CityU hosted the 3rd APELIA Conference on “Where is the boundary of national security in international and domestic law?”

National security has gained more and more attention and become more controversial in recent years internationally and domestically, not only in the sense of traditional security, but also on the immense impacts on global trades and investments, technological developments, and geo-politics among major powers. Arbitrary use of national security as an excuse to achieve other objectives amounts to a serious challenge to the rule of law in both international and domestic contexts. In light of that, the School of Law of City University of Hong Kong has chosen “the boundary of national security” to be the main agenda of the 3rd annual conference of Asia-Pacific and Europe Law Institutes Alliance (APELIA) on 1-2 June 2022 (held online via Zoom), in which 14 scholars around the globe were able to exchange their academic insights on the issue. It’s our School’s delight to have hosted the Conference successfully.

“The world has been dialling back on globalization.” Having our contemporary context clearly pointed out by Prof. TAN Cheng-Han (Dean, CityU School of Law) in his opening remarks, we were introduced into the Conference’s in-depth discovery and academic exchanges on three main topics: Foreign Investment and National Security, Artificial Intelligence and National Security, and finally National Security in Hong Kong.

Session 1: Foreign Investment and National Security

Prof. LI Yuwen (Erasmus School of Law), Chair of Session 1, in her introduction quoted from the 2021 annual report of Organisation for Economic Co-operation and Development (OECD) that policy-makings by many economies have been emphasizing on safeguarding national interests against threats in international investments since the outbreak of COVID pandemic.

Dr. Cheng BIAN (Erasmus School of Law), the first speaker in Session 1, spoke on “The Essential Security Interest Exception in International Investment Agreements (IIAs) and Arbitration: From an Exception to a Norm?”. There is a provision in international investment treaties that “allows the host state to take measures necessary to protect their fundamental security interests under certain circumstances, without the liability of a breach of their treaty commitments and no compensation is required.” Data quoted from UNCTAD was presented graphically showing that percentage of IIAs with essential security interest exception clause in a given year has continuously raised from 3.8% in 1990 to 58.3% in 2020. Moreover, the definition of “essential security interests” seems to be ambiguous, making their content and interpretation fragmented and inconsistent. The presentation finally suggested some models of reforms on international investment law and arbitration to address the aforesaid problems.

Ms. Maja RUHL (University of Freiburg), the second speaker in Session 1, spoke on “The National Security Review and the New Foreign Investment Management Regime in Mainland China”. Since the implementation of the new Foreign Investment Law in 2020 in China, the National Security Review Mechanism (NSR) is more broadly scanning all foreign investments that may affect national security in China. Its potential weaknesses include the opacity and unaccountability of its decision-making process, and the hardship it brings upon the liberalization of China’s market access as paradoxically the NSR is creating a hurdle for foreign investors in the market entry phase. The presentation finally proposed possible improvements to the NSR in favour of China’s market access including specifications on the scope of measures and increase of its transparency.

Dr. JIANG Huiqin (Zhe-jiang Sci-Tech University) and Dr. WENG Xiaochuan Charlie (UNSW Law), the third speakers in Session 1, spoke on “A Comparative Analysis of the Foreign Investment National Security Review (NSR) Regimes in Mainland China and Australia”. Having introduced the OECD’s practices on promoting transparency and predictability of NSR regimes (2009 Guideline and 2021 Research), brief histories and current situations of NSR regimes of Australia and Mainland China were in-depth analysed. The research concluded that both regimes have done good work in primarily procedural transparency, yet while both regimes bear a certain degree of formalistic resemblance, Australia’s is more transparent than Mainland China’s comparatively.

Dr. Pim JANSEN (Erasmus School of Law), the fourth speaker in Session 1, spoke on “FDI Screening in the Netherlands: Key Changes for 2022”. Despite the liberal approach being taken up by Netherlands as an EU member state, the Vifo Act, adopted on 17 May 2022, marks a paradigm shift as it is the first general foreign investment regulation in the Netherlands which is aimed to control risks to national security arising from certain acquisition activities. The presentation illustrated its screening procedure and security factors taken into accounts.

Session 2: Artificial Intelligence and National Security

Dr. HE Tianxiang (CityU School of Law), Chair of Session 2, researches about AI issues and was a presenter in last year’s conference.

Dr. Chuanman YOU and Dr. Umakanth VAROTTIL (NUS Law), the first speakers in Session 2, spoke on “National Security Screening in Cross-Border Takeovers: Shifting Sands in the Market for Corporate Control”. NSR on international merges and acquisitions got proliferated quantitatively because of the COVID pandemic and the fear of “predatory takeovers”, this has brought four main shifts in paradigms in handling cross-border takeovers. The presentation has provided alternative mechanisms focusing on reorienting takeover regulation and readjustments to screening mechanisms.

Dr. Guan H. TANG and Mr. Randal LINDSELL (Queen Mary University of London), the second speakers in Session 2, spoke on “AI Law and Policy: An International and Comparative Study of National Security”. AI (Artificial Intelligence) has brought both positive and negative impacts on employment security across the world (creating some new jobs while rendering other jobs obsolete), thus discussions are getting more heated on whether or not we should legally prioritize technological innovation and efficiency or the employment rights of natural persons. Initiatives on artificial intelligence (AI) have been suggested and promoted by national and international actors, which are moving gradually toward international accords. At present, there is a void of international law and regulations to govern AI. The presentation concluded that there is an urge for international consensus governing AI, under which we can regulate AI at an optimal balance between encouraging its developments and upholding individuals’ working rights.

Prof. Li YANG and Mr. Junlin YI (Shanghai Jiao Tong University), the third speakers in Session 2, spoke on “Paradigm Transformation of Classified Protection Compliance Standards for Data Security”. A multitude of data are generated everyday in cyberspace; appropriate regulations on the application of big data can prevent potential risks on national security. The presentation suggested that plans integrating technical standards and legal norms should be established for the governance of the entire life-cycle of large-scale data.

Session 3: National Security in Hong Kong

Prof. WANG Jiangyu (CityU School of Law), Chair of Session 3, opened Day 2 by firstly asserting the importance and closeness of the topic to him and all people who are based in Hong Kong.

Prof. LIN Feng (CityU Associate Dean of Law) and Dr. FEI Mengtian (CityU Law Postdoc), the first speakers in Session 3, spoke on “The Hong Kong National Security Law – A Paradigm Shift for its National Security Constitution”. Hong Kong has experienced major political movements over past years, and the Standing Committee of the National People’s Congress decided to enact the Hong Kong National Security Law instead of waiting for local legislation. It has caused a significant change on the constitutional principles of Hong Kong including “one country, two systems”, high degree of autonomy, balances between human rights and national security, et cetera. They concluded by arguing that the Hong Kong National Security Law has caused a paradigm shift in Hong Kong’s national security constitution.

Dr. Marcelo THOMPSON (HKU Faculty of Law), the second speaker in Session 3, spoke on “Standards-Setting, National Security, and the Responsibility of Technological Platforms in Hong Kong: Understanding Article 139(2) of the Hong Kong Basic Law”. Rather than the adversarial reading common for provisions of similar wording in the Basic Law, the presentation suggested that the standardization remit must necessarily be considered from a national perspective as well - that is, as a question concerning sovereignty. At the same time, it is important that the limits of Article 139(2) be considered too.

At the end, on behalf of Prof. TAN Cheng-Han (Dean, CityU School of Law), Prof. LIN Feng (Associate Dean, CityU School of Law) thanked all the speakers, participants, and all the chairs who contributed to the Conference in concluding remarks, whom have shedded much insights on different topics relating to national security. He wished that the participants can meet in real person in the next annual Conference.