By Renee Gu King & Wood Mallesons’ Dispute Resolution Gourp
Commercial disputes are inevitable in the commercial world. It is often crucial to find the most cost-effective and expeditious way to resolve the dispute.
Hong Kong is Asia’s most international city with a vibrant and cosmopolitan community where East meets West, the key attributes of which include a level playing field for entrepreneurs of all nationalities; an educated and skilled workforce; an unrivalled location as the gateway to China; the rule of law being upheld and respected by a clean government; low taxes funding world class infrastructure; a free flow of information; and international lifestyle[i].
The mature and reliable legal infrastructure in Hong Kong includes a world-class regulatory framework, corporate governance, investor protection, corruption-free business environment and familiar commercial legal principles. It is one of the main reasons for choosing Hong Kong as a stepping stone into China and the rest of the Asia Pacific region. It is well recognized that Hong Kong is an ideal venue for commercial dispute resolutions.
Let us now look at thelegal system and civil procedures for commercial dispute resolution in Hong Kong.
II．Hierarchy of Courts
In Hong Kong, the Court of Final Appeal, Court of Appeal, the Court of First Instance and the District Court have jurisdiction over civil matters. The Court of Final Appeal is the highest appellate court in Hong Kong. The Court of Appeal hears appeal on all matters, civil and criminal, from the Court of First Instance and the District Court.
The civil jurisdiction of the Court of First Instance is unlimited. The District Court has civil jurisdiction to hear monetary claims over $50,000, but not more than $1,000,000.
III．The rule of law in Hong Kong
Hong Kong is a common law jurisdiction. The common law is essentially judge-made law and is to be found primarily in the judgments of the courts of Hong Kong and other common law jurisdictions.
Other than the common law, statutes also govern civil proceedings in Hong Kong. The vast majority of statute law in force in Hong Kong is made locally and contained in the Laws of Hong Kong.
IV．Adversarial System of Justice
Hong Kong has adopted the common law adversarial system of procedure which is distinct from the inquisitorial system used in civil law jurisdictions. Under an adversarial system, investigation is left to the discretion and initiatives of the parties to the claim and the judge merely takes a passive role listening to evidence from the two sides, the plaintiff and the defendant respectively[ii].
It is generally recognized that Hong Kong is one of the best commercial dispute resolution centers as Hong Kong has a well-developed and reliable legal system with an experienced judiciary[iii] with a comprehensive and sophisticated set of procedural rules to regulate the civil process. After looking at the basic features of the legal system in Hong Kong, we are now going to highlight some key aspects of the civil procedures in Hong Kong.
V．Proceedings of Civil Action
VI．Main Features of the Civil Procedures
A．Filing of writ of summons and statement of claim
A writ of summons and statement of claim is used to commence an action based in contract, quasi-contract, tort, fraud, breach of duty where the damages consist of or include damages for death of or personal injuries to any person, or in respect of damage to property and for all actions involving a substantial dispute of facts.
B．Filing and serving of defence by the defendant and filling and serving of reply by the plaintiff
If the defendant files a defence/counterclaim within 28 days upon receipt of the statement of claim, the plaintiff will have 14 days to file and serve a reply.
Next, each side must disclose to the other the documents he possesses that relate to the case. This stage is known as “discovery”. The purpose of discovery is to compel each party to a dispute to disclose to the other party all of the documents that it has or had in its possession, power, custody or control that relate to any of the matters at issue in the litigation and to allow inspection of those documents. All documents disclosed on discovery are subject to an implied undertaking that they will be used by the parties only for the purposes of the litigation concerned.
As a general rule, discovery of documents cannot be obtained against a stranger; nor is it proper to join a stranger as a party merely for the purpose of discovery. If documents or information in the possession of a stranger are required, it is ordinarily necessary to call him as a witness at the hearing. However, the court has the power to order a person who is not a party to the proceedings and who appears to the court as likely to have in his possession, custody or power relevant documents to disclose and produce those documents.
A plaintiff must issue a case management summons for the court to give directions relating to the management of the case.
The court will fix a timetable for the steps to be taken and may fix a milestone date for a case management conference, pre-trial review, or the trial.
Both parties should attend before the court on the trial date. At the trial, the court will hear the evidence of witnesses and the submissions of the parties.
VII．Enforcement of Judgments
Set out below are the common ways to enforce a judgment rendered by the Hong Kong courts.
A．Writ of fieri facias
The court bailiff carries out the execution by seizing the judgment debtor’s goods and chattels up to a value that includes the judgment debt plus interest, and the cost of execution. The property is then sold, usually by public auction.
When a third party owes money to a judgment debtor, the judgment creditor may attach that money or debt by obtaining a garnishee order absolute, which orders the third party to pay the money to the judgment creditor instead.
If the judgment debtor does not appear to have any liquidated funds available to satisfy the judgment, but owns a property, then the judgment creditor may apply for a charging order over the property, which will give security that is second only to any prior mortgage or other charge entered.
D．Winding-up and bankruptcy proceedings
Winding-up and bankruptcy proceedings may be commenced against the judgment debtor if it appears that the judgment debtor is insolvent and is unable to pay the judgment debt.