Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Hong Kong, SAR of China

Lutz-Christian Wolff

I. The status of Hong Kong as Special Administrative Region of the People’s Republic of China

Hong Kong was under British colonial rule from 1842 to 1997. On the basis of the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong (19 December 1984, Laws of Hong Kong – authorized loose-leaf edition, printed and published by the Director of Government Logistics, Hong Kong Special Administrative Region, vol 1, 15/1–15/26; also available online at <http://english.gov.cn/2007-06/14/content_649468.htm>, last accessed on 7 March 2017), signed by the then Prime Ministers Margaret Thatcher and Zhao Ziyang on 19 December 1984 in Beijing, the People’s Republic of →China (PRC) assumed sovereignty over Hong Kong as of 1 July 1997. Hong Kong gained the status of a Special Administrative Region (SAR) of the PRC. Hong Kong’s legal, economic and political system will remain unchanged for a period of 50 years from the date of the so-called handover. As a consequence of this ‘one country, two systems’ concept Hong Kong’s legal system and the legal system of Mainland China are independent from each other and are to be treated as foreign jurisdictions for private international law purposes (First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd [2008] HKEC 227 [114]; Court of First Instance; Nan Tung Bank Ltd, Zhu Hai v Wangfoong Transportation Ltd [1999] HKEC 1136). Hong Kong’s legal system is based on the English common law system as then in force at the time of the handover, with certain exceptions in areas where Hong Kong had not followed reform developments in England. After the handover, Hong Kong did not adopt changes which took place in England in the area of private international law in particular as a result of the unification initiatives within the EU.

II. Sources of private international law

1. Major legislation

Hong Kong’s private international law is not set out in a single piece of legislation. In contrast, most choice-of-law rules derive from case-law. In specific areas statutory laws (‘Ordinances’) contain rules which directly or indirectly address choice-of-law issues. Examples are the Bills of Exchange Ordinance (Cap 19), the Employment Ordinance (Cap 57), the Sex Discrimination Ordinance (Cap 480), the Family Status Discrimination Ordinance (Cap 527), the Disability Discrimination Ordinance (Cap 487) and the Race Discrimination Ordinance (Cap 602), the Recognition of Trusts Ordinance (Cap 76), the Control of Exemption Clauses Ordinance (Cap 71), the Unconscionable Contracts Ordinance (Cap 458) and the Foreign Corporations Ordinance (Cap 437). A database of Hong Kong legislation is available online at <www.legislation.gov.hk/blis/eng/index.html#> (last accessed on 26 March 2017).

Important pieces of legislation governing procedural issues are the High Court Ordinance (Cap 4) and – as subordinate legislation to the High Court Ordinance – the Rules of the High Court (Cap 4A, RHC). The enforcement of foreign judgments is addressed among others by the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319), the Limitation Ordinance (Cap 347) and the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597). The Mutual Legal Assistance in Criminal Matters Ordinance (Cap 525) allows – subject to certain conditions – for the enforcement of foreign confiscatory orders with penal features (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 670–83). The Evidence Ordinance (Cap 8) is relevant for the proof of foreign law. The main piece of legislation in the area of arbitration is the Arbitration Ordinance (Cap 609).

2. International conventions and interregional arrangements

Since Hong Kong is part of the PRC, Hong Kong’s foreign affairs fall within the responsibility of the PRC’s Central People’s Government. However, Hong Kong is authorized to ‘conduct relevant external affairs on its own’ in accordance with art 13 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Basic Law) (Laws of Hong Kong – authorized loose-leaf edition, printed and published by the Director of Government Logistics, Hong Kong Special Administrative Region, vol 1, 4/1–4/49; also available online at <www.basiclaw.gov.hk/en/basiclawtext>, last accessed on 26 March p. 12017), Hong Kong’s ‘mini constitution’. This includes the conclusion and implementation of ‘agreements with foreign states and regions and relevant organizations in the appropriate fields’, art 151 Basic Law. The following multilateral conventions which are directly related to private international law topics apply in Hong Kong: the Statute of the →Hague Conference on Private International Law (Statute of 15 July 1955 of the Hague Conference on Private International Law, Hague Conference on Private International Law, in Hague Conference on Private International Law (ed), Recueil de Conventions – Collection of Conventions (1951–2009) (Insentia 2009) 2), the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3), the Hague Testamentary Dispositions Convention (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175), the Hague Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, 527 UNTS 189), the Hague Service Convention (Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, 658 UNTS 163), the Hague Evidence Convention (Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters, 847 UNTS 241), the Hague Divorce and Separation Convention (Hague Convention of 1 June 1970 on the recognition of divorces and legal separations, 978 UNTS 399), the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89), the Hague Trust Convention (Hague Convention of 1 July 1985 on the law applicable to trusts and on their recognition, 1664 UNTS 311) and the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and cooperation in respect of inter-country adoption, 1870 UNTS 167; 32 ILM 1134). A database of international conventions and bilateral agreements in force and applicable to Hong Kong is available online at <www.doj.gov.hk/eng/laws/treaties.html> (last accessed on 26 March 2017).

The PRC is a →CISG (United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods, 1489 UNTS 3) Contracting State. However, the CISG was not applied in Hong Kong prior to the handover and the official position of the Hong Kong government and of the Central People’s Government of the PRC is that no new conventions apply to Hong Kong as a result of the handover except for those listed in a declaration deposited with the Secretary General of the UN. This has been challenged by commentators (see Ulrich Schroeter, The Status of Hong Kong and Macao under the United Nations Convention on Contracts for the International Sale of Goods (2004), available online at <www.schroeter.li/pdf/Schroeter_16_Pace_Intl_L__Rev_2004_307.pdf>, last accessed on 26 March 2017; Lutz-Christian Wolff, ‘Hong Kong Conflict of Contract Laws: Quo Vadis?’ (2010) 6 J Priv Int L 465, 478–80) and disregarded by courts outside Hong Kong (see eg United States, 3 September 2008, District Court (Illinois) (CNA International, Inc v Guangdon Kelon Electrical Holdings et al) – Case Number 05 C 5734; United States, 23 December 2009, District Court, Eastern District of Arkansas, Western Division (Electrocraft Arkansas, Inc. v Super Electric Motors, Ltd et al) – Case Number 4:09cv00318 SWW) on the basis that art 93 CISG requires a declaration if the CISG is not to apply in one or more of the territorial units of a Member State. The PRC has made no declaration to this effect, although the French cour de cassation has ruled that the above declaration deposited with the Secretary General of the UN serves the same purpose.

Hong Kong has also entered into a number of bilateral agreements which are, however, not directly related to private international law. A database of the treaties to which Hong Kong is a party is available online at <www.doj.gov.hk/eng/laws/interlaw.html> (last accessed on 26 June 2015).

Hong Kong and Mainland China as well as Hong Kong and Macau have reached the following interregional arrangements in relation to judicial assistance: Arrangement for Mutual Service of Judicial Documents in Civil and Commercial Proceedings between Mainland and Hong Kong Courts (1999) (available at <www.doj.gov.hk/eng/mainland/pdf/mainlandmutual1e.pdf>, last accessed on 26 March 2017), Arrangement Concerning the Mutual Enforcement of Arbitral Awards Between the Mainland and the Hong Kong Special Administrative Region (1999) (available at <www.doj.gov.hk/eng/mainland/pdf/mainlandmutual2e.pdf>, last accessed on p. 126 March 2017), Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region Pursuant to Choice of Court Agreements between Parties Concerned (2006) (available at <www.doj.gov.hk/eng/mainland/pdf/mainlandrej20060719e.pdf>, last accessed on 26 March 2017), and the Arrangement Concerning Reciprocal Recognition and Enforcement of Arbitral Awards between the Hong Kong Special Administrative Region and the Macau Special Administrative Region (2013 – not in force yet) (available at <www.legco.gov.hk/yr12-13/english/panels/ajls/papers/aj1214cb4-300-1-e.pdf>, last accessed on 26 March 2017). A database of interregional arrangements in force and applicable to Hong Kong is available online at <www.doj.gov.hk/eng/laws/treaties.html> (last accessed on 26 March 2017).

3. Role of case-law

Hong Kong is a common law jurisdiction and consequently applies the doctrine of binding precedent (stare decisis). Courts have to follow the ratio decidendi of earlier decisions addressing analogous factual situations made by courts of higher standing. English case-law and case-law from other common law jurisdictions is merely persuasive authority.

4. Chinese customary law

To a very limited extent traditional Chinese customary law is still applicable in Hong Kong in relation to land located in the so-called New Territories as well as to family matters and →Succession. In court proceedings Chinese customary law is treated like foreign law (cf infra, IV. 2), ie expert witnesses are called to ascertain the contents (Keith Hotten, Hong Kong Family Court Practice (LexisNexis 2010) 2.7).

5. Role of doctrinal writings

Although Hong Kong is a highly ‘international city’, the topic of private international law has only recently attracted more substantial attention of local academic circles and commentators from within the profession. There is only one (excellent!) Hong Kong textbook on the topic (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012–3rd edn forthcoming in 2017)). As a result, Hong Kong’s legal profession relies heavily on literature mainly from England, but also from other common law jurisdictions (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 6). Legal writings are not legally binding, but are often cited in practice to support the reasoning in a particular case.

III. History of private international law

Hong Kong’s private international law stands at the crossroads. On the one hand the traditional English common law rules as they are still applied in Hong Kong appear to lag behind modern reform developments which have taken place in other parts of the world. On the other hand the interregional cooperation between the different parts of China and in particular between Hong Kong and Mainland China has seen much intensification in the past decade and is mirrored, eg, by the arrangements regarding reciprocal judicial assistance. Moreover, 20 of the 50 years of jurisdictional independence of Hong Kong after the handover have already expired and it is time to question the future after 2047. In light of all this it seems prudent to contemplate steps to revamp Hong Kong’s private international law system. The advantages of harmonized or even unified regimes within the Greater China area will have to be considered in this regard (Lutz-Christian Wolff, Hong Kong Conflict of Contract Laws: Quo Vadis? (2010) 6 J Priv Int L 465, 489–97), although this idea may not as yet be very popular.

IV. Administration of private international law

1. Courts

Hong Kong’s highest court is the Court of Final Appeal (CFA). The CFA’s jurisdiction is based on the Hong Kong Court of Final Appeal Ordinance (Cap 484). The High Court consists of the Court of Appeal and the Court of First Instance with the former hearing appeals from the latter and the Lands Tribunal and rendering decisions on questions of law raised by lower-ranked courts. The Court of First Instance, apart from its unlimited jurisdiction in criminal and civil matters, hears appeals from Magistrates Courts, the Labour Tribunal, the Small Claims Tribunal and the Obscene Articles Tribunal (see Department of Justice at <www.doj.gov.hk/eng/legal/index.html>, last accessed on 26 June 2015). According to the p. 1Official Language Ordinance (Cap 5) s 3, courts may use either or both of the official languages, ie English and Chinese. Hong Kong law does not provide for special jurisdictional rules for cases with a foreign element.

2. Application of foreign law

Foreign law is treated as an issue of fact. Foreign law must therefore be proved by the party alleging it, unless admitted by the other party (→Foreign law, application and ascertainment). Foreign law is usually proved by expert evidence. At trial, expert witnesses will confirm their written opinions on oath and may be cross-examined. At the interlocutory stage, expert evidence in relation to foreign law is normally given in the form of an affidavit of the expert (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 44). The direct application of foreign statutory law by a court without expert evidence requires the consent of all parties (F & K Jabbour v Custodian of Israeli Absentee Property [1954] 1 WLR 145, 147–8, English High Court (Pearson J)). Findings made or decisions rendered on matters of foreign law in proceedings at first instance in Hong Kong’s High Court or in the Supreme Court of England, or appeals arising out of such proceedings or in proceedings before the CFA ‘shall, if reported or recorded in citable form, be admissible in evidence for the purpose of proving the law of that country or territory with respect to that matter; and … if that finding or decision, as so reported or recorded, is adduced for that purpose, the law of that country or territory with respect to that matter shall be taken to be in accordance with that finding or decision unless the contrary is proved’, Evidence Ordinance (Cap 8) s 59(2). Hong Kong law follows English common law in that, subject to a number of exceptions, it is presumed that foreign law is the same as Hong Kong domestic law (cf Dafni Igal v CMA CGM SA [2013] HKLRD 73, Court of First Instance).

3. Cross-border service of judicial documents

The service of judicial documents from Hong Kong in other Member States of the Hague Service Convention (→Service of documents) follows the rules of this Convention. The designated Central Authority in Hong Kong is the Chief Secretary for Administration. The service in non-Member States including →Macau and →Taiwan has to be effected according to the procedural rules of those countries and regions, RHC O.11, r.5(2) and (3). Substituted service by publication or upon a person in Hong Kong is possible if it can be demonstrated that it is impractical to serve the document in the normal manner, RHC O.11, r.5(1) with RHC O.65, r.4. Service of Hong Kong judicial documents in Mainland China is subject to the Arrangement for Mutual Service of Judicial Documents in Civil and Commercial Proceedings between Mainland and Hong Kong Courts (1999) (available at <www.doj.gov.hk/eng/mainland/pdf/mainlandmutual1e.pdf>, last accessed on 26 March 2017) with RHC O.11, rr.5A and 8A. Service outside Hong Kong always requires special judicial leave (see V below).

Service in Hong Kong of foreign judicial documents related to civil and commercial proceedings requires a written request to the Registrar of the High Court (i) from the Chief Secretary of Administration, or (ii) where the document is from a court or tribunal of a Member State of the Hague Service Convention also from a consular or other authority, or (iii) based on the Arrangement for Mutual Service of Judicial Documents in Civil and Commercial Proceedings between Mainland and Hong Kong Courts (1999) (available at <www.doj.gov.hk/eng/mainland/pdf/mainlandmutual1e.pdf>, last accessed on 26 March 2017) where the document is from a court or tribunal in Mainland China, from Mainland Chinese judicial authorities, RHC O.69, r.2. Service can also be effected directly by the parties or their agents or by post (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 798).

4. Enforcement of foreign judgments

Judgments rendered by non-Hong Kong courts are enforceable in Hong Kong under three different regimes, ie (i) at common law, (ii) under the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) and (iii) under the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597) which gives effect to the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region Pursuant to Choice of Court Agreements between Parties Concerned (2006 as amended in 2008) (available at <www.doj.gov.hk/eng/mainland/pdf/mainlandrej20060719e.pdf>, last accessed on 26 March p. 12017). Enforcement under all three regimes requires that the judgment be for a definite sum, not being a sum payable in respect of taxes or other charges of a like nature or a fine or other penalty. Also, to be enforceable in Hong Kong judgments must be final and conclusive.

Under the common law regime the judgment debtor bears the →burden of proof for any defences such as that the foreign court lacked jurisdiction, that the judgment was obtained by fraud or that it is contrary to Hong Kong’s public policy (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 611). The writ with which a plaintiff has to seek enforcement must be issued within 12 years from the date of enforceability of the foreign judgment, Limitation Ordinance (Cap 347) s 4(4). Enforcement under the common law regime is not available for judgments which fall within the scope of applicability of the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319).

Enforcement under the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap 319) is reserved to judgments from designated jurisdictions set out in its schedules 1 and 2, ie currently →Australia and Australian External Territories, Bermuda, Brunei, →India, Malaysia, →New Zealand, →Singapore, Sri Lanka, →Belgium, →France, →Germany, →Italy, →Austria, the →Netherlands and →Israel. Judgments from these jurisdictions can be registered for enforcement within six years from the date of the judgment provided that they were rendered after the coming into operation of the order designating the respective jurisdiction to be included in schedules 1or 2.

Under the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597) judgments in civil or commercial matters from designated Mainland Chinese courts as specified in schedule 1 are registrable for enforcement on the basis of the parties’ exclusive choice of court agreements, which must have been concluded in writing or by an electronic means or a combination of both, Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597) ss 3, 5. The time limit for registration of a judgment is two years, Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597) s 7. The enforceability of Mainland judgments which fall outside the Ordinance’s scope of applicability at common law is questionable because Mainland China’s law of civil procedure allows Chinese People’s courts to reopen cases even when a final judgment has been rendered. It has therefore been argued that Mainland judgments are not final and conclusive (Chiyu Banking Corp Ltd v Chan Tin Kwun [1996] 2 HKLRD 395, per Cheung J; cf Susanne Deissner, Interregionales Privatrecht in China (Interregional Private Law in China) (Mohr Siebeck 2012) 422–3; Jie Huang, Conflicts between Civil Law and Common Law in Judgment Recognition and Enforcement: When is the Finality Dispute Final? (2011–12) 29 Wis.Int’l L.J. 70). Judgments of Taiwanese or Macanese courts are only enforceable under the common law regime (Susanne Deissner, Interregionales Privatrecht in China (Interregional Private Law in China) (Mohr Siebeck 2012) 417).

V. Jurisdiction

1. General principles

As a matter of principle, jurisdiction can be established in Hong Kong in two ways, ie by submission and by service of the originating process either within Hong Kong or with leave outside Hong Kong. Submission implies that the defendant has accepted or is deemed to have accepted the jurisdiction of a Hong Kong court prior to or after having been served with the originating process. Submission can take different forms, although it may in practice not always be entirely clear which conduct qualifies as submission. Examples of submission are: (i) jurisdiction agreements; (ii) unqualified acceptance of service by the defendant or their solicitor or other agent; (iii) plaintiffs’ submission to counterclaims and cross-claims; (iv) filing or serving of a defence; and (v) positive interlocutory activity (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 68–78).

Hong Kong law recognizes jurisdiction agreements, whether independent or in the form of contract clauses, except where the law prescribes the sole jurisdiction of particular courts or tribunals. In principle normal common law contract law principles apply. No special form requirements exist. As a matter of principle jurisdiction agreements on the one hand and the main contract to which they relate on the other hand are regarded as independent of each other. The law governing a jurisdiction agreement can therefore differ from the law governing the main contract (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 137–50).

p. 1The establishment of jurisdiction in Hong Kong by way of service is based on the following principles: the originating service issued by a court can be served upon individual defendants (i) by ‘leaving it with’ them (RHC O.65, r.2), ie by handing it over to them in their presence, (ii) by depositing it in the letterbox of their usual or last known address in Hong Kong (RHC O.10, r.l(2)(b), or (iii)) by mailing it by registered post to the usual or last known address in Hong Kong (RHC O.10, r.l(2)(a)). Hong Kong law allows the service by an ‘agreed method’. In particular, it is possible to effect service upon appointed process agents for and on behalf of parties on the basis of a contractual arrangement (RHC O.10, r.3).

Service upon a partnership may be effected by service upon a partner or a person managing or controlling ‘the firm’s’ main place of business or by registered mail to such place if partners are sued in the name of a firm (RHC O.81, r.3(1)). Otherwise service has to be effected upon all partners according to the above rules regarding service upon individuals in Hong Kong or with leave outside Hong Kong. When a judgment against a partnership is to be enforced against a partner’s private property it must be served upon this partner individually (RHC O.81, r.5(3)).

Service upon a Hong Kong company can be effected by leaving it or sending it by post to the registered or principal office of the company (Companies Ordinance (Cap 622) s 827 with RHC O.10, r.l(s) as amended by RHC O.65, r.3(2)). Service upon →companies incorporated outside Hong Kong, but with a registered place of business in Hong Kong can be effected by way of addressing it to the registered and authorized representative and leaving it at, or sending it by post to, the representative’s last known address (Companies Ordinance (Cap 622) s 803 (1)). Default rules apply if a foreign company has failed to register a place of business or if it no longer has a place of business in Hong Kong. Service upon foreign companies without a place of business in Hong Kong can be effected by service in Hong Kong on its chairman or president, clerk, secretary, treasurer or similar officer (RHC O.65, r.3(1)).

The establishment of jurisdiction by way of service in Hong Kong is not possible in relation to family and insolvency proceedings (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 81; →Insolvency, jurisdiction and vis attractiva).

Service of an originating process outside Hong Kong requires as a matter of principle judicial leave. In practice the application for leave is made by way of an ex parte affidavit setting out the relevant facts to meet one or more of the 19 heads of RHC O.11, r.1(1) (Martin Rogers (ed), Hong Kong Civil Procedure (The Hong Kong White Book Service 1) 2013 (Sweet & Maxwell/Thomson Reuters 2012) Part A – Section 1 – Rules of the High Court Order 11, 11/1/2).

2. Forum (non) conveniens doctrine

Hong Kong courts have adopted the principles developed in The Spiliada ([1987] AC 460). Irrespective of whether jurisdiction has been established Hong Kong courts may therefore decline to hear or stay a case under the forum (non) conveniens doctrine (→Forum non conveniens) if there is another available forum which is clearly or distinctly more appropriate than Hong Kong ‘for the interests of all the parties and the ends of justice’ (The Adhiguna [1987] HKLR 904 (Hunter JA); Waxman v Li Fei Yu [2013] 2 HKLRD 711 [17]; W v C [2013] 2 HKLRD 602; also cf Alan Gibb, Mainland China: forum non conveniens? (2011), available online at , last accessed on 26 March 2017, 12–22). Courts can grant →anti-suit injunctions, ie orders not to commence or to stop legal proceedings in a foreign forum, when ‘the ends of justice require it’ (Liaoyang Shunfeng Iron and Steel Co Ltd v Yeung Tsz Wang [2011] HKEC 934, [31]).

3. Moçambique rule

There is some uncertainty whether the so-called ‘Moçambique rule’ (cf British South Africa Co v Companhia de Moçambique [1893] AC 602) prevents Hong Kong courts from having jurisdiction over cases concerning title to or other interests in and →torts related to →immovable property outside Hong Kong. Similar questions arise in relation to foreign intellectual property (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 178–91).

4. Family matters

Hong Kong courts have jurisdiction in proceedings for divorce, nullity or judicial separation if (i) either of the parties to the →marriage p. 1was domiciled in Hong Kong at the date of the application, (ii) either of the parties of the marriage had a substantial connection with Hong Kong at the date of the application, or (iii) except for judicial separations, either of the parties to the marriage was habitually resident in Hong Kong for the period of three years immediately preceding the date of the petition or application, or (iv) only for nullity and judicial separation, both parties were resident in Hong Kong at the time of the application, or (v) only for nullity, the respondent was resident in Hong Kong at the time of the application or if the marriage was celebrated in Hong Kong, Matrimonial Causes Ordinance (Cap 179), ss 3–6. In all these scenarios the marriage must have been registered as a customary marriage under the Marriage Reform Ordinance (Cap 178) or it must have taken place in Hong Kong and been ‘celebrated or contracted’ in line with the Marriage Ordinance (Cap 181) or been validated under the Marriage Reform Ordinance (Cap 178). If a marriage has taken place outside Hong Kong, jurisdiction of Hong Kong courts is established if the marriage was ‘celebrated or contracted in accordance with the law in force at the time and in the place where the marriage was performed and recognized by such law as involving the voluntary union for life of one man and one woman to the exclusion of all others’, Matrimonial Causes Ordinance (Cap 179) ss 9, 2. Hong Kong courts are empowered to order ancillary relief following a recognized divorce, annulment or legal separation outside Hong Kong, Matrimonial Proceedings and Property Ordinance (Cap 192; →Divorce and personal separation) Part IIA.

Hong Kong courts have jurisdiction in relation to declarations of parentage, legitimacy or legitimation (→Kinship and legitimation) if at the time of application the applicant is domiciled in Hong Kong, has been habitually resident in Hong Kong for one year immediately prior to the application, or is otherwise substantially connected to Hong Kong, Parent And Child Ordinance (Cap 429) s 6(2). Adoption orders of Hong Kong courts require that both the applicant and the child to be adopted are Hong Kong residents, Adoption Ordinance (Cap 290) s 5(6). In contrast, jurisdiction to make orders regarding child custody, guardianship and maintenance (→Guardianship, custody and parental responsibility) does not require any of the parties to be domiciled in Hong Kong, Guardianship of Minors Ordinance (Cap 13) s 26. In proceedings for divorce, nullity or judicial separation Hong Kong courts may order a spouse financially to support a child of the family, Matrimonial Proceedings and Property Ordinance (Cap 192) s 5.

5. Immunity

Hong Kong law grants →immunity to foreign states, governments, consulates and diplomats, international organizations as well as the Chinese state and its representatives. Related issues were much discussed in the context of FG Hemisphere Associates LC v Democratic Republic of Congo ([2011] 14 HKCFAR 395). In this case the Standing Committee of the PRC National People’s Congress issued an interpretation according to which Hong Kong courts have to follow PRC rules and policies on foreign state immunity. Consequently, they have to respect absolute state sovereignty and are not to apply the restrictive doctrine of state immunity which prevailed prior to the handover (see Po Jen Yap, ‘Democratic Republic of Congo v FG Hemisphere: Why Absolute Immunity Should Apply But Reference Unnecessary’ (2011) 41 HKLJ 77, 77–84).

VI. Choice-of-law principles

1. Obligations

Hong Kong’s private international law follows the common law proper law of contract rule (→Proper law (doctrine)). Consequently, contracts are subject to the law chosen by the parties either expressly or impliedly. It appears that no minimum connection between the contract and the country of the chosen law is required. Hong Kong courts have expressed reservations concerning floating law clauses (see Chan Chi Keung & Another v Delmas Hong Kong Ltd [2004] HKEC 1042, [31–2], Court of First Instance (Sakhari J); →Floating choice of law) and there is no Hong Kong authority on the question whether the concept of →dépeçage is supported by Hong Kong law (Lutz-Christian Wolff, Hong Kong Conflict of Contract Laws: Quo Vadis? (2010) 6 J Priv Int L 465, 472). If the parties have failed to choose the applicable law or if their choice is not valid, then the applicable law is the law with which the transaction has the closest and most real connection based on every circumstance connected with it (Lutz-Christian Wolff, Hong Kong Conflict of Contract Laws: p. 1Quo Vadis? (2010) 6 J Priv Int L 465, 468–72). Special rules apply in particular areas such as employment law.

In tort law Hong Kong follows the traditional common law doctrine of ‘double actionability’. A tort law claim must consequently be actionable under the law of Hong Kong (→Lex fori) and under the law of the place where the tort was committed (lex loci delicti) (Phillips v Eyre (1870) L.R. 6 QB 1; Boys v Chaplin [1971] AC 356). However, flexible exceptions to this general rule are possible if ‘clear and satisfying grounds are shown why it should be departed from that rule’ (Red Sea Ins Co Ltd v Bouygues [1995] 1 AC 190). Until today it has not entirely clear what this precisely means. The exception was applied eg in the case of a road traffic accident in mainland China involving parties resident or incorporated in Hong Kong (Kwok Yu Keung v Yeung Pang Cheung and Others [2005] HKEC 1434). The doctrine of double actionability is no longer applied eg in England (→United Kingdom), →Australia and →Canada.

There is no Hong Kong authority on →Choice of law issues relating to →Unjust enrichment (restitution) cases with a foreign element (First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd [2012] HKEC 946 [66], CFA). It appears that the law governing claims in this area must be identified on the basis of the closest and most real connection test, with different factors to be considered depending on the basis of the claim in a particular case (First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd [2012] HKEC 946 [66], CFA; Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 292–322).

Finally, Hong Kong law is unclear on the issue of characterization of the nature of a claim (→Classification (characterization)). It appears that characterization is to be treated as a matter of the lex fori with, however, some flexibility being available (Susanne Deissner, Interregionales Privatrecht in China (Interregional Private Law in China) (Mohr Siebeck 2012) 395).

2. Property

Hong Kong’s private international law regarding movable and →immovable property follows the lex situs rule. In principle property-related issues are therefore governed by the law of the place where the property is located. Uncertainties exist when the situs cannot be clearly identified such as in relation to goods in transit as well as ships and aircraft en route, and in relation to intangible property. It has been suggested that for goods in transit the parties’ choice or otherwise the closest and most real connection should determine the applicable law (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 339). As for ships and aircraft in transit, Lord Collins of Mapesbury and others (eds), Dicey, Morris and Collins on the Conflict of Laws (15th edn, Sweet & Maxwell 2012) (24.017) have proposed regarding the port of registry as the situs, whereas Graeme Johnston (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 340) prefers the determination of the applicable law on the basis of the closest and most real connection test. For contractual debts normally the situs is where they will (potentially) be recovered (Kwok Chi Leung Karl v Commissioner of Estate Duty [1988] 2 HKLR 643, 648). As for proprietary questions regarding other intangible property, the lex situs rule should apply although authorities are not always straightforward regarding what the situs is.

3. Intellectual property

Issues related to intellectual property appear to be governed by the law under which they exist (see for patents Re Merck Sharp & Dohme Ltd [2002] 3 HKLRD 221 [5]‌ (Martin Rogers (ed), Hong Kong Civil Procedure (The Hong Kong White Book Service 1) 2013 (Sweet & Maxwell/Thomson Reuters 2012) V-P); Ruth Cowley and others, Conflict of laws in China for Foreign-Related Civil Relationships (2011), available online at , last accessed on 26 March 2017) (→Intellectual property, applicable law).

4. Corporations

Issues regarding the incorporation, operation, representation as well as winding-up and dissolution of corporations are determined by the law of the country of incorporation (→Companies). The question of capacity is apparently governed by both the law of the place of incorporation and by the lex causae, ie the law governing the transaction (Lord Collins of Mapesbury and others (eds), Dicey, Morris and Collins on the Conflict of Laws (15th edn, Sweet & Maxwell p. 12012) Rule 175; cf The Convenience Container [2004] HKEC 405). For Taiwanese corporations and corporations established in other states not recognized by the PRC’s Central People’s Government, these principles apply mutatis mutandis according to the Foreign Corporations Ordinance (Cap 437) s 2.

5. Family matters

Section 40 of the Marriage Ordinance (Cap 181) provides that ‘(1) Every marriage under this Ordinance shall be a Christian marriage or the civil equivalent of a Christian marriage. (2) The expression “Christian marriage or the civil equivalent of a Christian marriage” implies a formal ceremony recognized by the law as involving the voluntary union for life of one man and one woman to the exclusion of all others.’ Foreign marriages (→Marriage) may, however, also be recognized without formal ceremony (Matrimonial Causes Ordinance, (Cap 179) s 20A; Wong Zhong Lan Xiang v Wong [2003] HKEC 421, [3]‌). Formalities of a marriage must satisfy the legal requirements at the place where the marriage is celebrated (Tang Lai Sau-Kiu v Tang Loi [1987] HKLR 85, Court of Appeal; cf Ruth Cowley and others, Conflict of laws in China for foreign-related civil relationships (2011), available online at , last accessed on 26 March 2017). Concubinage was abolished in Hong Kong as of 7 October 1971 and polygamous marriages of Hong Kong residents celebrated in Hong Kong or abroad afterwards are consequently not valid in Hong Kong (Marriage Reform Ordinance (Cap 178) s 5(1); Suen Toi Lee v Yau Yee Ping (2001) 4 HKCFAR 474). →Same-sex marriages or other same-sex relationships are not yet recognized by Hong Kong law, and it is currently unclear what this means for foreign same-sex unions (see Keith Hotten, Hong Kong Family Court Practice (LexisNexis 2010) 2.33). The capacity to marry and the required consent of the spouses is a matter of the law of the respective antenuptial domicile (→Domicile, habitual residence and establishment), subject to Hong Kong’s policy reservation (Suen Toi Lee v Yau Yee Ping (2001) 4 HKCFAR 474). There are no Hong Kong authorities on private international law aspects of →Matrimonial property. Graeme Johnston (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 441–2) has suggested that rather than following the sometimes outdated English case-law, the spouses’ consensual arrangements, including those regarding the governing law, should prevail, and absent such an arrangement the law of the matrimonial domicile should govern. Proceedings before Hong Kong courts regarding divorce, judicial separation and presumptions of death are subject to Hong Kong law provided that jurisdiction can be established, Matrimonial Causes Ordinance (Cap 179) s 8. Foreign divorces and legal separations are recognized provided at the date of the institution of the proceedings (i) either spouse was habitually resident in that jurisdiction, or (ii) either spouse was a national of that place, Matrimonial Causes Ordinance (Cap 179) ss 55–63. Hong Kong law applies in relation to ancillary relief following divorce, annulment or legal separation, but it has been suggested that foreign law may be considered in foreign-related cases ‘as part of the discretionary analysis required by … substantive law’ (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 460).

6. Inheritance matters

As a general principle a will is to be treated as formally valid ‘if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national’, Wills Ordinance (Cap 30) s 24. Wills executed on board of an aircraft or vessel are regarded as properly executed if the execution conforms with the law of the territory with which the aircraft or vessel is most closely connected, Wills Ordinance (Cap 30) s 25(1)(a). For wills which dispose of immovable property, it is sufficient to comply with the lex situs, Wills Ordinance (Cap 30) s 25(1)(b). Material validity and personal capacity of the testator are in the case of movables determined by the law of the testator’s domicile and in the case of immovable property by the lex situs (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 500). For intestate succession the law of the deceased’s domicile at death governs issues related to movables whereas for immovables the lex situs prevails (Graeme Johnston, The Conflict of Laws (2nd edn, Sweet & Maxwell 2012) 498) (→Succession).

VII. p. 1Arbitration

The main source of Hong Kong’s arbitration law is the Arbitration Ordinance (Cap 609). The Arbitration Ordinance is based on the UNCITRAL Arbitration Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985 and as amended on 7 July 2006, UN Doc A/40/17 and A/61/17) (→Arbitration (UNCITRAL) Model Law) as amended in 2006 with some deviations to cater to Hong Kong specifics. The Arbitration Ordinance is applicable provided that the parties have reached an arbitration agreement and the place of arbitration is in Hong Kong (Arbitration Ordinance, s 5(1)). Only certain sections of the Arbitration Ordinance apply if the place of arbitration is outside Hong Kong (Arbitration Ordinance s 5(2)). Arbitration agreements must be in writing, which includes arbitration agreements the content of which ‘is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means’ (Arbitration Ordinance s 19). The law applicable to the substance of a dispute is to be determined by the arbitration tribunal based on the parties’ choice and failing any such choice on the basis of the conflicts rules it considers applicable, Arbitration Ordinance s 64 giving effect to art 28 of the UNCITRAL Arbitration Model Law. In principle, arbitration agreements are separable from the main contract. An arbitration tribunal may therefore rule on its own jurisdiction (Arbitration Ordinance s 34(1)). Moreover, the law governing the arbitration agreement or the arbitration procedure can differ from the law governing the underlying primary contract and from the law of the place of arbitration eg because the parties have reached an agreement to this extent.

The applicability of the New York Convention (→Arbitration, recognition of awards) including the PRC’s declarations according to the Convention’s art I(3) was extended to Hong Kong upon the handover. For the interregional enforcement of arbitral awards, Hong Kong has entered into the Arrangement Concerning the Mutual Enforcement of Arbitral Awards Between the Mainland and the Hong Kong Special Administrative Region (1999) (available at <www.doj.gov.hk/eng/mainland/pdf/mainlandmutual2e.pdf>, last accessed on 26 March 2017) and the Arrangement Concerning Reciprocal Recognition and Enforcement of Arbitral Awards between the Hong Kong Special Administrative Region and the Macau Special Administrative Region (2013) (available at <www.legco.gov.hk/yr12-13/english/panels/ajls/papers/aj1214cb4-300-1-e.pdf>, last accessed on 26 March 2017).

Literature