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Full-Text Articles in Law

Constitutional Equality And Executive Action: A Comparative Perspective To The Comparator Problem, Kenny Chng Mar 2023

Constitutional Equality And Executive Action: A Comparative Perspective To The Comparator Problem, Kenny Chng

Research Collection Yong Pung How School Of Law

A general right to equality is a common feature of written constitutions around the world. Interesting questions arise when one seeks to apply such rights to discrete executive acts. The subject of such acts has necessarily been singled out from a multitude of possibilities for the purposes of the act. To determine whether a differentiation has occurred such that like cases have not been treated alike, to what or whom should this subject be compared? The question of how one selects the proper comparator becomes especially significant when one notes that whether the equal protection guarantee is triggered at all …


End Crime With Harm? Castration For Sexual Offenders In Hong Kong, Max Hua Chen Dec 2022

End Crime With Harm? Castration For Sexual Offenders In Hong Kong, Max Hua Chen

San Diego International Law Journal

The issue of post-conviction treatment of sex offenders has been the subject of debate and changes to State legislation, particularly in respect of paedophile offences. One such treatment method is through chemical or physical castration on either a mandatory or a voluntary basis. In this regard, some States have implemented these measures for certain paedophile offences. Hong Kong (HK) has no such laws in place. Researchers such as William Winslade and his colleagues highlighted that whilst paedophilia may not be a stringently defined condition, it is one which involves a “reinforcing [pattern] of sexual behaviors,” with the result that sexual …


The Relevance Of Purpose In Constitutional Equal Protection Challenges To Executive Action, Wei Yao, Kenny Chng Jul 2022

The Relevance Of Purpose In Constitutional Equal Protection Challenges To Executive Action, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

Written constitutions often include generalized guarantees of equal protection which imply a proscription on unconstitutional differential treatment. This paper will examine what the analytical focus ought to be when evaluating challenges to executive action based on such rights, a particularly relevant issue given recent developments in Hong Kong’s and Singapore’s equal protection jurisprudence. These developments suggest that there are three possible analytical focal points, each of which takes a different perspective on the relevance of the executive’s purpose in utilizing differential treatment: (1) the connection between the chosen differentiation and the specific purpose of the challenged executive action; (2) the …


America's Foreign Policy Response To The Hong Kong China Conflict, Ciera C. Lehmann Feb 2022

America's Foreign Policy Response To The Hong Kong China Conflict, Ciera C. Lehmann

Liberty University Journal of Statesmanship & Public Policy

Hong Kong has been fighting for democracy and to retain its autonomy from China, and the world has been watching. What should the response of the United States be? Hong Kong has been an important economic partner to the United States but is technically under the rule of China, who America has been working to maintain good relations with. In order to determine the course of action for American foreign policy, one must know what its foreign policy has been in the past and its relationships with Hong Kong and China are. Ultimately though, the United States has a moral …


Cedaw And Transformative Judicial Obligations: The Vulnerable Migrant Domestic Worker And Root Causes Of Abuse, Cheah W. L. Jan 2022

Cedaw And Transformative Judicial Obligations: The Vulnerable Migrant Domestic Worker And Root Causes Of Abuse, Cheah W. L.

Michigan Journal of International Law

CEDAW’s transformative provisions, which require states to address root causes of injustice and discrimination, can be made more effective not only through legislation and policy, as commonly argued, but through the judiciary. This article highlights the need to develop the content and implementation of transformative judicial obligations under CEDAW through a comparative study of judicial decisions on the abuse of female MDWs in three key MDW destinations that are party to CEDAW—Hong Kong, Singapore, and Malaysia. By engaging with scholarship on CEDAW’s positive obligations, transformative equality, and theories of adjudication, this article argues that criminal law courts should not only …


'Good Administration' And The 'Good': The Normative Foundation For The Protection Of Legitimate Expectations, Wei Yao, Kenny Chng Dec 2021

'Good Administration' And The 'Good': The Normative Foundation For The Protection Of Legitimate Expectations, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

An idea that has gained significant traction in both case law and academic commentary as a justification for the protection of legitimate expectations is the concept of ‘good administration’. Going beyond the usual criticisms of the concept’s ambiguity, this article aims to highlight an additional set of difficulties with the invocation of ‘good administration’ as the normative justification for the doctrine. This article’s central argument is that the concept of ‘good’ invoked by the idea of ‘good administration’ inevitably falls to be substantiated by a particular conception of what the ‘good’ requires as a matter of political philosophy. And given …


To Stay Or Not To Stay? A Clash Of Arbitration And Insolvency Regimes, Darius Chan, Sidharrth B Rajagopal Aug 2021

To Stay Or Not To Stay? A Clash Of Arbitration And Insolvency Regimes, Darius Chan, Sidharrth B Rajagopal

Research Collection Yong Pung How School Of Law

In the wake of the global Coronavirus disease 2019 (COVID-19) pandemic, a rise in creditorinitiated winding-up proceedings is likely to be impending in coming years (See e.g., RCMA Asia Pte. Ltd. v. Sun Electric Power Pte. Ltd. [2020] SGHC 205). At the same time, geopolitical developments, such as the scale and ambition of Belt & Road Initiative projects, have raised questions over the issue of debt sustainability. Given the prevalence of arbitration clauses in modern international commercial and project agreements, the interplay and relationship between insolvency and dispute resolution, and especially arbitration, requires careful attention. While the intersections between the …


An Umbrella Of Autonomy: The Validity Of The Hong Kong Protests, Ciera Lehmann Dec 2020

An Umbrella Of Autonomy: The Validity Of The Hong Kong Protests, Ciera Lehmann

Senior Honors Theses

Hong Kong has been fighting for democracy and to retain its autonomy from China, and the world has been watching. Over time, Hong Kongers have seen Beijing blatantly tighten its grip before time was up for the fifty-year agreement since the handover in 1997. In 2014, and again in 2019, hundreds of thousands of citizens filled the streets to participate in pro-democracy demonstrations with the protests only gaining momentum and influence. While there has mostly been support for Hong Kong’s independence movement, there has been argument that Beijing’s actions are completely justified. Should Hong Kong remain autonomous from China, and …


Interpretation Of Pathological Arbitration Agreements: Non-Existing And Inaccessible Elements, Morten Frank Oct 2020

Interpretation Of Pathological Arbitration Agreements: Non-Existing And Inaccessible Elements, Morten Frank

Pepperdine Dispute Resolution Law Journal

In the following, I will initially present the terminological and analytical framework for handling pathological arbitration agreements (Part II). Against this background, I will analyze case law from USA (Part III), Singapore and Hong Kong (Part IV), and England (Part V) in order to establish under which circumstances Solution 1, Solution 2 and Solution 3 apply in respect of arbitration agreements containing non-existing and inaccessible elements. Finally, Part VI considers an adjoining—although fundamentally different—interpretation situation across jurisdictions. Part VII provides a summary as well as concluding remarks on the drafting of arbitration agreements.


Transnational Corporate Governance Codes: Lessons From Regulating Related Party Transactions In Hong Kong And Singapore, Christopher C. H. Chen, Wai Yee Wan Nov 2019

Transnational Corporate Governance Codes: Lessons From Regulating Related Party Transactions In Hong Kong And Singapore, Christopher C. H. Chen, Wai Yee Wan

Research Collection Yong Pung How School Of Law

Many jurisdictions around the world, includingAsia, have corporate governance codes largely based on the transnational codedrafted by the Organisation for Economic Cooperation and Development (OECD).The core ideas underpinning the OECD’s principles of corporate governance are boardindependence and proper management of conflicts of interest. These ideas, drawnfrom the Anglo-American model of corporate governance, are designed to protectcompanies and their shareholders. However, the question remains as to whether atransnational corporate governance code is always appropriate and effective, particularlywhen the kinds of companies listed on the stock exchange significantly differfrom the Anglo-American model. In this article, we examine Hong Kong andSingapore, two Asian …


Public And Private Enforcement Of Corporate And Securities Laws: An Empirical Comparison Of Hong Kong And Singapore, Wai Yee Wan, Christopher C. H. Chen, Say H. Goo Jun 2019

Public And Private Enforcement Of Corporate And Securities Laws: An Empirical Comparison Of Hong Kong And Singapore, Wai Yee Wan, Christopher C. H. Chen, Say H. Goo

Research Collection Yong Pung How School Of Law

Current scholarship emphasises the correlation between enforcement of corporate and securities laws and strong capital markets. Yet, the issue of how private and public enforcement may achieve the objectives of compensation and optimal deterrence remains controversial. While enforcement strategies have been studied extensively in the US and the UK, comparatively less attention is placed on Asia, where concentrated shareholdings are the norm. This study fills the gap by focusing on Hong Kong and Singapore, two leading international financial centres in Asia. Post Asian financial crisis of 1997, Hong Kong and Singapore have changed their laws to strengthen the private enforcement …


Enforcing Public Takeover Regulation: Reconciling Public And Private Interests, Wai Yee Wan Mar 2019

Enforcing Public Takeover Regulation: Reconciling Public And Private Interests, Wai Yee Wan

Research Collection Yong Pung How School Of Law

Takeover regulation in the UK, Hong Kong and Singaporerelies on takeover codes and takeover panels. However, parties aggrieved by thedecisions of the panels may sometimes challenge them in the courts, giving riseto the potential of overlapping jurisdictions. The problem is compounded by twofactors: the enforcement of the takeover codes can have substantiveimplications on the parties’ ability to enforce their rights in courts, and takeoverpanels and courts assess matters differently. This article argues that thereneeds to be a clearer delineation between the potentially overlappingjurisdictions of the takeover panels and the courts.


A One-Size-Fits-All Approach To Corporate Governance Codes And Compliance By Smaller Listed Firms: An Examination Of Companies Listed In Hong Kong And Singapore, Christopher C. H. Chen Feb 2019

A One-Size-Fits-All Approach To Corporate Governance Codes And Compliance By Smaller Listed Firms: An Examination Of Companies Listed In Hong Kong And Singapore, Christopher C. H. Chen

Research Collection Yong Pung How School Of Law

This article examines the impact of a one-size-fits-all corporate governance code on smaller listed firms, which should have fewer resources to hire more qualified independent directors for their boards and board committees. After examining data from a sample of companies listed in Hong Kong and Singapore, we find some limited support for these resources-based arguments. While smaller firms do not necessarily have a lower proportion of board members who are independent directors, some evidence suggests that smaller firms do pay less to independent directors and that these directors have to serve on multiple board committees. Although many larger firms also …


Hostile Takeover Regimes In Asia: A Comparative Approach, Umakanth Varottil, Wai Yee Wan Jan 2019

Hostile Takeover Regimes In Asia: A Comparative Approach, Umakanth Varottil, Wai Yee Wan

Research Collection Yong Pung How School Of Law

The market for corporate control is animportant corporate governance mechanism for the discipline of corporatemanagers. However, the process and substance of the regulation of hostiletakeovers differs remarkably among various jurisdictions. Existing andinfluential scholarship has focused on the differences in regulation between UnitedStates (US) and the United Kingdom (UK), with the explanations being founded ininterest group politics. Influential as it is, the question is whether thetheory can be extended outside of the US and the UK, particularly to theirlegal transplants in Asia? In the last few decades, many of the Asianjurisdictions have drawn heavily from the US and the UK when …


Do Institutional Owners Monitor? Evidence From Voting On Connected Transaction Proposals In Hong Kong-Listed Companies, Félix E. Mezzanotte, Simon Fung May 2018

Do Institutional Owners Monitor? Evidence From Voting On Connected Transaction Proposals In Hong Kong-Listed Companies, Félix E. Mezzanotte, Simon Fung

Michigan Business & Entrepreneurial Law Review

The conventional view in Hong Kong has been that institutional owners tend to be passive owners and that they do little to monitor the companies’ management. We investigated whether the presence of institutional owners in Hong Kong-listed companies was associated with greater monitoring of management through dissent voting by hand-collecting information for a sample (n= 96) of connected transaction proposals (“CT proposals”) and of their voting outcomes, as announced in the Stock Exchange of Hong Kong during the period from 2012–14. Our study shows that voting approval rates on CT proposals were lower (i.e. greater dissent voting) when institutional owners …


Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew Jan 2018

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew

Faculty Scholarship

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional …


A Director’S Duty Of Loyalty And The Relevance Of The Company’S Scope Of Business: Cheng Wai Tao V Poon Ka Man Jason, Pearlie M. C. Koh Sep 2017

A Director’S Duty Of Loyalty And The Relevance Of The Company’S Scope Of Business: Cheng Wai Tao V Poon Ka Man Jason, Pearlie M. C. Koh

Research Collection Yong Pung How School Of Law

The Hong Kong Court of Final Appeal has utilised a ‘scope of business’ inquiry to delineate the boundaries of the no-conflict rule for the company director. Such an inquiry is directed at discerning the realistic ability of the company to exploit any particular business opportunity and a strict capacity approach is eschewed, at least where the no-conflict rule is concerned. The decision is premised on a bifurcation between the no-conflict and no-profit rules, suggesting that the tests to determine breach of these fiduciary rules are not necessarily the same, thus permitting a more nuanced consideration of directorial breaches.


Inching Towards Equality: Lgbt Rights And The Limitations Of Law In Hong Kong, Joy L. Chia, Amy Barrow Feb 2016

Inching Towards Equality: Lgbt Rights And The Limitations Of Law In Hong Kong, Joy L. Chia, Amy Barrow

William & Mary Journal of Race, Gender, and Social Justice

Since legislative reform decriminalizing sodomy in 1991, the Hong Kong government has taken a passive role in the legal protection of lesbian, gay, bisexual, and transgender (LGBT) individuals. Instead, LGBT rights advancements have occurred primarily through the work of the courts, resulting in piecemeal progress that has left unaddressed the daily discrimination experienced by LGBT people in Hong Kong. Despite increased pressure in recent years for antidiscrimination legislation, the Hong Kong government continues to assert that self-regulation and public education, rather than legislation, are more appropriate tools for addressing discrimination based on sexual orientation or gender identity. This Article argues …


Regulating To Achieve Stability In The Domain Of High-Frequency Trading, Lindsey C. Crump Oct 2015

Regulating To Achieve Stability In The Domain Of High-Frequency Trading, Lindsey C. Crump

Michigan Telecommunications & Technology Law Review

High-frequency trading has become a darling of capital markets debate. This debate thrives because the true and long-lasting effects of high-frequency trading are still unknown. On one hand, high-frequency trading evidences recent and powerful advances in trading technology; on the other, it is said to harness speed at the expense of fairness, prudence, and stability. In part because of this duality, the regulation of high-frequency trading in the United States has been slow to develop. Other nations, however, have been quicker to react and to promulgate laws that directly, or indirectly, affect high-frequency trading. This Note explores the legal responses …


On Territoriality And International Investment Law: Applying China's Investment Treaties To Hong Kong And Macao, Odysseas G. Repousis Sep 2015

On Territoriality And International Investment Law: Applying China's Investment Treaties To Hong Kong And Macao, Odysseas G. Repousis

Michigan Journal of International Law

To date, investor-state tribunals have been preoccupied with a range of issues revolving around the territorial application (territoriality) of international investment agreements (IIAs). The importance, as well as the various forms such issues take, has recently been highlighted in the decision of the Singapore High Court (SGHC) in Laos v. Sanum. In this case, the SGHC was asked by Laos to set aside an earlier arbitral award (in Sanum v. Laos), filed by a Macanese legal entity and rendered under the China-Laos bilateral investment treaty (BIT). In approaching the matter, the SGHC set aside the award on the grounds that …


The Projected Hong Kong Special Administrative Region Human Rights Record In The Post-British Era, Daniel C. Turck Jul 2015

The Projected Hong Kong Special Administrative Region Human Rights Record In The Post-British Era, Daniel C. Turck

Akron Law Review

On July 1, 1997, Hong Kong ceased to be a British Dependent Territory, and the People's Republic of China (PRC) resumed sovereignty over Hong Kong pursuant to the 1984 Sino-British Joint Declaration on the Question of Hong Kong (Joint Declaration). The Joint Declaration, in accordance with Article 31 of the PRC's Constitution, declares that Hong Kong is now a Special Administrative Region (HKSAR).


Succession By Estoppel: Hong Kong's Succession To The Iccpr, Peter K. Yu Jul 2015

Succession By Estoppel: Hong Kong's Succession To The Iccpr, Peter K. Yu

Peter K. Yu

No abstract provided.


The European Constitution And Its Implications For China, Xingzhong Yu Jan 2015

The European Constitution And Its Implications For China, Xingzhong Yu

Xingzhong Yu

The European Constitution is significant not only for the European Union, but also for a developing constitutional system like that of China. The EU constitutional practice may have positive implications on China's constitutional theory and practice. In the wake of the European constitutional achievement, Chinese constitutional scholars need to re-examine their long-held conviction in the indispensable role of the state in constitutional formation and imagination. The EU experience may have provided China with valuable insights and ways to deal with its inherited ethnic problems and improve its institutions on regional autonomy for ethnic minorities. China's own constitutional experiment in Hong …


Current National Security And Human Rights Issues In The United Kingdom, Canada And Hong Kong, Dr. Daniel Alati Jan 2015

Current National Security And Human Rights Issues In The United Kingdom, Canada And Hong Kong, Dr. Daniel Alati

ILSA Journal of International & Comparative Law

In any jurisdiction, national security legislation is not developed or enacted in a vacuum and, as such, interdisciplinary analyses of this legislation are both necessary and useful.


Citizenship Management: On The Politics Of Being Included-Out, John Erni Dec 2014

Citizenship Management: On The Politics Of Being Included-Out, John Erni

John Nguyet Erni

Many in Hong Kong have identified the city as “half-sovereign” or “conditionally sovereign,” as postcoloniality has brought about new ruptures and shifting boundaries of citizenship in economic, cultural, and legal terms. The work of deciphering questions of belonging is still ongoing, and has in fact intensified in recent times. Increasingly, who qualifies as a citizen and where their sense of home is have become vital questions for two visible groups: the Chinese Mainlanders whose personal and cultural fortunes have been transformed by opportunities presented by the permeability of the city-border, and the foreign domestic helpers whose right of belonging has …


The Theatre Of Punishment: Case Studies In The Political Function Of Corporal And Capital Punishment, Bryan H. Druzin Dec 2014

The Theatre Of Punishment: Case Studies In The Political Function Of Corporal And Capital Punishment, Bryan H. Druzin

Bryan H. Druzin

Michel Foucault famously argued that punishment was an expression of power—a way for the State to shore up and legitimize its political authority. Foucault attributed the historical shift away from public torture and corporal punishment, which occurred during the 19th century, to the availability of new techniques of social control. However, corporal and capital punishment (what we term shock punishment) persists in many penal systems to this day, suggesting that these countries have for some reason not fully undergone this penal evolution. Using the experiences of Hong Kong and Singapore as case studies, we attempt to explain why this is …


Introduction Of Competition And Environmental Regulation In The Electricity Sector In Hong Kong, Thomas K. Cheng Dec 2014

Introduction Of Competition And Environmental Regulation In The Electricity Sector In Hong Kong, Thomas K. Cheng

Thomas K. Cheng

This article explores both the competition and the environmental aspects of the electricity sector in Hong Kong, and a possible linkage between them.There has been considerable public pressure to liberalize the electricity sector in Hong Kong due to longstanding discontent with the persistently high profit of the sector and a regulatory structure that is widely perceived to be ineffective. In light of the government’s seeming reluctance to pursue liberalization, this article examines an alternative approach – litigation under the recently adopted Competition Ordinance. It assesses the likelihood of success of the strategy and its potential shortfalls. The article proceeds to …


What Role Can An International Financial Centre’S Law Play In The Development Of A Sunrise Industry? The Case Of Hong Kong And Solar Powered Investments, Bryane Michael Jan 2014

What Role Can An International Financial Centre’S Law Play In The Development Of A Sunrise Industry? The Case Of Hong Kong And Solar Powered Investments, Bryane Michael

Bryane Michael (bryane.michael@stcatz.ox.ac.uk)

How can international financial centres like Hong Kong increase assets under management – and thus their size and ranking? Most policymakers and their advisors wrongly answer this question by focusing on financial institutions, and the law that governs them. Instead, policymakers need to start by looking at actual markets. What new tastes and technologies need funding? How can such funding fit into already existing geographies of production, distribution and finance? In this paper, we show how a focus on funding sunrise industries can help increase assets under management for the financial institutions operating in an international financial centre like Hong …


Rethinking Social Ventures In Hong Kong, Damian Alexander Bethke, Jedrzej Gorski Jan 2014

Rethinking Social Ventures In Hong Kong, Damian Alexander Bethke, Jedrzej Gorski

Richmond Journal of Global Law & Business

Hong Kong has experienced a significant transformation in its understanding of business, which concerns the phenomenon of social ventures that attempt to combine a make money and do good approach and to apply business skills to address social needs. Social ventures live a mystical existence, as they are fully ignored from a legal perspective despite the recent reform of laws on charitable activities. This causes problems as to their general understanding, which the authors try to address with their own typology, systematically characterizing social ventures. Then the authors examine the legal environment of social ventures in Hong Kong and identify …


Rule Of Law With Chinese Characteristics: An Empirical Cultural Perspective On China, Hong Kong And Singapore, Jeffrey E. Thomas Jan 2014

Rule Of Law With Chinese Characteristics: An Empirical Cultural Perspective On China, Hong Kong And Singapore, Jeffrey E. Thomas

Faculty Works

This article uses empirical data to analyse the meaning of rule of law with Chinese characteristics. It compares rule of law data on China, Hong Kong and Singapore from the World Justice Project and finds patterns of more limited protection of individual rights and fewer limits on governmental powers. It then uses Geert Hofstede’s cultural dimensions to consider whether those patterns are related to common cultural characteristics. It finds low scores on the cultural value of individualism in those three jurisdictions are correlated with lower protection for individual rights, and that high scores on Hofstede’s Power Distribution Index are inversely …