Mimi Zou

Multinational corporations and employment relations in the People's Republic of China: the case of Beijing Hyundai Motor Company

This contribution examines the transfer of employment relations policies and practices from the domestic operations of the Hyundai Motor Company (HMC) in Ulsan, Korea to its joint venture in China, the Beijing Hyundai Motors Company (BHMC). An integrated ‘political economy’ theoretical framework is used to analyse the complex interaction of institutional, strategic and micro-political forces that have shaped the hybrid model of employment relations at BHMC. The study shows that the transfer of policies and practices from Ulsan to Beijing has been influenced not only by institutional differences between the home and host countries and the strategies pursued by HMC management, but also by the political contests between various actors within and outside BHMC. Our research findings show that HMC headquarters has sought to maintain control over employment relations at BHMC through the transfer of its core policies and practices from its Korean operations to BHMC. However, a hybrid model has emerged at BHMC with some notable differences to HMCs Ulsan plant. Utilising an integrated political economy perspective, this contribution has shown that BHMCs employment relations policies and practices have been shaped and conditioned by a complex interplay of institutional and market forces, strategic choices and ongoing political contests between various actors within and beyond BHMC.

The Regulatory Challenges of ‘Uberization’ in China: Classifying Ride-hailing Drivers

Like many other countries, the digitalisation of the Chinese economy arising from swift advances in information and communication technology has attracted substantial policy attention. China’s own ‘Industry 4.0’ is taking place against the backdrop of deep structural economic reforms that involve a fundamental shift from an export-led, manufacturing growth strategy to a domestic consumption-driven and service economy. The government has strongly encouraged the generation of new jobs through ‘mass entrepreneurship and innovation’ and the emergence of ‘new market entities’. New business models, production processes, and work organisation arising from the digitalisation push in China have posed challenges for a labour regulatory framework that has already experienced dramatic transformations in recent decades. An emergent group of workers in the growing ‘gig economy’ or ‘sharing economy’ are those carrying out various types of services through online platforms, such as ‘crowdwork’ and ‘work-on-demand’ via mobile applications such as Uber, Lyft, Task Rabbit, Upwork, and Amazon’s Mechanical Turk. As observed in other jurisdictions, a contentious issue is the legal classification of workers’ statuses: are they deemed as ‘employees’ or self-employed contractors? Although this is not a new question from the perspective of labour law, the novel aspect of regulating digital work is arguably the role and function of online digital platforms in the employment relationship or other forms of contractual relationships, and accordingly, the material conditions and rights that these workers are entitled to.This paper aims to understand how Chinese courts have so far addressed the legal classification of drivers working in platform-based ride-hailing services, in the context of unclear legislative and policy guidance. This sector has experienced dramatic expansion in China, with the meteoric rise of local market leaders such as Didi and the entry of international competitors such as Uber. The nature of these drivers’ relationship with the companies that own the platforms has found its way into a growing number of court cases in recent years. In this paper, I analyse a cross-section of 20 cases from 2013 to 2016 brought before the local people’s courts in several large Chinese cities. These cases raise multifaceted issues concerning the existence of an employment relationship, liability over traffic accidents, insurance claims for repairs, and the inclusion of drivers’ income in divorce settlements. Analysing the different types of disputes can help shed light on the type and extent of legal obligations of platform-based companies and the rights of drivers. Despite the presence of some basic criteria in Chinese labour law for determining an employment relationship, there is considerable uncertainty and inconsistency in the application of such criteria in practice, especially across the variety of claims involving these drivers. This inconsistency may ultimately be resolved by a new opinion issued by the Ministry of Transport and other departments in July 2016, which will allow these companies to legally operate through a licensing system and abide by certain rules that include the conclusion of labour contracts with its drivers. Nevertheless, this continues to be a highly contentious and hotly debated issue at the time of writing.

Medical Ethical Principles may Drive Improvement of Quality of Dying in Hong Kong

Population ageing raises concern regarding the quality of end of life care (EOLC), not only for people with cancer but for all dying of end stage chronic diseases, particularly for dementia. Medical ethical principles, legal and cultural factors affect the quality of end of life care. This article discusses how these three factors currently contribute to EOLC in Hong Kong, in the context of differing trajectories of development in China, other Asian countries, and the USA. EOLC for non cancer patients has only recently been highlighted, where ethical, legal, and cultural issues are being debated. Although there is no statute or case law that directly govern the legal status of advance directives in Hong Kong, a validly made advance directive is generally recognized at common law. However, there is a range of other legal barriers to providing EOLC according to medical ethical principles. There is little discussion among health care providers or the public regarding advance directives, euthanasia, physician assisted suicide, or withdrawal of life support, particularly for those with dementia. It is hoped that a continuing medical ethics discourse regarding EOLC issues may provide momentum to overcome current inertia or avoidance of EOLC issues, such that population aging may not be accompanied by increasingly poor quality of care in the dying process.

THE DEFENCE OF ILLEGALITY IN TORT LAW: BEYOND JUDICIAL REDEMPTION?

IN Hounga v Allen [2014] UKSC 47; [2014] W.L.R. 2889, the Supreme Court unanimously upheld a claim in the statutory tort of discrimination by a woman who had been dismissed from her employment. The fact that the woman had been working in breach of immigration laws did not enliven the illegality defence. Hounga is one of several recent cases in which the illegality defence has been examined at the ultimate appellate level, the other decisions being Gray v Thames Trains Ltd [2009] UKHL 33; [2009] A.C. 1339, Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39; [2009] A.C. 1391, and Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2014] W.L.R. 1257. The fact that the defence has been considered so frequently as of late at the apex level seems to confirm that the Law Commission was wrong in its prediction, made shortly after Gray and Moore Stephens were decided, that the defence would be brought into a satisfactory state if responsibility for reforming it was left to the courts (The Illegality Defence (Law Com 320, 2010), at [3.37]–[3.41]). We are not alone in holding this view. Writing extra-judicially, Lord Mance and Lord Sumption have called for the Law Commission to re-examine the defence (J. Mance, “Ex Turpi Causa – When Latin Avoids Liability” (2014) 18 Edinburgh Law Review 175, 192; J. Sumption, “Reflections on the Law of Illegality” (2012) 20 Restitution Law Review 1, 8–12). We argue here that Hounga perpetuates (and possibly aggravates) the difficulties from which this area of law suffers.

Legal Issues Regarding Confidentiality and Consent in HIV Testing in Hong Kong

The patient was a 52-year-old male who lived with his wife and had no children. He was generally in good health prior to 2006. He was diagnosed with Burkitt’s lymphoma in 2006, which was managed by an oncologist at a major hospital in Hong Kong. In 2007, the patient displayed flu-like symptoms and was admitted to hospital. His condition deteriorated rapidly soon after admission, with reduced LOC, severe hypoxia and Type II respiratory failure. He was admitted to the intensive care unit and was intubated/ventilated. The patient’s condition worsened despite various changes in treatment. The oncologist was consulted but there was no evidence of a relapse of Burkitt’s lymphoma. At that point, the healthcare team suspected that the patient could be immunocompromised. The risk factor screening indicated: the absence of intravenous drug abuse, the patient was heterosexual, and there had been no previous blood transfusion. The patient’s blood sample was sent for HIV testing and the result was positive. The patient’s wife was unaware of the testing. There was disagreement among the healthcare team members on whether it was appropriate to disclose the patient’s HIV status to his wife without his consent; and, if it was