A significant step towards simpler judicial procedures and reduced re-litigation: Hong Kong and the Mainland sign a broader arrangement to recognise and enforce judgments in civil and commercial matters

On Friday 18 January 2019, Hong Kong and the Mainland reached a milestone by signing the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters between the Courts of the Mainland and of the Hong Kong Special Administrative Region (“Arrangement“). When taken together with other similar arrangements that are in train, the Mainland Supreme People’s Court envisages that approximately 90% of judgments of a civil and commercial nature will soon be reciprocally recognised and enforced between Hong Kong and the Mainland. The Arrangement sets out, amongst others, the scope of judgments, jurisdictional grounds, grounds for refusing the reciprocal recognition and enforcement of judgments (“REJ“), and procedural requirements. It will be implemented by local legislation in Hong Kong and take effect after both systems have completed the necessary procedures to enable implementation. Once implemented, the Arrangement will apply to judgments made on or after the commencement date. Continue reading

Hong Kong Court of Appeal ends 12-year Xiamen v Eton Properties saga

As discussed in this post, Xiamen Xingjingdi Group Co Ltd (XJ) and various co-defendants affiliated with Eton Properties Ltd (together, EP) have been involved in a long-running dispute in multiple fora, including a PRC-seated CIETAC arbitration and several Hong Kong court proceedings. The case appears now to have come to an end, with the Court of Appeal (Court) confirming its position on common law actions to enforce arbitral awards and rejecting both parties’ applications for leave to appeal the Court’s 15 April 2016 judgment.

Continue reading

China’s new law on judicial assistance in criminal matters will impact investigations

The People’s Republic of China recently enacted a new law that will impact foreign authorities, corporations and individuals involved in overseas criminal enforcement actions. The Law on International Judicial Assistance in Criminal Matters allows Chinese authorities to block requests for documents, testimony and assets requested in international criminal investigations.

The law introduces new procedures governing how and when assistance should be provided with approval from a “Chinese competent authority” (eg the National Supervisory Commission, the Supreme People’s Court, the People’s Procuratorate, Ministries of National and Public Security) required before a Chinese entity or individual provides assistance to a foreign body or person.

The law’s stated goal is simultaneously to curb corruption and stem extra-territorial claims by foreign authorities, some of whom approach Chinese counterparts/contacts direct for evidence. The law acts as a break on this practice and allows China to screen requests and withhold its consent. For jurisdictions where treaties are already in place (like the UK, US and 39 others), there may be little change as similar procedures already apply. But for jurisdictions without a treaty in place, or where informal practices have evolved in lieu of treaty provisions, this creates a new procedural hurdle in the context of criminal investigations. Continue reading

Supreme People’s Court Issues Rules of Procedure for the China International Commercial Courts

On 1 July 2018, the Supreme People’s Court of China (SPC) promulgated Provisions on Several Issues Regarding the Establishment of International Commercial Courts (Fa Shi 2018 – No.11). We reported this major development here. The SPC has now, on 5 December 2018, released further rules canvasing out the operation of the China International Commercial Courts (CICC).

On 5 December 2018, the CICC Rules of Procedure (trial implementation) (Fa Fa Ban 2018 – No.13) (CICC Rules of Procedure) came into force. The SPC promulgated concurrently the Working Rules of the CICC Expert Committee (CICC Expert Committee Rules) (Fa Fa Ban 2018 – No.14). Also issued on the same day was the SPC’s Notification on the International Commercial Arbitration and Mediation Institutions Included in the “One-stop-shop” International Commercial ADR Mechanism (Fa Ban 2018 – No.12) (One-stop-shop Institutions Notification).

These rules provide further details on the CICC and its procedure. However, the CICC Rules of Procedure, consisting of only 40 articles, are still relatively brief. It appears that the CICC Rules of Procedure have its blueprint from the Chinese civil procedure law, and not international arbitration rules. It is likely that, when applying these rules in practice, reference to PRC civil procedure rules will need to be made frequently. We will now turn to the features of these new rules. Continue reading

Hong Kong Courts refuse challenge to recognise mainland judgment under the Mainland Judgments (Reciprocal Enforcement) Ordinance

In the case of Wang Qian Wei v 郭文雨 & 郭小琼 [2018] HKCFI 2253, the 1st Defendant (a judgment debtor) opposed the Plaintiff’s (the judgment creditor) application to register a judgment of the Intermediate People’s Court of Xiamen (the Mainland Judgment) pursuant to the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597) (the Ordinance). The 1st Defendant relied on three grounds of objections, all of which were dismissed by the Court of First Instance (the Court). Specifically, this case serves as a good reminder that (i) the Ordinance does not restrict applicants for the registration of a Mainland judgment to the original parties to any specified contracts only; and (ii) in the absence of expert evidence on foreign law, it is presumed that the laws of the foreign jurisdiction are the same as Hong Kong laws. Continue reading

HONG KONG HIGH COURT PROVIDES GUIDANCE ON THE ENFORCEMENT OF MAINLAND JUDGMENTS IN HONG KONG

The Hong Kong Court of First Instance (“CFI“) recently handed down judgment in Export-Import Bank of China v Taifeng Textile Group Co. Ltd and Another [2018] HKCFI 1840, which concerns the enforcement of a Mainland judgment in Hong Kong. The CFI provided guidance on various aspects of the enforcement exercise which serves as useful practice reminders for practitioners. Continue reading

Admissibility of foreign judicial documents as evidence in subsequent civil proceeding

The Hong Kong Court of First Instance recently in Capital Century Textile Co Ltd v Li Dianxiao [2018] HKEC 1429 considered the question in relation to the admission of a PRC criminal judgment as evidence in Hong Kong civil proceedings. This article discusses and compares the position in Hong Kong and in the Mainland China.

Hong Kong

It is a well-established rule of evidence in common law jurisdictions that judicial and factual findings in earlier proceedings are not admissible for use in subsequent ones. This is known as the Hollington principle, which has long been a source of controversy for its inflexibility. The principle has been modified by s62 of the Evidence Ordinance in Hong Kong to allow the admission of domestic criminal convictions as evidence in subsequent civil proceedings.

In Capital Century Textile Co Ltd v Li Dianxiao [2018] HKEC 1429, Capital Century sought to adduce and rely on a PRC judgment in criminal proceedings against Li in the 2nd Intermediate People’s Court in Beijing, as evidence to undermine the defence of Li in the Hong Kong civil proceedings. The Hong Kong Court of First Instance was required to determine the admissibility of the PRC judgment. In this case, the judge reaffirmed that the application of the Hollington principle and its importance to ensuring the right to a fair trial.

Essentially, the right to a fair trial requires an impartial and independent judge to formulate his own opinions based on the admissible evidence and the submissions made to him. He should not be influenced by the opinion of someone else. If findings of fact and inferences made by another judge were admitted in later proceedings, there is a risk that the subsequent decision-maker would be influenced by the opinion of the earlier adjudicator. This principle is only subject to limited exceptions of opinions of scientific and expert witnesses who might be better placed to evaluate a specialist area than the judge, and where the findings are binding on other courts by reason of “estoppel per rem judiciatam” (i.e. a doctrine which bars a party from litigating a specific issue that has been decided in prior separate proceedings).

At the same time, it is also important to note that the Hollington principle does not impose a blanket ban on admitting earlier judicial findings in subsequent proceedings. The admissibility question is a fact-sensitive one and should be examined with the purpose of the principle in mind. For example, if the judgment sought to be adduced only summarizes and report factual evidence presented in that court, without any element of judicial judgment and opinion, there is no risk of influencing the subsequent adjudicator with another’s opinion. In the circumstances, in Capital Century, the court delineated different sections in the PRC judgment in its analysis. In doing so, it held admissible the section which merely summarized the factual evidence presented in the 2nd Intermediate People’s Court in Beijing, and held inadmissible the evidence which engaged the opinion of the PRC court – hence triggering the operation of the Hollington principle.

Mainland China

Courts in Mainland China take a similar approach to the admissibility of foreign judicial documents in the PRC court proceedings. “Foreign judicial documents” refer to judgments and arbitration awards rendered outside the territory of Mainland China. Judgments and awards rendered in Hong Kong are considered foreign judicial documents for this purpose.

There is no specific rule regarding whether Hong Kong judgments or awards can be directly admitted as evidence by the Mainland courts.

Under PRC law, a foreign judgment or foreign arbitral award could be recognised by the Mainland courts pursuant to a reciprocal judgement enforcement treaty or the New York Convention. According to the arrangement for mutual recognition and enforcement of civil and commercial judgments between Mainland China and Hong Kong,[1] subject to certain conditions, Hong Kong judgments can be recognised in the Intermediate People’s Court at the place of domicile or ordinary residence of the party against whom the recognition application is filed, or the place where the property of that party is situated.

Alternatively, a foreign judgement could be admitted as evidence in the same way as a normal documentary evidence created outside of China, by being notarised, authenticated, or certified through procedures stipulated in the relevant treaty concluded between the PRC and that foreign country.[2] Documentary evidence created in Hong Kong would need to be (i) attested by a China-Appointed Attesting Officer entrusted by the Mainland[3]; and then (ii) examined and transmitted by the China Legal Service (H.K.) Ltd, with its seal with specified usage and receiving court. In 2015, the Supreme People’s Court further clarified that notarisation, authentication or certification procedures are not necessarily the prerequisite of courts’ assessment of the factual findings unless such evidence concerns the parties’ identification.[4]

However, factual findings contained in foreign judicial documents are inadmissible in the Mainland courts. For all the evidence developed outside of Mainland China, the Mainland courts are required to form their own views on the admissibility after examining the factual evidence referred to in the factual findings of the foreign judicial documents, and taking into account the parties’ views on such factual evidence. Therefore, unless consented to by both parties, factual findings in foreign judicial documents would only be admitted after the Mainland courts conduct their independent examination and assessment of evidence.

Similarly, judicial findings, opinions and comments of foreign courts that are prepared by foreign judges based on their understanding of procedural and substantive laws of that country or region are also inadmissible in the Mainland court.

Conclusion

As cross-border commercial activities increase, there has been an increasing amount of disputes involving proceedings in both the Mainland and Hong Kong. The admissibility of Hong Kong judicial documents or judgments in support of Mainland proceedings (and vice versa) is clearly an important aspect in the overall strategy.

 


[1] Arrangement of the Supreme People’s Court between the Courts of the Mainland and the Hong Kong Special Administrative Region on Mutual Recognition and Enforcement of Judgments of Civil and Commercial Cases under the Jurisdiction as Agreed to by the Parties Concerned (Fa Shi [2008] No. 9)

[2] Article 11 of the Provisions of the Supreme People’s Court on Evidence in Civil Proceedings (Fa Shi [2001] No.33)

[3] Management Measures of China-Appointed Attesting Officer (Hong Kong) (2002) (Order No. 69, Ministry of Justice)

[4] Supreme People’s Court’s Minutes of the Second National Working Conference on the Trial of Foreign-Related Commercial and Maritime Cases (Fa Fa [2005]) No.26)

 

Dominic Geiser
Dominic Geiser
Partner, dispute resolution, Hong Kong
+852 2101 4629
Helen Tang
Helen Tang
Partner, dispute resolution, Shanghai
+86 21 2322 2160
Rachel Yu
Rachel Yu
Senior Associate, dispute resolution, Hong Kong
+852 2101 4220
Celine Wang
Celine Wang
Senior Associate, dispute resolution, Shanghai
+86 21 2322 2159
Weina Ye
Weina Ye
Senior Associate, dispute resolution, Shanghai
+86 21 2322 2132

HONG KONG COURT GRANTS ANTI-SUIT INJUNCTION TO RESTRAIN CONTINUATION OF PRC PROCEEDINGS

In Chen Hongqing v Persons whose names are set out in the second column of the Schedule Hereto, HCA 2648/2017 (unrep., 29 May 2018), the Hong Kong Court of First Instance granted an anti-suit injunction in favour of the Plaintiff, an intended purchaser of a Hong Kong company, to restrain the continuation of certain PRC proceedings commenced by the Defendants. Considerations such as non-exclusive jurisdiction clause, a real risk of deprivation of a fair trial in the foreign court and coercion exerted by senior management to cooperate with the local government were all relevant to the Court’s decision. Continue reading

CROSS-BORDER LITIGATION: INTERNATIONAL PERSPECTIVES

We are pleased to release the third issue of our periodic publication “Cross-Border Litigation”, designed to highlight legal and practical issues specific to litigation with an international aspect.

Tapping into the expertise of the firm’s leading commercial litigators across the globe, the publication gives readers the benefit of their hands-on experience and flags key developments that should be on commercial parties’ radars.

Topics covered in this issue include:

  • A selection of recent developments from across the globe
  • Litigation funding on the rise internationally
  • Judicial turf wars in Dubai
    Is this the end of the “conduit” jurisdiction?
  • Multi-jurisdictional litigation: Lessons from cross-border intellectual property enforcement
  • Introducing…
    Our new Milan office and Laura Orlando
  • The growing “internationalisation” of China’s courts
  • Indonesia-related commercial contracts
    Guide to dispute resolution clauses

To download the publication, click here.

To read the previous issues, click here.

Adam Johnson QC
Adam Johnson QC
Partner
+44 20 7466 2064
Anna Pertoldi
Anna Pertoldi
Partner
+44 20 7466 2399
Jan O'Neill
Jan O'Neill
Professional Support Lawyer
+44 20 7466 2202

Justin D’Agostino to lead ICC Court’s new Belt and Road Commission

Justin D’Agostino, Herbert Smith Freehills’ Global Head of Disputes, has been appointed chair of a new ICC Court commission to develop the ICC’s approach to dispute resolution procedures for China’s Belt and Road initiative.

“There is no ‘one-size-fits-all’ method of resolving Belt and Road disputes. But there is a concerted effort to encourage mediation clauses in Belt and Road agreements, with provision for arbitration if mediation fails,” said D’Agostino, who is also Hong Kong’s alternate member of the ICC Court.

“ICC is already a world leading provider of arbitration and mediation services, with tried and tested mechanisms and a strong pool of arbitrators and mediators. It is ideally placed to provide appropriate, effective dispute resolution services to parties all along the New Silk Road”.

The massive scale of Belt and Road is generating huge numbers of infrastructure projects across Asia and beyond – and every new project also has the potential for complex disputes.

Herbert Smith Freehills is engaged in a significant quantity of work generated by the US$900 billion Belt and Road initiative, advising on deals and projects worth over US$10 billion. Last week, the firm welcomed three new partners to our Greater China practice. Hew Kian Heong, Ellen Zhang and Michelle Li will further strengthen our existing team advising clients on Belt and Road projects.

“As China’s new business champions go global, we are increasingly well-placed to advise them on expansion around the globe, including any international disputes that may arise – both along the Belt and Road and other investment corridors,” said D’Agostino.

Click here for more on resolving disputes that arise out of Belt and Road transactions. This article originally appeared in the 5th edition of our quarterly publication, Inside Arbitration.

For further information, please contact Justin D’Agostino, Global Head of Practice – Dispute Resolution and Regional Managing Partner – Asia, or your usual Herbert Smith Freehills contact.

Justin D'Agostino
Justin D'Agostino
Global head of practice, dispute resolution and regional managing partner, Asia
+852 2101 4010