Monthly Archives: May 2014

‘In Conversation’ 3

This week’s guest on ‘In Conversation’ was Allen Lee, whom most will remember as a bit of an unpredictable operator in Hong Kong politics over the years. I remember, as a kid, not being particularly fond of him as he seemed to turn in the wind a lot. But somehow, in post-1997 Hong Kong, he has reinvented himself as a staunch supporter not only of democracy in Hong Kong, but also in China itself. One particularly interesting prediction he offered on the show was that the growing chasm between one-party rule and the fact that, through the internet, more and more people know what is really going on in China and the rest of the world, will inevitably lead to the end of one-party rule. Lets hope he is right. On Hong Kong, he also had some interesting thoughts, especially in his assessment of the three China-appointed Chief Executives thus far. According to Lee, Tung was a nice man who did not know government. Tsang knew government but had no political support. And Leung, well Leung neither understands government, nor does he know ‘what the hell is going on’.

You can watch the show here: http://programme.rthk.hk/rthk/tv/programme.php?name=tv/inconversation&d=2014-05-22&m=episode

China loses at the WTO, again

Stock photo: Hans Mahncke

Stock photo: Hans Mahncke

Interesting development at the WTO, where China has lost another anti-dumping case against the US, this one involving imports of US cars. This is the third time now that China has lost to the US with respect to China’s unlawful imposition of import duties, after it also lost cases on Chicken and on Steel imports in the past two years.

The wider issue pertains to the fact that China is the world’s biggest target of anti-dumping duties – something that it often complains about. However, the apparent tactic of fighting fire with fire seems to be backfiring badly. Perhaps it is down to China’s relative inexperience at using trade barriers in tit-for-tat efforts – after all, the latest round of suing each other at the WTO started after President Obama started taking a tougher line on Chinese trade in 2009. In turn, Chinese leaders apparently decided to use trade barriers as a means of sending the US a message, so this loss will be particularly painful in a society where nearly everything involves “face”.

The intellectually honest way of dealing with the incessant claims of dumping that are made against China, would be to highlight the hypocrisy of the West’s anti-dumping regimes and co-opting the WTO and its dispute settlement mechanism towards getting rid of those regimes. Instead, China seems to have decided to join them rather than beat them, a move that is having detrimental effect all around – aside of course from the lawyers, who seem to be the only ones reaping a benefit.

You can download a summary or the whole WTO report here: http://www.wto.org/english/news_e/news14_e/440r_e.htm 

 

Landmark accounting case – will it be overturned?

Photo: Hans Mahncke

Photo: Hans Mahncke

The High Court in Hong Kong has held that EY (formerly known as Ernst & Young) has to hand over audit documents of a Mainland Chinese firm whom EY had previously helped with an intended listing on the Hong Kong Stock exchange. This is big news as Chinese law apparently prohibits such documents from being revealed as they are deemed to be “state secrets”. Yet another instance of the ever-growing friction between China’s predisposition to secretiveness and its internationalisation efforts. What will be very interesting is to see whether EY get leave to appeal to the Court of Final Appeal and whether – just as they did in the Congo case (Democratic Republic of Congo and Others v FG Hemisphere Associates LLC [2011] HKCFA 42) – the Court of Final Appeal will find some wiggle room in the name of state sovereignty.

You can read the story about today’s judgment here: http://www.ibtimes.co.uk/ey-loses-china-firm-audit-document-protection-lawsuit-after-landmark-hong-kong-ruling-1449700 

Who pays when trees fall?

Photo: Hans Mahncke

Photo: Hans Mahncke

Had a lucky escape this morning when a large tree came down on my car, just as I was about to leave the house. Most important thing is that everyone is safe. But inevitably, there will now be discussions as to who is responsible, who has to pay for the tree to be removed, who has to pay for the damage etc? This is where is gets very complex. According to the survey map, the tree was on public land. However, someone built a little wall next to the tree. Someone also ran a water pipe right through where the tree’s roots were. Does that mean, assuming the wall and the pipe interfered with the tree, that the person who built those things is responsible? The police claim that the person using the land on which the tree was located is responsible for its upkeep and, consequently, for any damage it causes. Makes sense, but how likely is it that that person will now come forward and take responsibility? After all, it is public land. Watch this space as another Hong Kong land law saga unfolds…

Filibustering in Hong Kong

Legco. Photo: Hans Mahncke

Legco. Photo: Hans Mahncke

Once again, political discussion in Hong Kong revolves around the issue of filibustering. The issue should really have been decided determinatively two years ago, when Long Hair lodged a judicial review application against the Legco President’s decision to cut short a debate on a proposed amendment to the Legislative Council Ordinance. Back then, the amendments were sought to prevent Legco members who resigned, from standing for re-election within six months of the resignation (Leung Kwok Hung v President of Legislative Council, HCAL 64/2012). This time around, Legco is discussing amendments to the budget bill, which some members are trying to filibuster.

That is the normal course of parliamentary proceedings, and perhaps even more likely to occur in the context of Hong Kong’s less than democratic parliament. However, what is not normal is that the debate about whether or not members are allowed to filibuster, keeps popping up, without being properly resolved. As the previous case from 2012 showed, filibustering is clearly allowable under Legco rules, precisely because there are no rules on filibustering. Back then, the court wiggled out of having to make a final determination as it deferred to parliamentary privilege. In other words, it said that since parliament should be free to decide on its own rules and procedures, the court would not intervene.

So we are now back where is all began, only that this time, rather than just cut off debate at a random point in time as he did last time, the Legco President has pre-set a deadline for debate to finish. While there are pros and cons to pre-limiting debate, the most evident problem with this latest development is that it is not covered by any rules. That cannot be right. If there was to be a cut off point for debates – and there is no intrinsic reason not to have a cut off point – the modalities of determining such a cut-off point have to be laid down in the rules of procedure. Instead, what we now have in Hong Kong is that everything depends on the whim of one person, with all the inherent dangers and attendant abuse potential.