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Commercial Dispute Resolution Service

Interpreting 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

By Steven Kou, partner of Rui Bai Law Firm and Lei Yang, Senior Attorney of Rui Bai Law Firm
 

Unit 01, 6/F Fortune Financial Center, 5 Dongsanhuan Zhong Road, Chaoyang District, Beijing 100020, PRC
tel. +86 (10) 8540 4651 | fax +86 (10) 8540 4600 | http://www.ruibailaw.com

BT 201904 legal 01商业纠纷解决服务
关于内地与香港特别行政区法院相互认可和执行民商事案件判决的安排

2019年1月18日上午,最高人民法院和香港特别行政区政府律政司在北京签署《关于内地与香港特别行政区法院相互认可和执行民商事案件判决的安排》。这是自香港回归祖国以来,内地与香港商签的第六项司法协助安排,也是覆盖面最广、意义最为重大的一项安排。该安排的签署,标志着两地民商事领域司法协助已基本全面覆盖。

本文简要介绍了内地与香港司法协助的历史,以及该安排的主要内容和意义。

《安排》共31条,对两地相互认可和执行民商事案件判决的范围和判项内容、申请认可和执行的程序和方式、对原审法院管辖权的审查、不予认可和执行的情形、救济途径等作出了规定。《安排》尽可能扩大了两地相互认可和执行民商事案件判决的范围,将非金钱判项以及部分知识产权案件的判决也纳入相互认可和执行的范围,充分体现了最大限度减少重复诉讼、增进两地民众福祉、增进两地司法互信、贯彻“一国两制”方针的精神。

In the morning of January 18, 2019, the Supreme People’s Court and the Department of Justice of the Hong Kong Special Administrative Region executed 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 (the “Arrangement”) on behalf of the Mainland and Hong Kong respectively, which marks achievement of judicial assistance between the Mainland and Hong Kong in almost all civil and commercial matters.
 

This article briefly introduces the history of the judicial assistance between the Mainland and Hong Kong, as well as the main contents and significance of the Arrangement.

BT 201904 TAX 01History of the judicial assistance between the Mainland and Hong Kong

Before the Mainland and Hong Kong established the system of reciprocal recognition and enforcement of judgments, any creditor’s rights acquired in the Mainland would not be recognised and enforced in Hong Kong, unless the creditor concerned applied for recognition and enforcement under common law or filed a lawsuit in Hong Kong, which lead to high litigation costs.
 

Following the return of Hong Kong to China and with the growing communication between the Mainland and Hong Kong, it becomes increasingly necessary to establish a system of reciprocal recognition and enforcement of judgments. Prior to the execution of the Arrangement, the Mainland and Hong Kong had entered into five mutual judicial assistance arrangements over civil and commercial matters, and the most influential one is 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 Consent Jurisdiction between Parties Concerned (the “Consent Jurisdiction Arrangement ”). Just as the title of the Consent Jurisdiction Arrangement implied, application for recognition and enforcement with courts of either place under the Consent Jurisdiction Agreement may not be possible, unless there is a written consent to jurisdiction.
 

Under the Arrangement, recognition and enforcement is no longer preconditioned on written agreements to jurisdiction. The Consent Jurisdiction Arrangement will be annulled on the effective date of the Arrangement. The Arrangement has yet to become in effect, and the effective date will be announced by the Supreme People’s Court and Hong Kong after completing the relevant procedures.

BT 201904 TAX 02Main contents of the Arrangement

• Scope of reciprocal recognition
The scope of reciprocal recognition and enforcement, between the courts of the Mainland and Hong Kong of legally effective judgments in civil and commercial matters and in relation to civil damages awarded in criminal cases, has been extended to all civil and commercial cases that are not subject to exclusive choice of court agreements. Other than the eight types of cases provided under Article 3 of the Arrangement, most civil and commercial cases in the Mainland and Hong Kong are expected to be reciprocally recognised and enforced.
 

• Excluding application of procedural remedial measures
Judgments defined under Article 4 of the Arrangement include, in the case of the Mainland, any judgment, ruling, conciliatory statement and order of payment, but does not include a ruling concerning preservation measures; and in the case of Hong Kong, include any judgment, order, decree and allocator, but does not include an anti-suit injunction or an order for interim relief. This means no application could be made to a court in Hong Kong for recognising and enforcing a ruling concerning preservation measures rendered by a Mainland court on an ongoing case in the Mainland, but it does not mean that it is impossible to apply to a court in Hong Kong for preservation of property in accordance with law of Hong Kong.
 

• Courts with jurisdiction
In the Mainland, application should be filed with an Intermediate People's Court of the place of the applicant’s or the respondent’s domicile, or the place where the property of the respondent is located; and in Hong Kong, application should be filed with the High Court. The “applicant’s domicile” is added as a new connection to court jurisdiction.
 

• Provisions regarding judgments subject to retrial decisions by courts of the Mainland
Where, in the case of a judgment given by a people's court of the Mainland, a decision of retrial has been made by the people 's court of the Mainland, the court of Hong Kong may, upon examination and verification of the above, suspend the recognition and enforcement proceeding. After the retrial, the recognition and enforcement proceeding shall be resumed if the original judgment is upheld in whole or in part, or terminated if the original judgment is reversed upon retrial.
 

• Contents of judgements reciprocally recognised and enforced
Reciprocal recognition and enforcement of judgments include both monetary and non­monetary rulings. Where the judgment provides for punitive or exemplary damages, the punitive or exemplary part of the damages would not be recognised and enforced, except as otherwise provided under Article 17.
 

In addition, the Arrangement also provides for materials required to be submitted in filing an application, information required to be included in an application, the time limits, procedures and manner for filing an application, circumstances under which courts shall refuse recognition and enforcement, and the scope of recognition and enforcement in respect of judgments for the award of property.

BT 201904 TAX 03Significance of the Arrangement

After Hong Kong’s reunification, the original common law system of Hong Kong has been retained based on the constitutional system established under the Constitution of the People’s Republic of China and the Basic Law of the Hong Kong Special Administrative Region of the People's Republic. As the legal system of Hong Kong is different from that of the Mainland, inter-regional judicial assistance is required.
 

Yang Wanming, the vice president of the Supreme People's Court, said that the execution of the Arrangement by the Mainland and Hong Kong is another major measure to implement and enrich the "one country, two systems" policy in the form of legal documents, marking the further improvement of the inter-regional judicial assistance system with Chinese characteristics, which is a major accomplishment and is of extraordinary significance. It is conducive to greatly reducing re-litigation, to further saving the judicial costs and to providing better judicial guarantees for the economic and social development of both the Mainland and Hong Kong. It is a gift from the law practitioners of both the Mainland and Hong Kong to commemorate the 40th anniversary of the reform and opening up of China and the 70th anniversary of the founding of New China.

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