University of Hong Kong Faculty of Law Legal Studies Research Paper Series最新文献

{"title":"The Transnational Data Governance Problem","authors":"D. Arner, Giuliano G. Castellano, Ēriks K. Selga","doi":"10.2139/ssrn.3912487","DOIUrl":"https://doi.org/10.2139/ssrn.3912487","url":null,"abstract":"The historical paradigm of data globalization is fragmenting. Fragmentation of transnational data flows and related governance frameworks is emerging globally as the result of evolving differences between major economies, heightened by technological and geopolitical competition and conflicts. The irreconcilable positions of the three major economies and standard-setting jurisdictions – the United States, the European Union, and the People’s Republic of China – are breaking down the global data economy and threaten to fracture its core infrastructure, the Internet. We provide a framework to analyze this emerging landscape and assess its implications. Each jurisdiction is characterized by an evolving and distinct data governance style based on its attitude towards markets and governance, the normative principles supporting the exercise of control over data, and the mode of regulating data. As these domestic governance styles consolidate into competing and conflicting data governance regimes, their transnational export and impact are fracturing the existing transnational data governance paradigm, based on free data movement, and hindering international coordination in the global data economy. We characterize this dynamic as the wicked problem of transnational data governance, as no single solution can address it. The paper highlights three approaches to address this wicked problem: (1) a bilateral approach that draws from the riparian system for water rights; (2) a plurilateral approach allowing the free circulation data along sector-specific regulatory coalitions; (3) a multilateral approach, entailing a hard law Digital Bretton Woods or a soft law Digital Stability Board. The implementation of a combination of these approaches offers a basis for a workable foundation for transnational data governance that harnesses the benefits of data globalization without undermining domestic sovereign priorities.","PeriodicalId":292366,"journal":{"name":"University of Hong Kong Faculty of Law Legal Studies Research Paper Series","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128456431","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Future of Data-Driven Finance and RegTech: Lessons from EU Big Bang II","authors":"D. Zetzsche, D. Arner, Ross P. Buckley, R. Weber","doi":"10.2139/SSRN.3359399","DOIUrl":"https://doi.org/10.2139/SSRN.3359399","url":null,"abstract":"Europe’s path to digitization and datafication in finance has rested upon four apparently unrelated pillars: (1) extensive reporting requirements imposed after the Global Financial Crisis to control systemic risk and change financial sector behavior; (2) strict data protection rules reflecting European cultural concerns about dominant actors in the data processing field; (3) the facilitation of open banking to enhance competition in banking and particularly payments; and (4) a legislative framework for digital identification imposed to further the European Single Market. \u0000 \u0000The paper analyzes these four pillars and suggests that together they will underpin the future of digital financial services in Europe, and – together – will drive a Big Bang transition to data-driven finance. These seemingly unrelated pillars together bolster an emerging ecosystem which aims to promote a balance among a range of sometimes conflicting objectives, including systemic risk, data security and privacy, efficiency, and customer protection. Furthermore, we argue Europe’s financial services and data protection regulatory reforms have unintentionally driven the use of regulatory technologies (RegTech) by intermediaries, supervisors and regulators, thereby laying the foundations for the digital transformation of both EU financial services and financial regulation. The experiences of Europe in this process provide insights for other societies in developing regulatory approaches to the intersection of data, finance and technology.","PeriodicalId":292366,"journal":{"name":"University of Hong Kong Faculty of Law Legal Studies Research Paper Series","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115460048","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Misconceptions of Interest Benchmark Misconduct","authors":"P. Lejot","doi":"10.2139/SSRN.3096898","DOIUrl":"https://doi.org/10.2139/SSRN.3096898","url":null,"abstract":"Attempts to influence interest rate benchmarks such as Libor and Euribor by procuring or providing false submissions to data collators are examples of misconduct or criminal behaviour that – contrary to general belief – may have taken place for some years before becoming widely–known during the period of stress in 2007–08 that began the global financial crisis. Subsequent enquiries, litigation, trials and regulatory settlements have included accounts of conduct that disturbed not only popular opinion but senior commercial and regulatory figures who might have been expected to require ethical behaviour of those directly concerned. Misconduct and its apparent toleration accordingly contributed to a general loss of trust in the financial sector. Penalties and settlements have been repeatedly imposed on offending banks, although judicial proceedings and regulatory enforcement actions arising from benchmark misconduct are yet to conclude. \u0000This article considers the neglect of interest benchmark misconduct before and since it became well known; why distinct forms of misconduct have been wrongly conflated in popular and official accounts and in judicial proceedings; whether a pervasive loss of trust caused by a perception of widespread misconduct has had lasting commercial or location–specific effects; and whether reforms intended to restore external confidence by substituting recorded transaction data for subjective estimates may revive functional concerns that interest benchmarks were created to remove.","PeriodicalId":292366,"journal":{"name":"University of Hong Kong Faculty of Law Legal Studies Research Paper Series","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128787982","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mediatory Versus Legalistic Discourse in Chinese Courts","authors":"Xin He","doi":"10.1111/PLAR.12223","DOIUrl":"https://doi.org/10.1111/PLAR.12223","url":null,"abstract":"Drawing from detailed courtroom discourses on divorce cases in China, this article provides a micro-level comparison between two styles of case handling: mediatory and legalistic. The two styles differ in discourse multiplicity, discourse interchange, interruption, and dispute processing. It finds that in terms of dispute resolution, the mediatory style seems to fare better than the legalistic style. One major reason for the difference is that the legalistic style tends to suppress rather than uncover what truly matters for the litigants. The mediatory style also seems to better fit the cultural expectation of suburban and rural China. The findings compel reconsideration of the extent to which rule formalism in transitional China should be promoted.","PeriodicalId":292366,"journal":{"name":"University of Hong Kong Faculty of Law Legal Studies Research Paper Series","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115110254","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Moving Forward on Listing Reform","authors":"S. Johnstone, Nigel Davis, D. Arner","doi":"10.2139/SSRN.3057959","DOIUrl":"https://doi.org/10.2139/SSRN.3057959","url":null,"abstract":"This paper considers the process of listing reform in Hong Kong. It identifies the primary underlying threads in that process as undertaken to date and queries whether the overarching strategic objectives for market development have been adequately diagnosed. Exchanges compete on a range of factors that are influenced by both public and private interests, which requires a clear policy analysis of developmental objectives as a precursor to regulatory reform proposals. Three Propositions are derived that may assist to reposition the reform debate. It is suggested that if stakeholders take these Propositions on board in earnest, there will be a better prospect for moving forward together on listing reform.","PeriodicalId":292366,"journal":{"name":"University of Hong Kong Faculty of Law Legal Studies Research Paper Series","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128167398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Strategic Public Shaming: Evidence from Chinese Antitrust","authors":"A. Zhang","doi":"10.2139/ssrn.2943268","DOIUrl":"https://doi.org/10.2139/ssrn.2943268","url":null,"abstract":"This article examines strategic public shaming, a novel form of regulatory tactic employed by the National Development and Reform Commission (NDRC) during its enforcement of the Anti-Monopoly Law. Based on analysis of media coverage and interview findings, the study finds that the way the NDRC disclosed its investigation is highly strategic depending on the firm’s co-operative attitude toward the investigation. Event studies further show that the NDRC’s proactive disclosure resulted in significantly negative abnormal returns of the stock prices of firms subject to the disclosure. For instance, Biostime, an infant-formula manufacturer investigated in 2013, experienced -22% cumulative abnormal return in a three-day event window, resulting in a loss of market capitalization that is 27 times the ultimate antitrust fine it received. The NDRC’s strategic public shaming could therefore result in severe market sanction that deters firms from defying the agency.","PeriodicalId":292366,"journal":{"name":"University of Hong Kong Faculty of Law Legal Studies Research Paper Series","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122972928","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Overstating Moral Hazard: Lessons from Two Decades of Banking Crises","authors":"D. Arner, E. Avgouleas, Evan C. Gibson","doi":"10.2139/SSRN.2929574","DOIUrl":"https://doi.org/10.2139/SSRN.2929574","url":null,"abstract":"Over the past two decades a variety of banking system rescue approaches have been used, including in the 1997 Asian financial crisis, the 2008 global financial crisis, and the 2010 European debt crisis. By analysing the resolution of these crises as well as the approach to addressing bad loans in the People’s Republic of China, this paper provides a new perspective on the common belief that bailouts are invariably harmful to public funds or excessively conducive to moral hazard. Depending on the form of bailout, bank restructuring, and fiscal backstop, resolutions can be an effective means to restore a banking system. This paper argues that in a systemic financial crisis, a combination of balance sheet restructuring and the use of asset management companies to deal with non-performing loans is often the best choice. However, a fully-fledged resolution that triggers the bail-in procedure remains the best approach for non-systemically important financial institution failures which take place outside of systemic crises, namely when the failure is idiosyncratic.","PeriodicalId":292366,"journal":{"name":"University of Hong Kong Faculty of Law Legal Studies Research Paper Series","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132320876","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Principles-Based Response to the Proposed Reform of the Governance Structure for Listing Regulation in Hong Kong","authors":"S. Johnstone, Nigel Davis, D. Arner","doi":"10.2139/SSRN.2867895","DOIUrl":"https://doi.org/10.2139/SSRN.2867895","url":null,"abstract":"The June 2016 joint consultation on listing regulation arises out of a renewed concern to ensure the Hong Kong market remains fit for purpose in meeting current and emergent challenges and demands. This paper undertakes an analysis of the consultation applying a law and principles based approach. This approach requires the listing regime to be suitable not only in view of market conditions but also in view of internationally accepted practices and standards concerning regulatory oversight. While it is recognized that regulatory evolution requires progressive innovation, the two new SEHK sub-committees envisaged by the joint consultation give rise to several areas of concern. The reasons for implementing the changes proposed are not well explained in the consultation and no clear case is presented as to why the sub-committee structure would provide improvements. Putting the SFC into a frontline decision-making role is problematic under the current statutory framework, and is not necessarily a forward moving step toward a system of statutory listing regulation. It implements changes that bypass legislative intent and renders certain statutory laws meaningless, it may subject the SFC to corporate laws that would impact on its ability to act as an independent regulator, and it would diminish regulatory accountability and clarity. The risk that the changes could be regarded as legislation by regulation would weaken, not strengthen, the SFC’s regulatory mandate over public listings. These problems run counter to the intent of the Proposal to improve listing regulation and carry the risk that Hong Kong’s governance of listings, particularly the role of the statutory regulator in it, would be at odds with international best practices. The conclusion of this paper is that progressing with the sub-committee proposal would not be a positive development unless and until the issues identified in this paper are properly addressed and resolved. It is suggested that a more holistic view of market development needs to be adopted that extends beyond the decision making mechanisms of the dual filing regime and identifies more precisely the specific issues that are problematic. Doing so would permit more targeted and sustainable oversight mechanisms to be developed.","PeriodicalId":292366,"journal":{"name":"University of Hong Kong Faculty of Law Legal Studies Research Paper Series","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127669144","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"International Legal Review of the Relationship between International Tax Law and National Tax Sovereignty: Theoretical Foundation and Development Practices","authors":"A. Zuo","doi":"10.2139/ssrn.2411304","DOIUrl":"https://doi.org/10.2139/ssrn.2411304","url":null,"abstract":"By examining their theoretical basis and exercising practice relationship between national sovereignty and international tax law, it is demonstrated that the international tax law results from the coordination to exercise national sovereignty in the international law. Given the modern connotation of national sovereignty and exercising practices of international tax treaties in the international law, it is reasoned that “the international tax treaty is a kind of limitation or mitigation to national tax sovereignty” is a false pseudo-proposition; International tax regime has been established on the international law level and constitutes a part of customary international law, which is of great significance; No country has the law-making capacity or its national interest dives in the international law to change the existing international tax regime. Taking account of the exercise of the national tax sovereignty under the backdrop of the latest development practices in international tax law, it can be found that international tax cooperation makes the exercise of national tax sovereignty increase other than decrease; Countries’ intensive actions to safeguard their own international taxation interests strengthen the exercise of their national tax sovereignty; New international tax topics, such as Carbon tariff and environmental taxes, will accelerate law-making revolution of international law in the field of international tax law, and thus makes the exercise of national tax sovereignty to be unified.","PeriodicalId":292366,"journal":{"name":"University of Hong Kong Faculty of Law Legal Studies Research Paper Series","volume":"99 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127143395","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Sponsors’ Prospectus Liability in Initial Public Offerings in Hong Kong","authors":"Ernest Lim","doi":"10.1093/CMLJ/KMT007","DOIUrl":"https://doi.org/10.1093/CMLJ/KMT007","url":null,"abstract":"This article critically analyses the current and controversial issue of whether sponsors in Hong Kong should be subject to civil and criminal liability for misstatements in an IPO prospectus under the Companies Ordinance. It argues that the existing legal regime provides insufficient deterrence and advances policy justifications for imposing liability. It then examines the principal objections against the imposition of liability — negligible deterrence and over-deterrence — and finds them unpersuasive. It also specifically addresses the concerns arising from making sponsors criminally liable.","PeriodicalId":292366,"journal":{"name":"University of Hong Kong Faculty of Law Legal Studies Research Paper Series","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116457703","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}