Hong Kong Law Journal 1971 - 2024

Drawing upon archival research conducted in the British Library as well as on interviews with trans* individuals in Pakistan, this discussion examines the historical cultural presence of transgendered and transsexual identities in the Indian subcontinent. Focussing on khwaja sara, hijras and zananas, I argue that the contradictions within historical debates attempting to regulate trans* communities into the normative masculine helped ensure that such attempts were only partially successful. Moreover despite the Supreme Court’s political recognition of trans* communities in 2009, they continue to face prejudice codified through colonial laws which remain on the books in contemporary Pakistan. Interviews with my respondents reveal however that, despite being subjected to ongoing discrimination, trans* individuals creatively negotiate and expand the spaces they inhabit. Further, every day practices that sustain the communities draw upon technology to strengthen their networks as they both challenge and embrace mainstream political space in Pakistan.

Dominant judicial construction posits s 377 of the Indian Penal Code as embodying a neutral prohibition of socially disapproved sexual acts, that applies to persons irrespective of their sexual identity, orientation or legal status. This article refutes this proposition by examining the legal regulation of sodomy within marriage in India. By comparing the legal regulation of sexual acts referred to as “unnatural sex” by s 377 with the regulation of the same set of sexual acts within marriage, by Indian divorce law and Indian rape law, the article highlights the exceptional treatment of what is otherwise deemed “unnatural”. In the process, the article seeks to uncover a lesser-known legacy of colonial (sexual) governance in contemporary India: the idea of consensual sodomy within marriage, which also casts the wife as an “accomplice”.

In Lim Meng Suang v Attorney-General (2014), the Singapore Court of Appeal held that s 377A of the Penal Code, which criminalises acts of “gross indecency” between men whether occurring in public or private, does not infringe either the rights to equality and equal protection guaranteed by Art 12(1), or the rights to life and personal liberty guaranteed by Art 9(1) of the Constitution. This article examines the analyses of the latter provision by the Court of Appeal in Lim Meng Suang, and by the High Court in Tan Eng Hong v Attorney-General (2013) which was one of the two cases brought before the Court of Appeal. It is submitted the courts interpreted Art 9(1) narrowly due to the belief that it is not their role to subject government policies to rigorous constitutional scrutiny for compliance with fundamental liberties, particularly where such policies are seen as dealing with socially controversial issues. However, the time is ripe for the Court to discover afresh its role as a coequal branch of the government.

This article analyses how the ties between Singaporean exceptionalism and its Western colonial and neocolonial roots explain why the Singapore’s legislature and judiciary have retained its anti-sodomy statute under s 377A of the Penal Code. After decolonisation, restrictive laws pertaining to sexual conduct, originally justified by colonial lawmakers as bringing superior Western moral order to the uncivilised Asian territories, evolved into an “Asian values” moral exceptionalism that distinguished Singapore from the overly liberal West. This exceptionalism, however, also illustrates an Oedipal angst of the Singaporean Government to overcome and overtake the old colonial father in its attempt to redefine itself as an authoritarian state father, which manifests in a Freudian cycle of repression of taboo and retreat to normative family structures. Rather than embrace the normativity found in families, this article suggests alternative strategies of subaltern counterpublics to effectuate gay rights in Singapore..

This article examines both the promise and limitations of law in regulating public and private treatment of sexual orientation and gender identity (SOGI) minorities in the context of post-colonial Hong Kong. Tracing the development of lesbian, gay, bisexual and transgender (LGBT) rights after the decriminalisation of homosexuality by Hong Kong’s colonial legislature in 1991, the article argues that the current government intransigence towards the development of SOGI-specific anti-discrimination legislation is intrinsically tied to aspects of British colonial legacy that continue to be salient today, including Hong Kong’s uneasy relationship with China; an under-developed constitutional jurisprudence on the freedom of religion as protected in Hong Kong’s Basic Law; and the pervasive reach of religious institutions in public life, including through the provision of education, social and welfare services.

As former British colonies with predominantly Chinese populations, developed economies, and sophisticated legal systems, Singapore and Hong Kong have much in common. Both jurisdictions inherited prohibitions on non-procreative sexual conduct during the colonial period and maintained them long after England liberalised its own laws. Opponents of lesbian, gay, bisexual and transgender (LGBT) rights in both cities frequently claim that homosexuality is alien to Chinese culture, although it was the prohibitions on same-sex relationships that were inherited from England. Yet, despite these similarities, gay men enjoy far more legal space in Hong Kong than in Singapore. Ironically, this difference can be partly explained by the delay in developing democracy in Hong Kong, which has increased the role of international human rights law. Section 1 of the article introduces relevant international norms and the comparative case study. Section 2 analyses the process of decriminalisation in Hong Kong, which began during the colonial period but was completed after 1997, through successful applications for judicial review. Section 3 then analyses the failure to decriminalise in Singapore and the recent judgment by Singapore’s Court of Appeal upholding the criminal prohibition of male-to-male sexual relations. Section 4 analyses prospects for legislation prohibiting discrimination in the private sector, a milestone that has yet to be achieved in either jurisdiction. While enacting domestic legislation is an inherently local process, international human rights monitoring bodies can assist the LGBT movement by critiquing domestic laws and policies.

Family law in Singapore has followed a linear trend in progressively decreasing its prescriptive sexual regulation. This article discusses the current residual rules of prescriptive sexual regulation. It suggests that two of these may readily be eliminated. The third, that capacity to marry is possessed only by a couple who are of opposite sexes, cannot be eliminated as long as “outrages on decency” between men remains a crime. Were the criminal law to clear the way this too may conceivably be eliminated. A family law that is more inclusive in supporting all marital relationships contributes towards harmonious living.

On 25 June 2015, the Air Transport Licensing Authority of Hong Kong (ATLA) issued a landmark decision rejecting Jetstar Hong Kong’s licence application to operate scheduled air services. The key question was whether Jetstar HK’s principal place of business (PPB) is Hong Kong and ATLA decided that it was not. This article provides a critical analysis of the decision primarily from the view of international aviation law. After introducing deeply-rooted principles of nationality restrictions on air carriers (ie, substantial ownership and effective control), how PPB has been interpreted in lieu of the traditional ownership and control restrictions is examined. This article also highlights potential issues surrounding ATLA’s decision, both procedurally and substantively. The authors further anticipate that, despite the irregularities, ATLA’s decision will be an important source not only in Hong Kong but also in Asia.

This article examines two under-researched issues about the applicability of Art 25(b) of the International Covenant on Civil and Political Rights (ICCPR) arising from the debate on the Chief Executive election in Hong Kong in 2017: (1) how to determine the scope of a reservation when no evidence shows either the United Kingdom or China intended the application of Art 25(b); (2) how international standards in Art 25(b) interact with HK’s domestic constitution. It analyses all state parties’ reservations to the ICCPR, interpretation rules on reservations, both international and HK’s domestic jurisprudence, which eventually suggests HK’s domestic constitution can derogate from the international standards in Art 25(b).

If a company incurs substantial fines or other pecuniary losses as a result of its unlawful conduct, can the company obtain an indemnity from its director/officer for having caused the company to incur such fines and losses? In particular, can the director/officer utilise the defence of illegality, notwithstanding that he has breached his duties owed to the company? The illegality defence, which raises the twin issues of the relationship between the unlawful act to the corporate claim and the attribution of the unlawful act to the company, has been the subject of detailed analysis recently in England, Singapore and Hong Kong. This article argues that absent clear legislative intention, there is no reason for English law to bar the claims against the delinquent director/officer, once regard is made to the relevant constituencies of the company. In particular, there is no reason for the illegality defence to operate if the result will prejudice the non-complicit constituencies of the company, such as the creditors where company is insolvent or where the company has innocent participants. Likewise, it argues that in determining the proper scope of the attribution of the acts or knowledge of the delinquent director/officer to the company, regard should also be made to the relevant constituencies of the company. If the result is one that does not lead to the delinquent director/officer benefitting from the corporate claim, there is no reason to attribute the wrongdoing so as to bar the corporate claim.

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

However elastic the interpretation resorted to, the gap between norms embodied in legal instruments, international and domestic, and multi-level behavioural patterns crystallised in the course of their implementation may be sizeable. The potential for this divergence and the factors responsible for it have not received adequate theoretical attention in the literature, including regional autonomy, especially in the challenging and delicate Hong Kong environment. The book under review amounts to a possible quantum leap in this regard because of the authors’ willingness to cross the boundaries between formal and informal inquiry, engage researchers from several disciplines, conceptualise the problem in broad and complex terms, not to be rigidly constrained by static logic and embrace dynamic evolution as an inescapable reality. Some questions inevitably remain unanswered, but a solid foundation for a less reductionist and more fruitful line of academic investigation has been laid.

Since China’s Supreme People’s Court’s milestone proclamation of the Rules on the Operation of Guiding Cases (GCs) in 2010, it is pointed out that its case law system has been revitalised and a unique operating sample of case law has been developed accordingly. However, the operating mechanism of GCs in China is still simple and crude, which causes some impediments to key issues of GCs, namely their binding vehicles, distinguishing techniques and legal position. This article will investigate from a theoretical perspective the critical link in the evolution of the Chinese new operating system. In anticipation of its critique to interfere with the unified legislative power and the stability of statutory law, this article clarifies the boundaries of the operation of GCs’ Rules namely to respect the legislative intention of statutory law, to unite the issuing body of GCs and to forbid any reinterpretation of GCs.

Government intervention in the bankruptcy reorganisation of listed companies in China constitutes a major obstacle to implement the Enterprise Bankruptcy Law of the People’s Republic of China which was enacted in 2006 (2006 EBL).1 The 2006 EBL improves upon its predecessor legislation—the 1986 EBL, which granted extensive powers to the Chinese government for its administrative control over the bankruptcy of enterprises, mainly state-owned enterprises. A new administrator mechanism has been established to replace the old liquidation group; the power of the creditors’ meeting has been strengthened and the creditors’ committee has been established in the 2006 EBL to better protect the interests of the creditors, which was intentionally ignored under the 1986 EBL; the people’s court obtained more powers in confirming the reorganisation plans by using its cramdown power and controlling the bankruptcy proceedings under the 2006 EBL. One of the goals of the lawmakers to improve these bankruptcy institutions is to reduce the government intervention in China and protect the interests of stakeholders. However, government intervention in fact renders these bankruptcy institutions weak and cannot function as expected by the lawmakers. This article argues that the government should return the powers to the bankruptcy institutions in order to let the bankruptcy system serve a better function in China’s market.

This article is published in two parts. The first part discusses the negative effects of government intervention on bankruptcy institutions. The second part, appearing in the next issue, analyses the effects of the reorganisation on the listed companies exerted by the government.

The most recent development in the progress towards reform of child custody and access laws has been the release of a draft Children Proceedings (Parental Responsibility) Bill for public consultation by the Labour and Welfare Bureau. Whilst there is much to be welcomed in the draft Bill, the conceptual framework and the specific provisions of the Bill are critically evaluated here to establish the extent to which the Bill fulfils the stated aims of the child law reform programme, in terms of both what is included in, and omitted from, the Bill. Particular focus is placed on the consistency of approach in the draft Bill to establishing a child-centric law, with a concomitant shift away from the existing system of parental rights over children towards a model of parental responsibility for children and whether the provisions in the Bill facilitate the appropriate participation by children, should they so wish, in the legal proceedings of which they are the subject. Last, the question of the effective implementation of the proposed reforms is considered and the necessity of integrating into the reform process both conceptual change and practical measures in support of that change is advocated.

The review jurisdiction provided by s 104 of the Magistrates Ordinance (Cap 227) ostensibly enables a magistrate, having acquitted a defendant, to reverse the acquittal on its merits on review. Such is what occurred in HKSAR v Leung Kwok Hung, which was been upheld by the Court of First Instance. By reference to decided cases in both Hong Kong and the United Kingdom, and having regard to the constitutional and human rights implications, this article argues that s 104, properly construed, cannot be so applied.

The Land Registration Ordinance (Cap 128) was enacted at the inception of the Colony to provide for the registration of deeds as opposed to the registration of titles. The registration system that it has established is still operating well after all these years. Its success is attributable in no small part to the statutory incentives for registration. While s 3(1) provides that registered instruments shall have priority according to the order in which they are registered, s 3(2) imposes a severe penalty on those who fail to register — an unregistered instrument shall, as against any subsequent bona fide purchaser or mortgagee for valuable consideration, be absolutely null and void to all intents and purposes. Most of the time, the sub-sections are simply applied without much discussion on the meaning of “priority” or “null and void”. Yet some recent cases have triggered a debate on the interpretation of s 3(2) and whether its wording is consistent with the overall scheme of deeds registration, which is said to be concerned with priority rather than validity. It is time that we examined the Ordinance under the Bennion lens. This article seeks to demystify the key provisions of the Ordinance and reveals the intricacy of statutory interpretation.

Hong Kong, after some delay, has followed the international fashion in seeking to develop alternatives to the traditional methods of resolving legal disputes. Mediation, in particular, is being encouraged by the territory’s government and judiciary as a way of avoiding what is perceived to be costly and lengthy litigation. Those serving as mediators will be crucial to the success of these endeavours. As yet, however, the accreditation, training and supervision of mediators are in their infancy. This article looks at the regulation of mediators in those common law jurisdictions closest to Hong Kong in their form and substance and considers what — if any — lessons the territory may draw from their experiences.

To delineate the merits and demerits of dual class share structures, we should compare them to dispersed ownership structures with control contestability, concentrated ownership structures and other control-enhancing mechanisms. Dual class structures facilitate long-term business strategies, firm-specific investments, equity financing and risk-taking, and they are simple, transparent and stable; but they insulate corporate controllers from shareholder monitoring, proxy contests and hostile takeovers, exacerbate tunnelling and shirking problems and enable corporate controllers to achieve an extreme voting-cash flow rights divergence and to infringe existing shareholders’ voting rights. The law can deal with most disadvantages of dual class structures, except shirking problems. Policymakers should ensure that the law provides shareholders with sufficient protection and then make a choice between dual class structures’ benefits and constraints on shirking derived from concentrated corporate ownership.

This article argues that if the auto-limitation theory is applied to explicate the Court of Final Appeal’s justifications in Ng Ka Ling for constitutional jurisdiction over acts of the National People’s Congress, the re-interpretation might justify Hong Kong courts reviewing acts of the NPC in a potential future case concerning matters falling within the ambit of the autonomy of Hong Kong, and, at the same time, greatly diminish the concerns that the CFA might have wrongly elevated the status of the Basic Law to the same level as the People’s Republic of China Constitution or placed itself above the NPC. Such a constitutional jurisdiction can be understood to have derived from the acceptance of the self-imposed limitation of the NPC as the Sovereign through the enactment of the Basic Law which guarantees a “high degree of autonomy”.

Qatar and Dubai have established financial centres which are based on the common law jurisdiction of England and Wales because of the advantages such a system can give to the development of their respective financial services industries. The Qatar Financial Centre (QFC) and the Dubai Internatinal Financial Centre (DIFC) each have specialist courts, also based on English common law principles, to resolve civil and commercial disputes. These courts fall outside the framework which otherwise governs domestic courts in Qatar and Dubai. The benefits of the QFC and the DIFC set-up include familiarity to foreign investors, by being based on common law jurisdictions, laws and regulations which are written in English, as well as being overseen by both an independent judiciary and an independent regulatory body. The scope of this article is to compare the court systems of both the QFC and the DIFC, particularly the enforceability of the courts’ judgments and the enforceability of the arbitration award, and to assess whether one financial centre is preferable over the other financial centre on the basis of the enforceability of court judgments and the enforcement of arbitral awards.

This article examines the treatment of the law of homicide in three of the greatest works of Ming fiction: Shui Hu Zhuan, Jin Ping Mei and the Sanyan. The objectives of this article are: (i) examination of the accuracy with which the authors of these works apply the detailed statutory rules of homicide and (ii) examination of the accuracy with which the standard or best known translations into English render the technical legal rules. It appears that all the three works show some knowledge of the law, which is revealed most extensively in Jin Ping Mei. The most striking misuse of the law occurs in the frequent anachronistic application of Ming law in a Song setting. Significantly, all the translations on numerous occasions fail to bring out the technical legal point made in the text.

China is currently in the process of establishing a stricter regime of banking consumer protection. Improvements to the existing framework are necessary so that regulatory authorities can adequately respond to the problems and challenges posed by the rapid transformation of the financial market. This article argues that an adequate legal framework and effective institutional structure are two inseparable components of effective financial consumer protection regulations. It proposes that a dedicated law on financial consumer protection to rationalise and streamline current legislations is essential and urgent. The mandate and function of the China Banking Regulatory Commission on consumer protection should be made explicit. The Banking Consumer Protection Department should also be granted adequate independence for the selection and allocation of personnel, funds and other resources to avoid conflicts between prudential supervision and consumer protection regulation. It further recommends that both intra-agency and inter-agency coordination are crucial elements for minimising regulatory burden and promoting consistent regulatory treatment across the financial sector.

As China’s financial system has become more complex and integrated, calls have intensified for structural reform. In particular, many commentators have called for China to move towards the twin peaks model of financial regulation along the lines of the experience in Australia. This article explores the insights that China might glean from the experience in Australia and other twin peaks jurisdictions and suggests certain choices that China might make if it decided to adopt the twin peaks model. Although such a decision is by no means certain and other options are perhaps more likely, at least in the short term, it is of critical importance to ensure that each option is fully understood before it is either ruled in or ruled out. This article sets out to contribute to a broader understanding of the twin peaks model and Australia’s experience for this purpose. This article is published in two parts. The first part examines the main models of financial regulation, particularly the twin peaks model, and analyses the various challenges and reform proposals which China’s regulatory structure is facing. The second part, appearing in the next issue, discusses Australia’s practices and takes inspiration from experiences in Australia and other twin peaks jurisdictions offers China.

After 13 years of drafting and deliberation, the Anti-Monopoly Law of China (AML) was adopted on 30 August 2007. External assistance from foreign organisations, scholars and practitioners alike with the drafting of substantive competition provisions and the design of competition enforcement system was sought by Chinese competition policymakers. Whilst the assistance was invaluable to the final adoption of the AML, the drafting process was nonetheless significantly delayed by issues of political — instead of legal — nature. This article studies the drafting of the AML and finds that both the ideological constraints in China’s socialist market economy and the government departments’ persistent pursuance of political interests had seriously prolonged the drafting process and the compromises made as a result of the delay had made the AML a piece of competition law with Chinese characteristics. It argues that these characteristics have in fact affected, and will continue to affect, the formation and implementation of competition policy in China.

Accountability is a concept that has been frequently referred to in Anglo-American systems and in the Organisation for Economic Co-operation and Development’s corporate governance documents, as well as in the English translations of corporate governance documents from non-English-speaking jurisdictions. It is in the Anglo-American literature, in particular, where the word finds prominence. It has been suggested in China that accountability is one of the basic principles of corporate governance that needs to be consistently enforced. But does this mean that board accountability, as it has been provided for in the Anglo-American system, is actually an element of Chinese corporate governance? If not, should it be adopted? Or should China develop a concept that is more appropriately included as a critical part of its own particular corporate governance needs? This article aims to address these matters in order to ascertain where Chinese corporate governance stands on accountability as far as the boards of large listed companies are concerned, and what it should do. We opine that while there are elements of accountability in Chinese corporate governance, it does not have the form of accountability embraced in Anglo-American systems. But, it is argued, as China moves from having a system totally based on administrative governance to one that is based more on economic governance, the kind of approach that applies in Anglo-American jurisdictions is likely to become more relevant. Within a hybrid corporate governance system combining elements of both administrative and economic governance, we develop a unique wenze system with forms and characters of accountability to address the needs of corporate governance in China and the fostering of its listed companies.

Government intervention in the reorganisation of listed companies has brought many negative effects on the bankruptcy institutions, namely, the administrator, the creditors’ meeting and committee and the people’s court, as well as on the listed companies. This part of the article analyses the effects of the reorganisation on the listed companies concerning two aspects: (1) the results of the implementation of reorganisation plans and (2) the financial performance of the listed companies after their reorganisation. The author argues that the government intervention in the reorganisation of listed companies does not produce distinct positive results on the listed companies based on the data collected by the author. The Chinese Government should return the powers to the bankruptcy institutions in order to let the bankruptcy system serve a better function in China’s market.

The author, a Permanent Judge of the Hong Kong Court of Final Appeal, examines three recent decisions of the Court to illustrate the functioning of the common law in the Hong Kong context. The article is the text of a lecture delivered by the author at the University of Hong Kong.

This article discusses the proposals for retirement protection reform in the public consultation conducted by the Commission on Poverty. It analyses the relevant human rights obligations of the government under the Basic Law and the International Covenant on Economic, Social and Cultural Rights, including the protection of the right to social welfare and the right to an adequate standard of living. It argues that there is a minimum essential level of retirement protection that the government must provide to the elderly in poverty in order to satisfy the human rights obligations, and calls for a more comprehensive human rights impact assessment to be conducted before the implementation of the reform.

Following a public consultation process, the Action Committee Against Narcotics (ACAN), a non-statutory body tasked with advising the Hong Kong Government about how best to combat illegal drugs, issued a Conclusion that supported further exploration of a policy to adopt a drug-testing scheme for those suspected of using drugs. ACAN’s recommendation is based primarily on the perceived success of a broad-based drug-testing scheme used in Sweden. While none of the recommendations have progressed beyond this very preliminary stage, ACAN intends to launch a second consultation stage that may bring this type of scheme to fruition. This article will examine the key elements of the scheme, as currently proposed, as well as its exemplar in Sweden. The article will also canvass the seriousness of Hong Kong’s illegal drug problem, and the rapidly rising danger of crystal methamphetamine, and explore whether or not there might be better methods to deal with the dangers associated with drug use.

This analysis critically examines Wong Chak Sin v Collector of Stamp Revenue, the first-ever local judicial decision, dealing with “legislation by press release”. The analysis highlights how both the judge and lawyers in the case failed to appreciate the distinct operating mechanism and practical effects of legislation by press release, and argues that the decision’s holding that the government power to tax is exempted from the requirement of proportionality under Art 105 of the Basic Law is a far-reaching extension of existing judicial precedents that should have been subjected to more circumspect scrutiny.

English law is central to the history of colonial Hong Kong. Traditional colonial historians conceptualise it as a gift to the colonised, and it is still widely acknowledged by Hong Kong citizens today as a core contributing factor to the city’s continued growth and prosperity. The traditional narrative is that the rule of law, which embraces the principles of judicial independence and offers such safeguards of individual liberty as freedom of expression, is the most important legacy of British colonial rule, a legacy that is very often cited to distinguish the legal and societal development of Hong Kong from that of its neighbour across the border, mainland China. This article, drawing on unexplored archival materials, challenges this widely accepted narrative, thereby severing the link between common law’s legal past and present in Hong Kong. Through a close reading of a widely reported court case concerning students’ anti-Japan movement in 1919, the article further argues that the common law system practised in pre–World War II Hong Kong played a more important role in reinforcing an authoritarian form of colonial law and order to achieve the British Empire’s strategic aim of maintaining its overseas territorial and economic possessions than in safeguarding individual liberty and the impartiality of the judicial process.

The terminological and doctrinal features of the term “conflict of laws” are hardly ever discussed in greater detail. Normally, conflicts of laws are understood as inter-jurisdictional conflicts regarding the applicable law. However, on the basis of an analysis of the relationship between Chinese customary law and “regular” Hong Kong law, this article shows that only those conflicts which are resolved through a choice-of-law process should be regarded as conflicts of laws in the private international law sense. The choice-of-law process is the defining feature of (substantive) private international law, which distinguishes this area of law from others. This article also demonstrates that Chinese customary law and “regular” Hong Kong law do not form separate bodies of law, but are rather sets of rules which derive from different sources of law within the same legal system. A choice-of-law mechanism is not required to determine application priorities. In Hong Kong, Chinese customary law is therefore treated, but not chosen, like foreign law.

In December 2015, the National People’s Congress Basic Law Committee sent a six-person delegation to investigate the relationship between mainland Portugal and its two “ultraperipheral” autonomous regions: the Azores and Madeira archipelagos (PARs). To the residents of Hong Kong and Macau, this occurrence begs understanding of what form that autonomy takes, and what its implications could be for the future development of China’s Special Administrative Regions (SARs). The answers present both rich opportunities and challenges. This article is intended as a primer on Portuguese-style autonomy for the SAR audience. It examines both normative and empirical resources in describing Portuguese practice. Variations in context, political architecture, central-local relations and international identity are explored. Essentially, while the PARs do not have all of the privileges of the SARs in terms of economic liberty and legislative competence, they do enjoy universal suffrage, permanent constitutional recognition and privileged access to the most extensive fundamental rights regime in the world.

Article 61 of the Trade-Related Aspects of Intellectual Property Rights Agreement imposes an obligation on WTO members to make available sanctions which are not only sufficient to provide a deterrent but are also consistent with those made available for crimes of a corresponding gravity. The Article does not, however, specify the appropriate level of penalties which would be deemed as sufficient as a deterrent nor does it elucidate the types of crimes which should be considered as possessing corresponding gravity to wilful trademark counterfeiting and copyright piracy on a commercial scale. This renders the standard vague at best.
The article proposes that a degree of analytical rigour can be introduced to the understanding of the standard by identifying that deterrence is the overarching express objective of punishment in Art 61. Accordingly, the penalties made available in the national enforcement regimes in compliance with the Art 61 standard should be in accordance with the principles of deterrence theory. Examining the penal provisions in the Copyright Act 1968 (Cth) (Australia) and Copyright Act (Cap 63, Rev Ed 2006) (Singapore), the article assesses the approaches taken by the respective jurisdictions in interpreting and implementing the Art 61 standard in the light of the principles of deterrence theory.

As China’s financial system has become more complex and integrated, calls have intensified for structural reform. In particular, many commentators have called for China to move towards the twin peaks model of financial regulation along the lines of the experience in Australia. This article explores the insights that China might glean from Australia and other twin peaks jurisdictions and suggests certain choices that China might make if it decided to adopt such model. The first part of the article, which appeared in the previous issue, examined the main models of financial regulation, particularly the twin peaks, and analysed the various challenges and reform proposals which China’s regulatory structure is facing to. The second part continues to discuss Australia’s practices and takes inspiration that the experience in Australia and other twin peaks jurisdictions offers for China.

Human health outcomes are unquestionably the most serious consequences of environmental pollution. In China, however, the law and the judicial practice on pollution rarely involve a remedy for health problems. Victims suffering personal injury from environmental pollution usually claim tort liability, which is the no-fault liability, and assert the principle of onus probandi (burden of proof) inversion. The judicial results show that only 13.8 per cent of environmental tort cases from 1991 through 2015 involved health complaints. About half of such claims were accepted by the courts, but the compensation has typically been small (the median is RMB22,625 or US$3,632.00) and there is very little compensation for mental suffering. In this period, only 9.4 per cent of plaintiffs applied for onus probandi inversion. When the defendant is a legal entity, or the type of pollution is air pollution or the damage is a chronic health effect, it is difficult to get the case accepted by the courts. Legislation is required to confirm that public health is a public interest upon which a suit can be brought in public interest litigation, and that latent injuries can be compensated. The regulations and standards on personal injury assessment can provide support for the compensation. In addition, the principle of onus probandi inversion should be strictly followed in the Chinese justice system to provide protection and remedies for plaintiffs in environmental pollution tort cases.

This article explores the different jurisprudential approaches to the interpretation of the constitution of People’s Republic of China to see what they reveal regarding legitimacy in modern China. In detailing the theoretical foundations and evaluating the political aspirations of the Democratic, Normative and Political Schools of thought that comprise contemporary Chinese jurisprudence, it argues that these jurisprudential schools reveal three sources — the people, the rule of law and the Chinese Communist Party — as constitutive and potentially contending sources of legitimacy and sovereignty in Chinese constitutionalism and politics.

The increasing resolution of financial disputes through ADRs continues the current trend in China of diversifying and improving the efficiency of its dispute settlement mechanisms. However, when it comes to Shanghai, it has been disappointing to note the following: (1) the third-party mediation mechanism has caused a considerable waste of resources due to the low utility of existing institutional facilities, (2) judicial confirmation of the mediation agreement could distort some basic mediation norms such as voluntariness and party autonomy, and (3) judicial confirmation of the mediation agreement does not have a strong legal basis according to civil procedure law and arbitration law. This article, based on empirical studies, makes the following proposals to correct these institutional failures. First, we could enhance the efficiency of the existing ADR institutions by encouraging financial industrial players to take advantage of mediation and other existing ADRs. Second, various incentives can be offered to users of ADRs. Finally, linking the mediation agreement and arbitral award may help correct problems caused by the frequent use of judicial confirmation.