Wilson Lui (Pre-Doctoral Fellow)
in Kazuaki Nishioka (ed), Treatment of Foreign Law in Asia (Hart Publishing: October 2023), Chapter 3, pp. 25–50
Summary: This chapter details the processes to plead and prove foreign law in Hong Kong courts, which follow the ‘traditional ’ or ‘ orthodox ’ views and approaches in common law closely. These processes have been reinforced and supplemented by a wealth of local and overseas authorities in recent years. There might be room for these processes to be further refined or expanded. This chapter argues that some relaxation from the traditional strictures in favour of a more malleable framework on the sources and methods of proving foreign law is not only normatively compelling but also practically sensible. However, it is unlikely that these adjustments will radically change the current regime, or impact greatly on the popularity of Hong Kong as a forum for litigation. Moreover, while an international or regional instrument unifying the treatment of foreign law might be useful, it is unclear how the position in Hong Kong can be reconciled with those in some other civil law jurisdictions in Asia and elsewhere, where a more active and aggressive approach in ascertaining foreign law is taken. Rather, interregional approaches within the Greater Bay Area or Greater China to access and ascertain foreign law might be worth exploring.