edinburgh Law School, research conducted for the European Commission, Directorate-General for Enterprise and Industry. 2010.
Lin J.S.W., Supporting Adaptation in Developing Countries at the National and Global Levels’ , In: B. Richardson, S. Wood, H. McLeod-Kilmurray & Y. Le Bouthillier , Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy. Edward Elgar Publishing, 2009.
Lin J.S.W., The Rise of Administrative Law in Singapore, Administrative Law and Practice from South to East Asia. Jakarta, Indonesia, Konrad Adenauer Stiftung Foundation, 2009.
Lin J.S.W., The Role of Courts and Adjudicative Bodies in Climate Change Governance, Faculty of Law, National University of Singapore. 2010.
Lin J.S.W., ‘Creating a Market for Clean Air: The Air Pollution Control (Amendment) Ordinance 2008’ , Hong Kong Law Journal . 2009.
Lin J.S.W. and Streck C., ‘Mobilising Finance for Climate Change Mitigation: Private Sector Involvement in International Carbon Finance Mechanisms’, Melbourne Journal of International Law . 2009, 10(1).
Lin J.S.W., ‘The Clean Development Mechanism in Southeast Asia’ , In: K.L. Koh, L.H. Lye & J. Lin , Climate Change and the Kyoto Protocol: Asia and the World. World Scientific Press, 2009.


Researcher : Linton S
Project Title:Hong Kongs War Crimes Trials
Investigator(s):Linton S
Department:Law
Source(s) of Funding:General Research Fund (GRF)
Start Date:06/2009
Abstract:
1) To fill the existing gap in Hong Kong’s legal and political history: The project will gather together in Hong Kong a complete set of the judgements and relevant supporting documents arising out of trials for atrocities committed during World War II. 2) Public access: These important historical documents belong in Hong Kong, and should be made open for public scrutiny in order that its people can access their own history. The collection will be available to the public and available online (with a search facility) to allow for its wide study and dissemination. 3) Conduct of pioneering scholarly legal research and dissemination of the findings: The research will be publicized locally and internationally, with initial findings being presented in the form of conference papers, articles in peer reviewed international journals, then in a major publication leading to a book.


List of Research Outputs

Linton S., "Asia", In: M. Cherif Bassiouni, The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimisation and Post-Conflict Justice. Transnational, 2010, 515-753.
Linton S., Bangladesh and the Prosecution of International Crimes from the 1971 War of Independence from Pakistan , In: William Schabas, Criminal Law Forum. Springer, 2010, Volume 21, Number 2: 187-190.
Linton S., Completing the Circle: Accountability for the Crimes of the 1971 Bangladesh War of Liberation , In: William Schabas, Criminal Law Forum. Springer, 2010, Volume 21, Number 2: 191-311.
Linton S., Deciding how to deal with the past: Policy Choices for Bangladesh, Liberation War Museum, Dhaka, Bangladesh, forthcoming 30-31 July 2998. 2009.
Linton S., Invited public lecture, “Bangladesh 2010: Prosecuting International Crimes from the 1971 War of Liberation in a 100% domestic court”, Grotius Centre for International Law, Leiden University (The Hague Campus). 2010.
Linton S., Mempertanggungjawabkan kekejaman-kekejaman di Indonesia, In: Sius Riyadi, Mempertanggungjawabkan kekejaman-kekejaman di Indonesia. ELSAM, 2010, BP No. 1/2010: 1-94.
Linton S., Special Edition: Bangladesh and the Prosecution of International Crimes from the 1971 War of Liberation, In: Suzannah Linton (Guest Editor), Criminal Law Forum. Springer, 2010, Volume 21, Number 2: 187-359.


Researcher : Liu ANC
List of Research Outputs

Chan J.L.Y., Leung A.Y.M., Chiang V.C.L., Li W.H.C., Wong E.M.L., Liu A.N.C. and Chan S.S.C., A Pilot project to build e-health literacy among university students in Hong Kong, The 10th International Congress on Medical Librarianship (Brisbane, Australia). 2009.
Luk J.K.H., Liu A.N.C., Ng W.C., Lui B., Beh S.L. and Chan F.H.W., End of Life care: towards a more dignified dying process in residential care homes for the elderly, Hong Kong Medical Journal. 2010, 16: 235-236.


Researcher : Loi KCF
Project Title:2009 SLS Centenary Conference at Keele Mortgagees' Duty of Care in Exercising Power of Sale
Investigator(s):Loi KCF
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:09/2009
Completion Date:09/2009
Abstract:
N/A


List of Research Outputs

Loi K.C.F., Mortgagees Exercising Power of Sale: Nonfeasance, Privilege, Trusteeship & Duty of Care, Journal of Business Law. 2010.
Loi K.C.F., Mortgagees Exercising Power of Sale, Society of Legal Scholars Centenary Conference. 2009.
Loi K.C.F., Mortgagees' Duty of Care in Singapore: Staying the Course, Singapore Journal of Legal Studies. 2009.
Low F.K. and Loi K.C.F., The Many ‘Tests’ For Terms Implied In Fact: Welcome Clarity, Law Quarterly Review. 2009, 2009.


Researcher : Long Q
Project Title:Relevancy between corporations and Chinese clan: ideologies behind comparative law
Investigator(s):Long Q
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:02/2008
Completion Date:04/2010
Abstract:
The primary purpose of the project is to place the comparative study of Western corporations and Chinese Clans in the broader historical and ideological perspective and challenges the claim that traditional Chinese clan performed many of the functions that modern American corporation law performs. The project encounters the superficial comparative law study which becomes a tool of ethnocentrism and prejudice. The ultimate goal is to develop the comparative law into a field that provides the necessary bridge between the domestic critique of the governing order and a more searching analysis of foreign systems so as to acknowledge the multiple legal realities, values and ways to resolve conflict. Another key objective of the project is to establish that law and legal ideologies are a facet of culture. The legal order encompasses systems of political and social relations; economic process; psychological habits and ideological values. It is the integrated portrait of the structural elements and their interactions that constitute the historical experience of a society. To understand the nature of certain institute in the society; such as corporation or Chinese clan, it is critical to consider their religious and ideological traditions. The project will trace the origins of the corporation and corporation to the competition and cooperation among ecclesiastical and secular powers after Papal Revolution in 11th century. It is impossible to understand any Western legal tradition or institution without exploring its religious dimension. In 1075, Pope Gregory VII declared the political and legal supremacy of papacy over the entire church and the independence of clergy from secular control. The system of competition and cooperation among ecclesiastical and secular powers led to pluralism in the legal systems. The law became necessary in order to maintain the complex equilibrium of plural completing legal systems. And the ecclesiastical corporation law turns out to be the constitutional law of the church in Western, In 12th century, it became explicit that corporation law was raised to the level of a constitutional principle: “what concerns everyone ought to be considered and approved by everyone…” At that conjunction, the church was conceived in legal terms as a corporation. Therefore, in the cannon law, corporate law principles established limitations on papal authority. By classifying the church as a corporation, the canonists found a locus of authority that was preexisting and superior to the papal hierarchy. Canonists used this theory to explain how an act of the corporate might limit or override papal authority. In the cannon law or popular sovereignty tradition, corporate analogies inspired the secular political theorists to postulate a legal authority in the people themselves, independent of the government. The corporate conception of the state, thereafter, became essential to the idea of constitutional government. A state is political corporate body; it can act only through agents, and can command only by laws. On the contrary, tradition Chinese clans have their rootedness in the spiritual orientation of self-cultivation. Confucian self-transformation means a long and unceasing process of delving into his own ground of existence and discovers his true subjectivity not as an isolated selfhood but as a true source of creative transformation. Appreciation of self can only be obtained through genuine communication with other. Ancestral worships-the Chinese clans are concrete manifestations of the ethicoreligious intention underlying self-cultivation and the established rites in society. Filial piety in Confucian is considered as prime virtue. Chung-Yung characterizes the filial son in terms of his ability to “continue”(chi) the will and to “transmit”(shu) the work of his father. By the same token, the maintenance of an ancestral line signifies the continuation of a personality ideal exemplified by the forefathers of the ancestral line and the transmission of cultural values. The ancestral worship by filial descendents may be taken as the microcosm of an ideal society which is rooted in “Li” By analyzing the ideological difference in Western corporation and Chinese clan, the project criticizes the method of simply mapping Chinese legal practices onto familiar western conceptual territory. It urges the comparative law becomes a inter-and multidisciplinary scholarship and wants to shed the lights on the notion that comparative law can reveal how another person (culture) perceives the world and how law contributes to and reflects the culture of a country.


Project Title:property rights in China's cultural context
Investigator(s):Long Q
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:04/2010
Abstract:
Abstract The concept of property lies at the heart of the intensely significant debates which reaches to the root of our social arrangements for living. It has been a puzzle for many how China managed to grow so rapidly when well-defined property rights are absent in its society. Without secure private property right, one might conclude that there could not be genuine market incentives. However, the actual performance of the Chinese reform provides a striking contrast to these expectations. My project is to take a close look at the ideologies underlying the developments of China’s property institutions. By examining how the concepts of property have to respond to historical predicaments that China had to face at given moments, it gives the different explanation of Chinese choices among the conflicting sets of property values with which political discourse wrestles. In Western tradition, there are two competing traditions in property theories. The first one is the wealth-enhancing concept of property or market property concept. U.S has been called the most market property-oriented society in the world. The second version of property is called “property as propriety”. Under this understanding, the basic reason why the institution of property is recognized is to advance the collective good of the society. China has civil-law tradition. But she decided not to adapt German’s property-as propriety philosophy. Instead China chose American-style market property theory to carry out its economical reform. It is particularly puzzling, considering China still claims itself a socialist country. The project will look into history and argues that this choice has its psychological deep-rooted urgency of searching for national wealth and power in China. This collective sense of urgency has to be traced down to the 19th century when Chinese tradition clashed with West force for the first time. The domestic trouble and foreign invasion in 19th century made the very survival of Chinese nation and the race was at stake. Chinese intellectuals realized it is due to China’s lack of wealth and power that led to China’s defeat at the hands of aggressive western powers. Thus, search for wealth and power became the overwhelming concern for Chinese modernization. The market property system became an agent of this change. The market property released the energy from individual and gives them incentives for greater productivity. But all the released energies are fused in order to serve the wealth ad power of the national state. This line of ideology resonates powerfully with China’s desire for national wealth and power. This explains why China chose to embrace the market property system as one of solutions for their centuries old desire to national revival. Objectives A system of property rights is more than a device or mechanism; it is much more an intricate web of experiences and hopes. It defines each person in relation to other persons and it shapes the social structures. No one will doubt that the institution and the concept of property are also central to the debates about capitalism, socialism and those post-socialist societies. The project of study of Chinese property institution is a way of understanding how China has organized its society and what is the underlying identity of its community and its individual member. One of goal is to explore whether China’s property law could become a constructive force to bring the fundamental changes of its constitutional values in terms of the individual freedom and limited government


Project Title:2010 Law and Society Assocation Annual Meeting China's Communist Myth and Its Path to Modernization
Investigator(s):Long Q
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:05/2010
Abstract:
N/A


List of Research Outputs

Long Q., China's communism myth and its path to modernization, Law and Society Conference . 2010.
Long Q., China's legal development since 19 century, The development of Chinese legal system: change and challenging. 2009.
Long Q., Reinterpreting Chinese Property Law, Southern California Interdisciplinary Law Journal . California, USA, Univ. Southern California, 2009, 10: 55-72.
Long Q., 中国物权法的悖论, 港大-北大法学年会, 2009.


Researcher : Loper KA
Project Title:The UN Committee on the Elimination of Racial Discrimination and the Concept of Substantive Equality
Investigator(s):Loper KA
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:04/2008
Completion Date:12/2009
Abstract:
Background: The International Convention on the Elimination of all Forms of Racial Discrimination (the “Convention”) came into force in 1969 and was the first of the core UN human rights treaties. The ratification of the Convention by an increasing number of states (173), and the work of the Convention’s monitoring body, the Committee on the Elimination of Racial Discrimination (the “Committee”), are among the more significant of international efforts to tackle racial discrimination. Delegates to the World Conference against Racism (“World Conference”) in South Africa in 2001 affirmed “that universal adherence to and full implementation of the [Convention] are of paramount importance for promoting equality and non-discrimination in the world.” (1) The same delegates, however, also acknowledged that international efforts had not achieved their objectives and that “countless human beings continue to the present day to be victims of racism, racial discrimination, xenophobia and related intolerance.”(2) This project will focus on the work of the Committee in light of continuing racial discrimination and the need to find more effective solutions. It will consider how the Committee currently interprets particular aspects of states’ obligations under the Convention in order to assess the Convention’s capacity and potential to address modern forms of racial discrimination using new theoretical models. The Committee, one of seven human rights treaty bodies, has 18 expert members. It considers reports submitted by states on the implementation of their Convention obligations; it makes “suggestions and general recommendations” (Article 9); and it receives and considers communications from individuals in states that have recognized the Committee’s competence (Article 14). Project Objectives: This study will: 1. Collect and review the following documents produced by the Committee which provide evidence of its interpretation of state obligations: • Summary records of the consideration of state reports and concluding observations • General recommendations • Views on individual communications 2. Analyze these documents to ascertain the Committee’s interpretation of three key provisions in the Convention including i) the definition of race (Article 1(1)); ii) the definition of discrimination (Article 1(1)); and iii) the requirement to apply special measures (Articles 1(4) and 2(2)). 3. Analyze these documents for evidence of the Committee’s general theoretical approach toward the concepts of equality and non-discrimination. The study will test the hypothesis that the Committee’s approach to Convention obligations reflects and coincides with recent theoretical developments in equality law. The provisions chosen as the focus of analysis raise issues at the core of current theoretical debates. 4. Review recent literature on the concept of equality to provide a framework for understanding the Committee’s approach to interpreting the Convention. 5. Apply this analysis of the Committee’s work to the HK context, especially recent efforts by the government to implement its obligations under the Convention. Key Issues and Problems: The study will consider the following problems: 1. What is the definition of race? The Convention defines racial discrimination as: “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise … of human rights.” Donnelly observes that the Committee “largely ignored” the concerns of non-racial minorities until the 1980s, (3) although Article 1 explicitly includes other categories, implying a broader understanding of race. • How does the Committee interpret “race, colour, descent, or national or ethnic origin” in recent documentation? • Does the Committee consider race objectively based on physical characteristics or subjectively? (4) • Does the Committee’s approach to race reflect developments at the national level? (5) • Does the Committee’s interpretation encompass a community such as newly arrived mainland Chinese immigrants in Hong Kong? 2. What is the definition of discrimination? It is generally accepted that the definition, including the “purpose or effect” language, covers both direct and indirect discrimination. Direct discrimination refers to unequal, unfavorable treatment on the basis of a prohibited ground and indirect discrimination means equal treatment that has a disproportionate, negative impact on a particular group. • How does the Committee understand indirect discrimination? • Has the Committee cited any examples of indirect discrimination that are incompatible with the Convention? • Does the Committee’s interpretation of discrimination conform to recent national and regional legal reforms? (6) • Does the definition of indirect discrimination in Hong Kong’s race discrimination bill conform with this interpretation? The Committee has suggested that the Hong Kong bill “does not appear to be in conformity with the Committee’s recommendation [to adopt appropriate legislation]”. (7) 3. What is the scope of state obligations to introduce special measures? The concept of special measures is associated with policies such as “affirmative action” and positive duties promote equality (required in the UK). • How has the Committee interpreted obligations to implement special measures? • According to the Committee, what are the parameters of special measures? How far can these deviate from formal equality (equal treatment) to promote substantive equality (equality of results)? 4. What is the Committee’s theoretical approach to equality and non-discrimination? Grant notes that “[t]he 21st century has seen renewed efforts on the part of both theorists and practitioners to develop new approaches to equality” (8) • Has the Committee taken new developments into account? • Does the Committee’s interpretation require substantive and/or formal equality? Substantive equality takes differences into account when formulating responses to discrimination and recognizes that equal treatment may lead to unequal results. (9) • While Fredman claims that it is “now generally accepted that formal equality should be transcended by principles of substantive equality” (10) substantive equality can take different forms – including equality of opportunity, results or outcome. Does the Committee promote any of these forms? Endnotes: 1. Durban Declaration and Programme of Action, 2001 2. Ibid. 3. Donnelly, International Human Rights (Westview Press: 2007, 3rd edition), 94 4. Fredman: “race is itself a social construct … Racism is, therefore, not about objective characteristics, but about relationships of domination …” in Discrimination Law (Clarendon, 2002), 53 5. On UK courts’ interpretation see McColgan, “Reconfiguring Discrimination Law”, (Spring 2007) Public Law, at 76, and Mandla v Dowell Lee [1983] 2 W.L.R. 620 6. European Council Directive (EC) 2000/43 of 29 June 2000 and subsequent amendments to the UK’s Race Relations Act. 7. Letter from the Committee to China’s Permanent Representative to the UN, 24 August 2007 8. Grant, “Dignity and Equality”, (2007) 7 Human Rights Law Review 300 9. Hughes, “Recognizing Substantive Equality as a Foundational Constitutional Principle”, (1999) 22 Dalhousie Law Journal 5 10. Fredman, in Fredman (ed), Discrimination and Human Rights: The Case of Racism (OUP, 2001), p 3.


Project Title:Legal Assistance for Asylum Seekers and Torture Claimants in Hong Kong
Investigator(s):Loper KA, Young SNM
Department:Law
Source(s) of Funding:Public Policy Research
Start Date:09/2009
Abstract:
1) This study aims to consider models of legal representation in other jurisdictions to inform a critical examination of Hong Kong law and policy and suggest potential options for reform. To achieve this overall objective, the study will: 2) Identify and document any problems with the current Hong Kong system through a review of policy, case law and legislation - including the Basic Law, the Bill of Rights, and the Immigration Ordinance - and qualitative interviews with stakeholders. 3) Examine models of legal assistance provided to asylum seekers in the UK, Canada, New Zealand and Australia. These countries have been chosen because of their common law traditions, their depth of experience with adjudication of asylum claims and the availability of relevant studies. The project will review primary and secondary sources and in phase two the PI will conduct interviews with stakeholders and experts. 4) Evaluate these models by constructing benchmarks to measure their effectiveness and ascertain whether they: -guarantee fair procedures and protect the claimants’ rights as recognized in domestic and international law; -ensure that decision makers have a full understanding of the claims and their implications; and -ensure efficiency without sacrificing fairness and the protection of rights. 5) Re-examine the Hong Kong issues identified in the first phase of the project in light of this comparative experience and determine potential models for adoption in Hong Kong which can address these problems and meet the benchmarks described above. 6) Share the results of the study locally and at international academic conferences.


Project Title:The 2010 Annual Meeting of the Law and Society Association Equality, Inclusion, and Article 24 of the Convention on the Rights of Persons with Disabilities
Investigator(s):Loper KA
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:05/2010
Completion Date:05/2010
Abstract:
N/A


List of Research Outputs

Ghai Y.P., Woodman S. and Loper K.A., Is There Space for "Genuine Autonomy" for Tibetan Areas in the PRC’s System of Nationalities Regional Autonomy?, International Journal on Minority and Group Rights. 2010, 17: 137-186.
Kong K.Y. and Loper K.A., GRF Incentive Award , University of Hong Kong . 2009.
Loper K.A., Diversity, Equality and the Role of Law, Understanding and Addressing Diversity: Research Workshop. 2010.
Loper K.A., Submission to the Legislative Council Panel on Public Service: Language Proficiency Requirements, Centre for Comparative and Public Law, HKU. 2010.
Loper K.A., Submission to the UN Committee on the Elimination of Racial Discrimination, 75th Session, Centre for Comparative and Public Law, HKU. 2009.
Loper K.A., The Right to Equality and Inclusion in Education for Persons with Disabilities, Law and Society Association Annual Meeting, Chicago. 2010.
Loper K.A., The Right to Inclusive Education in the Convention on the Rights of Persons with Disabilities and its Implementation in Hong Kong, International Conference on Inclusion in Education: The Implementation of Article 24 of the United Nations Convention on the Rights of Persons with Disabilities, The University of Hong Kong. 2009.
Loper K.A., Tibetan Language Rights, Roundtable on Tibetan Autonomy. Hong Kong, 2009.
Loper K.A., Toward Comprehensive Refugee Legislation in Hong Kong? Reflections on Reform of the "Torture Screening" Procedures (comment), Hong Kong Law Journal. 2009, 39: 253-260.
Yap P.J., Loper K.A. and Kong K.Y., GRF Incentive Award , University of Hong Kong . 2009.


Researcher : Low FK
List of Research Outputs

Low F.K., Family Property & Interposed Companies, In: Dr Martin Dixon , The Conveyancer & Property Lawyer. Sweet & Maxwell, 2009, 2009.
Low F.K. and Tang H.W., Tan Sook Yee's Principles of Singapore Land Law, 3rd Edition, Tan Sook Yee's Principles of Singapore Land Law, 3rd Edition. 2009.
Low F.K. and Loi K.C.F., The Many ‘Tests’ For Terms Implied In Fact: Welcome Clarity, Law Quarterly Review. 2009, 2009.
Low F.K., The Nature of Torrens Indefeasibility: Understanding the Limits of ‘Personal Equities', Melbourne University Law Review . 2009, 2009.
Low F.K., The Story of ‘Personal Equities' in Singapore: Thus Far and Beyond, In: Professor Stanley Yeo, Singapore Journal of Legal Studies. 2009, 2009.
Low F.K., The Use and Abuse of Taxonomy, In: Rob Merkin, Jill Poole and Jenny Steele, Legal Studies. 2009, 2009.


Researcher : Luk A
List of Research Outputs

Chan J.M.M., Chen A.H.Y., Lee A.S.C. and Luk A., In: Albert Chen, Johannes Chan, Alice Lee, Angelina Luk, General Principles Of Hong Kong Law. 香港法概論, Hong Kong, Joint Publishing (HK) Co Ltd, 2009, 2nd ed: 511+ xii.


Researcher : Lynch KL
Project Title:World Association of International Studies Conference Economic Globalization and International Commercial Arbitration: Convergence or Diversity in Law & Practice?
Investigator(s):Lynch KL
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:07/2001
Abstract:
N/A


List of Research Outputs

Lynch K.L. and Chan E., In: Katherine Lynch Erica Chan, Mediation in Hong Kong: The Way Forward. Hong Kong, University of Hong Kong, 2009, 254.


Researcher : Mason LC
List of Research Outputs

Mason L.C., "The Use And Effectiveness Of Non-Reliance Clauses In Commercial Contracts", In: Michelle Cheng, Julienne Jen, Jessica Young, Hong Kong Law Journal (Law Lectures For Practitioners). Hong Kong, Hong Kong Law Journal Ltd, 2009, 2008: 93-113.
Mason L.C., Hong Kong Contract Law. Sweet & Maxwell, 2010, (in progress).
Mason L.C., “Non-Reliance Clauses: Past, Present (And Futile?)”, In: Mads Andenas, Guido Alpa , European Business Law Review. The Netherlands, Kluwer Law International, 2009, 20: 623-634.
Mason L.C., “Rethinking Negligence In Force Majeure Clauses: Risk Allocation, Fairness And Certainty In Commercial Contracts", In: Robert M Merkin, Journal of Business Law. London, Sweet & Maxwell, 2010, 199-217.


Researcher : Mushkat R
Project Title:Regional Latin American Conference of the International Law Association Sustainable Development: A View from the Special Administrative Region of the People's Republic of China
Investigator(s):Mushkat R
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:07/1999
Abstract:
N/A


Project Title:The external relations of the HKSAR
Investigator(s):Mushkat R
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:11/2004
Abstract:
With respect to the "external relations" dimension of the one country two systems formula. The focus is on the wide powers formally granted to the HKSAR to manage its links with other parties in the global arena and the extent to which these powers have been used, and to what effect.




Researcher : Paryani PK
Project Title:Harnessing a Framework for Effective Remedies: A Comparative Analysis of theLegal Responses to Domestic Violence
Investigator(s):Paryani PK
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:01/2009
Abstract:
The HKSAR Government has recently amended the Domestic Violence Ordinance (DVO) in an attempt to remedy some of the problems faced by the victim community looking for protection against domestic violence under Hong Kong's legal system. Although the passage of the Domestic Violence (Amendment) Ordinance is a notable step in the right direction, various recommendations and proposals relating to the proposed reform of the DVO were not incorporated into the revised legislation. As such, the legislative regime remains inadequate and far behind our regional and former colonial partners. With a view to ensuring the effectiveness of the law in responding to domestic abuse, the continued appraisal of the law's response to domestic violence is critical in order to make calculated improvements and to move forward in the right direction. One way of doing this is to compare Hong Kong's progress as against regional counterparts that are comparable models for emulation. This project considers legal responses and approaches to domestic violence in Singapore and the United Kingdom and compares these approaches with the recent developments in Hong Kong. The study will consider and examine current legislation and case law in these jurisdictions in order to place Hong Kong in comparison to these countries to determine where Hong Kong stands on a spectrum of reform in domestic violence laws. The two countries are chosen because Singapore is socially and demographically similar to Hong Kong in key respects and therefore, can serve as a very useful comparative unit. The United Kingdom as a comparative unit is critical to determine the progress of Hong Kong and Singapore in many respects given that much of both, Hong Kong's and Singapore's legislation and common law developments have been modelled closely on their UK counterpart legislation and case law and continue to do so in many respects. Thus, the UK would serve as a very important comparator in this regard to gauge HK and Singapore's embrace of progressive approaches towards addressing domestic violence. In the proposed study, the term "legal responses" is defined to include the studying of relevant statutes, common law judgments and judicial attitudes with respect to use of the relevant legislation and case law as reflected in the judgments. Furthermore, as the concept of domestic violence is not legally defined under the law in Hong Kong, the scope of domestic violence in relation to Hong Kong includes the study of relationships between married/common law couple; parents and children; elderly and other family members; between siblings but excludes domestic helpers. Violence refers to charges of “assault”, “murder”, “manslaughter”, “provocation”, “threats”, “rape”, “criminal harassment”, “criminal intimidation” and “grievous bodily harm” covered under the Crimes Ordinance (Cap 200) and the Offences Against the Person Ordinance (Cap 212) and applications for injunctions under DVO (Cap189) The objectives of the study are to - 1. Examine the civil and criminal remedies currently available to protect victims from domestic violence in the three jurisdictions; 2. To evaluate the 'responsiveness' and effectiveness of these remedies; and 3. To assess indicators of success, i.e. by isolating factors (to the extent possible) which assist in achieving a reduced rate of occurrece in domestic violence.


Project Title:3rd Global Conference on Multiculturalism Belonging and Conflict The Doctrine of Substantive Equality and the Democratisation of Diversities
Investigator(s):Paryani PK
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:09/2009
Completion Date:09/2009
Abstract:
N/A


Project Title:Enhancing Legal and Policy Measures to Combat Domestic Violence Against Immigrant and Ethnic Minority Women in Hong Kong SAR
Investigator(s):Paryani PK
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:06/2010
Abstract:
Initiatives for eliminating violence against women took center stage with the historic passing of a convention dedicated to the plight of women in the form of the Convention for the Elimination of All forms of Discrimination Against Women ("CEDAW"), which came into force in 1979 and has now been acceded to by 186 states, inlcuding HKSAR. In furtherance of this international commitment, HKSAR has enacted domestic legislation to implement CEDAW at the local level in the form of various anti-discrimination legilsation (Sex Discrimination Ordinance and the Family Status Discrimination Ordinance) and the Domestic Violence Ordinance. Article 2(1) of CEDAW recognises and condemns violence against women as a rampant form of perpetual discrimination against women which obstructs the protection of the fundamental freedoms of women through the denial of equal rights, freedoms, and security. State parties to CEDAW are required to address violence against women by offering protection that is effective. The Secretary General of the United Nations has declared that under international law, states are required to exercise due diligence in their responsibility to protect women against acts of violence, to address such violence where it does occur and to provide a remedy, including against non-state actors when a state has failed in this duty. Numerous studies in other countries have revealed that immigrant and particularly ethnic minority women face various obstacles when suffering domestic violence in their non-native countries. They lack awareness of the systems in place to protect them but even when made aware of the services available, they are often unwilling or unable to engage these services for cultural, financial or practical reasons. HK's ethnic minorities constitute 5% of its population. Their plight has largely been ignored in Hong Kong mainly due to the lack of culturally-sensitive awareness of different family needs and dynamics in cultural contexts. Language, socio-economic barriers and social exclusion have exacerbated this gap. Approximately 46% of the marriages in HK entail the marriage of HK men to Mainland Chinese women. 50% the women who seek assistance at shelters in HK are reported to be Mainland women. The group has been known to suffer from discrimination in HK as have ethnic minority women. No refuge centers cater to their needs mainly due to cultural barriers, leaving them no option but to stay with their abusers. This is particularly so when they fear that they risk losing their children or being repatriated to their home countries. They lack awareness of their rights and this, too often results in their making poor choices for themselves. In the circumstances, there is virtually no information on the upkeep of statistics of domestic abuse reports by ethnicity or social grouping. In light of this critical gap, it is vital that we assess the needs of these women, discern the obstacles users face and map out adequate and effective responses. A study entitled "Inquiry as action: User Led Rsearch on State Policy and Practice Towards Immigrant Women Facing Domestic Violence in the UK" has recently been concluded in the UK in 2008 (Anitha S, Chopra P et al, 2008 "Forgotten Women: Domestic Violence, Poverty and South Asian Women with No Recourse to Public Funds," available at http://www.oxfam.org.uk/resources/ukpoverty/downloads/forgottenwomen.pdf). The study revealed the obstacles to service use in the event of domestic violence in the UK on account of lack of recourse to public funds once victims left abusive relationships and fear of repatriation to their home countries on loss of sponsorship. The study resulted in training and support by a multi-agency steering group and a change in policy and practice at the local and national level. As this and numerous other studies have shown, immigrant women are at a unique risk for violence in these circumstances. See also, Southhall Black Sisters Briefing to amend Domestic Violence, Crime and Victims Bill (2004) UK and for similar studies in America, see, West, Kantor & Jasinski, "Sociodemographic Predictors and Cultural Barriers to Help-Seeking Behaviour by Latina and Anglo American Battered Women", Yoshioka, DiNoia & Ullah, "Attitudes toward Marital Violence: An Examination of Four Asian Communities" (2005), Natalie Sokoloff & Christina Pratt, "Domestic Violence at the Margins" (2005) and Shakti's Domestic Abuse of Black / Minority Ethnic Women Education and Information Workshop (UK). Although a handful of studies have been conducted in Hong Kong, they are of limited use and applicability to the experience of ethnic minority and immigrant women given their focus on a specific district; a particular socio-economic group or the 'Chinese' community. To date, only one study has assessed the attitudes and help-seeking behaviours of 182 ethnic minority women experiencing domestic violence. This study reveals some of the factors which inhibit effective responses to combat domestic violence. However, to date, there is no study which critically examines the specific factors (disaggregated by origin, age, income-group, race, geographical district, years of residence, education level, employment, etc) which cause and perpetuate the inaccessibility of the system to the users in that the response mechanisms fail to account for the uniqueness of the circumstances of ethnic minority and immigrant women which make them unable or unwilling to approach the legal and policy helplines. For example, Tin Shui Wai has been singled out as the district which has topped all others in terms of reported domestic violence incidents per year 2002-2006) As such, it is vital that the specific needs and challenges presented to traditional legal and policy-driven responses be fully addressed through the careful study of the users of these laws and services to help lead the changes that are required in order to enhance protection and ensure effective prevention of domestic violence against vulnerable populations and to prevent its perpetuation. This study's objective is to focus on this law and service gap, highlighting the sources of the inaccessibility and to provide concrete recommendations of measures to improve the current situation to ehance accessibility and redress to prevent the problem of domestic violence within the ethnic community from spiralling out of control. Factors such as race, spatiality and rurality as well as culture and its impact on the capacities of users on drawing on available services and the law, will be used to test the responsiveness of the existing system. The objectives of this project are to: 1. Examine ethnic minority and immigrant womens' 'capacity' to engage legal, social and health services in the context of domestic violence by testing their knowledge of existing resources, their likely course of action if victimised or if a friend asks for direction and their reasons for their likely response behaviour; 2. Examine service-providers' (i.e. shelter, NGO) experiences with ethnic minority and immigrant women, detailing any difficulties in rendering services to victims of domestic violence; 3. To assess the impact of the user's choices as highlighted in (1) above on (2) and the impact of (1) & (2) collectively on the detection and prevention of domestic violence among immigrant and ethnic minority communities; and 4. Based on the findings of the project, to assess and evaluate inidicators of success / failure through disaggregation of risk-factors and their impact on user-capacity, to discern appropriate intervention models for immigrant and ethnic minority women.


List of Research Outputs

Paryani P.K., Asian Law Institute, Research Fellow 2010, Asian Legal Institute, Faculty of Law, National University of Singapore. 2010.
Paryani P.K., Building Inclusive and Just Societies: the Role of Deliberative Theory and Substantive Equality, Asian Legal Institute Fellow's Seminar 2010, Faculty of Law, National University of Singapore. 2010.
Paryani P.K., Diversity Mainstreaming and the Politics of Belonging: Addressing Diversity Through Law and Policy, Research Workshop on Understanding and Addressing Diversity in Hong Kong. 2010.
Paryani P.K., Diversity and Multiculturalism in the Workplace, Corporate Social Responsibility and Hong Kong Equal Opportunities Commission. 2009.
Paryani P.K., Hong Kong Equal Opportunities Commission: Calling for a New Avatar, In: R Glofcheski, Hong Kong Law Journal. Hong Kong, Sweet & Maxwell Ltd, 2009, 39(2): 339-359.
Paryani P.K., Legislation and Government Schemes: India, China, Singapore, Japan and Hong Kong SAR, In: Community Business Asia, Ageing Workforce in Asia. 2010.
Paryani P.K., Minority Rights and Public Interest Litigation in Asia, Public Interest Litigation in Asia, Centre for Comparative and Public Law, The University of Hong Kong. 2009.
Paryani P.K., Substantive Equality and the Democratisation of Diversities, South to South Regional Symposium on Constitution Building, “Constitutional Design for Diversity and Conflict” (organised by International Institute for Democracy and Electoral Assistance (IDEA) in partnership with the Non-Aligned Movement Centre for South - South Technical Cooperation). 2009.


Researcher : Petersen CJ
Project Title:Pursuing Equal Justice: Association of American Law Schools Annual Meeting Conciliating Employment Discrimination Claims: The Attempt to Apply Australian Models in the Context of Hong Kong
Investigator(s):Petersen CJ
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:01/2001
Abstract:
N/A


Project Title:Trafficking of women into Hong Kong
Investigator(s):Petersen CJ, Laidler KA, Emerton RG
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:11/2003
Abstract:
To collect 20 to 25 in-depth qualitative interviews on the situations of trafficked women and migrant sex workers in Hong Kong, including their financial, educational and family status before recruitment, recruitment methods, mode of entry into Hong Kong, living and working conditions, coping strategies, and experience of the Hong Kong criminal justice system; to assess the extent to which migrant sex workers are trafficked and/or suffer other human rights violations; to assess the extent to which trafficked women identify themselves as victims; to evaluate the extent to which Hong Kong is meeting its international and regional commitments towards victims of trafficking on the basis of the case studies, and to assess which further measures it could usefully adopt; to test competing feminist theories on trafficking; to inform the public policy debate on trafficking into Hong Kong.




Researcher : Smart PSJ
Project Title:Hong Kong Professionals and insolvency: an analysis of the attitude of professional governing bodies to the insolvency of their members
Investigator(s):Smart PSJ
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:11/2004
Abstract:
To collect and analyse the rules and practices from various professions, such as lawyers, doctors, architects, surveyors and financial advisers, as well as members of the disciplined services and other Government employees. "Best practices" will be identified.




Researcher : Tai BYT
Project Title:LawOf: a legal community
Investigator(s):Tai BYT
Department:Law
Source(s) of Funding:The University of Hong Kong Foundation Seed Grant
Start Date:04/2002
Abstract:
To study LawOf: a legal community.


Project Title:Web-based learning tools for law
Investigator(s):Tai BYT
Department:Law
Source(s) of Funding:Leung Kau Kui Research and Teaching Endowment Fund - Teaching Grants
Start Date:01/2003
Abstract:
To develop a series of web-based learning tools for law teachers and students.


List of Research Outputs

Churchill D., Salter Menzo D.J., Law N.W.Y. and Tai B.Y.T., Social bookmarking-Repository-Networking: Possibilities for Support of Teaching and Learning in Higher Education, Serial Records. 2009, 35(3): 142-148.
Tai B.Y.T. and Lee K.A.R.E.N., (co-author: Karen Man Yee, Lee) “The discourse of ‘human dignity’ in the Constitution of the People’s Republic of China,” (2010) 38 Hong Kong Journal of Social Sciences 59-70 , 「中國人民共和國憲法中關於人的尊嚴的論述」，載《香港社會科學學報》，2010年，第38期，頁59-70), Hong Kong Journal of Social Sciences . 《香港社會科學學報》, 2010, 38: 59-70.
Tai B.Y.T., “Constitutional Game: An Analytical for Constitutional Law and Constitutional Politics,” (2010) Journal of Politics and Law 356-379., Journal of Politics and Law . Canada, 2010, 3: 356-379.
Tai B.Y.T., “The Hong Kong Ombudsman and Human Rights Protection – Revisited” , Asia Pacific Law Review. 2009, 17: 95-114.


Researcher : Tilbury MJ
List of Research Outputs

Tilbury M.J., Remedies for Breach of Confidence in Privacy Contexts, In: Andrew Kenyon, Jason Bosland and Megan Richardson, Media and Arts Law Review. Sydney, LexisNexis, 2010, 15: 290-294.


Researcher : Veitch TS
Project Title:Conference on The Infallible Cry: Representations of pain in art and law How law portrays suffering
Investigator(s):Veitch TS
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:05/2010
Abstract:
N/A


List of Research Outputs

Veitch T.S., Binding Precedent, "The Legal Case and Fiction" Symposium at HKU . 2010.
Veitch T.S., The Common Good in Europe, Onati Institute for the Sociology of Law. Spain, 2010.
Wan M.M.H., Veitch T.S. and Cheng P.S.S., Chair of session "The Legal Case and Fiction", HKU Law and Literature Colloquium on "The Legal Case: Interdisciplinary Perspectives". 2010.
Wan M.M.H. and Veitch T.S., Chair of session on "The Legal Case and Fiction", HKU Colloquium on Law and Literary Studies, "The Legal Case: Interdisciplinary Perspectives".. 2010.


Researcher : Wan MMH
Project Title:On Repetition: Oscar Wilde, Radclyffe Hall, and the Question of Interdisciplinarity
Investigator(s):Wan MMH
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:06/2008
Completion Date:08/2010
Abstract:
The primary purpose of this project is to contribute to the burgeoning field of ‘law and literature’ studies by re-examining the epistemological relationship between legal and literary discourses in the context of two trials involving the most famous gay writers of the modern period, Oscar Wilde and Radclyffe Hall. It departs from existing studies which interpret the trials as moments in the history of censorship or gay persecution and instead rereads them as sites of interdisciplinary encounter. This study builds on the argument of my recently completed Cambridge doctoral dissertation. Oscar Wilde was brought to the dock in 1895 on the charge of committing acts of gross indecency with other men, and his writings (including The Picture of Dorian Gray) were adduced as evidence against him. The Wilde trials are particularly significant on a hermeneutic level because they represent a rare moment in which a writer’s literary work is construed as evidence of his behaviour in real life. Radclyffe Hall’s The Well of Loneliness has been described as ‘The Bible of Lesbianism,’ and its publication in England led to a controversial obscenity trial in 1928. Wilde was sentenced to hard labour for two years and Hall’s novel was banned in the aftermath of the trials. Both events generated substantial press coverage in their own time and have also been examined in the context of literary studies, legal history, and gender studies in the late twentieth and early twenty-first-century. Most modern accounts of the court cases have been premised on a relationship of difference between the literary and the legal: critics align the law with power and authority, and they often unquestioningly accept, and hence perpetuate, the image of the writers and their works as the unfortunate victims of a reactionary legal machinery. While such depictions are largely accurate, they obscure more subtle questions about the epistemological status of law and literature in the trials by subsuming them under the banner of queer politics. By using the concept of repetition as formulated in the Deconstructive theory of Jacques Derrida as the framework of analysis, I hope to explore this epistemological relationship and to demonstrate that law and literature are related not by difference but by a disavowed affinity. Since law is not only an institution but also a linguistic construct, it follows that legal language is potentially underpinned by the same tropes as literary language. A Deconstructive reading of the trials shows that the law repeats the elements of representation which it finds indecent or immoral in literature; the gender constructions which law condemns are in fact inherent in the legal conception of gender. By approaching the law through the lens of Derrida’s philosophical and jurisprudential writings, I aim to reveal the law’s discursive nature and to show that its position of power is founded on the denial of affinity with literature. Repetition, rather than difference, provides a model of interdisciplinarity which allows us to move beyond existing paradigms. The choice of Deconstructive theory as the framework of analysis is justified by its ability to undermine established binary oppositions. The Deconstructive mode of reading represents a patient, critical engagement with a text, whether literary, legal, or otherwise, which exposes the hierarchical structures within it as ultimately untenable. Deconstruction is therefore epistemologically subversive; reading in Deconstructive terms means problematising seemingly natural or unquestionable textual structures. This subversive nature in turn means that it is particularly suitable framework for a project aiming to question the entrenched binary opposition between law and literature which characterises previous discussions of the two trials under examination. Deconstruction is a powerful way of conducting interdisciplinary research because it highlights the instability of the very notion of a discipline. The key issues and problems to be addressed are: - How can we analyse the Wilde trials and the Well of Loneliness trial without relying on the binary opposition between legal suppression and gay/lesbian victimisation which underpins existing discussions? - How can we construct a historical and cultural context for the trials through the use of official documents and press reports from the period to posit a more nuanced understanding of the way literary and legal discourses shape gendered identities? - How can we make use of Deconstructive theory as an interdisciplinary methodology to reconfigure the relationship between literature and the law? This study extends the argument of my dissertation in three ways. Firstly, and most importantly, the additional time and financial resources will enable me to add substantial primary material related to the trials from the British Library and the National Archives in Britain. The argument in the dissertation is largely derived from my reading of the trial transcripts and the relevant literary works. I aim to deepen my engagement with the trials by incorporating material from the press reports, the contemporary reviews of Wilde and Hall’s writings, the personal correspondence between the writers and their lawyers, and the Parliamentary debates on the criminalisation of same-sex practices. I will also draw on the work of Derrida more extensively to construct a more solid framework of analysis. The theoretical texts I have drawn on in the dissertation include early works such as Of Grammatology and Dissemination, as well as Derrida’s jurisprudential essays. I aim to incorporate theoretical writing from his later period, and also to analyse some of the secondary material on Derridean legal thought such as the work of John McCormick and Matthew Kramer. Finally, I will situate the trials in the wider context of ‘law and literature’ studies by conducting a wider search of the theoretical material on interdisciplinary legal scholarship, some of which was still forthcoming at the time the dissertation was completed.


List of Research Outputs

Leung J.H.C. and Wan M.M.H., A bottom-up approach to understanding obscenity, Socio-Legal Studies Association Annual Conference. 2010.
Wan M.M.H., 'Law and Humour in Johnnie To's Justice, My Foot!', In: Ari Fontecchio, Cardozo Law Review. 2009, 31.
Wan M.M.H., Veitch T.S. and Cheng P.S.S., Chair of session "The Legal Case and Fiction", HKU Law and Literature Colloquium on "The Legal Case: Interdisciplinary Perspectives". 2010.
Wan M.M.H. and Veitch T.S., Chair of session on "The Legal Case and Fiction", HKU Colloquium on Law and Literary Studies, "The Legal Case: Interdisciplinary Perspectives".. 2010.
Wan M.M.H., Files and the Unwritten Law, Law and Literature. USA, University of California Press, 2010, 22: 199-212.
Wan M.M.H. and Leung J.H.C., Law v. Journalism, Or Sex and Power in the case of Edison Chen, International Roundtable for the Semiotics of Law. 2009.


Researcher : Xu Y
List of Research Outputs

Xu Y., Broadening the Tax Base: the Case of China, 税基拓宽与中国宪政发展, Annual Peking U-HKU Law Faculty Conference. 2009.
Xu Y., Green Taxation in China: The Case of a Consolidated Transport Fuel Tax, The 2nd Faculty of Law Taxation Law Research Program (TLRP) International Conference on Green Taxation in East Asia. 2010.
Xu Y., Indirect Tax Responses to the Global Financial Crisis in China, The 7th Asian Law Institute Conference on Law in a Pluralist Asia: Challenges and Prospects. 2010.
Xu Y., No Taxation without Representation? China's Taxation History and Its Political-Legal Transitions, Hong Kong Law Journal. 2009, 39: 515-540.
Xu Y. and Cullen R., Paid Political Electronic Advertising: The Wisdom of Robust Restrictions, 付费电子媒体政治广告:强而有效的规管智慧, Ming Pao Newspaper. 2010.
Xu Y., Putting The 'Value Added' In China's VAT, Tax Notes International. 2010, 58: 487-497.
Xu Y., Taxpayers’ Rights Protection and Constitutional Development in China, Junior Faculty Forum on Constitutional Law . 2010.
Xu Y., The Fish and Bear Paw Dilemma of Carbon Tax in China, The 5th European China Law Association Conference . 2010.
Xu Y., The Significance of the Rule of Law in Taxation to the Development of Human Rights in China, The 24th World Congress of Philosophy of Law and Social Philosophy: Global Harmony and Rule of Law. 2009.
Xu Y., The Taxation Law History in China, In: Yifan Yang, Hanfeng Chen and Qun Zhang, Legal History of the People's Republic of China. Social Sciences Academic Press, 2009, 259-266.
Xu Y., What Chinese Lawyers Say, The ONI-Asia Network Meeting. 2009.


Researcher : Xue H
Project Title:Access to Knowledge Case Study in China
Investigator(s):Xue H
Department:Law
Source(s) of Funding:The University of Oxford - General Award
Start Date:04/2007
Abstract:
This study is to form a policy paper to identify and evaluate the public policies that affect effective access to knowledge and technologies, arouse public awareness on these issues and promote for policy reform.




Researcher : Yap JL
List of Research Outputs

Yap J.L., Considering the Enlightened Shareholder Value Principle, The Company Lawyer. 2010, 35-38.
Yap J.L., Constructive Notice and Company Charges, Journal of Corporate Law Studies. 2010, 265-278.
Yap J.L., Hear No Evil, See No Evil, Speak No Evil: The Total Inactivity of Non-executive Directors, International Company and Commercial Law Review. 2009, 412-414.
Yap J.L., Whither the Common Law Derivative Action?, Common Law World Review. 2009, 197-206.


Researcher : Yap PJ
Project Title:Pure Economic Loss and the Law of Negligence
Investigator(s):Yap PJ
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:03/2009
Abstract:
Claims for pure economic loss suffered as a result of the wrong-doers' negligence often raise the most troubling questions in tort law. Specifically, the law of negligence has been reluctant in providing redress for interferences with economic interests as tort law is averse to imposing “liability in an indeterminate amount for an indeterminate time to an indeterminate class.” [See Ultramares Corporation v Touche, (1931) 255 NY 170 at 179] The infamous “Dartford tunnel” example underscores this point. If a wrong-doer is liable for all economic losses he causes, then a car manufacturer whose defective car he sold stalls in the tunnel during rush hour will potentially be liable for an indeterminate volume of claims. After all, it is unforeseeable how many vehicles will be held up in the jam and the volume of potential claims for loss of wages and profits can further ripple down a chain to third parties who have contractual relations with the primary victims caught in the jam. Any resolution to this ‘floodgates’ concern must thus provide a basis for restricting liability to a reasonably ascertainable class of claimants on a normatively justifiable basis. English courts have since devised the Hedley Byrne v Heller ‘assumption of responsibility’ test [(1964) AC 465] as a control mechanism for the recovery of pure economic loss. Where a defendant had voluntarily assumed responsibility for a negligent misstatement they made, they would owe a duty of care to the claimant that reasonably relied on the misrepresentation. However, whilst the Courts have generally accepted that the Hedley Byrne test applies to negligent misrepresentations and negligent performances of services; the negligent supply of shoddy goods or defective buildings are examples of (construction) services which have been negligently performed yet such losses are generally irrecoverable. This is the position in England [Murphy v Brentwood, (1991) AC 398] and this approach has unfortunately been implicitly accepted as good law in Hong Kong by the Court of Final Appeal in Bank of East Asia v Tsien Wui Marble Factory. Therefore in Hong Kong, it would appear that a subsequent house-owner may not recover the expenses, he incurred in repairing any dangerous defects, from the original builder under the tort of negligence. The purpose of this research is to 1) explore normatively justifiable reasons (if any) for treating pure economic loss arising from the negligent performances of construction services differently from other services and 2) devise a legal rule that can provide recovery for pure economic loss in Hong Kong and England that is normatively justifiable and doctrinally clear. Rules for determining the limits of liability are necessary so that there will be consistency in the application of the law such that the public, whether as potential litigants, or merely concerned with protecting themselves by caution or by insurance, will have some way of predetermining their liability or freedom therefrom. [See Star Village Tavern v Nield, (1976) 71 DLR (3d) 439 at 442]


Project Title:2010 Annual Meeting of the Law and Society Association Why Courts Borrow?
Investigator(s):Yap PJ
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:05/2010
Completion Date:05/2010
Abstract:
N/A


List of Research Outputs

Yap P.J., Articles Editor, Hong Kong Law Journal . Sweet & Maxwell, 2009.
Yap P.J., Foreign Traders and Goodwill Hunting: Passed Over or Passing Off? , European Intellectual Property Review . Sweet & Maxwell, 2009, 31: 448- 454.
Yap P.J., Loper K.A. and Kong K.Y., GRF Incentive Award , University of Hong Kong . 2009.
Yap P.J., Indeterminate Causes of Personal Injuries and Probabilistic Risk-Based Assessments , Tort Law Review. 2009, 17: 175 - 187.
Yap P.J., Naked Error or Fashion Blunder? - Condoms and Fancy Wear in the Hight Court , Hong Kong Law Journal . Sweet & Maxwell, 2009, 39: 313 - 320.
Yap P.J., Pure Economic Loss and Defects in the Law of Negligence , Tort Law Review . 2009, 17: 80- 99.
Yap P.J., Rethinking the Illegality Defence in Tort Law , Tort Law Review . Thomson Reuters, 2010, 18: 52 - 64.
Yap P.J., Why Courts Borrow? , Law and Society Conference 2010 . 2010.


Researcher : Young SNM
Project Title:The first decade of Hong Kong's court of final appeal
Investigator(s):Young SNM, Ghai YP
Department:Law
Source(s) of Funding:General Research Fund (GRF)
Start Date:01/2007
Abstract:
(1) To study and assess the development of law by the Court of Final Appeal (CFA) in the first decade of the Hong Kong Special Administrative Region (HKSAR) and the Basic Law of the HKSAR (1997-2007). (2) Developments in the common law of Hong Kong and specific areas of law (including constitutional, public and private law) will be studied: (i) to understand how and why the developments have occurred; (ii) to identify common and conflicting values, principles, and approaches to legal reasoning (eg value placed on precedent, deference paid to the legislature and executive, etc.); (iii) to determine whether a distinctive body of Hong Kong jurisprudential principles has developed. (3) Differentiated attention will be paid to the decision-making of the permanent, non-permanent, and visiting judges of the CFA. (4) The last decade (1987-1997) of Hong Kong Privy Council (PC) cases will be used as a frame of reference for assessing historical development. (5) Comparative insights from the Macao Court of Final Appeal and other countries will also be sought.


Project Title:Outstanding Young Researcher Award 2008-2009
Investigator(s):Young SNM
Department:Law
Source(s) of Funding:Outstanding Young Researcher Award
Start Date:12/2009
Abstract:
The Awards are intended to recognize, reward, and promote exceptional research accomplishments of academic and research staff.


List of Research Outputs

Jones O.R. and Young S.N.M., Application by Centre for Comparative and Public Law to be made Amicus Curiae in litigation before Hong Kong Court of Appeal, In: Rogers VP, Hong Kong Court of Appeal. 2009.


Researcher : Yu G
Project Title:The role of contracts and their enforcement in China's economic development
Investigator(s):Yu G
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:11/2007
Completion Date:10/2009
Abstract:
The high growth rate of China's economic development during the alst two or three decades has attracted a great deal of scholarly attentation. Scholars and policy makers try to explain the causes of economic development in China and hope to draw policy implications for other developing countries. The new institutional economics approach (North, 1990; Oliver Williamson, 1985) has suggested that as a country's economy become more fully integrated into the larger global economy, formal contract enforcement mechanisms assume a larger significance (North, 1990). North concludes that the lack of low-cost, effective contract enforcement mechanisms is the most important contributor to economic inefficiency and low growth rates in the developing world. Clarke, however, downgrades the importance of formal contract law and its enforcement in China's economic development (Clarke, 2003). Instead, he focuses on the improtance of the security of property rights of investors. He claims that local governments' active participation in economic development has enhanced the security of property rights of investors. Along the similar line of emphasizing the importance of property rights of investors, Zhang claims that the asymmetric property rights protection partly explains China's high rate of economic development. (Zhang, 2007). According to him, local governments under decenalization have great incentives to protect the property rights of investors at the expense of eroding the property rights natural individuals.Obviously, both Clarke and Zhang choose to ignore the importance of contracts and their enforcement in China's economic development. While Trebilcock and Leng (Trebilcock and Leng, 2006) argue that at higher levels of development, informal contract enforcement may become an increasingly imperfect substitute due to the presence of large, long-lived, highly asset-specific investments, their explanation of China's economic development is not satisfactory on the ground that they fail to examine specific mechanisms of informal and formal contracts and their enfocement in China. This research project will explain China's high rage of economic development from the new institutional economics approach. More specificly, the investigator will examin both informal contract mechanisms such as the informal financial market in Whenzhou, China and the formal contract mechanisms including letter of credit in international sales transactions, bills of exchange in domestic sales transactions, and secured lending in financial credit transactions. The hypotheses of the project are that both informal and formal contract mechansims and their enforcement play important roles in China's economic development and that a functional legal system that has beneficial effects to economic development can be established more quickly to adapt to changing economic needs. References: Douglass North, Institutions, Institutional Change and Economic Performance (1990). Oliver williamson, the Economic Institutions of Capitalism (1985). Michael Trebilcock and Jing Leng, "The role of formal contract and its enforcement in economic development" 92 Virginia Law Review 1517 (2006). John Ohnesorge, "Developing development theory: law and development orthodoxies and the Northeast Asian experience" University of Pennsylvania Journal of International Law 220 (2007). Xiaobo Zhang, "Asymetric property rights in China's economic growth" 33 William Mitcjell Law Review 567 (2007).


Project Title:The 4th International Conference on Interdisciplinary Social Sciences Adaptive Efficiency and China's Economic Development: The Definition and Enforcement of Property Rights
Investigator(s):Yu G
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:07/2009
Completion Date:07/2009
Abstract:
N/A


Project Title:The Role of Formal Property Law: China's Developing Urban Real Estate Market
Investigator(s):Yu G
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:10/2009
Abstract:
Contract law facilitates exchange in the sense that it makes the gain from trade more predictable. Efficient exchange, however, requires the existence of clear property rights. North (1990) claims that “the inability of societies to develop effective, low cost enforcement of contracts is the most important source of both historical stagnation and contemporary underdevelopment in the Third World.” Some evidence in China (Yu and Zhang) and elsewhere (Lisa Bernstein, 1992; Simon Johnson et al., 2002) is consistent with North’s claim. Enforcement of contracts, however, can be carried out by informal or formal means (Trebilcock and Leng, 2006). The economic theory of self-enforcing contracts suggests that a contract is self-enforcing either because the expected future gains from adhering to the contract exceed the current gain from a violation of the contract (Telser, 1980). It is obvious that self-enforcing agreements are not feasible if the sequence of occasions for transactions has a definite known last period. In addition, highly uncertain conditions are not conducive to self-enforcing agreements. In the modern world, however, unexpected things occur very frequently. The Asian financial crisis, the recent US financial crisis, significant change of cost conditions resulting from commodity price fluctuation are some of the unexpected events which are likely to affect the payoff of contractual parties. To support exchanges, contractual parties may take a hostage from the other contractual party (Williamson, 1983). If a hostage device is used, non-performance by a contractual party will result in the loss of or harm to the hostage. This project argues that the use of a hostage device in informal contracts normally only arise between two contractual parties. Built upon and enforced by the formal law, the device of mortgages is able to cope with multiparty conflict of interest. Contrary to the prevailing view that formal legal institutions do not play any important role in China’s economic development (Clarke et al., 2008; Mayeda, 2006; and Ginsburg, 2000), this project makes a case that the formal legal institution does make a difference in China’s urban real estate development in particular and China's economic development in general. References: Donald Clarke, Peter Murrell, and Susan Whiting, “The Role of Law in China’s Economic Development”, in Loren Brandt and Thomas Rawski (eds), China’s Great Economic Transformation (Cambridge, New York: Cambridge University Press, 2008). Douglass North, Institutions, Institutional Change and Economic Performance (New York: Cambridge University Press, 1990), at 54. Graham Mayeda, “The Role of Different Domestic Norms in Law and Development Reform: Lessons from China and Japan”, 51 McGill Law Journal 547(2006). Guanghua Yu and Hao Zhang, “Adaptive Efficiency and Financial Development in China: the Role of Contracts and Contractual Enforcement”, 11(2) Journal of International Economic Law 459 (2008). Lester Telser, “A Theory of Self-enforcing Agreement”, 53(1) Journal of Business 24 (1980). Lisa Bernstein, “Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry”, 21 Journal of Legal Studies 115 (1992). Michael Trebilcock and Jing Leng, “The Role of Formal Contract Law and Enforcement in Economic Development”, 92 Virginia Law Review 1517 (2006). Oliver Williamson, “Credible Commitments: Using Hostage to Support Exchange”, 73 American Economic Review 519 (1983). Simon Johnson et al, “Courts and Relational Contracts”, 18 Journal of Law, Economics and Organization 221 (2002). Tom Ginsburg, “Does Law Matter For Economic Development? Evidence From East Asia”, 34 Law & Society Review 829 (2000).


Project Title:The expansion of private ordering: the role of contract and property law
Investigator(s):Yu G
Department:Law
Source(s) of Funding:General Research Fund (GRF)
Start Date:11/2009
Abstract:
1) This project's first objective is generally to identify and assess legal factors important in and conducive to China's high rate of economic development. It will seek to isolate and test some formal legal mechanisms in shaping China's economic development. More specifically, it will investigate some specific mechanisms in contract law and property law and examine their roles in China's economic development. In so doing, the project will meet a second objective, to apply the results in devising recommendations for policy, legal, regulatory and institutional changes to further promote China's high rate of economic development and draw implications for other developing copuntries. 2) Relevance, significance and value: The work of the project will have direct relevance to the future of China and many other Asian countries in terms of economic development. From an academic perspective, the project's work will have contemporary and direct value in undergraduate and post-graduate education in law, business and economics, in that the focus of its research is of current interest in a broad way through the empirical work of the law and economics school, using an institutional approach to data collection and analysis, and qualitatively through ongoing work in institutional economics, comparative law and policy analysis. 3) Principal issues to be addressed: Identify institutional factors in China's economic development. Investigate specific legal mechanisms of contract law and property law in China's economic development. Particularly examine letters of credit and bills of exchange in sales transactions in contract law and property rights of firms, in land utilization and franchise of business related to property law and their enforcement during China's high rate of economic development. Assess the formation and function of theses legal mechanisms in China's economic development. Discover factors most relevant to policy recommendations from an institutional perspective. 4) Outcomes: Highly relevant research and publications on the role of contract law and property law in China's economic development. Recommendations on future policies for China and other developing countries in Asia and far beyond. Two to four journal articles on reputable law journals in the US, UK and China.


List of Research Outputs

Yu G., "Adaptive Efficiency and Economic Development in China: The Definition and Enforcement of Property Rights", 4th International Conference on Interdisciplinary Social Sciences, organized by the Common Ground and the University of Athens on July 8-11. 2009.
Yu G., "Adaptive Efficiency and Economic Development in China: The Definition and Enforcement of Property Rights", Asutralian Journal of Asian Law. Sydney, Australia, The Federation Press, 2009, 11: 82-112.
Yu G., "The Role of Mortgages: A Case for Formal Law", The Journal of Contract Law. Australia, Butterworths, 2009, 26: 45-67.
Yu G., "The Role of Mortgages: A Case for Formal Law", a paper presented at the Annual Conference of the Law, Property, and Society Association co-sponsored by the Syracuse University School of Law and the Georgetown University Law Centre in Washington DC during March 5-6, 2010.
Yu G., The Other Roles of Law: Signalling, Self-commitment and Coordination, New Institutional Economics Conference organized by the Shangdong University Economic Research Centre, Jinan, China. 2010.


Researcher : Yu GH
Project Title:The role of contracts and their enforcement in China's economic development
Investigator(s):Yu G
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:11/2007
Completion Date:10/2009
Abstract:
The high growth rate of China's economic development during the alst two or three decades has attracted a great deal of scholarly attentation. Scholars and policy makers try to explain the causes of economic development in China and hope to draw policy implications for other developing countries. The new institutional economics approach (North, 1990; Oliver Williamson, 1985) has suggested that as a country's economy become more fully integrated into the larger global economy, formal contract enforcement mechanisms assume a larger significance (North, 1990). North concludes that the lack of low-cost, effective contract enforcement mechanisms is the most important contributor to economic inefficiency and low growth rates in the developing world. Clarke, however, downgrades the importance of formal contract law and its enforcement in China's economic development (Clarke, 2003). Instead, he focuses on the improtance of the security of property rights of investors. He claims that local governments' active participation in economic development has enhanced the security of property rights of investors. Along the similar line of emphasizing the importance of property rights of investors, Zhang claims that the asymmetric property rights protection partly explains China's high rate of economic development. (Zhang, 2007). According to him, local governments under decenalization have great incentives to protect the property rights of investors at the expense of eroding the property rights natural individuals.Obviously, both Clarke and Zhang choose to ignore the importance of contracts and their enforcement in China's economic development. While Trebilcock and Leng (Trebilcock and Leng, 2006) argue that at higher levels of development, informal contract enforcement may become an increasingly imperfect substitute due to the presence of large, long-lived, highly asset-specific investments, their explanation of China's economic development is not satisfactory on the ground that they fail to examine specific mechanisms of informal and formal contracts and their enfocement in China. This research project will explain China's high rage of economic development from the new institutional economics approach. More specificly, the investigator will examin both informal contract mechanisms such as the informal financial market in Whenzhou, China and the formal contract mechanisms including letter of credit in international sales transactions, bills of exchange in domestic sales transactions, and secured lending in financial credit transactions. The hypotheses of the project are that both informal and formal contract mechansims and their enforcement play important roles in China's economic development and that a functional legal system that has beneficial effects to economic development can be established more quickly to adapt to changing economic needs. References: Douglass North, Institutions, Institutional Change and Economic Performance (1990). Oliver williamson, the Economic Institutions of Capitalism (1985). Michael Trebilcock and Jing Leng, "The role of formal contract and its enforcement in economic development" 92 Virginia Law Review 1517 (2006). John Ohnesorge, "Developing development theory: law and development orthodoxies and the Northeast Asian experience" University of Pennsylvania Journal of International Law 220 (2007). Xiaobo Zhang, "Asymetric property rights in China's economic growth" 33 William Mitcjell Law Review 567 (2007).


Project Title:The 4th International Conference on Interdisciplinary Social Sciences Adaptive Efficiency and China's Economic Development: The Definition and Enforcement of Property Rights
Investigator(s):Yu G
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:07/2009
Completion Date:07/2009
Abstract:
N/A


Project Title:The Role of Formal Property Law: China's Developing Urban Real Estate Market
Investigator(s):Yu G
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:10/2009
Abstract:
Contract law facilitates exchange in the sense that it makes the gain from trade more predictable. Efficient exchange, however, requires the existence of clear property rights. North (1990) claims that “the inability of societies to develop effective, low cost enforcement of contracts is the most important source of both historical stagnation and contemporary underdevelopment in the Third World.” Some evidence in China (Yu and Zhang) and elsewhere (Lisa Bernstein, 1992; Simon Johnson et al., 2002) is consistent with North’s claim. Enforcement of contracts, however, can be carried out by informal or formal means (Trebilcock and Leng, 2006). The economic theory of self-enforcing contracts suggests that a contract is self-enforcing either because the expected future gains from adhering to the contract exceed the current gain from a violation of the contract (Telser, 1980). It is obvious that self-enforcing agreements are not feasible if the sequence of occasions for transactions has a definite known last period. In addition, highly uncertain conditions are not conducive to self-enforcing agreements. In the modern world, however, unexpected things occur very frequently. The Asian financial crisis, the recent US financial crisis, significant change of cost conditions resulting from commodity price fluctuation are some of the unexpected events which are likely to affect the payoff of contractual parties. To support exchanges, contractual parties may take a hostage from the other contractual party (Williamson, 1983). If a hostage device is used, non-performance by a contractual party will result in the loss of or harm to the hostage. This project argues that the use of a hostage device in informal contracts normally only arise between two contractual parties. Built upon and enforced by the formal law, the device of mortgages is able to cope with multiparty conflict of interest. Contrary to the prevailing view that formal legal institutions do not play any important role in China’s economic development (Clarke et al., 2008; Mayeda, 2006; and Ginsburg, 2000), this project makes a case that the formal legal institution does make a difference in China’s urban real estate development in particular and China's economic development in general. References: Donald Clarke, Peter Murrell, and Susan Whiting, “The Role of Law in China’s Economic Development”, in Loren Brandt and Thomas Rawski (eds), China’s Great Economic Transformation (Cambridge, New York: Cambridge University Press, 2008). Douglass North, Institutions, Institutional Change and Economic Performance (New York: Cambridge University Press, 1990), at 54. Graham Mayeda, “The Role of Different Domestic Norms in Law and Development Reform: Lessons from China and Japan”, 51 McGill Law Journal 547(2006). Guanghua Yu and Hao Zhang, “Adaptive Efficiency and Financial Development in China: the Role of Contracts and Contractual Enforcement”, 11(2) Journal of International Economic Law 459 (2008). Lester Telser, “A Theory of Self-enforcing Agreement”, 53(1) Journal of Business 24 (1980). Lisa Bernstein, “Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry”, 21 Journal of Legal Studies 115 (1992). Michael Trebilcock and Jing Leng, “The Role of Formal Contract Law and Enforcement in Economic Development”, 92 Virginia Law Review 1517 (2006). Oliver Williamson, “Credible Commitments: Using Hostage to Support Exchange”, 73 American Economic Review 519 (1983). Simon Johnson et al, “Courts and Relational Contracts”, 18 Journal of Law, Economics and Organization 221 (2002). Tom Ginsburg, “Does Law Matter For Economic Development? Evidence From East Asia”, 34 Law & Society Review 829 (2000).


Project Title:The expansion of private ordering: the role of contract and property law
Investigator(s):Yu G
Department:Law
Source(s) of Funding:General Research Fund (GRF)
Start Date:11/2009
Abstract:
1) This project's first objective is generally to identify and assess legal factors important in and conducive to China's high rate of economic development. It will seek to isolate and test some formal legal mechanisms in shaping China's economic development. More specifically, it will investigate some specific mechanisms in contract law and property law and examine their roles in China's economic development. In so doing, the project will meet a second objective, to apply the results in devising recommendations for policy, legal, regulatory and institutional changes to further promote China's high rate of economic development and draw implications for other developing copuntries. 2) Relevance, significance and value: The work of the project will have direct relevance to the future of China and many other Asian countries in terms of economic development. From an academic perspective, the project's work will have contemporary and direct value in undergraduate and post-graduate education in law, business and economics, in that the focus of its research is of current interest in a broad way through the empirical work of the law and economics school, using an institutional approach to data collection and analysis, and qualitatively through ongoing work in institutional economics, comparative law and policy analysis. 3) Principal issues to be addressed: Identify institutional factors in China's economic development. Investigate specific legal mechanisms of contract law and property law in China's economic development. Particularly examine letters of credit and bills of exchange in sales transactions in contract law and property rights of firms, in land utilization and franchise of business related to property law and their enforcement during China's high rate of economic development. Assess the formation and function of theses legal mechanisms in China's economic development. Discover factors most relevant to policy recommendations from an institutional perspective. 4) Outcomes: Highly relevant research and publications on the role of contract law and property law in China's economic development. Recommendations on future policies for China and other developing countries in Asia and far beyond. Two to four journal articles on reputable law journals in the US, UK and China.


List of Research Outputs



Researcher : Zhang XC
Project Title:Implementation of the Antimonopoly Law in China: Insitutional Challenges and Implications
Investigator(s):Zhang XC
Department:Law
Source(s) of Funding:Small Project Funding
Start Date:11/2008
Abstract:
This research proposal aims at carrying out a comprehensive study of the newly adopted Antimonopoly Law of China, which will become effective on August 1, 2008. Anti-monopoly law (also known as antitrust law) has been considered “Magna Carta” of a market economy. In a socialist country like China to develop an anti-monopoly law regime in its course of marketization will not only mean a significant step forward for a real market economy and a milestone of a new level playing field for all the market players, but also have profound political implications on the authoritarian political system. As such, the legislation took 13 years, perhaps the longest drafting record in the PRC’s economic legislative campaign, to managed to reach some compromises in 2007 and still left many questions unanswered. As such some expert holds that the new law is just a work in progress and may become a source of uncertainty in China’s market development. Against this background, the proposed research will focus on four key aspects of the Antimonopoly Law and its implementation: (1) Major provisions of the law and the remaining gap with its counterparts of other major economies in the world, including both developed countries (US and EU) and developing countries (mainly, India). On this basis this study is to find out the major characteristics of this legislation in the China’s context. (2) The enforcement of the Law against administrative monopoly and monopolistic conducts of state-owned/controlled companies. Despite the 30 years reform China is still an economy under the government’s strong policy control. As such the research will investigate the competition condition of the Chinese market by examining the legal and institutional obstacles and the biased policy to the development of domestic private enterprises. Moreover, the concerns with consumer protection against market monopolistic conducts will also be considered in this part. (3) Implications of the enforcement of the Law on foreign investment. Since China’s accession to the WTO, the dynamic wave of foreign mergers and acquisitions (M&A) in China have not only triggered a heated debate among scholars and businessmen on protection of “national industries” and the so-called national champions policy”, but also divided the government authorities on their foreign investment policy. Certain recent the policy change and introduction of new rules for foreign M&A cases, such as the unfinished acquisition of Xugong by Carlyle at a proposed price of US$ 375 million since 2005, have attracted a great deal of international attention. Thus, the enactment of the Antimonopoly Law seems to raise further concerns with foreign investment conditions in China. (4) The institutional challenges to effective enforcement of the Law. In this regard, in addition to the equal enforcement against domestic administrative monopoly and foreign monopoly, the further concerns include the segmented enforcement design with the participation of different government agencies under the current Law as a compromise to mitigate the power struggle among the state authorities and the underdeveloped institutional support to a successful implementation, such as lack of independence of the enforcement authorities and the People’s Court, local protectionism and unclear definition of the central-local relationship, the strong role and ideology of the government and the Communist Party on the market, lack of competitive culture, and the underdeveloped democratic society. With the identified research areas/issues, the objectives of this proposed project are: 1. to examine the newly established antimonopoly law regime in the context of the legal development/reform in China; 2. to assess the achievements of the antimonopoly legislation in China’s socialist market development and the remaining gap with the other major economies in the world (mainly US, EU and India); 3. to identify and study the major institutional obstacles and the social/political conditions that affect the effective implementation of the Antimonopoly Law; 4. to investigate the impacts of the Antimonopoly Law implantation on foreign investment, particularly on foreign M&As in China; and 5. to study the development of the competition police in China with reference to the experience of other countries and its implications to the State-owned enterprises reform and the reform of the political system. As a small research project the investigator does not want to divert his attention to the major concerns, but the issues highlighted above are closely interrelated and need to be studied together in order to ensure the comprehensive understanding of the entire system in China’s context. Although the objectives may not be achieved in a very comprehensive and thorough fashion, the research will surely lay a good foundation for a larger scale research project. This research will also directly benefit the teaching of the investigator (currently the investigator is responsible for teaching three courses on PRC commercial laws and cross-border dispute resolution concerning Hong Kong).


Project Title:Fourth International Conference on Interdisciplinary Social Sciences The Prism of the Diary Disaster in China
Investigator(s):Zhang XC
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:07/2009
Completion Date:07/2009
Abstract:
N/A


List of Research Outputs

Zhang X.C. and Gu W., Legal Development and Interaction in Greater China. 《两岸四地的法律发展与互动》, Hong Kong, China Review Academic Press, 2009, 388pp.


Researcher : Zhao Y
Project Title:The Development of Space Laws in Disaster Management
Investigator(s):Zhao Y
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:05/2008
Completion Date:11/2009
Abstract:
The topic of this research proposal is the application of space law in disaster management. This is a timely topic in view of the devastating natural disasters all over the world since November 2000. China is one of the most seriously affected regions. In early 2008, heavy snowstorms caused serious problems and widespread concerns in mainland China about the issue of disaster management. Space-based technologies, such as meteorological and Earth observation satellites, can take a vital role in fighting against and assist in relief work after natural disasters. The purpose of the present research project is to examine the possibility of establishing a sustainable disaster management framework, making full use of space technologies. In this regard, the project will look into some rules relating to space commercialization and in particular, the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations (Tampere Convention), which entered into force in 2005. While China is not yet a member to the Convention, it would be useful to examine the possibility of becoming a member and its usefulness to China. The research products hopefully will facilitate Chinese government in considering becoming a member to the Convention and improve the enforcement of disaster management regime. Key Issues: 1. Space commercialization and the development of space laws; 2. the Tampere Convention and its application; 3. The ways forward for disaster management


Project Title:The Case for a Mediation Ordinance for Hong Kong
Investigator(s):Zhao Y
Department:Law
Source(s) of Funding:General Research Fund (GRF)
Start Date:12/2009
Abstract:
1) to examine the pilot mediation schemes in Hong Kong in the quantitative and qualitative sense and from statistics and data, so as to make useful insights/recommendations as to the implementation of the pilot schemes in the future; 2) to assess the regulatory environment for the mediation services in Hong Kong and propose a feasible framework for a possible Mediation Ordinance in Hong Kong


List of Research Outputs

Zhao Y., A Legal Regime for Space Tourism: Creating Legal Certainty in Outer Space, Journal of Air Law and Commerce. the United States, 2009, 74: 959-982.
Zhao Y., Soo G. and Cai D., Better Ways of Resolving Disputes in Hong Kong: Some Insights from the Lehman-Brothers Related Investment Product Dispute Mediation and Arbitration Sheme, Journal of International Business & Law. the United State, 2010, 9: 137-152.
Zhao Y., Changing Rules, Technologies and Legal Strategies: A Discussion with the Law Maker, Legal Practitioner and Technology Professional, e-Discovery & Digital Forensics, LexisNexis, Hong Kong, 2009.
Zhao Y., Commentary on Selected Critical Issues in Outer Space Law, 外层空间法中的热点问题评议, Journal of Beijing University of Aeronautics & Astronautics (Social Science Edition). 北京航空航天大学学报（社会科学版）, 2010, 23: 42-48.
Zhao Y., Current Legal Status and Recent Developments in Hong Kong Law and Its Relevance to Pacific Rim Space Law and Activities, Journal of Space Law. the United States, 2009, 35: 599-614.
Zhao Y., Cyber Law in Hong Kong (2nd Edition), International Encyclopedia of Laws: CYber Law. the Netherlands, Kluwer, 2009, 164.
Zhao Y. and Li S., Introduction to the Law of Outer Space. 外层空间法专论, 北京, 光明日报出版社, 2009, 309.
Zhao Y., Legal Issues in China's Future Participation in the ISS, Experts Seminar on Space Law, Beihang University, Beijing. 2010.
Zhao Y., Liberalization of Legal Services in Greater China, 2nd Interregional Criminal Law Forum, Faculty of Law, HKU. 2009.
Zhao Y., Liberalization of Telecommunications Services in China, The Development of the Chinese Legal System: Change & Challenge, Faculty of Law, HKU, 2009.
Zhao Y., Mediation Skills, Training Program for All Women's Association of PRC. 2010.
Zhao Y., Reflection on the Finality of Panel's Decisions in Domain Name Dispute Resolution Process, with Reference to China's Practice, John Marshall Journal of Computer & Information Law. the United States, 2009, 26: 395-413.
Zhao Y., Regulation of Remote Sensing Activities in Hong Kong: Privacy, Access, Security, Copyright and the case of Google, Earth Observation, the Environment, Space and Remote Sensing Law in the Pacific Rim, the National Center for Remote Sensing, Air, and Space Law, the University of Mississippi. 2010.
Zhao Y., State Practice of Asian Countries in the Field of International Law: People's Republic of China, Asian Yearbook of International Law. 2009.
Zhao Y., The 2002 Protocol on Space Cooperation between China and Brazil, 试论中国与巴西《2002年外空合作议定书》, Chinese Yearbook of Space Law. 中国空间法年刊, 北京, 世界知识出版社, 2009, 4-21.
Zhao Y., WTO & Developing Countries, 4th International Conference on Law in the Changing World, Faculty of Law, Thammasat University, 2009.


Researcher : Zheng G
Project Title:Legal Interpretation as Political Deliberation: A Study on Legislative Interpretion in China
Investigator(s):Zheng G
Department:Law
Source(s) of Funding:Seed Funding Programme for Basic Research
Start Date:03/2008
Completion Date:03/2010
Abstract:
Legislative interpretation is a unique feature in China’s legal system. According to Article 67 of the Constitution, The Standing Committee of National People’s Congress (NPCSC) is the highest authority of constitutional and legal interpretation. Courts in China are only authorized by the Constitution to “apply” laws, not to “interpret” laws. Chapter Four of the Law on Legislation (2000) specifies the procedure of legal interpretation, in which NPCSC is only authority mentioned. Article 47 in that law provides that legal interpretations issued by NPCSC have same effects with legislations. The institutional framework for legislative interpretation has been established since 1954, when the first Constitution was promulgated. Soon after the 1954 constitution came into effect, NPCSC issued a Decision on Legal Interpretation, authorized itself to clarify any ambiguous points in laws by issuing legal interpretations and fill any gaps in the legal system by enacting “supplementary decisions”. In June 1981, NPCSC issued the Decision on Strengthening the Work of Legal Interpretation, which restated the principles in the former decision and further authorized local people’s congresses’ standing committees to interpret local regulations. However, the power of legislative interpretation had never been exercised until 1996 despite the reaffirmations and restatements. In 1994, Mr. Yuan Jiliang, an official in the Secretariat of NPCSC, published a very influential article in Legal Science in China, titled “On the Uselessness of Legislative Interpretation”, argued for the abolishment of this institutional arrangement because of its futility. However, since 1996, this nearly abolished futile system has become a powerful weapon. In that year, NPCSC issued the Interpretation on Several Matters Regarding the Implementation of Law on Nationality in Hong Kong. Ten interpretations have been made since them, among them, four are about the Basic Law of Hong Kong, six regard criminal law. Basic Law and Criminal Law as the exclusive domains of power of legislative interpretation may cause legitimate concerns, because both are of the highest degree of rigidity. Basic Law is a contract between the Central Government and Hong Kong people which promises autonomy, criminal law enshrines the basic principle of Nullum crimen sine lege, nulla poena sine lege (There shall be no crime and no punishment without a pre-existing law). Unless we can be assured that the practice of legislative interpretation shall add nothing new to pre-existing law, we need to concern about the damage done to rule of law by this practice. In my research, I shall examine the institutional framework and practice of legislative interpretation from five perspectives and thus try to answer five crucial questions: 1. Institutional competence: whether NPCSC is well-qualified and competently positioned to do the work of legislative interpretation? If not, which institution is better qualified and positioned to do this job? 2. Neutrality and Impartiality: whether NPCSC is neutral and impartial when interpreting the law? 3. Procedure: Is there any fair procedure to condition the practice of legislative interpretation? If not, how should we design such a procedure? 4. Reason: Does NPCSC give convincing reasons for its interpretation? If not, how should the system be improved to present reasonableness? 5. Communication: is the legislative interpretation a bare exercise of power? Is there any dialogue or communication during the decision-making process? If not, how should the system be reformed to allow the formation of public reason?


Project Title:2009 Annual Meeting of the Law and Society Association Towards Regulatory Neutrality in a Party-State? A Critical Appraisal on Administrative Law Reforms in China
Investigator(s):Zheng G
Department:Law
Source(s) of Funding:URC/CRCG - Conference Grants for Teaching Staff
Start Date:05/2009
Abstract:
N/A


List of Research Outputs

Zheng G., Chinese Translation of A. Mitchell Polinsky's An Introduction to Law and Economics. 《法和经济学导论》, Beijing, Law Press China, 2009, 210 pages.
Zheng G., Culture, Development, and Ethnic Regional Autonomy: Tibet Issue in the Context of Chinese Constitutional Law, In: Wu Jinglian, Jiang Ping, Liang Zhiping, Journal of Legal and Economic Studies. Beijing, SDX Joint Publishing Co., 2010, 12: 89-153.
Zheng G., One Country, Plural Citizenries?, 一個國家，几种公民?, In: Hu Shuli, Century Weekly. 新世纪周刊, Beijing, China Research Institute of Reform and Development, 2010, 20: 2 pages.
Zheng G., One Country, Two Systems Of Justice, 一個國家，兩種司法, In: Hu Shuli, Editor-in-chief, Century Weekly. 新世纪周刊, Beijing, China Research Institute of Reform and Development, 2010, 17: 2 pages.
Zheng G., The Dialect Between Truth And Justice, 事實与正義的辯証法, In: Hu Shuli, Century Weekly. 新世纪周刊, Beijing, China Research Institute of Reform and Development, 2010, 25: 2 pages.
Zheng G., The Public Role And Private Life Of Chinese Judges, 法官的公与私, In: Hu Shuli, Caixin Weekend. 财新周末, Beijing, Caixin Group, 2010, 22: 2 pages.
Zheng G., “Towards Regulatory Neutrality in a Party-States: A Review on Administrative Law Reforms in China”, In: John Gillespie and Albert Chen, Legal Reforms in China and Vietnam: A Comparison of Asian Communist Regimes . London, Routledge, 2010, 30.


Researcher : Zul KMYB
List of Research Outputs

Wu R.W.S. and Zul K.M.Y.B., Implementation of land title registration system in Malaysia: Lessons for Hong Kong , 7th Asian Law Institute Conference, 25-26 May, 2010, Kuala Lumpur, Malaysia . 2010.
Wu R.W.S. and Zul K.M.Y.B., Malaysian Communications and Multimedia Commission: A Model of Unified Communications Regulator for Hong Kong? , The 18th Biannual and Silver Anniversary Conference of International Telecommunications Society, 27-30 June, 2010, Tokyo, Japan . 2010.
Wu R.W.S. and Zul K.M.Y.B., Malaysian Communications and Multimedia Commission: A Model of Unified Communications Regulator for Hong Kong? , Malayan Law Journal. LexisNexis, 2010, 2010, 2: lxxix-cix.


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